Kamal Gupta vs Iklak Khan (Since Deceased) 1(A) ...
2023 Latest Caselaw 6180 MP

Citation : 2023 Latest Caselaw 6180 MP
Judgement Date : 18 April, 2023

Madhya Pradesh High Court

Kamal Gupta vs Iklak Khan (Since Deceased) 1(A) ... on 18 April, 2023

Author: Sunita Yadav

1 REVIEW PETITION No. 1022 of 2022

IN THE HIGH COURT OF MADHYA PRADESH

AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 18th OF APRIL, 2023

REVIEW PETITION No. 1022 of 2022

BETWEEN:-
KAMAL GUPTA S/O SHRI JIGENDRA PAL GUPTA,
AGED ABOUT 30 YEARS, OCCUPATION: BUSINESS
TANSEN ROAD GWALIOR (MADHYA PRADESH)
.....PETITIONER
(MR. PRASHANT SHARMA - ADVOCATE FOR PETITIONER)

AND
IKLAK KHAN (SINCE DECEASED) 1(A) SMT.
RAJIA BEGAM W/O LATE SHRI IKLAK KHAN,
1. AGED ABOUT 60 YEARS, OCCUPATION:
HOUSEWIFE, R/O MEVATI MOHALLA
JAGANPURA GWALIOR (MADHYA PRADESH)
IKLAK KHAN (SINCE DECEASED) 1(B) IMRAN S/O
LATE SHRI IKLAK KHAN, AGED ABOUT 32
2. YEARS, OCCUPATION: AGRICULTURIST AND
PRIVATE SERVICE R/O MEVATI MOHALLA
JAGANPURA GWALIOR (MADHYA PRADESH)
3. IKLAK KHAN (SINCE DECEASED) 1(C) AFROZ
KHAN S/O LATE SHRI IKLAK KHAN, AGED
ABOUT 28 YEARS, OCCUPATION:
AGRICULTURIST AND PRIVATE SERVICE R/O

Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 4/20/2023
5:22:24 PM
2 REVIEW PETITION No. 1022 of 2022
MEVATI MOHALLA JAGANPURA GWALIOR
(MADHYA PRADESH)
IKLAK KHAN (SINCE DECEASED) 1(D) SALMAN
KHAN S/O LATE IKLAK KHAN, AGED ABOUT 25
4. YEARS, OCCUPATION: AGRICULTURIST AND
PRIVATE SERVICE R/O MEVATI MOHALLA
JAGANPURA GWALIOR (MADHYA PRADESH)
IKLAK KHAN (SINCE DECEASED) 1(E) UJALA
D/O LATE SHRI IKLAK KHAN, AGED ABOUT 35
5.
YEARSR/O MEVATI MOHALLA JAGANPURA
GWALIOR (MADHYA PRADESH),
IKLAK KHAN (SINCE DECEASED) 1(F) JULI D/O
LATE SHRI IKLAK KHAN, AGED ABOUT 28
6. YEARS, OCCUPATION: AGRICULTURIST AND
PRIVATE SERVICE R/O MEVATI MOHALLA
JAGANPURA GWALIOR (MADHYA PRADESH)
SIRAJ KHAN S/O SHRI BABU KHAN R/O
7. JAGANPURA MEWATI MOHALLA, TAHSIL AND
DISTRICT GWALIOR M.P. (MADHYA PRADESH)
HABIB KHAN S/O SHRI BABU KHAN
JAGANPURA R/O MEWATI MOHALLA TAHSIL
8.
AND DISTRICT GWALIOR M.P. (MADHYA
PRADESH)
MAHESH KUMAR DUBEY S/O SHRI RAM DAS
9. DUBEY, R/O LALIT PUR COLONY LASHKAR
GWALIOR M.P. (MADHYA PRADESH)
PREM PRAKASH SHARMA S/O SHRI GOVIND
10. PRASAD SHARMA, R/O LALITPUR COLONY
GWALIOR (MADHYA PRADESH)
PRESIDENT, NARMADA PRASAD MISHRA S/O
SHRI DEVI DAYAL MISHRA MEDIUM
11. CULTURAL AND EDUCATION RESEARCH
COUNCIL, 82 VINAY NAGAR SECTOR NO. 1
GWALIOR M.P. (MADHYA PRADESH)
STATE OF MADHYA PRADESH THROUGH
12. COLLECTOR DISTRICT GWALIOR M.P.
DISTRICT GWALIOR M.P. (MADHYA PRADESH)

Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 4/20/2023
5:22:24 PM
3 REVIEW PETITION No. 1022 of 2022
.....RESPONDENTS
(MR. K.N. GUPTA - SENIOR COUNSEL ALONG WITH MR. RAJU
SHARMA - ADVOCATE AND MRS. NIDHI PATANKAR - ADVOCATE
FOR RESPONDENT NO.11.)
This petition coming on for Admission this day, the court

passed the following:

ORDER

This review petition under Order 47 Rule 1 and 2 of CPC has

been filed seeking review of the judgment dated 16/06/2022 passed

in F.A. No.403 of 2005 (Kamal Gupta Vs. Iklak Khan (since

deceased) through LRs. and Ors.) whereby, the first appeal filed by

the appellant/petitioner has been dismissed.

2. It is alleged by the counsel for the petitioner that certain

facts and rules could not be considered by this Court while

dismissing the first appeal. It is further submitted that the plaintiff

is having the power of attorney which is Ex. P/2 and defendant

came with the case that Ex. P/2 has been cancelled. The Sale

deed has not been executed on the basis of Ex. P/2, but it has

been executed on the basis of Ex.P/1. In such circumstances once

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/20/2023 5:22:24 PM 4 REVIEW PETITION No. 1022 of 2022 the sale deed has been executed on the basis of Ex.P/1, the

cancelled document i.e. Ex.P/2 having no implication over

Ex.P/1. Therefore, being not challenged and not questioned the

said document is Ex.P/2 cannot be said to have at all affected the

rights of plaintiff.

3. Learned counsel for the petitioner argued that the aforesaid

error in the judgment dated 16.06.2022 passed by this Court

contents that the error apparent on the face of record due to

failure in not considering the aforesaid argument of the counsel

as such the same deserves to be corrected by recalling/modifying

the order by restoring the original appeal.

4. Per contra, learned counsel for the respondents has

opposed the contentions made by counsel for the petitioner and

has argued that a detailed and exhaustive order has been passed

by this Court taking into consideration all the relevant aspects of

the case. Counsel for the petitioner has not pointed out any

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/20/2023 5:22:24 PM 5 REVIEW PETITION No. 1022 of 2022 glaring irregularities apparent on the face of the record to enable

this Court to entertain this review petition. In absence of glaring

irregularities apparent on the face of the record no review is

maintainable.

5. Heard the learned counsel for the parties and perused the

record.

6. The scope of review is limited for which the law is well

settled. Hon'ble Supreme Court in the case of S. Bagirathi Ammal

vs. Palani Roman Catholic Mission; (2009) 10 SCC 464 has held

that "An error contemplated 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

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/20/2023 5:22:24 PM 6 REVIEW PETITION No. 1022 of 2022 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."

7. Further in the case of State of West Bengal and Ors. v.

Kamal Sengupta and Anr; (2008) 8 SCC 612 the Hon'ble

Supreme Court has held that 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.'

8. A five-Judge Bench of the Federal Court in Hari Sankar Pal

Vs. Anath Nath Mitter reported in 1949 FCR 36 has held that "if

the Court has decided a point and decided it erroneously, the error

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/20/2023 5:22:24 PM 7 REVIEW PETITION No. 1022 of 2022 could not be one apparent on the face of the record or even

analogous to it." In the case of Lily Thomas vs. Union of India

[AIR 2000 SC 1650] the Apex Court has held that the power of

review can be exercised for correction of a mistake apparent on the

face of record and not to substitute a view. Such powers can be

exercised within the limits of the statute dealing with the exercise of

power. The review cannot be treated an appeal in disguise.

9. In this case learned counsel for the petitioner failed to show

any mistake apparent on the face of record. This court can not

substitute its view under the power to review. Therefore, taking into

consideration the law laid down with respect to the jurisdiction of

this Court to entertain the review petition, this Court does not find it

appropriate to entertain the review petition. Accordingly, the review