Krishan Kant Bhargava vs Bhagwan Sharan
2022 Latest Caselaw 3649 MP

                              1

         The High Court Of Madhya Pradesh
                         Bench Gwalior
                        *****************
      SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

                       RP 711 of 2021

                   Krishan Kant Bhargava
                            vs.
                  Bhagwan Sharan and Ors.

            ==============================
Shri KS Tomar, learned Senior Counsel with Shri Santosh
Agrawal, counsel for the petitioner.
Shri BD Jain with Shri Nitesh Sharma, learned counsel for the
respondents.
             ==============================
                               ORDER

(Passed on 15/03/2022)

Per Rajeev Kumar Shrivastava, J

The present petition seeks review under Order 47 Rule 1

of CPC of final judgment dated 11th August, 2021 passed by

this Court in First Appeal No.292/2009.

(2) It is contended on behalf of review petitioner- defendant

that this Court while passing the impugned judgment did not

fulfil the mandatory requirements of Order 41 Rule 31 of CPC

and while reversing the judgment of trial Court, this Court

ought to have considered either oral or documentary pleadings

as well as evidence in order to give its own finding or reason

after dealing with all the issues of law and fact. The impugned

judgment passed by this Court suffers from jurisdictional error

in reversing the judgment of trial Court and there is an apparent

error or mistake on the face of the record. This Court has not

drawn attention to issues regarding admission of the plaintiffs

relating to loan transaction between plaintiffs and defendant. It

is further contended that although the review petitioner-

defendant has categorically denied his signature on agreement

to sell and there is a report of handwriting expert for

comparison of signature of defendant and same was very much

available before trial Court as well as this Court, but this aspect

has not been considered by this Court while passing the

impugned judgment and same suffers from apparent error on

the face of record. Although the factum of loan transaction

between plaintiffs and defendant has been admitted by plaintiff

Bhagwan Sharan in para 14 and 15 of his evidence, but this

Court did not consider the effect of such admission of plaintiff

in its impugned judgment. Without considering such aspect, as

First Appellate Court has granted a decree for specific

performance by reversing the judgment and decree of the Trial

Court and has decided Issue No.5 in favour of plaintiff,

therefore, in view of provisions of Specific Relief Act, Bharat

Petroleum who is occupying the land on lease in question is the

necessary party in the suit. Hence, impugned judgment passed

by this Court in First Appeal No.292 of 2009 deserves to be

reviewed or recalled. In support of contention, counsel for the

review petitioner has relied on the judgment of Apex Court

passed in the matter of Malluru Mallapa (D) through LRs.

Vs. Kuruvathappa and Others, decided on 12/02/2021 in

Civil Appeal No. 1485 of 2020.

(3) The counsel for the respondents plaintiffs, on the other

hand, contended that the power of review under Order 47 Rule

1 CPC is very limited and it may be exercised only if there is a

mistake or an error apparent on the face of record. Power of

review is not to be confused with appellate power and the

review petition cannot be decided like a regular intra-Court

appeal. It is further contended that the finding recorded in the

main proceedings cannot be examined de novo in exercise of

review jurisdiction and every factual or legal error cannot be

made subject-matter of review under Order 47 Rule 1 CPC. In

order to attract the provisions of Order 47 Rule 1 CPC, an error

or mistake must be apparent on the fact of record of case. In

support of contention, counsel for the respondents- plaintiffs

has relied on the judgments of Hon'ble Apex Court in the case

of Sivakami & Others vs. State of Tamil Nadu & Others,

(2018) 4 SCC 587 and Asharfi Devi (D) through LRs vs.

State of Uttar Pradesh & Others, (2019) 5 SCC 86.

(4) Heard the learned counsel for the parties.

(5) The scope of review before this Court is limited to the

extent of ground available under Order 47 rule 1 CPC which is

reproduced below for ready reference and convenience:-

''Order XLVII

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 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 applied 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 Hon'ble Apex Court in the matter of Kamlesh

Verma Vs. Mayawati and Others, (2013) 8 SCC 320, has laid

down the following principles ''when 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.

Similarly, in the matter of Moran Mar Basselios

Catholicos Vs. Most Rev. Mar Poulose Athanasius, AIR

1954 SC 526 the Hon'ble Apex Court has laid down the

following principles ''when 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 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) Reviews is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

(7) In the matter of Board of Control of Cricket India vs.

Netaji Cricket Club (AIR 2005 SC 592), it is observed by the

Hon'ble Apex Court that the words "sufficient reason"

occurring in Rule 1 of Order 47 of CPC is wide enough to

include a misconception of fact or law by a court or even an

advocate. An application for review may be necessitated by

way of invoking the doctrine 'actus curiae neminem gravabit'".

Similarly, in the matter of Union of India Vs. Harinagar

Sugar Mills Ltd., (AIR 2008 (Gau) 161, it is observed that the

review is not an appeal in disguise. The scope of review as well

as the appeal is completely different. While the review petition

is limited, the appellate jurisdiction is wide. In the matter of

Akhilesh Yadav Vs. Vishwanath Chaturvedi & Ors. (2013

AIR SCW 1316), the Hon'ble Apex Court held that scope of

review petition is very limited and submissions made on

questions of fact cannot be a ground to review the order. It was

further observed that review of an order is permissible only if

some mistake or error is apparent on the fact of the record,

which has to be decided on the facts of each and every case.

Further, held that an erroneous decision, by itself, does not

warrant review of each decision.

(8) The scope of compass of review of an order by a Court of

Civil Judicature, is circumscribed by Section 114 of the Code

which provides that a review of an order is permissible upon a

discovery of new and important matter of evidence. But in the

present case no new and important matter has been brought

before the Court by the review petitioner. It is also well settled

that only error apparent on the face of record is liable to be

reviewed and such error must state one in the face where no

elaborate arguments are necessary to pin-point the error. (See:

Abhijit Tea Company Pvt. Ltd. v. M/s Terai Tea Company Pvt.

Ltd. (AIR 1995 Cal 316).

(9) It is well-settled principle of law that in the guise of

review, rehearing is not permissible. In order to seek review, it

has to be demonstrated that order suffers from error apparent

on the face of record. The Court while deciding the application

for review cannot sit on appeal over the judgment or decree

passed by it. The review petitioner cannot be given liberty to

readdress the Court on merits because it is not an appeal in

disguise where the judgment/order is to be considered on

merits. [See: J.R. Raghupathy Vs. State of A.P. (AIR 1988 SC

1681), S. Bagirathi Ammal v. Palani Roman Catholic Mission,

(2009) 10 SCC 464 and State of West Bengal and Others v.

Kamal Sengupta and Another, (2008) 8 SCC 612 ].

(10) The Hon'ble Apex Court further in the matter of State Of

West Bengal & Ors. Vs. Kamal Sengupta & Anr., (2008) 8

SCC 612 has held that mistake or error apparent on the face of

the record means that mistake or error which is prima facie

visible and does not require any detail examination. Erroneous

view of law is not a ground for review and review cannot

partake the category of the appeal.

(11) A bare perusal of aforesaid provisions as well as law laid

down by the Hon'ble Apex Court reveals that none of grounds

available for review under Order 47 Rule 1 CPC is made out in

the present matter. In view of above, the judgment passed by

this Court does not suffer from any error apparent on the face

of the record, warranting review of the same by this Court.

(12) As a sequel, review petition fails and is hereby

dismissed.

(Rajeev Kumar Shrivastava) Judge

MKB

Digitally signed by MAHENDRA BARIK Date: 2022.03.15 17:48:37 +05'30'