Gauhati High Court
Page No.# 1/14 vs Sri Pradip Kumar Lahkar And Anr on 20 October, 2022
Page No.# 1/14
GAHC010221272018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./188/2018
ON THE DEATH OF APPELLANT MUNINDRA SINGHA LAHKAR HIS LEGAL
HEIRS RENUSHREE LAHKAR AND 3 ORS
WIFE OF LATE MUNINDRA SINGHA LAHKAR R/O RANGIA TOWN, DIST.
KAMRUP, ASSAM.
2: DIPANKAR SINGA LAHKAR
S/O LATE MUNINDRA SINGHA LAHKAR R/O RANGIA TOWN
DIST. KAMRUP
ASSAM.
3: SMTI KAVARI LAHKAR
D/O LATE MUNINDRA SINGHA LAHKAR R/O RANGIA TOWN
DIST. KAMRUP
ASSAM.
4: SMTI PALLAVI LAHKAR
D/O LATE MUNINDRA SINGHA LAHKAR R/O RANGIA TOWN
DIST. KAMRUP
ASSAM
VERSUS
SRI PRADIP KUMAR LAHKAR AND ANR
S/O KESHAV CH. LAHKAR, B.K. KAKATI ROAD, ULUBARI, DSIT. KAMRUP
(ASSAM)
2:MOHIT CH. LAKHAR
S/O LATE KESHAV CH. LAHKAR
R/O RANGIA TOWN
DIST. KAMRUP (ASSAM
Advocate for the Petitioner : MR. S P ROY
Advocate for the Respondent : MR. M K CHOUDHURY (R2)
Page No.# 2/14
Linked Case : Review.Pet./53/2021
HEMAPRAVA PATOWARY AND 5 ORS
W/O LT. LOHIT CH. PATOWARY
R/O VILL. MURARA
RANGIA
DIST. KAMRUP
2: BHANUMOTI BARUAH @ MUKUL BARUAH
W/O LT. MUNIN BARUAH
R/O VILL RAJADUWAR
NORTH GUWAHATI
DIST. KAMRUP
3: SHASIPRABHA BAISHYA @ LILY BAISHYA
W/O SRI KRISHNA KANTA BAISHYA
R/O VILL HAJO NO. 2
PS HAJO
SUB DIVISION
KAMRUP
DIST. KAMRUP
4: AMIYA BORAH
W/O SRI NAREN BORAH
R/O VILL RADHAGOVINDA BARUAH PATH SUNDARPUR
GUWAHATI-5
DIST- KAMRUP (M)
5: ANUPAMA DEKA
W/O PROMOD DEKA
R/O PANJABARI
GUWAHATI-37
DIST. KAMRUP (M)
6: NIRUPAMA SAIKIA
W/O LT. DHRUBA K SAIKIA
PO AND PS DISPUR
GUWAHATI-6
DIST. KAMRUP (M)
VERSUS
SRI MOHIT CHANDRA LAHKAR AND 5 ORS
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S/O LT. KESHAB CH. LAHKAR
R/O KIRTI BHAWAN
RANGIA TOWN
DIST. KAMRUP (ASSAM)
2:PRADIP KUMAR LAHKAR
S/O LT. KESHAB CH. LAHKAR
R/O B.P. KAKATI ROAD
ULUBARI
DIST. KAMRUP (ASSAM)
3:ON THE DEATH OF APPEALLANTS MUNINDRA SINGHA LAHKAR HIS
LEGAL HEIRS-A) RENUSHREE LAHKAR (WIFE)
B) DIPANKAR SINGHA LAHKAR (SON)
C) KABVERI LAHKAR (DAUGHTER)
D) PALLAVI LAHKAR (DAUGHTER)
R/O KIRTI BHAWAN
RANGIA TOWN
DIST. KAMRUP (ASSAM)
------------
Advocate for : MR D MAZUMDER
Advocate for : MS K GOGOI appearing for SRI MOHIT CHANDRA LAHKAR AND
5 ORS
PRESENT
THE HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
For the Review Petitioners: Mr. R. Baruah,
Mr. S. Biswas,
Advocates.
