Himachal Pradesh High Court
Reserved On: 10.09.2024 vs Devinder Kumar Sharma on 4 October, 2024
2024:HHC:9542
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Review Petition No. 10 of 2024
Reserved on: 10.09.2024
Date of Decision: 04.10.2024.
Mehar Chand (since deceased) through his LRs ...Petitioners
Versus
Devinder Kumar Sharma ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioners : Mr. R.K. Sharma, Senior Advocate
with Ms. Anita Tegta, Advocate, for
the petitioners.
For the Respondent : Mr. G.R. Palsra, Advocate.
Rakesh Kainthla, Judge
The petitioners have filed the present petition seeking
review of the judgment and decree dated 12.09.2023 passed by
this Court in RSA No. 58 of 2022 titled Devinder Kumar Sharma
vs. Mehar Chand (through Lrs and others). It has been pleaded
that this Court had passed an order on 18.04.2013 directing the
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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service of respondents No. 1(c) to 1(e) on taking steps and in case
of failure to dismiss the suit for non-prosecution. This order was
recalled on 22.11.2022. Mehar Chand expired on 27.05.2010.
Defendant Devinder Kumar Sharma filed an application to bring
on record his legal representatives mentioned in the application.
A reply was filed to the application. A copy of the registered Will
was also enclosed with the reply. It was asserted that mutation
No. 2445 was attested by the Revenue Department based on the
Will and the persons mentioned in the reply were the legal
representatives of Mehar Chand. Vishal minor son of late Room
Singh was not brought on record despite the filing of the reply.
This fact was brought to the notice of the Court on 12.09.2023 but
the submission did not find favour with the Court. The Will dated
05.06.2006 was never challenged by any person. Vishal was born
on 14.08.2001. He was minor on 10.10.2012 when the appeal was
dismissed for non-prosecution. There was no occasion or
opportunity for him to defend himself. Vishal has a right and his
ownership was recorded vide mutation No. 2445. The right to be
heard was denied to him. The appellant intentionally avoided
impleading Vishal as a party. The appellant had failed to take
steps for the service of the respondents and the Court had rightly
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passed an order for dismissing the appeal for non-prosecution.
Such an order could not have been recalled after the lapse of a
long time. The opportunity of being heard is the basic principle of
natural justice, which has been denied to the minor Vishal. There
was no substantial question of law in the appeal and the same
deserved to be dismissed. Therefore, it was prayed that the
present petition be allowed and the judgment and decree passed
by this Court be set aside.
2. This review petition was filed by all the legal
representatives except Vishal. Subsequently, an application (CMP
No. 13580 of 2024) under Order 1 Rule 10 of CPC was filed on
behalf of Vishal, which was allowed vide order dated 13.08.2024.
3. I have heard Mr. R.K. Sharma, learned Senior Counsel
assisted by Ms. Anita Tegta, learned counsel for the petitioners
and Mr. G.R. Palsra, learned counsel for the respondent.
4. Mr. R.K. Sharma, learned Senior Counsel for the
petitioners submitted that Vishal was a necessary party as a Will
was executed in his favour. He was not impleaded as a party and
he has been condemned unheard. Therefore, he prayed that the
present petition be allowed and the judgment and decree passed
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by this Court be reviewed. He relied upon the judgments of this
Court in Suraj Mani versus Kishori Lal AIR 1976 HP74, Jai Ram
Reddy versus Revenue Divisional Officer Land Accusation Officer AIR
1979 SC 1393 and Jawala Dass versus Hari Krishan AIR 1981 P&H 167
in support of his submission.
5. Mr. G.R. Palsra, learned counsel for the respondent
submitted that the Court had consciously passed an order on
10.10.2012 after hearing the parties that all the legal
representatives were brought on record and Vishal could not be
brought on record. The remedy of the petitioners is to challenge
the order dated 10.10.2012 and they cannot challenge the
judgment and decree passed by the Court. This Court had noticed
this fact in its order dated 12.09.2023 and this order was not
challenged by the petitioners. There is no error apparent on the
face of the record. Hence, he prayed that the present petition be
dismissed.
6. I have given considerable thought to the submissions
made at the bar and have gone through the record carefully.
7. Order 47 Rule 1 of CPC deals with an application for
review. It reads as under:
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"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
of 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 on 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."
8. It is apparent from the bare perusal of this Section
that the power of review can be exercised on the discovery of new
and important matter, mistake or error apparent on the face of
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the record or for any other sufficient reason. It was laid down by
the Hon'ble Supreme Court in S. Madhusudhan Reddy v. V.
