[Cites 9, Cited by 0]

Gujarat High Court

Heirs Of Decd. Mahendrabhai Lallubhai ... vs Prashantbhai Kantibhai Patel on 27 February, 2026

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                            C/MCA/517/2026                                         JUDGMENT DATED: 27/02/2026

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                              R/MISC. CIVIL APPLICATION (FOR REVIEW) NO. 517 of 2026

                                         In R/SPECIAL CIVIL APPLICATION/7104/2016


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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                                   Approved for Reporting                         Yes            No
                                                                                                 ✓
                      ==========================================================
                              HEIRS OF DECD. MAHENDRABHAI LALLUBHAI PATEL & ORS.
                                                    Versus
                                         PRASHANTBHAI KANTIBHAI PATEL
                      ==========================================================
                      Appearance:
                      MR. M.T.M. HAKIM WITH MR MOHMEDSAIF HAKIM (5394) for the
                      Applicant(s) No. 1,1.1,1.2,1.3
                      MR. HIMANSHU DESAI WITH MR. SANKUL K KABRA (9304) for the
                      Opponent(s) No. 1
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                             Date : 27/02/2026
                                                               JUDGMENT

1. Rule returnable forthwith. Mr. Kabra, learned

advocate, waives service of notice of rule on behalf of

respondent. With consent of the parties, the application

is taken out for hearing.

2. Heard Mr. M.T.M. Hakim, learned advocate

appearing with Mohmedsaif Hakim, learned advocate for

the applicants - original petitioners and Mr. Himanshu

Desai, learned advocate appearing with Mr. Sankul K.

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Kabra, learned advocate for the opponent - original

respondent.

3. The present application is filed under Section 114

read with Order XLVII Rule 1 of the Code of Civil

Procedure, 1908 (hereinafter referred to as "CPC")

seeking review of judgment and order dated 04.11.2025

passed by this Court in Special Civil Application No.

7104 of 2016.

4.1 The applicants herein are original petitioners -

original defendants, whereas the opponent herein is

original respondent - original plaintiff of Regular Civil

Suit No. 90 of 2011 (original Regular Civil Suit No. 445

of 1997) filed before the Principal Civil Judge,

Vaghodiya, District Vadodara.

4.2 The parties will be referred to as per the original

position in the suit.

4.3 The plaintiff executed a registered agreement to sell

(hereinafter referred to as "ATS") with the defendants on

24.11.1994. The suit came to be filed in the year 1997

seeking specific performance of the ATS. The defendants

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appear to have executed the sale deed in favour of third

party, namely, Naveenchandra Harmanbhai Patel, on

30.03.2012. The plaintiff appears to have challenged the

said sale deed on 22.10.2012 by way of Special Civil Suit

No. 718 of 2012. Thereafter, a compromise was arrived

at between the parties, i.e., the plaintiff and defendants,

on 23.11.2012. On the basis of terms of the settlement

placed before the Trial Court, consent decree came to be

passed by the Trial Court on 26.11.2012. Later on, the

plaintiff filed an execution of the compromise decree. The

defendants disputed the compromise decree by filing an

application below Exhibit 289 in the said suit on

19.03.2016, which came to be rejected by the Trial Court

vide its order dated 19.03.2016, impugned in Special Civil Application No. 7104 of 2016 filed by the

defendants under Article 227 of the Constitution of India

in this Court.

4.4 The defendants were granted reasonable opportunity

by this Court, but the same was not availed as the

learned advocate for the defendants remained absent.

Therefore, vide judgment dated 04.11.2025, upon hearing

the learned advocate for the plaintiff, this Court

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dismissed the petition on merits. Hence, the present

application is filed.

5.1 Mr. Hakim, learned advocate for the applicants -

original defendants, would make a singular submission

that the plaintiff made incorrect submission during the

course of hearing on 04.11.2025, when it was submitted

as recorded in para 6.5 of the order sought to be

reviewed, that petitioners - defendants, have taken out

new grounds to challenge the consent decree, i.e.,

violation of provisions of the Foreign Exchange

Management Act, 1999 (hereinafter referred to as "FEMA

Act"). It is submitted that in the impugned application

filed below Exhibit 289, in para 4 of the application, such contention has been categorically raised about

violation of provisions of the FEMA Act.

