Karnataka High Court
Smt. Anitha T vs Chief Executive Officer on 10 June, 2024
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WP No.24532 of 2023
A/W RP No.542 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
WRIT PETITION NO. 24532 OF 2023 (S-RES)
A/W
REVIEW PETITION NO. 542 OF 2023
IN W.P. NO.24532 OF 2023
BETWEEN:
SRI. MOHAN K.,
S/O KUPENDRA,
AGED ABOUT 23 YEARS,
OCC. NIL,
R/AT NUSGERE VILLAGE,
HURALAGERE POST,
MALURU TALUK,
KOLAR DISTRICT - 563 130.
...PETITIONER
(BY SRI. BABU RAO M., ADVOCATE)
Digitally signed by
SHARMA ANAND
AND:
CHAYA
Location: High Court of
Karnataka 1. CHIEF EXECUTIVE OFFICER
KOLAR ZILLAPANCHAYATH,
KOLAR,
KOLAR DISTRICT - 563 130.
2. THE DEPUTY SECRETARY
ZILLA PANCHAYATH AND
MEMBER SECRETARY,
VILLAGE PANCHAYATH
LIBRARIANS SELECTION,
COMMITTEE, KOLAR DISTRICT,
KOLAR - 563 130.
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WP No.24532 of 2023
A/W RP No.542 of 2023
3. THE ASSISTANT DIRECTOR
TALUKA PANCHYATH,
MALURU
KOLAR DISTRICT - 563 130.
4. PANCHYATH DEVELOPMENT OFFICER
NUSGERE GRAMPANCHYATH,
MALURU TALUK,
KOLAR DISTRICT - 563 130.
5. SMT. ANITHA T.
W/O K. SHIVAKUMAR,
AGED ABOUT 32 YEARS,
NUSGERE VILLAGE,
KASABA HOBLI,
MALURU TLAUK,
KOLAR DISTRICT - 563 130.
...RESPONDENTS
(BY SRI. B.J. SOMAYAJI, ADVOCATE FOR R1 TO R4;
SRI. KALYAN R., ADVOCATE FOR C/R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 15.9.2023 PASSED BY THE
RESPONDENT NO.2 AS PER ANNEXURE-M AND ENDORSEMENT
DATED 15.9.2023 RECEIVED ON 19.10.2023 PASSED BY THE
RESPONDENT NO.2 APPOINTING THE RESPONDENT NO.5 AS
PER ANNEXURE-N AND DIRECT THE RESPONDENTS TO
APPOINT THE PETITIONER ON MERIT.
IN R.P. NO.542 OF 2023
BETWEEN:
SMT. ANITHA T.
W/O K. SHIVAKUMAR,
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WP No.24532 of 2023
A/W RP No.542 of 2023
AGED ABOUT 31 YEARS,
NUSGERE VILLAGE,
KASABA HOBLI,
MALURU TALUK,
KOLAR DISTRICT-563130
...PETITIONER
(BY SRI. KALYAN R., ADVOCATE)
AND:
1 . CHIEF EXECUTIVE OFFICER
KOLAR ZILAPANCHAYATH, KOLAR,
KOLAR DISTRICT - 563 130
2 . THE DEPUTY SECRETARY
ZILAPANCHAYATH, KOLAR,
KOLAR DISTRICT - 563 130
3 . THE ASSISTANT DIRECTOR
TALUKA PANCHAYATH,
MALURU,
KOLAR DISTRICT - 563 130
4 . PANCHAYATH DEVELOPMENT OFFICER
NUSGERE GRAMAPANCHAYATH,
MALURU TALUK,
KOLAR DISTRICT - 563 130
5 . SRI. MOHAN K.
S/O KUPENDRA,
AGED ABOUT 21 YEARS,
OCC: NIL,
RESIDING AT NUSGERE VILLAGE,
HURALAGERE POST,
MALURU TALUK,
KOLAR DISTRICT - 563 135
...RESPONDENTS
(BY SRI. B.J. SOMAYAJI., ADVOCATE FOR R1 TO R4;
SRI. BABU RAO M., ADVOCATE FOR R5)
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WP No.24532 of 2023
A/W RP No.542 of 2023
THIS REVIEW PETITION IS FILED UNDER ORDER XLVII
RULE 1 OF CPC., PRAYING TO REVIEW THE ORDER DATED
09/06/2023 PASSED IN W.P.NO.15062/2021 PASSED BY THIS
HON'BLE COURT AND TO RESTORE THE WRIT PETITION ON
THE FILE AND DISPOSE THE WRIT PETITION IN ACCORDANCE
WITH LAW AND ETC.
THESE PETITIONS COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner in W.P.No.24532 of 2023 is assailing
the order dated 15.09.2023 (Annexure-M) passed by
the respondent No.2 and Endorsement dated
15.09.1923 (Annexure-N) interalia sought for direction
to the respondent to appoint the petitioner to the post
of Library Supervisor in the respondent-Panchayat.