Narayana Reddy, 2022 SCC OnLine SC 1034= (2022) 12 SCALE 261 =
(2022) 4 CivCC 464 = (2022) 4 RCR(Civil) 36 that the Court cannot
review an order unless it is satisfied that there is a material error
manifest on the face of the record, which would result in the
miscarriage of justice. It was observed:
"18. A glance at the aforesaid provisions makes it clear that
a review application would be maintainable on (i)
discovery of new and important matters or evidence
which, after exercise of due diligence, were not within the
knowledge of the applicant or could not be produced by
him when the decree was passed or the order made; (ii) on
account of some mistake or error apparent on the face of
the record; or (iii) for any other sufficient reason.
19. In Col. Avatar Singh Sekhon v. Union of India and Others,
1980 Supp SCC 562 this Court observed that a review of an
earlier order cannot be done unless the court is satisfied
that the material error which is manifest on the face of the
order, would result in a miscarriage of justice or
undermine its soundness. The observations made are as
under:
'12. A review is not a routine procedure. Here we
resolved to hear Shri Kapil at length to remove
any feeling that the party has been hurt without
being heard. But we cannot review our earlier
order unless satisfied that material error,
manifest on the face of the order, undermines its
soundness or results in a miscarriage of justice. In
Sow Chandra Kante and Another v. Sheikh Habib,
(1975) 1 SCC 674 this Court observed:
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'A review of a judgment is a serious step and
reluctant resort to it is proper only where a
glaring omission or patent mistake or like
grave error has crept in earlier by judicial
fallibility. The present stage is not a virgin
ground but a review of an earlier order which
has the normal feature of finality.' (emphasis
added)
20. In Parsion Devi and Others v. Sumitri Devi and Others,
(1997) 8 SCC 715 stating that an error that is not self-
evident and one that has to be detected by the process of
reasoning, cannot be described as an error apparent on the
face of the record for the Court to exercise the powers of
review, this Court held as under:
'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. Govt. of A.P., 1964 SCR (5) 174 this Court
opined:
'11. What, however, we are now 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 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 characterized 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.'
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8. Again, in Meera Bhanja v. Nirmala Kumari
Choudhury, (1995) 1 SCC 170 while quoting with
approval a passage from Aribam Tuleshwar
Sharma v. Aribam Pishak Sharma, (1979) 4 SCC
389 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 this 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''. [emphasis added]
21. The error referred to under the Rule, must be apparent
on the face of the record and not one which has to be
searched out. While discussing the scope and ambit of
Article 137 that empowers the Supreme Court to review its
judgments and in the course of discussing the contours of
review jurisdiction under Order XLVII Rule 1 of the CPC in
Lily Thomas (supra), this Court held as under:
'54. Article 137 empowers this court to review its
judgments subject to the provisions of any law
made by Parliament or any rules made under
Article 145 of the Constitution. The Supreme Court
Rules made in the exercise of the powers under
Article 145 of the Constitution prescribe that in
civil cases, review lies on any of the grounds
specified in Order 47 Rule 1 of the Code of Civil
Procedure which provides:
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'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.'
Under Order XL Rule 1 of the Supreme Court Rules,
no review lies except on the ground of error
apparent on the face of the record in criminal
cases. Order XL Rule 5 of the Supreme Court Rules
provides that after an application for review has
been disposed of no further application shall be
entertained in the same matter.
XXX XXX XXX
56. It follows, therefore, that the power of review can
be exercised for the 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. The review cannot be treated like
an appeal in disguise. The mere possibility of two
views on the subject is not a ground for review. Once a
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review petition is dismissed no further petition of
review can be entertained. The rule of law of
following the practice of the binding nature of the
larger Benches and not taking different views by
the Benches of coordinated jurisdiction of equal
strength has to be followed and practised.
However, this Court in the exercise of its powers
under Article 136 or Article 32 of the Constitution
and upon satisfaction that the earlier judgments
have resulted in the deprivation of fundamental
rights of a citizen or rights created under any
other statute, can take a different view
notwithstanding the earlier judgment.
XXX XXX XXX
58. Otherwise also no ground as envisaged under
Order XL of the Supreme Court Rules read with
Order 47 of the Code of Civil Procedure has been
pleaded in the review petition or canvassed before
us during the arguments for the purposes of
reviewing the judgment in Sarla Mudgal case
[(1995) 3 SCC 635, Sarla Mudgal, President, Kalyani
and Others v. Union of India and Others]. 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(supra)
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
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appearing for the parties seeking review of the
judgment. The only arguments advanced were
that the judgment interpreting Section 494
amounted to a 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 47
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 Moran
Mar Basselios Catholicos. v. Most Rev. Mar Poulose
Athanasius, 1955 SCR 520 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. T. Nagappa, 1955 SCR 250 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, 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 a mere error and become an error
apparent 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',
ILR 1953 Bom 191 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
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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 not made out any case within the meaning of
Article 137 read with Order XL of the Supreme
Court Rules and Order 47 Rule 1 CPC for reviewing
the judgment in the Sarla Mudgal case(supra). The
petition is misconceived and bereft of any
substance.' (emphasis added)
21. It is also settled law that in the exercise of review
jurisdiction, the Court cannot reappreciate the evidence to
arrive at a different conclusion even if two views are
possible in a matter."
