Kailashchandra vs Smt. Mangla Bai
2022 Latest Caselaw 3145 MP

       HIGH COURT OF MADHYA PRADESH
1                                                          RP No.91/2021

                                BEFORE
             HON'BLE SHRI JUSTICE ANIL VERMA

                   ON THE 7th OF MARCH, 2022



                REVIEW PETITION No. 91 of 2021

    Between:-
   KAILASHCHANDRA S/O LAXMINARAYAN , AGED ABOUT 62
   YEARS, OCCUPATION: BUSINESSESS VILLAGE NAVLI,
1.
   TEHSIL BHANPURA DISTRICT NEEMUCH/ AT PRESENT
   DHANMANDI RAMPURA (MADHYA PRADESH)
   DINESH CHANDRA S/O LAXMINARAYAN MAHAJAN , AGED
   ABOUT 53 YEARS, VILLAGE NAVLI TEH BHANPURA DIST
2.
   NEEMUCH AT PRESENT DHANMANDI RAMPURA (MADHYA
   PRADESH)
                                               .....PETITIONER
    (BY SHRI J.B. Mehta Adv.)

    AND

   SMT. MANGLA BAI D/O LATE LAXMINARAYAN MAHAJAN
   W/O MOHANLAL GUPTA , AGED ABOUT 66 YEARS,
1.
   OCCUPATION:    HOUSEHOLD    NEAR   KANYASHALA,
   BANJARA MOHALLA, SUVASARA (MADHYA PRADESH)
   SMT. SHIVKANYABAI D/O LAXMINARAYAN MAHAJAN ,
2. AGED ABOUT 56 YEARS, SADAR BAZAR CHACHOR, TEH
   MANASA DIST NEEMUCH (MADHYA PRADESH)
   STATE OF M.P. THR THE COLLECTOR MANDSAUR
3.
   (MADHYA PRADESH)
                                             .....RESPONDENTS

This review petition coming on for orders this day, the court

passed the following:



                            ORDER

1/ Petitioner is seeking review of the judgment dated 3.3.2020 passed in Second Appeal No.2112/2019.

2/ The record reflects that respondents No.1 and 2/plaintiff have filed a suit against the appellant/defendant and respondents No.3 and 4 for declaration, partition, possession HIGH COURT OF MADHYA PRADESH

and mesne profit in respect of the suit property situated at Navli, District Mandsaur. After hearing both the parties, learned trial Court decreed the suit, against which appellants have filed the appeal which was dismissed by the learned first appellate court. Being aggrieved by the said judgment and decree the appellants had preferred second appeal No.2112/2019 before this Court and same was dismissed by this Court vide judgment dated 3.3.2020.

3/ Learned counsel for the petitioners submits that this Court was pleased to issue notice to the respondents and granted status quo on 14.8.2019. Thereafter matter was fixed for admission on 3.3.2020 but the Hon'ble Court without considering the aforesaid grounds argued by counsel for the petitioners. He submits that it is trite law that if points argued and not considered by the court, then the party should approach that very court for review. Counsel for the petitioners further contended that this Court has committed an error apparent on the face of the record and not considered the grounds argued by counsel for the petitioner. Counsel for the petitioner has argued that PW-1 Mangala had admitted that she had received share at the time of her marriage from father, secondly on the ground of limitation suit is not maintainable. Hence he prays that review petition be allowed and appeal be re-heard on merit. In support of his contention counsel for the petitioner has placed reliance upon the judgment in the case of P.S. Karwade Vs. UCO Bank reported in 2000(2) MPWN 63, wherein it has been held that:-

"It is well settled that when a party alleges that it argued a point before the Court below, but it did not decide the same, the proper Course is to approach the same Court/Judge, draw the attention to the argument so raised and omissions committed by the Court/Judge and invite finding thereon. In case, such a course is not adopted, the plea cannot be allowed to be raised in the appellate Court, for first time."

HIGH COURT OF MADHYA PRADESH

4/ It is trite law that the scope of review is very limited. The Hon'ble Apex Court in the case of Sasi (Dead) through Legal Representatives Vs. Arvindakshan Nair and Others reported in (2017) 4 SCC 692 has considered the limited scope of review and has held that:-

"5. Order 47 Rule 1 of the Code of Civil Procedure reads as follows:-

"1. Application for review of judgment.-(1) Any person considering himself aggrieved-- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred.

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(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.

Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.

6. The grounds enumerated therein are specific. The principles for interference in exercise of review jurisdiction are well settled. The Court passing the order is entitled to review the order, if any of the grounds specified in the aforesaid provision are satisfied.

7. In Thungabhadra Industries Ltd. v. Govt. of A.P., the Court while dealing with the scope of review had opined: (AIR p.1377, para 11) HIGH COURT OF MADHYA PRADESH

"11.What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be 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."

(emphasis supplied)

8. In Parsion Devi v. Sumitri Devi, the Court after referring to Thungabhadra Industries Ltd., Meera Bhanja v. Nirmala Kumari Choudhury and Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, held thus: (Parison Devi case, SCC p.719, para 9).

"9.Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".

9. The aforesaid authorities clearly spell out the nature, scope and ambit of power to be exercised. The error has to be self-evident and is not to be found out by a process of reasoning. We have adverted to the aforesaid aspects only to highlight the nature of review proceedings."

5/ After perusal of the aforesaid judgment, it appears that in the judgment passed by Hon'ble Ms. Justice Vandana Kasrekar, the grounds raised by the petitioners were discussed and substantial finding has been given by the court in the impugned judgment. The grounds which the counsel for HIGH COURT OF MADHYA PRADESH

petitioner has urged in support of the present review petition do not furnish any ground for review in view of the limited scope of interference in a review petition. Therefore, no ground mentioned under Order 47 Rule 1 of CPC is available. That apart, there is no error apparent on the face of the record in the impugned judgment.

6/ Accordingly the review petition is dismissed.

C.C. as per rules.

(Anil Verma) Judge trilok/-

Digitally signed by TRILOK SINGH SAVNER Date: 2022.03.08 19:43:16 +05'30'