Kerala High Court
D. Vishnu Namboothiri vs Smt.Jayasree.T.K on 28 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944
RP NO. 471 OF 2022
AGAINST THE JUDGMENT IN Con.Case(C) 270/2022 OF HIGH COURT OF
KERALA
REVIEW PETITIONER/PETITIONER:
D. VISHNU NAMBOOTHIRI
AGED 60 YEARS, S/O. LATE DAMODHARAN NAMBOODIRI,
ASSISTANT EXECUTIVE ENGINEER RTD,
ELECTRICAL SUB DIVISION, THENGANA,
CHANGANASSERY, KOTTAYAM DISTRICT,
RESIDING AT CHERUKUDAL ILLAM,
KAVUMBAGAM P.O., THIRUVALLA,
PATHANAMTHITTA DISTRICT, PIN - 689 101.
BY ADV P.M.UNNI NAMBOODIRI
RESPONDENTS/RESPONDENTS:
1 SMT.JAYASREE.T.K
AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,
KERALA STATE ELECTRICITY BOARD LIMITED,
REPRESENTED BY ITS SECRETARY,
VYDHYUTHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM, PIN - 695 004.
2 SRI.DR.ASHOKAN (IAS)
AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,
CHAIRMAN, KSEB LTD, VYDHYUTHI BHAVAN,
PATTOM, THIRUVANANTHAPURAM, PIN - 695 004.
3 SRI.SREEKUMAR.P.K
AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,
CHIEF ENGINEER (HRM),KSEB LTD.
VYDHYUTHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM, PIN - 695 004.
R.P.No.471 of 2022
2
4 SRI.ISACC K.M,
AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,
SENIOR ACCOUNTS OFFICER
KERALA STATE ELECTRICITY BOARD LIMITED,
VYDHYUTHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM, PIN - 695 004.
BY ADV ANTONY MUKKATH
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
28.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
R.P.No.471 of 2022
3
ORDER
Dated this the 28th day of June, 2022
S.Manikumar, C.J.
Earlier, alleging willful disobedience of the directions
issued in W.A.No.1155 of 2017 dated 19.08.2019, Contempt
Case (C)No.270 of 2022 was filed. Placing on record the
contents of the affidavit filed by the Secretary, Kerala State
Electricity Board Limited, 1st respondent therein, vide
judgment dated 02.03.2022, this court closed the contempt
petition. Seeking review of the judgment dated 02.03.2022
made in Contempt Case (C)No.270 of 2022, instant review
petition is filed.
2. Though Mr.Unni Namboodiri, learned counsel for the
review petitioner made submissions on the grounds raised in
the review petition, from the material on record, it could be
deduced that the main ground for seeking review is that the
contempt petition was closed on the basis of a false affidavit
filed by the respondent therein that the entire pensionary
benefits have already been paid to the writ petitioner and
R.P.No.471 of 2022
that no recovery was made from the pensionary benefits.
3. Review of the judgment or order can be made subject
to satisfying the parameters contained in Section 114 and
Order XLVII Rule 1 of the Code of Civil Procedure. For brevity,
the said provisions are extracted:
Section 114 of the Code of Civil Procedure, 1908
"114. Review. - Subject as aforesaid, any person
considering himself aggrieved,-
(a) by a decree or order from which an appeal is allowed
by this Code, but from which no appeal has been
preferred,
(b) by a decree or order from which no appeal is allowed
by this Code,
or
(c) by a decision on a reference from a Court of Small
Causes, may apply for a review of judgment to the Court
which passed the decree or made the order, and the
Court may make such order thereon as it thinks fit."
Order XLVII Rule 1 of the Code of Civil Procedure, 1908
"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
R.P.No.471 of 2022
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.
(2) A party who is not appealing from a decree or order
may apply for a review of judgment notwithstanding the
pendency of an appeal by some other party except
where the ground of such appeal is common to the
applicant and the appellant, or when, being respondent,
he can present to the Appellate Court the case on which
he applies for the review."
4. On the scope of review, reference can be made to few
decisions:
(I) In Moran Mar Basselios Catholicos v. Mar Poulose Athanasius [AIR
1954 SC 526], the Hon'ble Supreme Court interpreted the provisions
contained in the Travancore Code of Civil Procedure, which are
analogous to Order XLVII Rule 1, and held as under:
"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,
R.P.No.471 of 2022
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'."
(II) In Shivdeo Singh v. State of Punjab (AIR 1963 SC 1909), the
Hon'ble Supreme Court held as under:
"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
R.P.No.471 of 2022
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."
(III) In Thungabhadra Industries Ltd. v. Govt. of A.P. [AIR 1964
SC 1372], the Hon'ble Supreme Court held as under:
"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 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."