9. It was laid down in Arun Dev Upadhyaya v. Integrated
Sales Service Ltd., 2023 SCC OnLine SC 779 that the power of review
can be exercised on the satisfaction of the conditions laid down
in Order 47. Where a review is sought on the ground of error
apparent on the face of the record, the error should be visible and
not the one which is to be detected by the process of reasoning. It
was observed:
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9. A plain reading of the above provisions in uncertain
terms states that the power to review can be exercised only
upon the existence of any of the three conditions
expressed therein. 'A mistake or an error apparent on the
face of the record' is one of the conditions. It is only on this
ground that review has been preferred. The above phrase
has been consistently interpreted by authoritative
pronouncement of this Court for decades. A three-judge
Bench of this Court comprising of Hon'ble Sri S.R. Das, C.J.,
M. Hidayatullah and Sri K.C. Das Gupta, J.J. in the case of
Satyanarayan Laxminarayan Hegde and others Vs.
Millikarjun Bhavanappa Tirumale AIR 1960 SC 137,
discussed the scope of the phrase 'error apparent on the
face of the record'. The challenge before this Court in the
said case was the judgment of the High Court on the
grounds whether it suffers from an error apparent on the
face of the record. The High Court had issued a writ of
certiorari and had quashed the order of the Tribunal and
restored that of the Mamlatdar. In paragraph 8 of the
report, the issue which was to be considered is reflected.
The same is reproduced hereunder:
"8. The main question that arises for our
consideration in this appeal by special leave granted by
this Court is whether there is any error apparent on the
face of the record so as to enable the superior court to
call for the records and quash the order by a writ of
certiorari or whether the error, if any, was "a mere
error not so apparent on the face of the record", which
can only be corrected by an appeal if an appeal lies at
all."
10. After discussing the relevant material on record, the
conclusion is stated in paragraph 17 of the report. The view
was that where an error which has to be established by a
long-drawn process of reasoning on points where there
may conceivably be two opinions, can hardly be said to be
an error apparent on the face of the record. The view that a
long-drawn process of arguments to canvass a point
attacking the order in a review jurisdiction, cannot be said
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to be an error apparent on the face of record. The relevant
extract from paragraph 17 of the report is reproduced
hereunder:
"17.................... Is the conclusion wrong and if so, is
such error apparent on the face of the record? If it is
clear that the error if any is not apparent on the face of
the record, it is not necessary for us to decide whether
the conclusion of the Bombay High Court on the
question of notice is correct or not. An error, which has
to be established by a long-drawn process of reasoning
on points where there may conceivably be two opinions
can hardly be said to be an error apparent on the face of
the record. As the above discussion of the rival
contentions shows the alleged error in the present case
is far from self-evident and if it can be established, it
has to be established by lengthy and complicated
arguments. We do not think such an error can be cured
by a writ of certiorari according to the rule governing
the powers of the superior court to issue such a writ. In
our opinion, the High Court was wrong in thinking that
the alleged error in the judgment of the Bombay
Revenue Tribunal, viz., that an order for possession
should not be made unless a previous notice had been
given was an error apparent on the face of the record so
as to be capable of being corrected by a writ of
certiorari."
11. Another case, which may be briefly dealt with is the case
of Parison Devi Vs. Sumitri Devi[(1997) 8 SCC 715], where,
this Court ruled that under Order XLVII 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. It also observed that a review
petition cannot be allowed to be treated as an appeal in
disguise.
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12. A series of decisions may also be referred to herein, it
has been held that power to review may not be exercised
on the ground that the decision was erroneous on merits as
the same would be the domain of the Court of Appeal.
Power of review should not be confused with appellate
powers as the appellate power can correct all manners of
errors committed by the subordinate courts. The following
judgments may be referred to:
(1) Shivdeo Singh Vs. State of Punjab; AIR 1963 SC 1909
(2) Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma;
AIR 1979 SC 1047
(3) Meera Bhanja (Smt.) Vs. Nirmala Kumari Choudhary
(Smt.); (1995) 1 SCC 170.
(4) Uma Nath Pandey Vs. State of U.P.; (2009) 12 SCC 40
13. Recently, this Court in a judgment dated 24th February
2023 passed in Civil Appeal No.1167- 1170 of 2023 between S.