5.2 Mr. Hakim, learned advocate, would further submit

that the reasons assigned by this Court in para 12 of

the order sought to be reviewed are erroneous, inasmuch

as the plaintiff has not drawn the attention of this

Court about the contention raised by the defendants in

the said impugned application. It is submitted that

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having left unnoticed such averment made in para 4 of

the impugned application, this Court has committed

apparent error on the face of the record when it has

rejected such contention by placing reliance upon other

materials submitted by the plaintiff.

5.3 Mr. Hakim, learned advocate, would further submit

that since the order sought to be reviewed was passed

without considering the material on record, and as such,

there is an apparent error on the face of the record; this

Court may review its judgment and give one opportunity

of hearing to the defendants to substantiate their

contention.

5.4 Making the above submissions, learned advocate for

the applicants would request this Court to allow the

present application.

6.1 Per contra, Mr. Desai, learned advocate for the opponent, would oppose this application contending, inter

alia, that there is no error apparent on the face of the record on the part of this Court when it has dismissed

the petition vide its judgment dated 04.11.2025, sought

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to be reviewed. It is submitted that defendants have

never raised any contention as regards violation of

provisions of the FEMA Act before the Trial Court

during the course of hearing of the impugned application

below Exhibit 289 filed by them. It is further submitted

that there is no whisper about such contention raised as

not recorded by the Trial Court in its order dated

19.06.2016, impugned in the petition.

6.2 Mr. Desai, learned advocate, would further submit

that the defendants are wrongly submitting before this

Court that they have raised contention about violation of

FEMA Act by placing reliance upon para 4 of their

impugned application filed below Exhibit 289. It is submitted that in para 4 of the impugned application,

only facts were recorded, as in past the defendants had

filed an application below Exhibit 232 under Order VII

Rule 11 citing the provisions of the FEMA Act, but the

same was not entertained by the Trial Court on the

ground that when the ATS was executed, no such

provision like the FEMA Act was in existence; thereby,

the ATS is legally valid. Accordingly, the Trial Court

vide its order dated 11.03.2011 rejected the aforesaid

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application. It is further submitted that the aforesaid

order came to be challenged before this Court by way of

Special Civil Application No. 7870 of 2011, wherein this

Court has not entertained the said writ application vide

its order dated 24.06.2011.

6.3 Mr. Desai, learned advocate, would further submit

that the plaintiff is an agriculturist and holding

agricultural land in Village Varvada, Tehsil Unjha,

District Mehsana, and necessary revenue records to that

effect were also submitted before the Trial Court in the

suit. It is further submitted that the plaintiff is a citizen

of India, holding election card, PAN card, etc.; as such,

there was no violation of any of the provisions of the FEMA Act, as alleged.

6.4 Lastly, Mr. Desai, learned advocate, would further

submit that the scope of review is very limited and in

the absence of any error apparent on the face of the

record committed by this Court, it should not entertain

the present review application filed by the defendants. It

is submitted that despite giving sufficient opportunity of

hearing, when defendants have not availed it, this Court

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may not recall its judgment sought to be reviewed in

this application.

6.5 Making the above submissions, Mr. Desai, learned

advocate would request this Court to dismiss the present

application.

7. No other and further submissions have been made

by the learned advocates for the respective parties.

8. Before appreciating the submissions so canvassed by

the respective learned advocates, I would like to state

that the scope and ambit of entertaining a review

application filed under Order XLVII Rule 1 of the CPC is very limited. It is trite that unless there is an

apparent error on the face of the record, or on account

of some mistake or from discovery of new and important

material or evidence which, after exercise of due

diligence, was not within the knowledge of the applicant,

or any other sufficient reason, the Court should not

entertain the review application.

