Madhya Pradesh High Court

Dataram Mahor vs Sanjay Kumar Mangal Died Thr Lrd A. ... on 30 June, 2021

Author: Gurpal Singh Ahluwalia

                         1
         THE HIGH COURT OF MADHYA PRADESH
                    MP-3085-2020
(DATARAM MAHOR Vs SANJAY KUMAR MANGAL DIED THR LRD A. SMT SANGEETA MANGAL
                              AND OTHERS)




                    Through Video Conferencing

Gwalior, dated: 30.06.2021

      Shri Santosh Agrawal, Counsel for petitioner.

      Shri Siddharth Sharma, Counsel for respondents.

This Miscellaneous Petition under Article 227 of the

Constitution of India has been filed against the order dated

16.10.2020 passed by Second Civil Judge Class II, Morena in Civil

Suit No. 42A/2015 by which the trial Court has reviewed it's own

order dated 20.12.2019.

The necessary facts for disposal of the present case in short are

that the plaintiff/respondent filed a suit seeking eviction under

Section 12 (1)(c) and (f) of M.P. Accommodation Control Act. After

framing the issues, when the recording of evidence begun, the

respondent relied upon a relinquishment deed in order to establish

their title. The petitioner raised an objection that the relinquishment

deed is not sufficiently stamped and accordingly filed an application

under Section 35 of Indian Stamp Act. By order dated 20.12.2019,

the trial Court allowed the application and directed to impound the

document and sent it to Collector for further action. The respondent

filed an application under Order 47 Rule 1 of CPC seeking review of

THE HIGH COURT OF MADHYA PRADESH MP-3085-2020 (DATARAM MAHOR Vs SANJAY KUMAR MANGAL DIED THR LRD A. SMT SANGEETA MANGAL AND OTHERS)

order dated 20.12.2019. The trial Court rejected the application vide

order dated 12.10.2020.

One of the contention of respondent in application under Order

47 Rule 1 of CPC was that the said relinquishment deed has already

been exhibited in another suit, therefore, the trial Court should not

have directed for impounding of the document. However. after

considering the submissions made by counsel for the parties, the trial

Court rejected the application vide order dated 12.10.2020.

Now it appears that by impugned order dated 16.10.2020, the

trial Court in exercise of it's suo moto power has held that since the

document has already been exhibited in another suit, therefore, the

said document cannot be directed to be impounded u/s. 35 of the

Indian Stamp Act.

Challenging the order passed by the court below, it is

submitted by Counsel for the petitioner that once the trial Court had

already rejected the review application by a detailed order dated

16.10.2020 in which the fact that the relinquishment deed has already

been exhibited in another suit was also considered, then the trial

Court was not competent enough to pass a fresh order thereby

directing that the impounding of document is not necessary in the

THE HIGH COURT OF MADHYA PRADESH MP-3085-2020 (DATARAM MAHOR Vs SANJAY KUMAR MANGAL DIED THR LRD A. SMT SANGEETA MANGAL AND OTHERS)

light of fact that the said document has already been exhibited in

another suit. It is further submitted that it is well established principle

of law that unless and until a relinquishment deed is registered and is

executed on a properly stamped document, it is not admissible.

Pet Contra, petition is vehemently opposed by counsel for

respondent. However, counsel for the respondent for the could not

point out as to how the trial Court could have exercised it's suo motu

power of review specifically when the application filed by

respondent under Order 47 Rule 1 CPC was already dismissed by

order dated 16.10.2020.

Heard learned counsel for the parties.

A relinquishment deed is required to be registered as well as

executed on properly stamped paper. When the respondent tried to

exhibit the same, an objection was raised u/s. 35 of Indian Stamp Act

and said objection was decided in favor of the petitioner and by order

dated 20.12.2019, it was directed that the document be impounded by

sending the same to the Collector stamp. Thereafter, respondent

preferred an application for review and one of the ground for review

was that the said relinquishment deed has already been exhibited in a

different civil suit, therefore, no direction can be given for

THE HIGH COURT OF MADHYA PRADESH MP-3085-2020 (DATARAM MAHOR Vs SANJAY KUMAR MANGAL DIED THR LRD A. SMT SANGEETA MANGAL AND OTHERS)

impounding of the document, but the trial Court after considering the

submissions in detail, rejected the application by order dated

12.10.2020. It appears that later on the trial Court in exercise of it's

suo motu power for review, held that since the relinquishment deed

has already been exhibited in another suit, therefore, it cannot be

directed to be impounded.