2. In R.P.No.542 of 2023, petitioner is seeking
review of the order dated 09.06.2023 passed in
W.P.No.15062 of 2021. Petitioner in R.P.No.542 of
2023 is respondent No.5 in W.P.No.24532 of 2023.
3. Relevant facts for the adjudication of these
petitions are that, the respondent-Panchayat had
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called for application from the eligible candidates for
the post of Library Supervisor of Nusgere Village
Grama Panchayat, and the said respondent-Panchayat
has selected the review petitioner-Smt. Anitha T., and
being aggrieved by the same, the petitioner in
W.P.No.24532 of 2023 has filed W.P.No.15062 of
2021 before this Court challenging the selection of the
respondent No.5-Smt. Anitha T. This court by order
dated 09.06.2023, in W.P.No.15062 of 2021 allowed
the writ petition and as such, quashed the
appointment of the review petitioner-Smt. Anitha .T.
Thereafter, the petitioner in W.P.No.24532 of 2023
has approached the respondent-authorities to consider
his case for post of Library Supervisor and the
respondent-Zilla Panchayat, rejected the claim made
by the petitioner as per notification and Endorsement
dated 15.09.2023 (Annexures-M and N respectively).
Therefore, the petitioner in W.P.No.24532 of 2023 has
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questioned the notification and Endorsement dated
15.09.2023 (Annexures-M and N).
4. Review petitioner in R.P.No.542 of 2023 has
challenged the order dated 09.06.2023 in
W.P.No.15062 of 2021 on the ground that, the Rule
9(1)(c) of KCSR (General Recruitment) Rules, 1977
stipulates that, a candidate claiming selection under
the category of Kannada Medium should have studied
Class-1 to 10 in Kannada Medium and therefore,
sought for review of the order dated 09.06.2023 in
W.P.No.15062 of 2021.
5. I have heard Sri.M. Babu Rao, learned
counsel appearing for the petitioner in W.P.No.24532
of 2023 and Sri. Kalyan R., learned counsel appearing
for the review petitioner in R.P.No.542 of 2023; Sri
Somayaji, learned counsel appearing for the
respondent-Panchayat authorities.
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6. Sri M. Babu Rao, learned counsel appearing
for the petitioner in W.P.No.24532 of 2023 contended
that, as this court has quashed appointment of the
respondent No.5 in W.P.No.15062 of 2021 and
therefore, the respondent-panchayat, ought to have
appointed the petitioner for the post of Library
Supervisor on merit, taking into account the fact that,
the petitioner has scored more than the selected
candidate (review petitioner) and accordingly, sought
for interference of this Court.
7. Sri R Kalyan learned counsel appearing for
the review petitioner contended that, the review
petitioner was served but unrepresented in
W.P.No.15062 of 2021 and accordingly, sought for
review of the said order dated 09.06.2023.
8. It is the contention of the Sri. R.Kalyan that,
as per the provisions under Rule 9 (1)(c) of the Rules,
the candidate claiming selection must studied in
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Kannada Medium from Class 1 to 10 Standard and
therefore, the finding recorded by this court in
W.P.No.15062 of 2021 is incorrect and accordingly,
sought for review of order dated 09.06.2023 in
W.P.No.15062 of 2021. It is further contention of
Sri.R.Kalyan that, the review petitioner has been
rightly appointed to the post of Library Supervisor in
the respondent-Panchayat and same has to be
confirmed.
9. Sri Somayaji, learned counsel appearing for
the respondent-Panchayat, placed the original records
containing the advertisement dated 03.10.2020 made
by the respondent-Panchayat, inviting applications for
the post of Library Supervisor and he submitted that,
the review petitioner has studied in Kannada Medium
from Class-1 to Class-10 Standard which is qualifying
examination prescribed for the post and same is in
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terms of the Rules and accordingly, sought for
dismissal of W.P.No.24532 of 2023.
10. In the light of the submission made by the
learned counsel appearing for the parties, I have
carefully examined the finding recoded by this Court
on 09.06.2023 in W.P.No.15062 of 2021. The
undisputed fact is that, the petitioner in W.P.No.24532
of 2023 and the review petitioner in R.P.No.542 of
2023 have participated in the selection process for the
post of Library Supervisor conducted by the
respondent-Panchayat. The advertisement dated
03.10.2020, inviting application from the eligible
candidates reads as under:
¸ÀA:f.PÉÃ.UÀæA.PÉÆÃ/UÁæ.¥ÀA.UÀæA.ªÉÄãÉÃ/44/ /2020-21 ¢£ÁAPÀ:03.10.2020
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£ÉêÀÄPÁw ªÀiÁqÀĪÀ PÀÄjvÀÄ.