Murali Sundaram Vs. Jothibai Kannan and Others observed
that even though a judgment sought to be reviewed is
erroneous, the same cannot be a ground to review in the
exercise of powers under Order XLVII Rule 1 CPC. Further,
in the case of Perry Kansagra Vs. Smriti Madan
Kansagra[(2019) 20 SCC 753], this Court observed that
while exercising the review jurisdiction in an application
under Order XLVII Rule 1 read with Section 114 CPC, the
Review Court does not sit in appeal over its own order.
14. In another case between Shanti Conductors (P) Ltd. Vs.
Assam SEB, (2020) 2 SCC 677 this Court observed that the
scope of review under Order XLVII Rule 1 read with Section
114 CPC is limited and under the guise of review, the
petitioner cannot be permitted to reagitate and reargue
questions which have already been addressed and decided.
It was further observed that 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.
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15. From the above, it is evident that a power to review
cannot be exercised as an appellate power and has to be
strictly confined to the scope and ambit of Order XLVII
Rule 1 CPC. An error on the face of record must be such an
error which, mere looking at the record should strike and it
should not require any long-drawn process of reasoning
on the points where there may conceivably be two
opinions"
10. It was held in S. Murali Sundaram v. Jothibai Kannan,
2023 SCC OnLine SC 185 that the power of review is not equivalent
to an appellate power. The Court cannot sit in appeal while
considering the review application. It was observed:
"15 While considering the aforesaid issue two decisions of
this Court on Order 47 Rule 1 read with Section 114 CPC are
required to be referred to? In the case of Perry Kansagra
(supra) this Court has observed that while exercising the
review jurisdiction in an application under Order 47 Rule 1
read with Section 114 CPC, the Review Court does not sit in
appeal over its own order. It is observed that a rehearing of
the matter is impermissible in law. It is further observed
that the review is not an appeal in disguise. It is observed
that the power of review can be exercised for the
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. It is further observed
that it is wholly unjustified and exhibits a tendency to
rewrite a judgment by which the controversy has been
finally decided. After considering the catena of decisions
on the exercise of review powers and principles relating to
the exercise of review jurisdiction under Order 47
Rule 1 CPC this Court had summed upon as under:
'(i) Review proceedings are not by way of appeal and
have to be strictly confined to the scope and ambit of
Order 47 Rule 1 CPC.
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(ii) Power of review may be exercised when some
mistake or error apparent on the fact of record is
found. But an error on the face of record must be
such an error which must strike one on merely
looking at the record and would not require any
long-drawn process of reasoning on the points
where there may conceivably by two opinions.
(iii) Power of review may not be exercised on the
ground that the decision was erroneous on merits.
(iv) Power of review can also be exercised for any
sufficient reason which is wide enough to include a
misconception of fact or law by a court or even an
advocate.
(v) An application for review may be necessitated by
way of invoking the doctrine actus curiae neminem
gravabit.'
16. It is further observed in the said decision that an error
which is required to be detected by a process of reasoning
can hardly be said to be an error on the face of the record.
17. In the case of Shanti Conductors (P) Ltd. (supra), it is
observed and held that the scope of review under Order 47
Rule 1 CPC read with Section 114 CPC is limited and under
the guise of review, the petitioner cannot be permitted to
reagitate and reargue questions which have already been
addressed and decided. It is further observed that 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 record justifying the court to
exercise its power of review under Order 47 Rule 1 CPC.
18 Applying the law laid down by this Court in the aforesaid
two decisions to the facts of the case on hand, we are of the
opinion that in the present case while allowing the review
application and setting aside the judgment and order dated
03.03.2017 passed in Writ Petition No.8606 of 2010 the
High Court has exceeded in its jurisdiction and has
exercised the jurisdiction not vested in it while exercising
the review jurisdiction under Order 47 Rule 1 read with
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Section 114 CPC. From the reasoning given by the High
Court, it appears that according to the High Court, the
judgment and order passed in Writ Petition No.8606 of
2010 was erroneous. While passing the impugned
judgment and order the High Court has observed and
considered the Survey Report dated 12.12.2007 which was
already dealt with by the High Court while deciding the
main writ petition and the High Court discarded and/or not
considered the Survey Report dated 12.12.2007. Once the
Survey Report dated 12.12.2007 fell for consideration
before the High Court while deciding the main writ
petition thereafter the same could not have been
considered again by the High Court while deciding the
review application.
19 From the impugned judgment and order passed by the
High Court it appears that the High Court has decided the
review application as if the High Court was exercising the
appellate jurisdiction against the judgment and order
dated 03.03.2017 passed in Writ Petition (MD) No.8606 of
2010 which is wholly impermissible while considering the
review application under Order 47 Rule 1 read with Section
114 CPC.
20. From the impugned judgment and order passed by the
High Court allowing the review application it is observed in
paragraph 33 as under:
'33. The above legal principles were born in mind by
this Court while considering the review application.