For the Respondents : Mr. M.K. Choudhury,
Advocate.
Date of Hearing : 13.06.2022
Date of Judgment : 20.10.2022.
JUDGMENT AND ORDER (CAV)
Heard the learned counsel Mr. R. Baruah appearing for the review
petitioners. Also heard the learned counsel Mr. M.K. Choudhury
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appearing for the respondents.
2. These two petitions are under Section 114 of the Code of Civil
Procedure read with Order 47 of the said Code praying for reviewing the
order passed by this Court on 29.08.2018 in RSA/172/2006.
3. The case of the petitioners, in a nutshell, is that late Keshav Chandra
Lahkar had a house named Kirti Bhawan, situated upon a plot of land
measuring 1 Bigha 1 Katha 5 Lechas. Late Keshav Chandra Lahkar had
nine children, three sons and six daughters. The three sons are namely,
Munindra Singha Lahkar (now deceased), Prodip Kumar Lahkar and
Mohit Chandra Lahkar.
4. It is claimed that before his death, late Keshav Chandra Lahkar had
distributed all his properties amongst his legal heirs. But Kirti Bhawan was
not given to anyone. So, it remained a joint property even after the
demise of late Keshav Chandra Lahkar.
5. Kirti Bhawan was actually jointly occupied by late Munindra Singha
Lahkar and Mohit Chandra Lahkar. Prodip Kumar Lahkar was not
occupying that property because he was staying at Guwahati.
6. Sometime later, Kirti Bhawan was partitioned between Munindra
Singha Lahkar and Mohit Chandra Lahkar. Pursuant to that partition,
eastern part of the property went to Mohit Chandra Lahkar and the
western part went to Munindra Singha Lahkar.
7. On 13.06.2003, Prodip Kumar Lahkar served a notice upon Munindra
Singha Lahkar and Mohit Chandra Lahkar stating that Kirti Bhawan was
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already partitioned on 19.02.1994 by a registered instrument and
therefore, the aforementioned partition of the property between
Munindra Singha Lahkar and Mohit Chandra Lahkar, is illegal.
8. Late Munindra Singha Lahkar had alleged that the instrument dated
19.02.1994 is a forged document containing his forged signature.
Munindra Singha Lahkar further alleged that Prodip Kumar Lahkar and
Mohit Chandra Lahkar had entered into conspiracy to have him out of
Kirti Bhawan.
9. Narrating the aforesaid facts, late Munindra Singha Lahkar filed the
Title Suit being TS 14/2003 against Prodip Kumar Lahkar and Mohit
Chandra Lahkar praying for cancellation of the deed dated 19.02.1994.
10. Prodip Kumar Lahkar and Mohit Chandra Lahkar contested the case
by reiterating that since there was a partition in the year 1994, the
partition in the year 2003 was unnecessary.
11. The trial court of Munsiff dismissed the suit of Munindra Singha Lahkar.
The first appellate court also agreed with the said judgment. This Court, in
second appeal, upheld the judgment passed by the first appellate court.
12. The present review petitioners have submitted that late Keshav
Chandra Lahkar had nine children. Apart from the sons namely-
Munindra Singha Lahkar, Prodip Kumar Lahkar and Mohit Chandra
Lahkar, late Keshav Chandra Lahkar had six daughters. The six daughters
have claimed that the dispute between the siblings was already settled
in an out of court settlement and the review applications should be
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allowed only on that ground by setting aside the judgment of this Court
dated 29.08.2018 passed in RSA No.172/2006.
13. It is further pleaded that the counsel representing the review
petitioners in the courts below had failed to bring on record the family
settlement agreement dated 19.02.2018.