******
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11. On perusal of the advertisement dated
03.10.2020, the relevant qualification required for the
post of Library Supervisor is that, the applicant should
have passed SSLC in Kannada Medium. That apart,
the applicant must be within the age of 18 to 35
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years. Nothing is stated in the advertisement about
the applicability of Rules referred to above. In that
view of the matter, the requisite qualification for the
post of Librarian in the respondent-Grama Panchayat
is that the candidate must pass SSLC examination in
Kannada as medium of instructions. Therefore, the
reasons assigned by this Court at paragraph No.7 in
W.P.No.15062 of 2021 is just and proper and in the
absence of any Rule mentioned in the advertisement
dated 03.10.2020 by the respondent-Panchyat, the
contention raised by the learned counsel Sri.R.Kalyan,
appearing for the review petitioner and Sri.Somayaji,
learned counsel appearing for the respondent-
Panchayat cannot be accepted. Needless to say that
the review petitioner was served, remained absent in
W.P.No.15062 of 2021 and therefore, I do not find any
infirmity in the order dated 09.06.2023 passed in
W.P.No.15062 of 2021. Therefore, in terms of the
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judgment rendered by the Hon'ble Supreme Court in
the case of Shri Ram Sahu (dead) through legal
representatives and others vs. Vinod Kumar
Rawat and others reported in (2021) 13 SCC 1,
the R.P.No.542 of 2023 is required to be dismissed as
there is no error apparent on the face of record.
Paragraphs 6 to 11 of the said judgment reads as
under:
"6. By the impugned order [Vinod Kumar
Rawat v. Shri Ram Sahu, 2017 SCC OnLine MP 2064]
the High Court in exercise of powers under Section 114
read with Order 47 Rule 1CPC has allowed the review
petition and has reviewed the judgment and order dated
10-12-2013 passed in Shri Ram Sahu v. Vinod Kumar
Rawat [Shri Ram Sahu v. Vinod Kumar Rawat, 2013
SCC OnLine MP 10238] insofar as deleting the
observations made in para 20 as regards the possession
of the disputed property, which were in favour of the
appellants-original plaintiffs. From the impugned order
passed by the High Court, it appears that the High Court
has deleted the observations made in para 20 as
regards possession of the plaintiffs mainly/solely on the
ground that the issue of possession was neither before
the learned trial court nor was it before the first
appellate court and no such issue with respect to
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possession was framed by the learned trial court.
Therefore, the short question that falls for consideration
before this Court is, whether in the facts and
circumstances of the case the High Court is justified in
allowing the review application in exercise of powers
under Section 114 read with Order 47 Rule 1CPC on the
aforesaid grounds?
7. While considering the aforesaid question, the
scope and ambit of the Court's power under Section 114
read with Order 47 Rule 1CPC is required to be
considered and for that few decisions of this Court are
required to be referred to.
7.1. In Haridas Das v. Usha Rani Banik [Haridas
Das v. Usha Rani Banik, (2006) 4 SCC 78] while
considering the scope and ambit of Section 114CPC read
with Order 47 Rule 1CPC it is observed and held in paras
14 to 18 as under : (SCC pp. 83-84)
"14. In Meera Bhanja v. Nirmala Kumari
Choudhury [Meera Bhanja v. Nirmala Kumari
Choudhury, (1995) 1 SCC 170] it was held that :
(SCC pp. 172-73, para 8)
'8. It is well settled that the review proceedings
are not by way of an appeal and have to be strictly
confined to the scope and ambit of Order 47 Rule
1CPC. In connection with the limitation of the powers
of the court under Order 47 Rule 1, while dealing
with similar jurisdiction available to the High Court
while seeking to review the orders under Article 226
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of the Constitution of India, this Court in Aribam
Tuleshwar Sharma v. Aribam Pishak Sharma [Aribam
Tuleshwar Sharma v. Aribam Pishak Sharma, (1979)
4 SCC 389] speaking through Chinnappa Reddy, J.
has made the following pertinent observations : (SCC
p. 390, para 3)
"3. ... It is true ... there is nothing in Article 226 of
the Constitution to preclude the 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
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 powers which may
enable an appellate court to correct all manner of
errors committed by the subordinate court." '
***
15. A perusal of Order 47 Rule 1 shows that
review of a judgment or an order could be sought :
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(a) from the discovery of new and important matters
or evidence which after the exercise of due diligence
was not within the knowledge of the applicant; (b)
such important matter or evidence could not be
produced by the applicant at the time when the
decree was passed or order made; and (c) on
account of some mistake or error apparent on the
face of the record or any other sufficient reason.