Brushing aside a survey report, which was available
on record and which brought out tampering of
official records, ought to have been taken note of by
the Learned Writ Court while considering the prayer
sought for in the Writ Petition. This has led to an
error, which is manifest on the face of the order.
Furthermore, the Court proceeded on the basis that
S.M. Gajendran had executed a gift deed without
noting the fact that the gift deed was a document,
which was unilaterally executed by him, not
accepted by the respondent Corporation and could
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not have been treated to be a valid gift. These facts
have emerged on the fact of the order passed in the
Writ Petition without any requirement for long-
drawn reasoning. Therefore, we are fully satisfied
that we are justified in exercising our review
jurisdiction. For the above reasons, we are of the
clear view that the order passed in the Writ petition
suffers from error apparent on the fact of the records
warranting exercise of review jurisdiction.'
21. From the aforesaid it appears that the High Court has
considered the review application as if it was an appeal
against the order passed by the High Court in Writ Petition
No.8606 of 2010. As observed hereinabove the same is
wholly impermissible while deciding the review
application. Even if the judgment sought to be reviewed is
erroneous the same cannot be a ground to review the same
in the exercise of powers under Order 47 Rule 1 CPC. An
erroneous order may be subjected to appeal before the
higher forum but cannot be a subject matter of review
under Order 47 Rule 1 CPC."
11. Similar is the judgment in Pancham Lal Pandey v.
Neeraj Kumar Mishra, 2023 SCC OnLine SC 143 = AIR 2023 SC 948,
wherein, it was held:
"14. The provision of review is not to scrutinize the
correctness of the decision rendered but rather to correct
the error, if any, which is visible on the face of the
order/record without going into as to whether there is a
possibility of another opinion different from the one
expressed.
15. The Division Bench in allowing the review
petition has dealt with the matter as it is seized of
the special appeal itself and has virtually reversed
the decision by taking a completely new stand for
the payment of salary to teachers subject-wise. It
amounts to rehearing and rewriting the judgment
2024:HHC:9542
in appeal without there being any error apparent
on the face in the earlier order. The Division
Bench thus clearly exceeded its review jurisdiction
in passing the impugned order." to impress us
that the correspondence exchanged between the
parties did not support the conclusion reached by
this Court. We are afraid such a submission cannot
be permitted to be advanced in a review petition.
The appreciation of evidence on record is fully within
the domain of the appellate court. If on appreciation
of the evidence produced, the court records a finding
of fact and reaches a conclusion, that conclusion
cannot be assailed in a review petition unless it is
shown that there is an error apparent on the face of
the record or for some reason akin thereto. It has not
been contended before us that there is any error
apparent on the face of the record. To permit the
review petitioner to argue on a question of
appreciation of evidence would amount to converting
a review petition into an appeal in disguise."
(emphasis added)
23. Under the garb of filing a review petition, a party
cannot be permitted to repeat old and overruled arguments
for reopening the conclusions arrived at in a judgment.
The power of review is not to be confused with the
appellate power which enables the Superior Court to
correct errors committed by a subordinate Court. This
point has been elucidated in Jain Studios Ltd. V. Shin
Satellite Public Co. Ltd., (2006) 5 SCC 501 where it was held
thus:
'11. So far as the grievance of the applicant on
merits is concerned, the learned counsel for the
opponent is right in submitting that virtually the
applicant seeks the same relief which had been
sought at the time of arguing the main matter and
had been negatived. Once such a prayer had been
refused, no review petition would lie which would
convert rehearing of the original matter. It is
2024:HHC:9542
settled law that the power of review cannot be
confused with appellate power which enables a
superior court to correct all errors committed by a
subordinate court. It is not a rehearing of an original
matter. A repetition of old and overruled arguments
is not enough to reopen concluded adjudications. The
power of review can be exercised with extreme care,
caution and circumspection and only in exceptional
cases.
12. When a prayer to appoint an arbitrator by the
applicant herein had been made at the time when
the arbitration petition was heard and was
rejected, the same relief cannot be sought by an
indirect method by filing a review petition. Such
petition, in my opinion, is in the nature of 'second
innings' which is impermissible and unwarranted
and cannot be granted.' (emphasis added)
24. After discussing a series of decisions on review
jurisdiction in Kamlesh Verma v. Mayawati and Others,
(2013) 8 SCC 320 this Court observed that review
proceedings have to be strictly confined to the scope and
ambit of Order XLVII Rule 1, CPC. As long as the point
sought to be raised in the review application has already
been dealt with and answered, parties are not entitled to
challenge the impugned judgment only because an
alternative view is possible. The principles for exercising
review jurisdiction were succinctly summarized in the
captioned case as below:
'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 the knowledge of the
2024:HHC:9542
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" has
been interpreted in Chajju Ram vs.
