Sunaina Dlamia vs Government Of Nct Of Delhi & Ors.
2020 Latest Caselaw 3272 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                   Date of Decision:1st December, 2020

+      REVIEW PETITION NO. 183/2020 in LPA 182/2020

       SUNAINA DLAMIA                            ..... Appellant
                   Through: Mr. Nalin Kohli, Sr. Adv. with
                   Mr.Vaibhav Gaggar & Ms. Sumedha Dang, Advs.
                   for review petitioner

                   versus
       GOVERNMENT OF NCT OF DELHI & ORS. ..... Respondents
                   Through: Mr. Saumya Tandon, Adv., for R-1
                   Mr. Vikas Malhotra & Mr. Mohit Jolly, Advs. for
                   R-2 & R-3
                   Mr. Samar Bansal & Ms. Devahuti Pathak, Advs.
                   for R-4

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE PRATEEK JALAN
                                   JUDGMENT

: D. N. PATEL, Chief Justice (Oral) Proceedings in the matter have been conducted through video conferencing.

1. This review petition has been preferred by original appellant seeking review of an order dated 4th November, 2020 passed by this Court in LPA 182/2020, by which the appeal was dismissed.

2. The appellant/original petitioner had preferred an appeal against the orders passed by the learned Singe Judge vide order dated 15th July, 2020

passed in C.M. Appl.15115/2020 and order dated 16th July, 2020 (Annexure A-1 (colly) to the memo of this appeal) passed in C.M. Appl.15166/2020 in W.P.(C) 13954/2019 which was dismissed by this Court vide an order dated 4th November, 2020 passed in LPA No. 182/2020, while observing that the appellant is required to vacate the premises in question on or before 18 th November, 2020 as enough extension of time has been granted to the appellant for this purpose.

3. Paragraphs 2, 4 and 8 of the order dated 4th November, 2020 passed by this Court in LPA 182/2020 read as under:

"2. Learned Counsel appearing for the appellant submitted that the appellant is ready and willing to move out from the accommodation she is presently residing in but the husband/respondent No.4 has failed to provide the alternate accommodation to the appellant - wife of respondent No.4.

xx xx xx xx

4. Looking to the facts and circumstances of the present case, it appears that a consent order has been passed by the learned Single Judge on 17th February, 2020, which reads as under:-

"The respondent no. 4, who is present in person, submits that the respondent no. 4 shall buy a separate residence for the petitioner and his children by 30.06.2020, in his name or in the name of his Company. The respondent no. 4 has handed over to the petitioner photocopy of certain documents in relation to the property bearing No. W-5, Greater Kailash-II, New Delhi.

The petitioner, who is present in person, submits that she alongwith her children will vacate the property that is First Floor of S-15, Panchsheel Park, New Delhi-110017 on or before 31.05.2020 and hand over the possession of the same to the respondent no. 2 and 3. She will also ensure that

the peaceful possession and enjoyment of the ground floor of the said property, occupied by respondent no. 2 and 3, is not disturbed in any manner and no further case/cases shall be filed against the respondent nos. 2 and 3 with respect to the title and possession of the property in question. This shall, however, not prejudice the cases which have already been initiated. The petitioner shall also not create any third party interest or part with possession of the first floor of the property to any third person in the integrum. The petitioner shall also not seek any further extension of time for vacation of the said property. The petitioner further submits that her son is not residing with the petitioner and is infact in the United States of America.

The petitioner and the respondent no. 4 shall file their respective affidavits in terms of the statements recorded hereinabove, within a period of one week from today. Copy of the affidavit(s) be supplied to the learned counsel for the respondent nos. 2 and 3.

The respondent nos. 2 and 3, who are present in person, agree to the above terms of the settlement.

The petition is disposed of in terms of the statement made by the parties hereinabove."

(emphasis supplied) xx xx xx xx

8. Learned Counsel appearing for respondent No.4 submitted that the respondent No.4 is ready and willing to make the payment of the rent of any similarly situated premises to the appellant. Learned Counsel for the appellant submitted that in view of these facts, some time be granted to vacate the premises in question and they will find out the premises on rent."