14. The third plea taken by the review petitioners is that the daughters of
late Keshav Chandra Lahkar were not heard in this second appeal.
15. I have given my anxious considerations to the submissions made by
the learned counsel for both sides. I have also gone through the
judgment dated 29.08.2018 passed by this Court in RSA No.172/2006.
16. In paragraph 39 of the said judgment, it is held that though the
daughters of late Keshav Chandra Lahkar had filed the petition under
Order 1 Rule 10 of the CPC praying for impleading them in the appeal,
they ultimately failed to press this application and therefore the court
refrained from passing any order on the said petition.
17. The dictionary meaning of the word "review" is "the act of looking".
The law of review is based on the maxim Actus curiae neminem gravabit,
which means that An act of the Court shall prejudice no one. The
substantive provision for the review of a judgment is to be found in
Section 114 and the procedural law is laid down in Order 47, C. P. C. Here
at this stage, we have to understand the basic difference between an
appeal and a review. An appeal demands a second judgment by a
higher Court in the same matter. Any aggrieved party to judgment can
move the appropriate appellate forum against the said judgment for a
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reversed or modified order. Sections 96 to 111A and Orders 41 to 45 of
the Code of Civil Procedure (hereinafter referred as CPC) deal with
different forms and stages of Appeals.
Review is dealt with under Section 114 and Order 47 of the CPC. Any
party aggrieved by an order or judgment may apply for reviewing the
said order or judgment to the same court. It can be filed where no
appeal is preferred or in case there is no provision for appeal.
18. The main distinctions between the two are as follows:
Categories Appeal Review
Nature of Appeal is a Review is a
Right statutory discretionary
right. right of Court
Forum Appeal is Review is filed in
preferred the same Court.
to a higher
Court
Reliefs The The grounds are
grounds limited.
are wider.
Conversion Appeal Review cannot
can be be converted
converted as such.
into
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Revision.
19. Order 47, Rule1 of the C. P. C. reads as ---
"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, or 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."
20. The scope of the review jurisdiction of the Court is a very limited
one. The applicant cannot pray for review of a judgment merely
because some of the judgments have not been noticed by the Court
particularly when the judgments were not even referred to before the
Court at that stage and in any case the applicant will be in no position to
say so. Furthermore, the jurisdiction of review does not extend for
substituting a view taken by the Court on merits or otherwise of the
contentions rose before the Court on the facts and circumstances of a
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case. The applicant is essentially praying before the Court that the view
taken by the Court on different facets of the case - legal and factual -
should be substituted primarily because another view was possible. The
power to review normally is the creation of a statute. The limitation on the
powers of the Court under Order 47 Rule 1 are similar and applicable to
the jurisdiction available to the High Court under Article 226 of the
Constitution of India. With caution the Court has to ensure that such
power is not exercised like entertaining an 'Appeal in disguise', where
conceivably there may be two opinions and an error has to be
established by a long drawn process it is not an error apparent on the
face of the record.
21. Discovery of new evidence or material by itself is not sufficient to
entitle a party for review of a judgment. A review is permissible on the
ground of discovery of new evidence only when such an evidence is
relevant and of such a character that if it had been produced earlier it
might possibly have altered the judgment, further, it must be established
that the applicant had acted with due diligence and that the existence
of the evidence, which he has now discovered, was not within his
knowledge when the order was passed. If it is found that the petitioner
has not acted with due diligence then it is not open to the Court to admit
evidence on the ground of sufficient cause. The party seeking a review
should prove strictly the diligence he claims to have exercised. In a
review application a party cannot be allowed to introduce fresh
documents merely to supplement evidence which might possibly have
had some effect on the result. A review cannot be sought merely for
fresh hearing or arguments or correction of an erroneous view taken
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earlier. The power of review can be exercised only for correction of a
patent error of law or fact which stares in the face, without any elaborate
argument being needed for establishing it.