16. In Aribam Tuleshwar Sharma v. Aribam
Pishak Sharma [Aribam Tuleshwar Sharma v. Aribam
Pishak Sharma, (1979) 4 SCC 389] , this Court held
that there are definite limits to the exercise of power
of review. In that case, an application under Order
47 Rule 1 read with Section 151 of the Code was filed
which was allowed and the order passed by the
Judicial Commissioner was set aside and the writ
petition was dismissed. On an appeal to this Court it
was held as under : (SCC p. 390, para 3)
'3. It is true as observed by this Court in Shivdev
Singh v. State of Punjab [Shivdev Singh v. State of
Punjab, AIR 1963 SC 1909] 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
important matter or evidence which, after the
exercise of due diligence was not within the
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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 powers which may
enable an appellate court to correct all manner of
errors committed by the subordinate court.'
17. The judgment in Aribam case [Aribam
Tuleshwar Sharma v. Aribam Pishak Sharma, (1979)
4 SCC 389] has been followed in Meera
Bhanja [Meera Bhanja v. Nirmala Kumari Choudhury,
(1995) 1 SCC 170] . In that case, it has been
reiterated that an error apparent on the face of the
record for acquiring jurisdiction to review must be
such an error which may strike one on a mere
looking at the record and would not require any long-
drawn process of reasoning. The following
observations in connection with an error apparent on
the face of the record in Satyanarayan Laxminarayan
Hegde v. Mallikarjun Bhavanappa
Tirumale [Satyanarayan Laxminarayan
Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960
SC 137] were also noted : (AIR pp. 141-42, para 17)
'17. ... 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
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said to be an error apparent on the face of the
record. Where an alleged error is far from self-
evident and if it can be established, it has to be
established, by lengthy and complicated arguments,
such an error cannot be cured by a writ of certiorari
according to the rule governing the powers of the
superior court to issue such a writ.'
18. It is also pertinent to mention the
observations of this Court in Parsion Devi v. Sumitri
Devi [Parsion Devi v. Sumitri Devi, (1997) 8 SCC
715] . Relying upon the judgments
in Aribam [Aribam Tuleshwar Sharma v. Aribam
Pishak Sharma, (1979) 4 SCC 389] and Meera
Bhanja [Meera Bhanja v. Nirmala Kumari Choudhury,
(1995) 1 SCC 170] it was observed as under : (SCC
p. 719, para 9)
'9. Under Order 47 Rule 1CPC 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 1CPC. In exercise of the jurisdiction under Order
47 Rule 1CPC 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'.' "
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7.2. In Lily Thomas v. Union of India [Lily
Thomas v. Union of India, (2000) 6 SCC 224 : 2000 SCC
(Cri) 1056] , it is observed and held that the power of
review can be exercised for correction of a mistake but
not to substitute a view. Such powers can be exercised
within the limits of the statute dealing with the exercise
of power. It is further observed in the said decision that
the words "any other sufficient reason" appearing in
Order 47 Rule 1CPC must mean "a reason sufficient on
grounds at least analogous to those specified in the
rule" as was held in Chhajju Ram v. Neki [Chhajju
Ram v. Neki, 1922 SCC OnLine PC 11 : (1921-22) 49 IA
144 : AIR 1922 PC 112] and approved by this Court
in Moran Mar Basselios Catholicos v. Mar Poulose
Athanasius [Moran Mar Basselios Catholicos v. Mar
Poulose Athanasius, AIR 1954 SC 526] .
7.3. In Inderchand Jain v. Motilal [Inderchand
Jain v. Motilal, (2009) 14 SCC 663 : (2009) 5 SCC (Civ)
461] in paras 7 to 11 it is observed and held as under :
(SCC pp. 668-69)
"7. Section 114 of the Code of Civil Procedure (for
short "the Code") provides for a substantive power of
review by a civil court and consequently by the
appellate courts. The words "subject as aforesaid"
occurring in Section 114 of the Code mean subject to
such conditions and limitations as may be prescribed
as appearing in Section 113 thereof and for the said
purpose, the procedural conditions contained in
Order 47 of the Code must be taken into
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consideration. Section 114 of the Code although does
not prescribe any limitation on the power of the court
but such limitations have been provided for in Order
47 of the Code; Rule 1 whereof reads as under :
(Kamal Sengupta case [State of W.B. v. Kamal
Sengupta, (2008) 8 SCC 612 : (2008) 2 SCC (L&S)
735] , SCC p. 631, para 17)
'17. The power of a civil court to review its
judgment/decision is traceable in Section 114CPC.
