Shital Prashad Kalra vs Naresh Bahadur & Ors.
2018 Latest Caselaw 2106 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                     Date of Decision : 05.04.2018

+              RFA 514/2015 & REVIEW APPL. 355/2017
       SHITAL PRASHAD KALRA                    ..... Appellant
                    Through: Dr.Ashwani Bharadwaj, Advocate.

                          versus

       NARESH BAHADUR & ORS.                             ...Respondents
                   Through: None.
       CORAM:
       HON'BLE MR. JUSTICE VINOD GOEL

VINOD GOEL, J. (Oral)

REVIEW APPL. 355/2017

1. The petitioner seeks review of the judgment dated 23.05.2017 passed in RFA 514/2015.

2. The facts giving rise to filing of this Review Application are that in the month of May, 2010, the petitioner had deposited Rs.2,21,000/- in the bank account of proprietary firm of respondent No.1, Rs.1,49,000/- in bank account of respondent No.1 and Rs.1,50,000/- in the bank account of respondent No.3. These deposits were allegedly made by the petitioner on an assurance of respondents No.1 and 2 that the amount so deposited shall carry interest @24% per annum. The learned Additional District Judge-II, Central District, Tis Hazari Courts, Delhi (in short „learned ADJ‟), by its judgment and decree dated 06.04.2015 found that the suit of the petitioner for

recovery of Rs.10,19,200/- having been filed on 23.08.2014 was barred by limitation.

3. While dismissing the appeal on 23.05.2017, this Court on appreciation of evidence found that there was nothing on the record to suggest that the amount deposited by the petitioner in the accounts of respondent No.1 and 3 was payable on demand and as such Article 22 of the Limitation Act, 1963 is not applicable. This Court has held that in fact Article 19 of the Limitation Act, 1963 is applicable which provides limitation of three years for the money lent and limitation shall run from the date when the loan is made. Since the respondent No.2 was made a party unnecessarily, cost of Rs.20,000/- was imposed on the petitioner payable to respondent No.2.

4. Despite service of the notice the respondents did not turn up.

5. The learned counsel for the petitioner submits that the loan was repayable by the respondents on demand and a letter dated 22.02.2013 was sent to the respondents by registered postal receipt Ex.PW-1/19. He reargues that it is Article 22 of the Limitation Act, 1963 which is applicable to the facts of the case and not Article 19. He also submits that he filed an application being CM APPL. 13780/2015 under Order XLVII Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 (in short „the CPC‟) for permission to lead additional evidence to prove the letter dated 22.02.2013. However, he admits that he could not bring it to the notice of this Court at the time of final hearing as mentioned in sub-para (a) of para 6 of the petition.

6. I have heard learned counsel for the petitioner.

7. In order to appreciate the submissions of the learned counsel for the petitioner it would be profitable to refer to Order XLVII Rule 1 of the CPC which reads as under:-

"1. Application for review of judgment. - (1) Any person considering himself aggrieved,--

(a) By a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) By a decree or order from which no appeal is allowed, or

(c) By a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, 6r on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation : The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision

of a superior court in any other case, shall not be a ground for the review of such judgment. Thus in view of the above, the following grounds of review are maintainable as stipulated by the statue:

i) Discovery of new and important matter or evidence which, after exercise of due diligence, was not within knowledge of the Petitioner or could be produced by him;

ii) Mistake or error apparent on the face of the record;

iii) Any other sufficient reason"

8. The Hon'ble Supreme Court in Parsion Devi v. Sumitri Devi 1997 (8) SCC 715 while elaborating the scope of review under Order XLVII Rule 1, held as under:

"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"."

9. The Hon'ble Supreme Court in Lily Thomas v. Union of India (2000) 6 SCC 224, summarised the scope of the power of review in the following words:

"56. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised."

10. The Apex Court in Haridas Das vs. Usha Rani Banik and others 2006 (4) SCC 78, further interpreted the scope of power of court to review under Order XLVII of CPC as under:

"13.In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it "may make such order thereon as it thinks fit". The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which

states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection."

11. The Hon'ble Supreme Court in Union of India (UOI) v. Sandur Manganese and Iron Ores Ltd. & Ors. (2013) 8 SCC 337 summarized the law relating to the scope of review under Order XLVII Rule 1 of the Code of Civil Procedure as under:

"23.This Court, on numerous occasions, had deliberated upon the very same issue, arriving at the conclusion 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 of CPC.

24. In the present case, the error contemplated in the impugned judgment is not one which is apparent on the face of the record rather the dispute is wholly founded on the point of interpretation and applicability of Section 11(2) and 11(4) of the MMDR Act. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Hence, in review jurisdiction, the court shall interfere only when there is a glaring omission or patent mistake or when a grave error

has crept in the impugned judgment, which we fail to notice in the present case."

12. The term 'mistake or error apparent' by its very meaning implies an error which is apparent on the face of the record of the case and does not require comprehensive examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order XLVII Rule 1 CPC. An order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. In review jurisdiction, the court shall interfere only when there is a glaring omission or patent mistake or when a grave error has crept in the impugned judgment.

13. The power of review jurisdiction can be exercised for correction of a mistake and not to substitute a view. The learned counsel for the petitioner cannot be permitted to re-argue the same very points which have already been dealt with, answered and rejected by the detailed judgment. The petitioner is not entitled to challenge the impugned judgment in the guise of review jurisdiction. All the pleas raised before this Court for and on behalf of the petitioner were in fact

addressed and after considering those pleas, the judgment in the appeal was rendered by this Court. The petitioner has not made out any case for review. The petition is bereft of any substance, resultantly the review application is accordingly dismissed along with CM APPL. 32133/2017.

(VINOD GOEL) JUDGE

APRIL 05, 2018 dkb