Smt. Premabai vs Murti Shriramjanki Birajman ...
2021 Latest Caselaw 3518 MP

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                HIGH COURT OF MADHYA PRADESH
                                RP-336-2021
 (SMT. PREMABAI AND OTHERS Vs MURTI SHRIRAMJANKI BIRAJMAN MANDIR RAMJANKI
   NAUGJA ROAD LASHKAR GWALIOR THR. MAHANT BALAKDAS CHELA L AND OTHERS)


Gwalior, Dated : 22.07.2021

      Heard through video conferencing.

      Shri D.P.Singh, learned counsel, for the petitioners.

      Shri Ajay Singh Raghuvanshi, learned                     PL,      for the

respondents/State.

Shri N.K.Gupta, Sr.Advocate with Shri Ravi Gupta, counsel for

the respondents No.1 and 2.

With the consent of parties, the matter is finally heard.

Present review petition has been filed seeking

review/modification of the order dated 05.02.2020 passed in M.P. No.

3402/2019 on the ground that some incorrect facts have been

mentioned in the impugned order. It is alleged that Misc. Petition

No.3402 of 2019 was filed before this court seeking following relief : -

"Misc. Petition may kindly be allowed and the order impugned Annexure P/1 dated 02.07.2019 passed by Learned Xth Civil Judge, Class-I, Gwalior (Shri Deepraj Kawde) in MIC No. 114/2017 may kindly be set aside and the application under section 151 CPC filed by the petitioners before the learned Trial Court may kindly be allowed, in the interest of justice.

Any other writ, order or direction as this Hon'ble Court may deems fit in the facts and circumstances of the case be granted. Costs be awarded".

In counter, the petitioners/respondents had filed their response

discarding the contentions advanced by the petitioners No.1 and 2.

The application under Section 151 of CPC was filed before the

executing court by the respondent No.1 herein, which was considered

and rejected by the learned executing court. It is alleged that the

HIGH COURT OF MADHYA PRADESH RP-336-2021 (SMT. PREMABAI AND OTHERS Vs MURTI SHRIRAMJANKI BIRAJMAN MANDIR RAMJANKI NAUGJA ROAD LASHKAR GWALIOR THR. MAHANT BALAKDAS CHELA L AND OTHERS)

findings recorded by learned writ court was not touched and being

aggrieved only in respect of wrong contentions mentioned in the

operating para which starts from page 5 para 3 that "there is no

dispute with respect to the property in question. The civil suit was

preferred on earlier occasion by the petitioners. The aforesaid litigation

has attained finality up to the Hon'ble Supreme Court after dismissal of

the SLP is wrong contentions. It is pointed out that the dispute filed on

earlier occasion by the petitioners was with respect to some other

survey numbers which has attained finality up to the Hon'ble Supreme

Court after rejection of the SLP on 8.10.1999". It is submitted that the

aforesaid facts are incorrectly mentioned in the order and the same

deserve to be corrected. However the review is sought only to correct

the factual aspect of the order and he has not assailed the order

whereby, the executing court was directed to examine the application

filed under Order 21 Rule 97 of CPC and the proceedings till the

decision on the application were stayed. It is submitted that there is

error apparent on the face of record and will adversely affect the rights

of the parties while deciding the application under Order 21 Rule 97 of

CPC as directed by this court. Therefore, it is prayed that the aforesaid

part be corrected and got deleted from the impugned order.

Learned counsel for the respondents No.1 and 2 have opposed

the contentions stating that the order impugned is well reasoned and

HIGH COURT OF MADHYA PRADESH RP-336-2021 (SMT. PREMABAI AND OTHERS Vs MURTI SHRIRAMJANKI BIRAJMAN MANDIR RAMJANKI NAUGJA ROAD LASHKAR GWALIOR THR. MAHANT BALAKDAS CHELA L AND OTHERS)

justified order and the liberty is granted to the executing court to

examine the contents of the application filed under Order 21 Rule 97

of CPC after affording opportunity of hearing to both the parties and

they are free to file their contentions before the learned trial court. In

such circumstances, since this court has not given any finding on

merits of the application and the aforesaid issue is left open to be

decided by the executing court, in such circumstances no illegality as

stated, to have been committed by this court while deciding the

application. He has relied upon the judgment passed by Hon'ble

Supreme Court in the cases of Haryana State Industrial

Development Corporation Vs. Mawasi and Others reported

(2012) 7 SCC 200 and Pawan Kumar Pathak Vs. Mohan Prasad as

reported in 2015 (3) MPLJ 148, in support of his submissions and

has submitted that review on such grounds is not maintainable. He has

prayed for dismissal of this review petition.