Neki(supra), and approved by this Court in
Moran Mar Basselios Catholicos vs. Most Rev.
Mar Poulose Athanasius & Ors. (supra) 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. & Ors., (2013) 8
SCC 337.
20.2. When the review will not be
maintainable: -
(i) A repetition of old and overruled
arguments is not enough to reopen
concluded adjudications.
(ii) Minor mistakes of inconsequential
import.
(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 a miscarriage
of justice.
(v) A review is by no means an appeal
in disguise whereby an erroneous
decision is re-heard and corrected but
lies only for patent error.
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(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.'
25. In Aribam Tuleshwar Sharma v. Aribam Pishak
Sharma(supra), this Court was examining an order passed
by the Judicial Commissioner who was reviewing an earlier
judgment that went in favour of the appellant, while
deciding a review application filed by the respondents
therein who took a ground that the predecessor Court had
overlooked two important documents that showed that the
respondents were in possession of the sites through which
the appellant had sought easementary rights to access his
homestead. The said appeal was allowed by this Court with
the following observations:
'3 -It is true as observed by this Court in Shivdeo
Singh and Others v. State of Punjab, (1979) 4 SCC 389
there is nothing in Article 226 of the Constitution
to preclude a High Court from exercising the
power of review which inheres in every court of
plenary jurisdiction to prevent miscarriage of
justice or to correct grave and palpable errors
committed by it. But, there are definitive limits to
the exercise of the power of review. The power of
review may be exercised on the discovery of new and
2024:HHC:9542
important matter or evidence which, after the
exercise of due diligence was not within the
knowledge of the person seeking the review or could
not be produced by him at the time when the order
was made; it may be exercised where some mistake or
error apparent on the face of the record is found; it
may also be exercised on any analogous ground. But,
it may not be exercised on the ground that the
decision was erroneous on merits. That would be the
province of a court of appeal. A power of review is not
to be confused with appellate power which may
enable an appellate court to correct all manner of
errors committed by the subordinate court.'
(emphasis added)
26. In State of West Bengal and Others v. Kamal Sengupta and
Another, (2008) 8 SCC 612 this Court emphasized the
requirement of the review petitioner who approaches a
Court on the ground of discovery of a new matter or
evidence, to demonstrate that the same was not within his
knowledge and held thus:
'21. At this stage, it is apposite to observe that
where a review is sought on the ground of
discovery of new matter or evidence, such matter
or evidence must be relevant and must be of such a
character that if the same had been produced, it
might have altered the judgment. In other words,
the mere discovery of new or important matter or
evidence is not sufficient ground for review ex debito
justitiae. Not only this, the party seeking review has
also to show that such additional matter or evidence
was not within its knowledge and even after the
exercise of due diligence, the same could not be
produced before the court earlier.' (emphasis added)
27. In the captioned judgment, the term 'mistake or error
apparent' has been discussed in the following words:
'22. The term 'mistake or error apparent' by its very
connotation signifies an error which is evident per se
2024:HHC:9542
from the record of the case and does not require
detailed examination, scrutiny and elucidation either
of the facts or the legal position. If an error is not
self-evident and detection thereof requires long
debate and process of reasoning, it cannot be
treated as an error apparent on the face of the
record for the purpose of Order 47 Rule 1 CPC or
Section 22(3) (f) of the Act. To put it differently, an
order decision or judgment cannot be corrected
merely because it is erroneous in law or on the
ground that a different view could have been taken by
the court/tribunal on a point of fact or law. In any
case, while exercising the power of review, the
court/tribunal concerned cannot sit in appeal over its
judgment/decision'. (emphasis added)
28. In S. Nagaraj and Others v. State of Karnataka and
Another, 1993 Supp (4) SCC 595 this Court explained as to
when a review jurisdiction could be treated as statutory or
inherent and held thus :
'18. Justice is a virtue, which transcends all
barriers. Neither the rules of procedure nor
technicalities of law can stand in its way. The
order of the court should not be prejudicial to
anyone. The rule of stare decisis is adhered to for
consistency but it is not as inflexible in
Administrative Law as in Public Law. Even the law
bends before justice. The entire concept of writ
jurisdiction exercised by the higher courts is founded
on equity and fairness. If the court finds that the order
was passed under a mistake and it would not have
exercised the jurisdiction but for the erroneous
assumption which in fact did not exist and its
perpetration shall result in miscarriage of justice then
it cannot on any principle be precluded from
rectifying the error. The mistake is accepted as a valid
reason to recall an order. The difference lies in the
nature of the mistake and the scope of rectification,
depending on if it is of fact or law. But the root from
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which the power flows is the anxiety to avoid
injustice. It is either statutory or inherent. The latter is
available where the mistake is of the Court'.