The grounds on which review can be sought are
enumerated in Order 47 Rule 1CPC, which reads as
under:
"1. Application for review of judgment.--(1)
Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is
allowed, but from which no appeal has been
preferred,
(b) by a decree or order from which no appeal is
allowed, or
(c) by a decision on a reference from a Court of
Small Causes,
and who, from the discovery of new and important
matter or evidence which, after the exercise of due
diligence, was not within his knowledge or could not
be produced by him 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
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him, may apply for a review of judgment of the court
which passed the decree or made the order." '
8. An application for review would lie inter alia
when the order suffers from an error apparent on the
face of the record and permitting the same to
continue would lead to failure of justice. In Rajender
Kumar v. Rambhai [Rajender Kumar v. Rambhai,
(2007) 15 SCC 513 : (2010) 3 SCC (Cri) 584] this
Court held : (SCC p. 514, para 6)
'6. The limitations on exercise of the power of
review are well settled. The first and foremost
requirement of entertaining a review petition is that
the order, review of which is sought, suffers from
any error apparent on the face of the order and
permitting the order to stand will lead to failure of
justice. In the absence of any such error, finality
attached to the judgment/order cannot be disturbed.'
9. The power of review can also be exercised by
the court in the event discovery of new and
important matter or evidence takes place which
despite exercise of due diligence was not within the
knowledge of the applicant or could not be produced
by him at the time when the order was made. An
application for review would also lie if the order has
been passed on account of some mistake.
Furthermore, an application for review shall also lie
for any other sufficient reason.
10. It is beyond any doubt or dispute that the
review court does not sit in appeal over its own
order. A rehearing of the matter is impermissible in
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law. It constitutes an exception to the general rule
that once a judgment is signed or pronounced, it
should not be altered. It is also trite that exercise of
inherent jurisdiction is not invoked for reviewing any
order.
11. Review is not appeal in disguise. In Lily
Thomas v. Union of India [Lily Thomas v. Union of
India, (2000) 6 SCC 224 : 2000 SCC (Cri) 1056] this
Court held : (SCC p. 251, para 56)
'56. It follows, therefore, that the power of review
can be exercised for correction of a mistake but not
to substitute a view. Such powers can be exercised
within the limits of the statute dealing with the
exercise of power. The review cannot be treated like
an appeal in disguise.' "
8. The dictionary meaning of the word "review" is
"the act of looking, offer something again with a view to
correction or improvement". It cannot be denied that
the review is the creation of a statute. In Patel Narshi
Thakershi v. Pradyumansinghji Arjunsinghji [Patel Narshi
Thakershi v. Pradyumansinghji Arjunsinghji, (1971) 3
SCC 844] , this Court has held that the power of review
is not an inherent power. It must be conferred by law
either specifically or by necessary implication. The
review is also not an appeal in disguise.
9. What can be said to be an error apparent on the
face of the proceedings has been dealt with and
considered by this Court in T.C. Basappa v. T.
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Nagappa [T.C. Basappa v. T. Nagappa, AIR 1954 SC
440] . It is held that such an error is an error which is a
patent error and not a mere wrong decision. In Hari
Vishnu Kamath v. Syed Ahmad Ishaque [Hari Vishnu
Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104 :
AIR 1955 SC 233] , it is observed as under : (SCC p.
244, para 23)
"23. ... 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 on the face of the record? The 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."
9.1. In Parsion Devi v. Sumitri Devi [Parsion
Devi v. Sumitri Devi, (1997) 8 SCC 715] in paras 7 to 9
it is observed and held as under : (SCC pp. 718-19)
"7. It is well settled that review proceedings have
to be strictly confined to the ambit and scope of
Order 47 Rule 1CPC. In Thungabhadra Industries
Ltd. v. State of A.P. [Thungabhadra Industries
Ltd. v. State of A.P., AIR 1964 SC 1372] this Court
opined : (AIR p. 1377, para 11)
'11. What, however, we are now concerned with
is whether the statement in the order of September
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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 characterised
as vitiated by 'error apparent'. A review is by no
means an appeal in disguise whereby an erroneous
decision is reheard and corrected, but lies only for
patent error.'
8. Again, in Meera Bhanja v. Nirmala Kumari
Choudhury [Meera Bhanja v. Nirmala Kumari
Choudhury, (1995) 1 SCC 170] while quoting with
approval a passage from Aribam Tuleshwar
Sharma v. Aribam Pishak Sharma [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 1CPC.
9. Under Order 47 Rule 1CPC 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
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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 1CPC. In exercise of the jurisdiction under Order
47 Rule 1CPC 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 in original)
9.2. In State of W.B. v. Kamal Sengupta [State of
W.B. v. Kamal Sengupta, (2008) 8 SCC 612 : (2008) 2
SCC (L&S) 735] , this Court had an occasion to consider
what can be said to be "mistake or error apparent on
the face of record". In paras 22 to 35 it is observed and
held as under : (SCC pp. 633-38)
"22. The term "mistake or error apparent" by its
very connotation signifies an error which is evident
per se 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 1CPC or
Section 22(3)(f) of the Act. To put it differently an
order or 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
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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.