Whether the trial Court could have exercised it's suo-motu

power of review or not, shall be considered only after finding as to

whether the trial Court under the garb of it's power under Order 47

Rule 1 CPC can reopen the order on merits or not. The Supreme court

in case of Subramanian Swamy v. State of T.N., reported in (2014)

5 SCC 75 has held as under :

52. The issue can be examined from another angle. The Explanation to Order 47 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") provides that if the decision on a question of law on which the judgment of the court is based, is reversed or modified by the subsequent decision of a superior court in any other case, it shall not be a ground for the review of such judgment. Thus, even an erroneous decision cannot be a ground for the court to undertake review, as 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 in absence of any such error, finality attached to the judgment/order cannot be disturbed. (Vide Rajender Kumar v. Rambhai.)

The Supreme Court in the case of Shri Ram Sahu (Dead)

THE HIGH COURT OF MADHYA PRADESH MP-3085-2020 (DATARAM MAHOR Vs SANJAY KUMAR MANGAL DIED THR LRD A. SMT SANGEETA MANGAL AND OTHERS)

through his L.R.s Vs. Vinod Kumar Rawat, by Judgment dated 3-

11-2020 passed in C.A. No. 3601 of 2020 has held as under :

35.... The principles which can be culled out from the above noted 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 1 CPC.

(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 selfevident and which can be discovered by a long process of reasoning, 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."

THE HIGH COURT OF MADHYA PRADESH MP-3085-2020 (DATARAM MAHOR Vs SANJAY KUMAR MANGAL DIED THR LRD A. SMT SANGEETA MANGAL AND OTHERS)

9. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC 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 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 114 CPC, it appears that the said substantive power of review under Section 114 CPC 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 1 CPC, 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 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review

The Supreme Court in the case of M/s Jain Studios Ltd. Vs.

Shin Satellite Public Co. Ltd. reported in AIR 2006 SC 2686 has

held as under :

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 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 rehearing of an

THE HIGH COURT OF MADHYA PRADESH MP-3085-2020 (DATARAM MAHOR Vs SANJAY KUMAR MANGAL DIED THR LRD A. SMT SANGEETA MANGAL AND OTHERS)

original matter. A repetition of old and overruled argument is not enough to review concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.

The Supreme Court in the case of Kamlesh Verma Vs.

Mayawati reported in (2013) 8 SCC 320 has held as under :

17. In a review petition, it is not open to the Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence 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. This Court in Kerala SEB v. Hitech Electrothermics & Hydropower Ltd. held as under: (SCC p. 656, para 10) "10. ... In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. The learned counsel for the Board at best sought 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."

18. Review is not rehearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors

THE HIGH COURT OF MADHYA PRADESH MP-3085-2020 (DATARAM MAHOR Vs SANJAY KUMAR MANGAL DIED THR LRD A. SMT SANGEETA MANGAL AND OTHERS)

committed by a subordinate court. A repetition of old and overruled argument is not enough to reopen concluded adjudications. This Court in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., held as under: (SCC pp. 504-505, paras 11-12) "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 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 rehearing of an original matter. A repetition of old and overruled argument 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."

19. 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 review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Summary of the principles

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

THE HIGH COURT OF MADHYA PRADESH MP-3085-2020 (DATARAM MAHOR Vs SANJAY KUMAR MANGAL DIED THR LRD A. SMT SANGEETA MANGAL AND OTHERS)

20.1. When the review will be maintainable:

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

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

(iii) Any other sufficient reason.

The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius 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.

20.2. When the review will not be maintainable:

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

(ii) Minor mistakes of inconsequential import.

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

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

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

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

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

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

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

Thus, it is clear that under the garb of power of review, a Court

THE HIGH COURT OF MADHYA PRADESH MP-3085-2020 (DATARAM MAHOR Vs SANJAY KUMAR MANGAL DIED THR LRD A. SMT SANGEETA MANGAL AND OTHERS)

cannot reopen it's order on merits. However, if the respondent was

aggrieved by the order dated 12.10.2020 passed by the trial Court

then he could have challenged the same before the higher court. But

the order dated 12.10.2020 was never challenged by the respondents.

Since the trial Court was not having any jurisdiction to reopen its

own order while exercising powers under Order 47 Rule 1 CPC and

since it is not the case of respondent that while passing order dated

20.12.2019 and 12.10.2020, the trial Court had committed any error

which was apparent on record, this Court is of the considered opinion