22. In Patel Narshi Thakersh and Ors. v. Pradyunman Singha ji Arjun
Singha ji ( AIR 1970 SC1273) the Hon,ble Supreme Court has held--
The power of review is not an inherent power. It must be conferred by law
either specifically or by necessary implication. The review is also not an
appeal in disguise. If cannot be denied that justice is a virtue which
transcends all barriers and the rules or procedures or technicalities of law
cannot stand in the way of administration of Justice. Law has to bend
before Justice. If the Court finds that the error pointed out in the review
petition was under a mistake and the earlier judgment would not have
been passed but for erroneous assumption which in fact did not exist and
its perpetration shall result in miscarriage of justice nothing would
preclude the Court from rectifying the error.
23. It is well settled that review proceedings have to be strictly confined
to the ambit and scope of Order 47 Rule I CPC. In Thungabhadra
Industries Ltd. v. The Government of Andhra Pradesh (AIR 1964 Sc
1372) the Supreme Court has opined:
What, however, we are not 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
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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.
24. In the case of Parsion Devi & Ors. Vs. Sumitri Devi & Ors.--- reported in
1997 (8) SCC 715 -- the Supreme Court has held as under :-
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 I 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".
25. In Parsion Devi's case (supra), the Supreme Court has made it clear
that 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. This principle was reiterated by the Supreme Court in
the case of Lily Thomas, etc. etc. vs. Union of India & Ors--2000 (6) SCC
224-- where it was further clearly cautioned that in exercise of power of
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review the Court may correct the mistake but not to substitute the
view. The mere possibility of two views on the subject is not a ground for
review.
26. In Rajendra Kumar v. Rambai [AIR 2003 SC 2095], the Supreme Court
held ---
The limitations on exercise of the power of review are well settled. The first
and foremost requirement of entertaining a review petition is that the
order, review of which is sought, suffers from any error apparent on the
face of the order and permitting the order to stand will lead to failure of
justice. In the absence of any such error, finality attached to the
judgment/order cannot be disturbed.
27. In Jagmohan Singha v. State of Punjab & Ors. [(2007) 7 SCC 38],
the Supreme Court has held :
"It is furthermore evident that Order 47 Rule 1 of the Code of Civil
Procedure does not preclude the High Court or a court to take into
consideration any subsequent event. If imparting of justice in a given
situation is the goal of the judiciary, the court may take into consideration
(of course on rare occasions) the subsequent events."
28. In Inderchand Jain (D) Th.Lrs. vs Motilal (D) Th.Lrs--reported in
2009(14)SCC 663, it has been held -
The power of review can also be exercised by the court in the event
discovery of new and important matter or evidence takes place which
despite exercise of due diligence was not within the knowledge of the
applicant or could not be produced by him at the time when the order
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was made. An application for review would also lie if the order has been
passed on account of some mistake. Furthermore, an application for
review shall also lie for any other sufficient reason.
29. In Board of Control for Cricket in India & Anr. v. Netaji Cricket Club &
Ors. [(2005) 4 SCC 741], the Hon,ble Apex Court has held :
" Order 47 Rule 1 of the Code provides for filing an application for review.
Such an application for review would be maintainable not only upon
discovery of a new and important piece of evidence or when there exists
an error apparent on the face of the record but also if the same is
necessitated on account of some mistake or for any other sufficient
reason. 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 are 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"."
30. Reverting to the case in hand, this Court is of the opinion that by
filing the review petitions, the petitioners, have actually filed an appeal
and this is not permissible under the law. For review of a judgment, there
must be an error apparent on the face of the record. A judgment may
be erroneous in law, but even then, the judgment cannot be reviewed
under Section 114 of the Code of Civil Procedure. In the case in hand,
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there is no error apparent on the face of the judgment. Therefore, the
review petitions are not maintainable in law.
31. Both the review petitions are dismissed and disposed of accordingly.
Send back the LCR.
JUDGE
Comparing Assistant