23. We may now notice some of the judicial
precedents in which Section 114 read with Order 47
Rule 1CPC and/or Section 22(3)(f) of the Act have
been interpreted and limitations on the power of the
civil court/tribunal to review its judgment/decision
have been identified.
24. In Kotagiri Venkata Subbamma
Rao v. Vellanki Venkatarama Rao [Kotagiri Venkata
Subbamma Rao v. Vellanki Venkatarama Rao, 1900
SCC OnLine PC 12 : (1899-1900) 27 IA 197] the
Privy Council interpreted Sections 206 and 623 of the
Civil Procedure Code and observed : (SCC OnLine PC
: IA p. 205)
'... Section 623 enables any of the parties to apply
for a review of any decree on the discovery of new
and important matter and evidence, which was not
within his knowledge, or could not be produced by
him at the time the decree was passed, or on
account of some mistake or error apparent on the
face of the record, or for any other sufficient reason.
It is not necessary to decide in this case whether the
latter words should be confined to reasons strictly
ejusdem generic with those enumerated, as was held
in Roy Meghraj v. Beejoy Gobind Burral [Roy
Meghraj v. Beejoy Gobind Burral, ILR (1875) 1 Cal
197] . In the opinion of their Lordships, the ground
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of amendment must at any rate be something which
existed at the date of the decree, and the section
does not authorise the review of a decree which was
right when it was made on the ground of the
happening of some subsequent event.'
25. In Hari Sankar Pal v. Anath Nath Mitter [Hari
Sankar Pal v. Anath Nath Mitter, 1949 SCC OnLine FC
4 : (1949-50) 11 FCR 36] a five-Judge Bench of the
Federal Court while considering the question whether
the Calcutta High Court was justified in not granting
relief to non-appealing party, whose position was
similar to that of the successful appellant, held :
(SCC OnLine FC : FCR p. 48)
'That a decision is erroneous in law is certainly no
ground for ordering review. If the court has decided
a point and decided it erroneously, the error could
not be one apparent on the face of the record or
even analogous to it. When, however, the court
disposes of a case without adverting to or applying
its mind to a provision of law which gives it
jurisdiction to act in a particular way, that may
amount to an error analogous to one apparent on the
face of the record sufficient to bring the case within
the purview of Order 47 Rule 1 of the Civil Procedure
Code.'
26. In Moran Mar Basselios Catholicos v. Mar
Poulose Athanasius [Moran Mar Basselios
Catholicos v. Mar Poulose Athanasius, AIR 1954 SC
526] this Court interpreted the provisions contained
in the Travancore Code of Civil Procedure which are
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analogous to Order 47 Rule 1 and observed : (AIR p.
538, para 32)
'32. ... Under the provisions in the Travancore
Code of Civil Procedure which is similar in terms to
Order 47 Rule 1 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, least analogous to
those specified in the rule".'
27. In Thungabhadra Industries Ltd. v. State of
A.P. [Thungabhadra Industries Ltd. v. State of A.P.,
AIR 1964 SC 1372] it was held that a review is by no
means an appeal in disguise whereof an erroneous
decision can be corrected.
28. In Parsion Devi v. Sumitri Devi [Parsion
Devi v. Sumitri Devi, (1997) 8 SCC 715] it was held
as under : (SCC p. 716)
'Under Order 47 Rule 1CPC 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
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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 1CPC. In exercise of the jurisdiction under Order
47 Rule 1CPC it is not permissible for an erroneous
decision to be "reheard and corrected". There is a
clear distinction between an erroneous decision and
an error apparent on the face of the record. While
the first can be corrected by the higher forum, the
latter only can be corrected by exercise of the review
jurisdiction. A review petition has a limited purpose
and cannot be allowed to be "an appeal in disguise".'
29. In Haridas Das v. Usha Rani Banik [Haridas
Das v. Usha Rani Banik, (2006) 4 SCC 78] this Court
made a reference to the Explanation added to Order
47 by the Code of Civil Procedure (Amendment) Act,
1976 and held : (SCC p. 82, para 13)
'13. In order to appreciate the scope of a review,
Section 114CPC has to be read, but this section does
not even adumbrate the ambit of interference
expected of the court since it merely states that it
'may make such order thereon as it thinks fit'. The
parameters are prescribed in Order 47CPC and for
the purposes of this lis, permit the defendant to
press for a rehearing 'on account of some mistake or
error apparent on the face of the records or for any
other sufficient reason'. The former part of the rule
deals with a situation attributable to the applicant,
and the latter to a jural action which is manifestly
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incorrect or on which two conclusions are not
possible. Neither of them postulate a rehearing of the
dispute because a party had not highlighted all the
aspects of the case or could perhaps have argued
them more forcefully and/or cited binding precedents
to the court and thereby enjoyed a favourable
verdict. This is amply evident from the Explanation to
Rule 1 of Order 47 which states that 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. Where the order in question is
appealable the aggrieved party has adequate and
efficacious remedy and the court should exercise the
power to review its order with the greatest
circumspection.'
