Gujarat High Court

Manish Sharadkumar Master (Now Major) vs Heirs Of Chhotalal Motilal Master on 14 June, 2024

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/MISC. CIVIL APPLICATION NO. 1362 of 2024

                       In R/FIRST APPEAL NO. 1399 of 1995

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        MANISH SHARADKUMAR MASTER (NOW MAJOR) & ANR.
                           Versus
          HEIRS OF CHHOTALAL MOTILAL MASTER & ORS.
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Appearance:
MR TAPAN J TRIVEDI(5795) for the Applicant(s) No. 1,2
 for the Opponent(s) No.
1,1.1,1.10,1.2,1.2.5,1.3,1.3.1,1.3.2,1.4,1.5,1.6,1.7,1.8,1.9
JENIL M SHAH(7840) for the Opponent(s) No. 2,2.1
MR CHINMAY M GANDHI(3979) for the Opponent(s) No.
1.2.1,1.2.2,1.2.3,1.2.4
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  CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                Date : 14/06/2024
                                 ORAL ORDER

1. This application is filed for review of

the order dated 06.11.2023 passed in First

Appeal Nos. 1399 to 1401 of 1995.

2. Learned advocate Mr. Japan Trivedi for the

applicants has filed a note to delete

opponent No.1.1 (1) to 1.1 (10) as they

are formal parties.

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3. Learned advocate Mr. Trivedi also seeks

permission to delete opponent No.2 who was

original appellant and expired during the

pendency of the appeal.

4. Permission is granted.

5. Issue Rule. Learned advocate Mr. Jenil

Shah waives service of notice of rule for

respondent no.2.1.

6. Learned advocate Mr. Trivedi submitted

that opponent No.2.1 has misinterpreted

direction of this Court and did not pay

balance amount to the applicant. It was

submitted that the mistake is committed by

this Court in considering the agreement to

sale dated 24.07.1981. As per the said

agreement to sale, there was no mention of

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the open plot adjacent to Block No.1

Saubhagyapark Society Ltd and hence, the

same could not have been confirmed. It was

further submitted that the sale deed dated

02.11.1982 which is confirmed by this

Court is having different facts comparing

with the agreement to sale.

7. It was therefore submitted that there is a

mistake apparent on record in confirming

agreement to sale as well as sale deed by

this Court.

8. Learned advocate Mr. Trivedi also referred

to the discussion in the judgement with

regard to section 52 of the Transfer of

the Property Act and submitted that this

Court has not considered the observation

of the Trial Court which states on page

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134 of the Judgement of the Trial Court

that the doctrine of lis pendence could

not be applicable as the amendment was

applicable only to the property situated

at in Greater Bombay City and the suit

property is situated in Ahmedabad City. It

was therefore submitted that this Court

could not have held that as there was no

lis pendence. The sale deed was rightly

executed during the pendency of the Civil

Suits No. 3831/1982 and 4081/1982 on

13.10.1982 and 30.10.1982.

9. It was therefore submitted that the

judgement passed by this Court is required

to be recalled.

10. Learned advocate Mr. Trivedi relying upon

the decision of the Hon'ble Supreme Court

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in case of K. Karuppuraj vs. M.Ganesan

reported in (2021) 10 SCC 777 pointed out

that the provisions of Order 41 Rule 31

are not followed by this Court.

11. On the other hand, learned advocate Mr.

Jainil Shah for the opponent No. 2.1

submitted that there is no mistake

apparent on record pointed by the

applicant and scope of review being very

limited, no interference is called for in

the judgement and the application deserves

to be dismissed. It was submitted that

points raised on behalf of the applicant

are on merits of the case without pointing

out any mistake apparent on record in the

judgement. In support of his submissions,

reliance was placed on the decision of

Asharfi Devi (D) vs. State of Uttar

Pradesh reported in 2019 (5) SCC 86.

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12. Having considered the submissions made by

learned advocate for the parties, the

issue which are raised by this application

with regard to contents of the agreement

that sale which was never in dispute

before have been Trial Court and the

difference between the contents that

agreement of sale and contents of sale

deed were tried to be raised which was

never the dispute before the Trial Court

and therefore, it cannot be said to be a

mistake on record. With regard to issue of

applicability of section 52 of the

Transfer of the Property Act, it pertains

to the interpretation of the provisions of

law and cannot be said to be a mistake

apparent on record.