8.1 The Hon'ble Apex Court in the case of Kamlesh

Verma Vs. Mayawati reported in 2013 (8) SCC 320, has

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summarized the law on the issue of review, wherein it is

held as follows:

"Summary of the principles

20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 :

(1922) 16 LW 37 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC 337 : JT (2013) 8 SC 275]

20.2. When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

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(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

(emphasis supplied)

9. The bone of contention of Mr. Hakim, learned

advocate for the applicants - defendants would be that

while recording the submissions of the other side, this

Court, in its judgment dated 04.11.2025 sought to be

reviewed, wrongly recorded that defendants have taken

out new ground to challenge the consent decree, which is

violation of provisions of the FEMA Act. According to

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Mr. Hakim, learned advocate for the applicants, this

Court has committed apparent error while observing in

para 12 of the judgment sought to be reviewed that

defendants have taken out some new grounds to

challenge the consent decree citing violation of provisions

of the FEMA Act and has erroneously recorded that such

grounds were never pressed into service by defendants

before the Trial Court when filed the impugned

application.

10. To appreciate and examine the aforesaid solitary

ground on which this application came to be presented,

this Court has minutely gone through the order dated

19.06.2016 passed by the Trial Court below Exhibit 289 impugned in the said writ application. A bare reading of

the said order of the Trial Court would not remotely

indicate that such ground was ever raised before the

Trial Court by the defendants. In fact, this Court has

also brought this fact to the notice of Mr. Hakim,

learned advocate for the applicants - defendants; he has

no other option but to concur with the aforesaid fact.

Thus, it is remained an undisputed fact that in the said

order dated 19.06.2016 passed by the Trial Court, no

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contention/ground of the defendants so far as violation of

the FEMA Act was either recorded or answered, as the

case may be. In view of the aforesaid, as defendants

have not raised such ground before the Trial Court,

according to my view, there is no error as such apparent

on the face of the record committed by this Court when

recorded its finding in para 12 of the judgment sought

to be reviewed.

11. It is a settled position of law that if during the

course of hearing, some statement of facts or grounds

are raised by the learned advocate for the respective

parties, but the same were not recorded by the Court,

then the recourse available to the aggrieved party would be to file an application drawing the attention of the

Court concerned about non-recording of the particular

statement of fact or a ground if raised. Such recourse

was available to the defendants in the present case, but

they chose not to file such application before the Trial

Court, rather challenged the aforesaid order of the Trial

Court before this Court by way of writ application.

12. At this stage, I would like to refer to and rely

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upon very pertinent observations made by the Hon'ble

Apex Court in the case of Shankar K. Mandal Vs. State

of Bihar reported in (2003) 9 SCC 519, wherein it is

held as follows:

"11. If really there was no concession, or a different stand was taken, the only course open to the appellant was to move the High Court in line with what has been said in State of Maharashtra v. Ramdas Shrinivas Nayak [(1982) 2 SCC 463 : 1982 SCC (Cri) 478] . In a recent decision Bhavnagar University v. Palitana Sugar Mill (P) Ltd. [(2003) 2 SCC 111 : 2002 AIR SCW 4939] the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before this Court to the contrary.

12. It is also not open to contend that a plea raised was not considered. In Daman Singh v. State of Punjab [(1985) 2 SCC 670 : AIR 1985 SC 973] it was observed (in para 13) as follows : (SCC p. 682)

"13. The final submission of Shri Ramamurthi was that several other questions were raised in the writ petition before the High Court but they were not

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considered. We attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc., but, later, confine themselves, in the course of argument to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the court making the order to it by filing a proper application for review or clarification. The time of the superior courts is not to be wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate court was argued before that court or not?"

(emphasis supplied)

13. Keeping in mind the ratio of the aforesaid decision, if applied to the facts of the present case, I am of the

view that in the absence of any submissions of

defendants recorded by the Trial Court in regard to

violation of provisions of FEMA Act in its aforesaid order

dated 19.06.2016, it can be gainsaid that defendants had

argued such point before the Trial Court.

14. Apart from the aforesaid, what is stated in para 4

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of the impugned application, filed by the defendants