30. In Aribam Tuleshwar Sharma v. Aribam
Pishak Sharma [Aribam Tuleshwar Sharma v. Aribam
Pishak Sharma, (1979) 4 SCC 389] this Court
considered the scope of the High Courts' power to
review an order passed under Article 226 of the
Constitution, referred to an earlier decision
in Shivdev Singh v. State of Punjab [Shivdev
Singh v. State of Punjab, AIR 1963 SC 1909] and
observed : (Aribam Tuleshwar case [Aribam
Tuleshwar Sharma v. Aribam Pishak Sharma, (1979)
4 SCC 389] , SCC p. 390, para 3)
'3. ... It is true as observed by this Court
in Shivdev Singh v. State of Punjab [Shivdev
- 30 -
NC: 2024:KHC:20212
Singh v. State of Punjab, AIR 1963 SC 1909] , 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 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 powers which may enable an
appellate court to correct all manner of errors
committed by the subordinate court.'
31. In K. Ajit Babu v. Union of India [K. Ajit
Babu v. Union of India, (1997) 6 SCC 473 : 1997
SCC (L&S) 1520] , it was held that even though
Order 47 Rule 1 is strictly not applicable to the
tribunals, the principles contained therein have to be
extended to them, else there would be no limitation
on the power of review and there would be no
certainty or finality of a decision. A slightly different
view was expressed in Gopabandhu Biswal v. Krishna
- 31 -
NC: 2024:KHC:20212
Chandra Mohanty [Gopabandhu Biswal v. Krishna
Chandra Mohanty, (1998) 4 SCC 447 : 1998 SCC
(L&S) 1147] . In that case it was held that the power
of review granted to the tribunals is similar to the
power of a civil court under Order 47 Rule 1.
32. In Ajit Kumar Rath v. State of Orissa [Ajit
Kumar Rath v. State of Orissa, (1999) 9 SCC 596 :
2000 SCC (L&S) 192] , this Court reiterated that
power of review vested in the Tribunal is similar to
the one conferred upon a civil court and held : (SCC
p. 608, paras 30-31)
'30. The provisions extracted above indicate that
the power of review available to the Tribunal is the
same as has been given to a court under Section 114
read with Order 47CPC. The power is not absolute
and is hedged in by the restrictions indicated in
Order 47. The power can be exercised on the
application of a person on 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 order was made. The power can also
be exercised on account of some mistake or error
apparent on the face of the record or for any other
sufficient reason. A review cannot be claimed or
asked for merely for a fresh hearing or arguments or
correction of an erroneous view taken earlier, that is
to say, the power of review can be exercised only for
correction of a patent error of law or fact which
stares in the face without any elaborate argument
- 32 -
NC: 2024:KHC:20212
being needed for establishing it. It may be pointed
out that the expression 'any other sufficient reason'
used in Order 47 Rule 1 means a reason sufficiently
analogous to those specified in the Rule.
31. Any other attempt, except an attempt to
correct an apparent error or an attempt not based on
any ground set out in Order 47, would amount to an
abuse of the liberty given to the Tribunal under the
Act to review its judgment.'
33. In State of Haryana v. M.P. Mohla [State of
Haryana v. M.P. Mohla, (2007) 1 SCC 457 : (2007) 1
SCC (L&S) 303] this Court held as under : (SCC pp.
465-66, para 27)
'27. A review petition filed by the appellants
herein was not maintainable. There was no error
apparent on the face of the record. The effect of a
judgment may have to be considered afresh in a
separate proceeding having regard to the subsequent
cause of action which might have arisen but the
same by itself may not be a ground for filing an
application for review.'
34. Gopal Singh v. State Cadre Forest Officers'
Assn. [Gopal Singh v. State Cadre Forest Officers'
Assn., (2007) 9 SCC 369 : (2007) 2 SCC (L&S) 819]
this Court held that after rejecting the original
application filed by the appellant, there was no
justification for the Tribunal to review its order and
allow the revision of the appellant. Some of the
observations made in that judgment are extracted
below : (SCC p. 387, para 40)
- 33 -
NC: 2024:KHC:20212
'40. The learned counsel for the State also
pointed out that there was no necessity whatsoever
on the part of the Tribunal to review its own
judgment. Even after the microscopic examination of
the judgment of the Tribunal we could not find a
single reason in the whole judgment as to how the
review was justified and for what reasons. No
apparent error on the face of the record was pointed,
nor was it discussed. Thereby the Tribunal sat as an
appellate authority over its own judgment. This was
completely impermissible and we agree with the High
Court (Sinha, J.) that the Tribunal has travelled out
of its jurisdiction to write a second order in the name
of reviewing its own judgment. In fact the learned
counsel for the appellant did not address us on this
very vital aspect.'