(emphasis added)
29. In Patel Narshi Thakershi and Others v. Shri Pradyuman
Singhji Arjunsinghji, (1971) 3 SCC 844 this Court held as
follows:
'4.. It is well settled that the power to review is not an
inherent power. It must be conferred by law either
specifically or by necessary implication. No
provision in the Act was brought to notice from
which it could be gathered that the Government
had the power to review its own order. If the
Government had no power to review its own order,
it is obvious that its delegate could not have
reviewed its order.' (emphasis added)
30. In Ram Sahu (Dead) Through LRs and Others v. Vinod
Kumar Rawat and Others, (2020) SCC Online SC 896 citing
previous decisions and expounding on the scope and ambit
of Section 114 read with Order XLVII Rule 1, this Court has
observed that Section 114 CPC does not lay any conditions
precedent for exercising the power of review; and nor does
the Section prohibit the Court from exercising its power to
review a decision. However, an order can be reviewed by
the Court only on the grounds prescribed in Order XLVII
Rule 1 CPC. The said power cannot be exercised as an
inherent power and nor can appellate power be exercised
in the guise of exercising the power of review.
26. As can be seen from the above exposition of law, it has
been consistently held by this Court in several judicial
pronouncements that the Court's jurisdiction of review, is
not the same as that of an appeal. A judgment can be open
to review if there is a mistake or an error apparent on the
face of the record, but an error that has to be detected by a
process of reasoning, cannot be described as an error
apparent on the face of the record for the Court to exercise
its powers of review under Order XLVII Rule1 CPC. In the
2024:HHC:9542
guise of exercising powers of review, the Court can correct
a mistake but not substitute the view taken earlier merely
because there is a possibility of taking two views in a
matter. A judgment may also be open to review when any
new or important matter of evidence has emerged after
passing of the judgment, subject to the condition that such
evidence was not within the knowledge of the party
seeking review or could not be produced by it when the
order was made despite undertaking an exercise of due
diligence. There is a clear distinction between an
erroneous decision as against an error apparent on the face
of the record. An erroneous decision can be corrected by
the Superior Court, however, an error apparent on the face
of the record can only be corrected by exercising review
jurisdiction. Yet another circumstance referred to in Order
XLVII Rule 1 for reviewing a judgment has been described
as 'for any other sufficient reason'. The said phrase has
been explained to mean a reason sufficient on grounds, at
least analogous to those specified in the rule' (Refer:
Chajju Ram v. Neki Ram(supra) and Moran Mar Basselios
Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius
and Others(supra)."
12. The present petition has to be decided as per the
parameters laid down by the Hon'ble Supreme Court.
13. It is an admitted case of the petitioners that a reply
was filed in which the name of Vishal was mentioned as a legal
representative. It was also mentioned that a Will was executed in
favour of Hem Raj, Hukum Ram and Vishal and a mutation No.
2445 was attested based on the Will. This Court passed an order
after hearing the parties on 10.10.2012 that the legal
representatives of the respondent as per details given in para 2 of
2024:HHC:9542
the application were permitted to be taken on record. This order
was not challenged by any person and had attained finality. It
was laid down by the Hon'ble Supreme Court in Bhanu Kumar
Jain v. Archana Kumar, (2005) 1 SCC 787: 2004 SCC OnLine SC 1623
that the principle of res judicata applies to different stages of the
same proceedings. It was observed at page 796:
18. It is now well settled that principles of res judicata
apply in different stages of the same proceedings.
(See Satyadhyan Ghosal v. Deorajin Debi [AIR 1960 SC 941:
(1960) 3 SCR 590] and Prahlad Singh v. Col. Sukhdev
Singh [(1987) 1 SCC 727] .)
19. In Y.B. Patil [(1976) 4 SCC 66] it was held: (SCC p. 68,
para 4)
"4. ... It is well settled that principles of res judicata can
be invoked not only in separate subsequent
proceedings, they also get attracted in subsequent
stages of the same proceedings. Once an order made in
the course of a proceeding becomes final, it would be
binding at the subsequent stage of that proceeding."
20. In Vijayabai [(1999) 1 SCC 693] it was held: (SCC p. 701,
para 13)
"13. We find in the present case the Tahsildar reopened
the very question which finally stood concluded viz.
whether Respondent 1 was or was not the tenant of the
suit land. He further erroneously entered into a new
premise of reopening the question of the validity of the
compromise which could have been in issue if at all in
appeal or revision by holding that the compromise was
arrived at under pressure and allurement. How can this
question be up for determination when this became
final under this very same statute?"
