Dwijamoni Singh vs Amal Paul Choudhury
2021 Latest Caselaw 1339 Gua

                                                                               Page No.# 1/5

GAHC010133912020




                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Review.Pet./108/2020

            DWIJAMONI SINGH
            S/O- LATE TAMAL SINGH, R/O VILL.- TARAPAR PT-III, PR. BARAKPUR,
            SILCHAR, P.O. SILCHAR, P.S.- SILCHAR (SADAR), DIST.- CACHAR, ASSAM,
            PIN- 788003.



            VERSUS

            AMAL PAUL CHOUDHURY
            S/O LATE KAMAL PAUL CHOUDHURY, C/O- LT UMESH CH PAUL
            CHAUDHURY, R/O- FALAK BAZAR, PRE BARAKPUR, THANA ROAD,
            SILCHAR TOWN, P.O. SILCHAR, P.S.- SILCHAR (SADAR), DIST- CACHAR,
            ASSAM, PIN- 788003.



Advocate for the Petitioner   : MR. A K PURKAYASTHA

Advocate for the Respondent : MR G N SAHEWALLA




                                    BEFORE
                       HONOURABLE MR. JUSTICE MIR ALFAZ ALI

                                          ORDER

Date : 07-04-2021

Heard learned counsel Mr. A.K. Purkayastha for the petitioner and learned senior counsel, Mr. G.N. Sahewalla for the respondent.

2. This application under Section 114 read with Order 47 Rule CPC has been filed praying Page No.# 2/5

for review of the judgment & order dated 15-11-2019 passed by this Court in RSA No.

184/2012.

3. Learned counsel for the petitioner submits that while answering the substantial

question No. 2 in the aforesaid judgment and order, this Court held that the document being

a sale deed involved in the case was of such a nature, which could not be cancelled partially.

It is also submitted that the finding of the court, to the effect that the instrument/document

involved in the case does not fall in the category of instrument envisaged in Section 32 of the

Specific Relief Act so as to make it amenable to partial cancellation was not correct and there

was no basis for recording such a finding. Learned counsel further contends that the above

error in the judgment and order falls in the category 'error apparent on the face of the record'

and also comes within the purview of expression 'sufficient reasons' so as to exercise the

power of review. To argue that the expression 'sufficient reasons' appearing in the Order 47

Rule 1 of the CPC is wide enough, the learned counsel placed reliance on a decision of the

Apex Court in Board of Control for Cricket, India and Ors. Vs. Netaji Cricket Club and Ors.,

Appeal (Civil) 237 and 239 of 2005, where the Apex Court observed as under :-

"Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47 Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit".

4. Learned senior counsel Mr. Sahewalla submits that the petitioner has not been able to

show any error apparent on the face of the record, rather sought for re-hearing of the matter, Page No.# 3/5

which is not permissible under Order 47 Rule 1 CPC. Mr. Sahewalla in support of his

contention that scope or review is very limited and the same cannot be allowed to be heard

as an "appeal in disguise", placed reliance on a decision of the Supreme Court in Sasi (dead)

through legal representative Vs. Arobindo Khan Nayyar and Ors., (2017) 4 SCC 692.

5. Order 47 Rule 1 CPC postulates the following circumstances under which a review is

permissible : -

(i) Discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge or could not be produced at the time when the decree or order was made.

(ii) Some mistake or error apparent on the face of the record.

(iii) Any other sufficient reason.

6. It is the settled principle that the power of review is the creation of statute and the

same has to be exercised within the scope and limit provided by the statute and the court

cannot exercise its inherent jurisdiction to review an order or decree.

7. Though the expression 'sufficient reasons' appearing in Order 47 Rule 1 CPC cannot be

given a restricted connotation, at the same time it must also be kept in mind, that while

giving broader connotation to the expression 'sufficient reasons', it must be analogous to the

grounds specified in the provision and the same cannot be construed as something going

beyond the scope of the provision of law as contained in Order 47 Rule 1 CPC, in view of the

maxim 'ejusdemgeneris'.

8. The Apex court in Parsion Devi Vs. Sumitri Devi, (1997) 8 SCC 715 dealing with the

scope of review in Order 47 Rule 1 CPC observed as under :-

"9. Under Order 47 Rule 1 CPC, a judgment may be open to review inter-alia if Page No.# 4/5

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 Apex Court in Sasi (dead) through legal representative Vs. Arobindo Khan Nayyar

and Ors.(supra) observed that error as contemplated in Order 47 Rule 1 CPC has to be self

evident and is not to be found out by a process of reasoning. Therefore, all error in a decree

or order shall not come within the purview "error apparent on the face of the record". One

has also to bear in mind that erroneous decision and a decision, which is vitiated by an error

apparent on the face of record, are not synonymous, inasmuch as, the former is not

amenable to review, whereas, the later is amenable to review. Therefore, it not permissible to

resort to review jurisdiction to re-hear a matter, which may amount to "an appeal in disguise".

Even if the appreciation of the fact or interpretation of law made by the court is erroneous,

the same cannot be subject of review, unless there is error apparent on the face of the

record.

10. In the instant case, precisely the submission of the learned counsel for the

petitioner is that the finding of this Court in the judgment and order sought to be reviewed

has suffered from the defect of improper appreciation of facts and improper interpretation of

law, more particularly, the provision of Sections 31 and 32 of the Specific Relief Act and

therefore, the order is required to be revisited. This being the position, from the contention of

the learned counsel for the petitioner ,it is apparent that the learned counsel sought for re-

hearing of the matter to correct a decision, which according to the learned counsel was Page No.# 5/5

erroneous. Therefore, in my considered view, re-hearing of the judgment and order

impugned, even if the finding is erroneous, is not permissible under Order 47 Rule 1 CPC, and

as such, this review petition appears to be without merit and accordingly dismissed.

JUDGE

Comparing Assistant