(IV) In S. Nagaraj v. State of Karnataka [1993 (3) SCALE 548], the
Hon'ble Supreme Court held as under:
"It is the duty of the court to rectify, revise and re-
call its orders as and when it is brought to its notice that
certain of its orders were passed on a wrong or
R.P.No.471 of 2022
mistaken assumption of facts and that implementation
of those orders would have serious consequences. An
act of Court should prejudice none. "Of all these things
respecting which learned men dispute", said Cicero,
"there is none more important than clearly to
understand that we are born for justice and that right is
founded not in opinion but in nature". This very idea
was echoed by James Madison (The Federalist, No. 51 at
p. 352). He said:
"Justice is the end of the government. It is the
end of the civil society. It ever has been and
ever will be pursued, until it be obtained or until
liberty be lost in the pursuit."
(V) In Meera Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC
170], the Hon'ble Supreme Court held as under:
"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 1 CPC. 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 of the Constitution,
this Court, in Aribam Tuleshwar Sharma v. Aribam
Pishak Sharma, [(1979) 4 SCC 389] speaking through
Chinnappa Reddy, J. has made the following pertinent
observations:
"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
R.P.No.471 of 2022
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 power which may
enable an appellate court to correct all
manner of errors committed by the
subordinate court."
(VI) 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 (supra), the Hon'ble Apex
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.
(VII) In Parsion Devi and Others v. Sumitri Devi and Others
[(1997) 8 SCC 715], the Hon'ble Supreme Court, relying upon the
decisions in Smt. Meera Bhanjia v. Smt. Nirmala Kumari Chowdhury
and Abhiram Taleshwar Sharma (cited supra), held as under:
"Under Order XLVII, Rule 1, CPC a judgment may
be open to review inter alia, if there is a mistake or an
R.P.No.471 of 2022
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 XLVII, Rule 1, CPC. In
exercise of the jurisdiction under Order XLVII, 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."
(VIII) In Lily Thomas v. Union of India [(2000) 6 SC 224], the
Hon'ble Supreme Court held as under:
"52. 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. This Court in
Patel Narshi Thakershi v. Pradyumansinghji
Arjunsinghji (AIR 1970 SC 1273), 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. It cannot be
denied that justice is a virtue which transcends all
barriers and the rules or procedures or technicalities of
law cannot stand in the way of administration of justice.
Law has to bend before justice. If the Court finds that
the error pointed out in the review petition was under a
mistake and the earlier judgment would not have been
passed but for erroneous assumption which in fact did
R.P.No.471 of 2022
not exist and its perpetration shall result in miscarriage
of justice nothing would preclude the Court from
rectifying the error"
"An application for review may be necessitated by
way of invoking the doctrine "actus curiae neminem
gravabit".
(IX) In Haridas Das v. Usha Rani Banik, (AIR 2006 SC 1634), the
Hon'ble Supreme Court made a reference to explanation added to
Order 47 by the Code of Civil Procedure (Amendment) Act, 1976 and
held as under:
"13. In order to appreciate the scope of a review,
Section 114 CPC 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 47 CPC 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 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
R.P.No.471 of 2022
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.
xx xxx xxxxxxx
15. A perusal of Order 47 Rule 1 shows that
review of a judgment or an order could be sought: (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."
(X) In State of West Bengal v. Kamal Sengupta [(2008) 8 SCC
612], the Hon'ble Supreme Court had an occasion to consider what can
be said to be mistake or error apparent on the face of record and held
as under:
"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
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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, 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.
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 1 CPC 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 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."
(XI) In Inderchand Jain v. Motilal [(2009) 14 SCC 663], the Hon'ble
Supreme Court held as under:
"7. Section 114 of the Code of Civil Procedure (for short
R.P.No.471 of 2022
"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 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:
"17. The power of a civil court to review its
judgment/decision is traceable in Section 114
CPC. The grounds on which review can be
sought are enumerated in Order 47 Rule 1 CPC,
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 him, may apply for a review of
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judgment of the court which passed the decree
or made the order.' " [Ed.: As observed in State
of W.B. v. Kamal Sengupta, (2008) 8 SCC 612 :
(2008) 2 SCC (L&S) 735, SCC at p. 631, para 17]
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 Rajendra Kumar v. Rambai
[(2007) 15 SCC 513], 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.
11. Review is not appeal in disguise. In Lily Thomas v.
Union of India [(2000) 6 SCC 224], this Court held:
"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
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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. "
5. In the case on hand, the grounds, on the basis of
which the decision in Contempt Case (C)No.270 of 2022 is
sought to be reviewed, do not satisfy the requirements of the
statutory provisions and the decisions stated supra.
In the light of the above discussion and decisions, the
review petition is dismissed. It is made clear that the dismissal
of the review petition would not forego the right of the
petitioner to seek for revival of Contempt Case (C)No.270 of
2022 dated 02.03.2022, if so advised.
Pending interlocutory applications, if any, shall stand
closed.
Sd/-
S.Manikumar
Chief Justice
Sd/-
Shaji P.Chaly
Judge
vpv
//true copy//
P.A. to Judge
