Vaibhavi Pinkesh Solanki vs Pinkesh Vijaykumar Solanki
2021 Latest Caselaw 15008 Guj

     C/MCA/1050/2019                           IA JUDGMENT DATED: 24/09/2021




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2021
                              In
         R/MISC. CIVIL APPLICATION NO. 1050 of 2019

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
=======================================

Whether Reporters of Local Papers may be allowed 1 NO to see the judgment ?

2 To be referred to the Reporter or not ? YES

Whether their Lordships wish to see the fair copy of 3 NO the judgment ?

Whether this case involves a substantial question 4 of law as to the interpretation of the Constitution of NO India or any order made thereunder ?

======================================= VAIBHAVI PINKESH SOLANKI Versus PINKESH VIJAYKUMAR SOLANKI ======================================= Appearance:

MUHAMMADYUSUF M KHARADI for the PETITIONER(s) No. MR GAURAV J DAVE for the RESPONDENT(s) No. MS KHUSHBU P VYAS for the RESPONDENT(s) No. =======================================

CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

Date : 24/09/2021

IA JUDGMENT

1. This is an application under O.XLVII r/w. Section 114 of the Civil Procedure Code, 1908 (herein after referred to as "the CPC") at the instance of the applicant - original petitioner for review of the judgment and order dated 12.02.2021 passed by this Court in

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Misc. Civil Application No. 1050 of 2019, which was filed seeking transfer of Family Suit No. 823 of 2019. By the said judgment, the said application, at the instance of wife, was rejected.

2. Heard, learned advocate Mr. Kharadi for the applicant as well as learned advocate Ms. Khushbu Vyas for the respondent at length.

2.1 The learned advocate for the applicant, reiterating the grounds mentioned in the present application, has heavily urged to entertain the present application and thereby, to allow transfer of the Family Suit in question.

2.2 In support of his case, the learned advocate for the applicant has relied upon several decisions viz.:

i) G. Saraswathi and Another v. Rathinammal and Others, (2018) 3 SCC 340;

ii) Suraj Pal (Dead) Through Legal Representative v. Ram Manorath and Others, (2017) 14 SCC 862;

iii) Punjab and Sind Bank v. Debts Recovery Appellate Tribunal and Others, (2017) 11 SCC 323;

iv) Bhukhubhai Amarsinhbhai Parmar v. United India Insurance Co. Ltd., 2015 (O) AIJEL-HC 233453;

v) State of Gujarat v. Vaghi Odhavji Garana and Others, 2014 (1) GLH 558.

3. Per contra, the learned advocate for the respondent, while heavily opposing the present application, submitted that no new ground or sufficient cause has come to the fore which may drive this Court to review the impugned judgment. It is submitted that even otherwise the scope of review is very scant and therefore, it is urged that the present application be rejected. The learned

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advocate for the respondent has relied upon following decisions:

         i)  Meera Bhanja (Smt.) v. Nirmala                           Kumari
         Choudhury (Smt.), (1995) 1 SCC 170;

         ii)     State v. Baldev Raj, Manu/UP/1050/1991;

iii) Deepa and Others v. Om Prakash and Others, Manu/UC/0100/2007;

iv) Kamlesh Verma v. Mayawati and Others, AIR 2013 SC 3301.

4. The Court has heard and considered the submissions advanced by the learned advocates for the respective parties and has also perused the averments made in the present application, more particularly, the grounds incorporated through the draft amendment by the applicant and also, the grounds mentioned in the earlier application (Misc. Civil Application No. 1050 of 2019).

4.1 Before dealing with the core aspect of the matter, it is to be noted that the applicant has moved this application under O.XLVII r/w. Section 114 of the CPC. Accordingly, it would be apt to refer to the provisions of O.XLVII CPC, which are 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

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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.

(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."

4.2 Thus, a bare perusal of the aforesaid reveals that in the aforesaid eventualities only, review is maintainable. Cardinally, a review cannot take place of an appeal.

4.3 It is in this context, if the facts of the case on hand are adverted to, by this review application, the learned advocate for the applicant has, more particularly by way of the draft amendment, tried to put forward a case that: i) the Court has failed to answer the submission with regard to pending proceedings at Surat; ii) submission with regard to second marriage of the husband and desertion of first wife and habitual deserter; iii) error apparent or mistake in the judgment in holding that the applicant is a fashion designer, however, she is a housewife and with regard to the fact that the husband is residing at Bharuch, which is not mentioned; iv) misinterpretation of law of Apex Court laid down in the decision reported in (2016) 3 SCC 69 and last but not the least, v) the subsequent

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development i.e. now the applicant does not own the four wheeler.

4.4 The Court is conscious of the fact that this is not an appeal against an order. However, it may be observed that the powers of transfer (under section 24 CPC) must be exercised with due care and attention and in the interest of justice. The Court should decide the conflicting interest. Paramount consideration is justice and if the ends of justice demands transfer of case, the Court shall not hesitate. But there are some limitations where transfer of cases can be done or instances under which it can be done or cannot be done can inconvenience and complexity. Relevant factors have to be considered for the transfer of cases.

4.5 In that context, if the aforesaid grounds are gone in nutshell, the first ground of pendency of three proceedings at Surat and the submission with regard to second marriage of the husband and desertion of first wife, are concerned, which, as per the applicant are not answered though noted in submissions, it may be noted that the starting lines of paragraph 9 of the said judgment is, "having heard the arguments advanced by the learned Advocates for both the sides...", and thereafter, the reasoning of the Court starts. Thus, broadly speaking, the Court, after considering all the aspects of the matter only, has proceeded to adjudicate the issue of transfer and thus, if an answer lies in implied consideration without naming the same, it cannot be said that such issues are not considered. Secondly, the aspects of second marriage of husband and he is a deserter, appear to be not relevant while dealing with an application under section 24 CPC.