35. The principles which can be culled out from
the abovenoted judgments are:
(i) The power of the Tribunal to review its
order/decision under Section 22(3)(f) of the Act is
akin/analogous to the power of a civil court under
Section 114 read with Order 47 Rule 1CPC.
(ii) The Tribunal can review its decision on either
of the grounds enumerated in Order 47 Rule 1
and not otherwise.
(iii) The expression "any other sufficient reason"
appearing in Order 47 Rule 1 has to be
interpreted in the light of other specified grounds.
(iv) An error which is not self-evident and which
can be discovered by a long process of reasoning,
- 34 -
NC: 2024:KHC:20212
cannot be treated as an error apparent on the
face of record justifying exercise of power under
Section 22(3)(f).
(v) An erroneous order/decision cannot be
corrected in the guise of exercise of power of
review.
(vi) A decision/order cannot be reviewed under
Section 22(3)(f) on the basis of subsequent
decision/judgment of a coordinate or larger Bench
of the tribunal or of a superior court.
(vii) While considering an application for review,
the tribunal must confine its adjudication with
reference to material which was available at the
time of initial decision. The happening of some
subsequent event or development cannot be
taken note of for declaring the initial
order/decision as vitiated by an error apparent.
(viii) Mere discovery of new or important matter
or evidence is not sufficient ground for review.
The party seeking review has also to show that
such 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/tribunal earlier."
10. To appreciate the scope of review, it would be
proper for this Court to discuss the object and ambit of
Section 114CPC as the same is a substantive provision
for review when a person considering himself aggrieved
either by a decree or by an order of court from which
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appeal is allowed but no appeal is preferred or where
there is no provision for appeal against an order and
decree, may apply for review of the decree or order as
the case may be in the court, which may order or pass
the decree. From the bare reading of Section 114CPC, it
appears that the said substantive power of review under
Section 114CPC has not laid down any condition as the
condition precedent in exercise of power of review nor
the said section imposed any prohibition on the court for
exercising its power to review its decision. However, an
order can be reviewed by a court only on the prescribed
grounds mentioned in Order 47 Rule 1CPC, which has
been elaborately discussed hereinabove. An application
for review is more restricted than that of an appeal and
the court of review has limited jurisdiction as to the
definite limit mentioned in Order 47 Rule 1CPC itself.
The powers of review cannot be exercised as an inherent
power nor can an appellate power be exercised in the
guise of power of review.
11. Considered in the light of the aforesaid settled
position, we find that the High Court has clearly
overstepped the jurisdiction vested in the Court under
Order 47 Rule 1CPC. No ground as envisaged under
Order 47 Rule 1CPC has been made out for the purpose
of reviewing the observations made in para 20. It is
required to be noted and as evident from para 20, the
High Court made observations in para 20 with respect to
possession of the plaintiffs on appreciation of evidence
on record more particularly the deposition of the plaintiff
(PW 1) and his witness PW 2 and on appreciation of the
- 36 -
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evidence, the High Court found that the plaintiff is in
actual possession of the said house. Therefore, when the
observations with respect to the possession of the
plaintiff were made on appreciation of evidence/material
on record, it cannot be said that there was an error
apparent on the face of proceedings which were
required to be reviewed in exercise of powers under
Order 47 Rule 1CPC. At this stage, it is required to be
noted that even the High Court while making
observations in para 20 with respect to the plaintiff in
possession also took note of the fact that Defendants 1
and 2 - respondents herein themselves filed an
application being IA No. 1267 of 2012 which was filed
under Section 151CPC for getting the possession of the
disputed house from the appellants and the said
application was dismissed as withdrawn. Therefore, the
High Court took note of the fact that even according to
Defendants 1 & 2 the appellants were in possession of
the disputed house. Therefore, in light of the fact
situation, the High Court has clearly erred in deleting
para 20 in exercise of powers under Order 47 Rule 1CPC
more particularly in the light of the settled proposition of
law laid down by this Court in the aforesaid decisions."
12. Nextly insofar as W.P.No.24532 of 2023 is
concerned, as this Court has set aside the
appointment of the selectee, (Smt. Anitha.T) and
directed the respondent-Panchayat to take decision in
the matter by remanding the matter to the
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respondent-Panchayat, it is expedient for the
respondent-Panchayt to take decision in the matter, in
accordance with law within four weeks from the date
of receipt of this order. Therefore, the impugned
notification dated 15.09.2023 and Endorsement dated
15.09.2023 (Annexure-M and N) are hereby set aside
and matter is remitted to the respondent -Panchayat
to take decision in the matter. In the result, I pass the
following:
ORDER
i) W.P.No.24532 of 2023 is allowed;
ii) R.P.No.542 of 2023 is dismissed.
SD/-
JUDGE
SB
