Delhi High Court
Ex. Nk Krishnan Kumar & Ors. vs Union Of India & Ors. on 23 December, 2010
Author: Manmohan
#35
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 526/2010
EX. NK KRISHNAN
KUMAR & ORS. ..... Appellant
Through: Mr. Harish Malhotra, Senior
Advocate with Mr. Dhruv Kapur
and Mr. Siddharth Silwal,
Advocates
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Ms. Jyoti Singh, Advocate
% Date of Decision : 23rd December, 2010
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
JUDGMENT
MANMOHAN, J
CM No. 23189/2010 IN REV. PET 542/2010
Allowed, subject to all just exceptions.
The application is, accordingly, disposed of.
CM No. 23188/2010 IN REV. PET 542/2010
This is an application for condonation of delay in filing the
review petition.
For the reasons stated in the application, delay in filing the
review petition is condoned.
The application is, accordingly, disposed of.
REVIEW PET. 542/2010 & CM 23187/2010 IN LPA 526/2010
1. The present review petition has been filed under Order 47 read
with Section 151 of the Code of Civil Procedure, 1908 for review of the
order dated 2nd August, 2010 passed by this Court in LPA 526/2010
whereby the appeal was dismissed.
2. Mr. Harish Malhotra, learned senior counsel for petitioner
submitted that the allotment of shops by the Ministry of Defence was
for the purposes of rehabilitation of war widows and ex-servicemen,
which was a welfare measure, and thus, the court erred in limiting itself
only to the legal aspects of termination of licence.
3. Mr. Malhotra further submitted that Ministry of Defence is the
sole licensor of the said shop which cannot be taken away by issuance
of Standing Operating Procedure (SOP) dated 13th April, 2007 issued
by Station Commander, who is a subordinate executive, at his whims
and fancies. Further, Mr. Malhotra submitted that this Court erred in
not appreciating the distinction between regimental shops and shops in
shopping centre. He further submitted that the said shops were allotted
in pursuant to letter no. 1750/DGR/Shop/SE-10 dated 31st August, 1998
by the Ministry of Defence and not in pursuance of SOP of 2001 or
SOP 2007.
4. Having heard the parties, we are of the considered opinion that
the present petition is not within the purview of Order 47 Rule 1 of
CPC. In fact, the present petition though styled as a review, is an
appeal in disguise. In this connection, we may refer with profit to a
judgment of Supreme Court in Parsion Devi & Ors. Vs. Sumitri Devi
& Ors., (1997) 8 SCC 715 wherein the Apex Court has held as under:-
"7. It is well settled that review proceedings have to be
strictly confined to the ambit and scope of Order 47 Rule 1
CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. (SCR
at p.186) this Court opined:
"What, however, we are now concerned with is whether
the statement in the order of September 1959 that the case
did not involve any substantial question of law is an „error
apparent on the face of the record‟). The fact that on the
earlier occasion the Court held on an identical state of
facts that a substantial question of law arose would not
per se be conclusive, for the earlier order itself might be
erroneous. Similarly, even if the statement was wrong, it
would not follow that it was an „error apparent on the
face of the record‟, for there is a distinction which is real,
though it might not always be capable of exposition,
between a mere erroneous decision and a decision which
could be characterised as vitiated by „error apparent‟. A
review is by no means an appeal in disguise whereby an
erroneous decision is reheard and corrected, but lies only
for patent error." (emphasis ours)
8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury
while quoting with approval a passage from Aribam
Tuleshwar Sharma v. Aribam Pishak Sharma this Court once
again held that review proceedings are not by way of an
appeal and have to be strictly confined to the scope and ambit
of Order 47 Rule 1 CPC.
9. Under Order 47 Rule 1 CPC a judgment may be open to
review inter alia if there is a mistake or an error apparent on
the face of the record. An error which is not self-evident and
has to be detected by a process of reasoning, can hardly be
said to be an error apparent on the face of the record
justifying the court to exercise its power of review under
Order 47 Rule 1 CPC. In exercise of the jurisdiction under
Order 47 Rule 1 CPC it is not permissible for an erroneous
decision to be "reheard and corrected". A review petition, it
must be remembered has a limited purpose and cannot be
allowed to be "an appeal in disguise".
10. Considered in the light of this settled position we find that
Sharma, J. clearly overstepped the jurisdiction vested in the
Court under Order 47 Rule 1 CPC. The observations of
Sharma, J. that "accordingly, the order in question is
reviewed and it is held that the decree in question was of
composite nature wherein both mandatory and prohibitory
injunctions were provided" and as such the case was covered
by Article 182 and not Article 181 cannot be said to fall
within the scope of Order 47 Rule 1 CPC. There is a clear
distinction between an erroneous decision and an error
apparent on the face of the record. While the first can be
corrected by the higher forum, the latter only can be
corrected by exercise of the review jurisdiction........."
5. Consequently, the present review petition and application are
dismissed but with no order as to costs.
MANMOHAN, J
CHIEF JUSTICE
DECEMBER 23, 2010
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