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13. It is a settled law with regard to the

review of the Judgment. Review means

reexamination or reconsideration. Basic

philosophy inherent in it is the universal

acceptance of the human fallibility as

held by the Apex Court in case of S.

Nagraj and others v. State of Karnataka

and another reported in 1993 Suppl (4)

Supreme Court Cases 595 as under:

"19. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its Order the courts culled out such power to avoid abuse of process or miscarriage of justice. In

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Raja Prithvi Chand Lal Choudhury v. Sukhraj Rai and others, AIR 1941 Federal Court 1, the Court observed that even though no rules had been framed permitting the highest court to review its Order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh, 1 Moo PC 117 that an Order made by the Court was final and could not be altered.

"nevertheless, if by misprision in embodying the Judgments, by errors have been introduced, these Courts possess, by Common law, the same power which the Courts of record and statute have of rectifying mistakes which have crept in ... House of Lords exercises a similar power of rectifying mistakes made in drawing up its own Judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of Judgments; or have supplied manifest defects in Order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies."

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Basis for exercise of the power was stated in the same decision as under:

"It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an Order has been inadvertently made as if the party had been heard."

Rectification of an Order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed and substantive power to rectify or recall the Order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitutionmakers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any Judgment or Order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any Judgment or Order may be reviewed. In exercise of this power Order 40 had been framed empowering this Court to

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review an Order in civil proceedings on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The expression, 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or Order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order 40 Rule 1 of the Supreme Court Rules this Court has the inherent power to make such Orders as may be necessary in the interest of justice or to prevent the abuse of process of court. The Court is thus not precluded from recalling or reviewing its own Order if it is satisfied that it is necessary to do so for sake of justice."

14. From the above observations made by

Hon'ble Supreme Court, the only power with

the Court is to rectify the Judgment and

Order and not review the same. In facts of

the case, the so called mistakes pointed

out by the applicant are not mistakes

apparent on record so as to rectify the

Judgment and Order.

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15. A Judgment may be open to review if there

is a mistake or error apparent on face of

the record as the review jurisdiction is

not an appellate jurisdiction where error

of law can be corrected. An erroneous

decision can be corrected by the higher

forum. Review therefore, is by no means an

appeal in disguise as held by the Calcutta

High Court in case of Joginder Pal Kapoor

v/s. R L Plantation Pvt. Ltd. reported in

2006 3 ICC 776 wherein it is held as

under:

"11] The only ground on which the review is being pressed by the learned counsel in this case is that the Supreme Court Judgment in Allahabad Bank v. Canara Bank [2004 SCC 406] , was not considered by the Division Bench. According to him, that decision ousted the jurisdiction of the Company Court particularly because it was found that one of the secured creditors Punjab National

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Bank had filed a claim before the Debt Recovery Tribunal against this very company. The learned Counsel further urged that the question of adjudication as also the recovery of a debt fell within the exclusive jurisdiction of the Debt Recovery tribunal and, therefore, a sale Ordered by the Company Court after the claim was filed before the Debt Recovery Tribunal was obviously an act of recovery against the company which act clearly fell within the jurisdiction of the Tribunal and was clearly outside the jurisdiction of the company Court. Therefore, the non-consideration of this Judgment by the earlier Division Bench dismissing the appeals against the confirmation of sale, was an error apparent on the face of the record. In Order to buttress his contention that the non-consideration of the earlier Supreme Court Judgment by itself becomes an error apparent on the face of the record, the learned Counsel drew our attention to AIR 1972 Mysore 44 (The Selection Committee for Admission to the Medical and Dental college, Bangalore vs. M. P. Nagaraj) and AIR 1981 Himachal Pradesh 1 (The Nalagarh Dehati Co-operative Transport Society Ltd., Nalagarh vs. Beli Ram etc.) as also to AIR 1981 Rajasthan 36 (State of

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Rajasthan vs. Mehta Chetan Das Kishandass). It is true that in all the three cases mentioned above, the learned Judges have expressed that the failure to consider a contrary Supreme court Judgment would amount to an error apparent on the face of the record. In fact, in support of this proposition, the Mysore High Court in their Judgment has relied on the decision in Thungabhadra Industries Ltd.'s case [AIR 1954 SC 1372] and has proceeded to hold that since under Article 141 of the Constitution of India, the law declared by the Court is binding on all the Courts where there is a decision of the Supreme Court bearing on the point and where a Court has taken a view on that point which is not consistent with the law laid down by the Supreme Court, it would need no elaborate argument to point to the error and there could reasonably be no two opinions entertained about such error. In Thungabhadra's case cited supra, the Supreme Court had very specifically suggested as under "a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any

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great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out."