State is formal party to the petition.

Heard learned counsel for the parties and perused the record.

From perusal of the record, it is seen that on earlier occasion, a

dispute was raised by the respondent No.1 by filing a civil suit which

has attained finality up to Hon'ble Supreme Court. This court while

deciding the writ petition had only directed the executing court to

consider and decide the application under order 21 Rule 97 of CPC

HIGH COURT OF MADHYA PRADESH RP-336-2021 (SMT. PREMABAI AND OTHERS Vs MURTI SHRIRAMJANKI BIRAJMAN MANDIR RAMJANKI NAUGJA ROAD LASHKAR GWALIOR THR. MAHANT BALAKDAS CHELA L AND OTHERS)

after giving opportunity of hearing to the rival parties and till decision

of the application, proceedings of the executing court were directed to

be stayed. In such circumstances, there were no comments on the

merits of the case and as far as application under Order 21 Rule 97 of

CPC is concerned, the executing court is free to examine the

application and decide the same after hearing the rival parties. In such

circumstances, when this court has not given any finding on merits

with respect to the application filed under Order 21 Rule 97 of CPC,

no illegality as stated, has been committed by this court which is

apparent on the face of record. As far as the contention that the

proceedings in question in the present civil suit and earlier civil suit

are entirely different, the learned executing court is free to examine

the aforesaid aspect as no finding has been recorded by this court on

merits of the application.

Even otherwise, the power of review is very limited and only

error apparent on the face of record can be corrected by exercising

power of review. In the present case, no error apparent on the face of

record could be pointed by the counsel for the petitioners for

exercising power of review. Law regarding exercising power of review

has been dealt with by Hon. Apex Court i n the case of S. Bagirathi

Ammal Vs. Palani Roman Catholic Mission reported in

(2009) 10 SCC 464, wherein it has been held as under :

HIGH COURT OF MADHYA PRADESH RP-336-2021 (SMT. PREMABAI AND OTHERS Vs MURTI SHRIRAMJANKI BIRAJMAN MANDIR RAMJANKI NAUGJA ROAD LASHKAR GWALIOR THR. MAHANT BALAKDAS CHELA L AND OTHERS)

"An 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. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the Court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the appellant, in such circumstances, the review will lie. Under the guise of review, the parties are not entitled re- hearing of the same issue but the issue can be decided just by a perusal of the records and if it is manifest can be set at right by reviewing the order. With this background, let us analyze the impugned judgment of the High Court and find out whether it satisfy any of the tests formulated above".

Further, in State of West Bengal and Others Vs. Kamal

Sengupta and Another reported in (2008) 8 SCC 612, the

Hon'ble Apex Court has held as under :

"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."

Considering the aforesaid law laid down by Hon'ble Apex Court,

this court is of the view that there is no error apparent on the face of

record to entertain this review petition. Even otherwise, no illegality

said to have been committed by this court while deciding the writ

petition.

Accordingly, this review petition being sans merits is hereby

rejected with no order as to the costs.

HIGH COURT OF MADHYA PRADESH RP-336-2021 (SMT. PREMABAI AND OTHERS Vs MURTI SHRIRAMJANKI BIRAJMAN MANDIR RAMJANKI NAUGJA ROAD LASHKAR GWALIOR THR. MAHANT BALAKDAS CHELA L AND OTHERS)

CC as per rules.

                                                                  (Vishal Mishra)
Rks.                                                                  Judge

       RAM KUMAR SHARMA
       2021.07.29 11:54:31
       +05'30'