2024:HHC:9542
21. Yet again in Hope Plantations Ltd. [(1999) 5 SCC 590]
this Court laid down the law in the following terms: (SCC
p. 604, para 17)
"17. ... One important consideration of public policy is
that the decisions pronounced by courts of competent
jurisdiction should be final unless they are modified or
reversed by appellate authorities; and the other
principle is that no one should be made to face the same
kind of litigation twice over, because such a process
would be contrary to considerations of fair play and
justice."
22. It was further held: (SCC p. 611, para 31)
"31. Law on res judicata and estoppel is well understood
in India and there are ample authoritative
pronouncements by various courts on these subjects.
As noted above, the plea of res judicata, though
technical, is based on public policy in order to put an
end to litigation. It is, however, different if an issue
which had been decided in earlier litigation again arises
for determination between the same parties in a suit
based on a fresh cause of action or where there is a
continuous cause of action. The parties then may not be
bound by the determination made earlier if, in the
meanwhile, the law has changed or has been
interpreted differently by a higher forum. But that
situation does not exist here. Principles of constructive
res judicata apply with full force. It is the subsequent
stage of the same proceedings. If we refer to Order 47 of
the Code (Explanation to Rule 1) review is not
permissible on the ground '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'."
14. Thus, the decision of the Court dated 10.10.2012 that
only the legal representatives mentioned in the application and
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not the one mentioned in the reply are to be brought on record as
legal representatives of the deceased Mehar Chand is to be
treated as final during the present proceedings and cannot be
questioned by any party.
15. It was rightly submitted on behalf of the respondent
that the remedy of the aggrieved person was to challenge the
order by taking appropriate proceedings. However, no such
proceedings were taken. The question regarding legal
representatives entitled to represent Mehar Chand during these
proceedings was closed by the order dated 10.10.2012 and could
not have been assailed thereafter.
16. It was again brought to the notice of the Court on
12.09.2023 that name of Vishal was not added as a legal
representative of respondent No. 1. The Court noticed the order
dated 10.10.2012 and held that the question of legal
representative was decided by this order and the order could not
be recalled after the lapse of 11 years by saying that Vishal should
be brought on record.
17. The review petition has been filed by taking the same
ground. Once the question of legal representative has been finally
2024:HHC:9542
decided rightly or wrongly, it is impermissible to re-open the
question. The rival pleas were taken before the Court regarding
the legal representative of the deceased. The appellant stated
that the persons mentioned in the application were the legal
representatives while the respondent stated that the persons
mentioned in the reply were the legal representatives. The Court
adjudicated upon these rival pleas and accepted the plea of the
appellant that the persons mentioned in the application were the
legal representatives. The Court could have decided to act upon
the Will or not to act upon the Will and once it has decided not to
act upon the Will, the order will not amount to any error
apparent on the face of the record.
18. It was submitted that the order dated 18.04.2013 could
not have been recalled by the Court and the same amounts to
abuse of the process of the Court. This order was recalled on
22.11.2022 and if the petitioners were aggrieved by the same their
remedy was to challenge it by taking appropriate proceedings
and it is impermissible to challenge the same by filing the review
petition.
2024:HHC:9542
19. The review petition was not filed by Vishal initially
and he was added as a party by filing an application under Order 1
Rule 10 CPC. This shows that Vishal was not aggrieved by the
judgment and decree and the other petitioners were aggrieved
who had contested the matter before the Court. Vishal was
merely added to take advantage of the fact that his name was not
brought on record by the Court. This speaks volume about the
bonafide of the petitioners.
20. The judgments cited at the bar will not help the
petitioners. The judgment in Jawala Dass (supra) deals with the
Haryana Urban Control of Rent and Eviction Act 1973 and the
bonafide requirement which is not the question in the present
proceedings. The judgment in Jai Ram Reddy (supra) deals with
the question of not bringing the legal representatives on record
in the cross-appeal which is also not a question in the present
proceedings. In Suraj Mani (supra) this Court held that the
adjudication of the persons entitled to be brought on record as
legal representatives will not constitute a resjudicata in
subsequent proceedings which is not the question in the present
proceedings. Therefore, none of the cited judgments will help the
petitioners.
2024:HHC:9542
21. No other error in the judgment and decree was
pointed out in the petition. Consequently, the present petition
cannot be allowed and the same is dismissed.
22. The observations made herein before shall remain
confined to the disposal of the petition and will have no bearing,
whatsoever, on the merits of the case.
23. Pending application(s), if any, also stand(s) disposed
of.
(Rakesh Kainthla)
Judge
4th October, 2024
(Nikita)