4. The review petitioner has averred that the appellant/original petitioner had filed CM Appl.22672/2020 in LPA No. 182/2020 before this Court seeking direction to shift in with her husband/respondent No.4 at his residence at 1/7, First Floor, Shanti Niketan, New Delhi-110021 and a

direction was also sought to Respondent No.4 to continue to pay the rentals till possession of apartment bearing No.5/7 Shanti Niketan, New Delhi is handed over to the Appellant. The grievance of the review petitioner is that her plea could not be recorded and adjudicated upon, leading to an error apparent on the face of the record. Further, it is submitted that the minor daughter of the appellant is in 12th class and her pre-boards are scheduled between 7th December 2020 to 31st December, 2020, and this contention of the appellant was also not taken into consideration while deciding the Letters Patent Appeal.

5. Having heard the learned Senior Counsel appearing for the review petitioner/appellant and looking to the facts and circumstances of the case, we see no reason to entertain this Review Petition mainly for the reason that there is no error apparent on the face of the record in our order dated 4th November, 2020 passed in LPA 182/2020.

6. The appeal was dismissed on the ground that the appellant had been given sufficient time to vacate the premises in question, which she had first undertaken to do by 31.05.2020, as recorded in the order dated 17th February, 2020 in W.P.(C) No. 13594/2019. Thereafter, extension was also granted, but further extension was declined by the order of the learned Single Judge dated 15th July, 2020 and 16th July, 2020, which was challenged by the review petitioner/ appellant in LPA 182/2020. In this view of the matter, it was observed in paragraph 6 of the judgment under review dated 4th November, 2020 that the question of alternative accommodation for the review petitioner/ appellant is a matter between her and her husband

(respondent no. 4 in LPA 182/2019). The contentions raised by the review petitioner are not at all germane to this determination.

7. In the case of Meera Bhanja v. Nirmala Kumari Choudhury, reported in (1995) 1 SCC 170, the Hon‟ble Supreme Court in paragraphs 8, 9 and 15 held as under :

"8. It is well settled that the 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. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, speaking through Chinnappa Reddy, J., has made the following pertinent observations: (SCC p. 390, para 3) "It is true as observed by this Court in Shivdeo Singh v. State of Punjab, there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate

court."

9. Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:

An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self- evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.

15. In our view the aforesaid approach of the Division Bench dealing with the review proceedings clearly shows that it has overstepped its jurisdiction under Order 47, Rule 1 CPC by merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error. It would not become a patent error or error apparent in view of the settled legal position indicated by us earlier. In substance, the Review Bench has reappreciated the entire evidence, sat almost as court of appeal and has reversed the findings reached by the earlier Division Bench. Even if the earlier Division Bench‟s findings regarding C.S. Plot No. 74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate court. Learned counsel for the respondent was not in a position to point out how the reasoning

adopted and conclusion reached by the Review Bench can be supported within the narrow and limited scope of Order 47, Rule 1 CPC. Right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned. It could not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers. Only on that short ground, therefore, this appeal is required to be allowed. The final decision dated 8-7-1986 of the Division Bench dismissing the appeal from Appellate Decree No. 569 of 1973 insofar as C.S. Plot No. 74 is concerned as well as the review judgment dated 5-9-1984 in connection with the very same plot, i.e., C.S. Plot No. 74, are set aside and the earlier judgment of the High Court dated 3-8-1978 allowing the second appeal regarding suit Plot No. 74 is restored. The appeal is accordingly allowed. In the facts and circumstances of the case, there will be no order as to costs."

8. In the case of Parsion Devi v. Sumitri Devi, reported in (1997) 8 SCC 715, the Hon‟ble Supreme Court in paragraphs 7 to 9 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".

9. In view of the aforesaid facts, reasons and judicial pronouncements, there is no substance in this review petition and the same is therefore dismissed.

CHIEF JUSTICE

PRATEEK JALAN, J DECEMBER 1, 2020 ns