16. The Apex Court in the following decisions

has held that by invoking the provisions

of section 114 read with Order 47 of the

Code of Civil Procedure, 1908, the

Judgment cannot be reviewed except for

errors apparent on record:

1) In case of Moran Mar Basselios

Catholicos and another v. Most. Rev. Mar

Poulose Athanasius and others reported in

AIR 1954 SC 526, the Apex Court held as

under:

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"32.Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal.

Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XLVII, rule I of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein.

It may allow a review on three specified, grounds, namely (I) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was. passed,

(ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason.

It has been held by the Judicial Committee that the words "any other sufficient reason" must mean "a reason sufficient on grounds, at least analogous to those specified in the rule." See Chhajju Ram v.

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Neki(AIR 1922 PC 112). This conclusion was reiterated by the Judicial Committee in Bisheshwar Pratap Sahi v. Parath Nath(AIR 1934 PC 213] and was adopted by our Federal Court in Hari Shankar Pal v. Anath Nath Mitter(AIR 1949 FC

106). Learned counsel appearing in support of this appeal recognises the aforesaid limitations and submits that his case comes within the ground of "mistake or error apparent on the face of the record"

or some ground analogous thereto.

As already observed, out of the 99 objections taken in the grounds of review to the Judgment of the majority of the High Court only 15 objections were urged before the High Court on the hearing of the application for review. Although most of those points have been referred to by learned counsel for the appellants, he mainly stressed three of them before us. We now proceed to examine these objections."

2) In case of Lily Thomas and others v.

Union of India and others reported in

(2000) 6 Supreme Court Cases 224, the Apex

Court held as under:

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"58. Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with Order XLVII of the CPC has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the Judgment in Sarla Mudgal 's case(1995 3 SCC 635). It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the court at the time of passing of the Judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the Judgment in Sarla Mudgal's case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned Counsel appearing for the parties seeking review of the Judgment. The only arguments advanced were that the Judgment interpreting Section

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494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the Judgment. The words "any-other sufficient reason appearing in Order XLVII Rule 1 CPC" must mean "a reason sufficient on grounds at least analogous to those specified in the rule" as was held in Chajju Ram v. Neki Ram AIR 1922 PC 112 and approved by this Court in Moron Mar Baseless Catholics and Anr. v. Most Rev. Mar Poulose Athanasius and Ors. AIR 1954 SC 526. Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. in T.C. Basappa v. Nagappa and Anr (AIR 1954 SC 440) this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad is Hague and Ors.

(AIR 1955 SC 233) it was held:

...it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error and become an error apparent

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on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, CJ in - "Batuk K Vyas v. Surat Borough Municipality' (AIR 1953 Bombay 133), that no error could be said to be apparent on the face of the record if it was not self-evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self- evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.

Therefore, it can safely be held that the petitioners have hot made out any case within the meaning of

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Article 137 read with Order XL of the Supreme Court Rules and Order XLVII Rule 1 of the CPC for reviewing the Judgment in Sarla Mudgal 's case. The petition is misconceived and bereft of any substance."

3. In case of Board of Control for

Cricket, India and another v. Netaji

Cricket Club and others reported in AIR

2005 Supreme Court 592, the Apex Court

held as under:

"89. 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.

90. Thus, a mistake on the part of the court which would include a

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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"."

17. The Hon'ble Supreme Court has consistently

held that review of Judgment and Order is

not permissible unless the mistakes

apparent on record, like recording of the

figures or the dates are required to be

corrected. However, the applicant has

failed to point out any mistake apparent

on record which would permit this Court to

review the Judgment and Order as no error

could be said to be apparent on the face

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