4.6 The next is the submission with regard to error apparent or

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mistake in the judgment in holding that the applicant is a fashion designer though she is a housewife and with regard to the fact not mentioned in the judgment in review that the husband is residing at Bharuch. In this regard, it is submitted that in the FIR filed by the respondent herself under Section 498A of the Indian Penal Code, 1860 etc. against the respondent - husband, it was mentioned that the applicant was a fashion designer and after marriage also, she used to work as such, and the copy of said FIR was very well available on record of the main Misc. Civil Application No. 1050 of 2019. Even, in her application under Section 125 Criminal Procedure Code, 1973 for maintenance, a copy of which was also available on record of the said application for transfer, the said fact was mentioned. The Court, weighing the same, has come to such conclusion that the applicant (wife) is a fashion designer. Further, in present proceedings also, the learned advocate for the respondent has placed on record certain documents to that effect, which substantiate such a fact. So far as the working of the respondent in GNFC at Bharuch and the place (Bharuch) is not mentioned, in the considered opinion of this Court when the proceedings are at Surat and Vadodara and the Court, after having regard to the material on record, has come to a specific conclusion denying to exercise the discretion, only not mentioning the place of service cannot be said to be amounting to error apparent or mistake.

4.7 So far as misinterpretation of law laid down in the decision of the Apex Court in (2016) 3 SCC 69 (Tejalben v. Mihirbhai Bharatbhai Kothari) is concerned, it is well settled that every case should be dealt with and evaluated on its own facts and since, the facts of that case were different, the same was not considered in favour of the applicant.

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4.8 So far as the subsequent development, that is say earlier the applicant was owning the car and now, she does not is concerned, suffice it to say that it is the convenience and the comparative hardships, which are the prime consideration for entertaining an application under Section 24 CPC and owning of car only cannot be a sole criterian for the same. The Court while rejecting the said application, has considered the same as one of the grounds, besides the fact that the husband (respondent) is suffering from some Kidney related problem etc. Further, the Court has already directed the respondent to pay Rs.1,000/- to the applicant as and when she attends the Court proceedings.

5. Thus, having regard to the grounds mentioned in the present application vis-a-vis considering the arguments advanced by the learned advocate for the applicant and perusing the judgment in review, it appears that the grounds for review, as mentioned in the present application, do not match to any of the eventualities mentioned in the aforesaid provision of law. Accordingly, in the considered opinion of this Court, present review application lacks merits and is not required to be entertained.

5.1 At his juncture, a benevolent reference may be made to a decision of the Apex Court in Parsion Devi and Ors. v. Sumitri Devi and Ors., (1997) 8 SCC 715, relevant of which is extracted hereunder:

"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. The Government of Andhra Pradesh [1965] 5 SCR 174 this Court opined:

What, however, we are not concerned with is whether the statement in the order of September 1959 that

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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 Smt. Meera Bhanjia v. Smt. Nirmala Kumari Choudhury MANU/SC/0098/1995 : AIR1995SC455 while quoting with approval a passage from Abhiram Taleshwar Sharma v. Abhiram Pishak Shartna and Ors. MANU/SC/0004/1979 : (1979)4SCC389, 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"."

5.2 Thus, a judgment may be open to review Under Order 47 Rule 1 CPC 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

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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.

5.3 Further, a review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, 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. It may be pointed out that the expression 'any other sufficient reason' used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the Rule.

5.4 Yet in another decision in Lily Thomas v. Union of India, (2000) 6 SCC 224, it is observed and held by the Apex Court that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power.

5.5 The Court has gone in detail the decisions relied upon by the learned advocate for the applicant. So far as the decision in G. Saraswathi and Another (supra) is concerned, the Court has held that, "the Courts need to pass reasoned order in every case which must contain the narration of the bare facts of the case of the parties, the issues arising the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues in support of its conclusion. The present Court noted that the Division Bench failed to keep in mind this principle while disposing of the appeal and passed a cryptic and unreasoned

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order. Such order undoubtedly caused prejudice to the parties because it deprived them to know the reasons as to why one party has won and other has lost". In the case on hand, as stated earlier, after noting the submissions of the parties, the Court has passed the reasoned order, in the facts and circumstances of the case with implied reasoning and accordingly, the above decision would be of no held to the applicant.

5.5.1 In Suraj Pal (Dead) Through Legal Representative (supra), the Court, it was the case that the learned Single Judge had failed to take into consideration the argument that suit property was "chakout" and hence, not part of consolidation scheme and accordingly, review was justified. Here, in the case on hand, the facts are heterogeneous to that of the decision relied upon and hence, this decision also would not be of any help to the applicant.

5.5.2 In Punjab and Sind Bank (supra) the Court came to the conclusion that there was an error apparent on the face of the record, which is not the case herein. The Court has already recorded the case of the applicant and hence, this decision also is not applicable to the facts of the case on hand. The same is the case in the decision in Bhukhubhai Amarsinhbhai Parmar (supra) and accordingly, said decision is also not helpful to the application.

5.5.3 In Vaghi Odhavji Garana and Others (supra), it is held that in the absence of pleadings, Court at its own cannot determine the afore-stated aspect (in that decision) exercising the powers of review and therefore, the said decision is also of no help to the applicant.

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5.6 Since, the Court is not inclined to entertain the application, it is deemed proper not to discuss the decisions relied by the learned advocate for the respondent.

6. In view of the aforesaid discussion and observations, present application fails and is dismissed accordingly.

[ A. C. Joshi, J. ] hiren