Damodar Prasad Sharma vs Rakesh Kumar Garg
2023 Latest Caselaw 8366 MP

                                                              1
                            IN     THE        HIGH COURT OF MADHYA PRADESH
                                                    AT GWALIOR
                                                     BEFORE
                                  HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                                  ON THE 12 th OF JUNE, 2023
                                              REVIEW PETITION No. 1025 of 2022

                           BETWEEN:-
                           DAMODAR PRASAD SHARMA S/O LATE SHRI
                           RAMSWAROOP SHARMA, AGED ABOUT 72 YEARS,
                           OCCUPATION: RETIRED   RESIDENT OF NEAR OF
                           MEHNDI WALE SAIYAD HARKOTA GOL PAHARIYA
                           LASHKAR, GWALIOR (MADHYA PRADESH)

                                                                                           .....PETITIONER
                           (SHRI SAMEER KUMAR SHRIVASTAVA, LEARNED COUNSEL FOR
                           PETITIONER)

                           AND
                           1.    RAKESH KUMAR GARG S/O SHRI BADRI PRASAD
                                 GARG, AGED ABOUT 58 YEARS, OCCUPATION:
                                 PROPERTY DEALER NEAR OF ROSHNI GHAR
                                 INDERGANJ   CHAUK   LASHKAR    GWALIOR
                                 (MADHYA PRADESH)

                           2.    STATE OF MADHYA PRADESH THROUGH
                                 COLLECTOR DISTRICT GWALIOR M.P. DISTRICT
                                 GWALIOR (MADHYA PRADESH)

                                                                                        .....RESPONDENTS
                           (SHRI PRASHANT SHARMA, LEARNED COUNSEL FOR THE
                           RESPONDENT NO.1)

                                 This petition coming on for admission this day, the court passed the
                           following:
                                                               ORDER

The petitioner has filed this petition under Order 47 Rule 1 of CPC for reviewing or recalling of judgment dated 17-08-2022 passed by this Court in FA No. 351 of 2009.

It is contended by learned counsel for the petitioner question of limitation Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 13-06-2023 10:36:59 AM

as well as possession has not been dealt with by this Court while passing impugned judgment It is further submitted that the judgments relied upon before this Court while deciding the aforesaid first appeal are not applicable as plaintiff- petitioner's case is not of conditional sale to repurchase or mortgage but is a case that sale deed executed is a sham transaction and bogus. Such aspect has not been considered by this Court and therefore, the impugned judgment suffers from error apparent on the face of record.

Learned counsel for the respondent no.1 - defendant submits that this Court vide impugned judgment has elaborately discussed the facts on merits and therefore, no interference is required. In absence of glaring irregularities

apparent on the face of record, no review is maintainable. Hence, prayed for dismissal of review petition. In support of his contention, learned counsel for the respondent no.1 has relied on the order dated 18th of April, 2023 passed by coordinate Bench of this Court in Review Petition No.1022 of 2022 [Kamal Gupta vs. Iklak Khan (since deceased) and Others].

Heard learned counsel for the rival parties and perused the impugned order.

Order 47 Rule 1 CPC reads as under :-

"47. 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 reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which,

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 13-06-2023 10:36:59 AM

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." In Board of Control of Cricket India Vs. Netaji Cricket Club:[AIR 2005 SC 592], it is observed that "the words "sufficient reason" occurring in rule 1 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 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 Akhilesh Yadav Vs. Vishwanath Chaturvedi & Others.:[(2013 AIR SCW 1316)], Senior Divisional Manager, Life Insurance Corporation of India and Others Vs. Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 13-06-2023 10:36:59 AM

Shree Lal Meena:[(2019) 4 SCC 479], S. Bagirathi Ammal Vs. Palani Roman Catholic Mission:[(2009) 10 SCC 464] and State of West Bengal and Others Vs. Kamal Sen Gupta and Another:(2008) 8 SCC 612], the 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 face 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.

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 petitioner. It is also well settled that only errors apparent on the face of record are liable to be reviewed and such errors must state one in the face where no elaborate arguments are necessary to pin point those errors. [See:Abhijit Tea Company Pvt. Ltd. v. M/s Terai Tea Company Pvt. Ltd. (AIR 1995 Cal 316)].

In the light of law laid down above by the Hon'ble Apex Court, it is well settled that the scope of review is very limited. There is no error apparent on the face of record. No case for reviewing or recalling of judgment dated 17- 08-2022 passed by this Court in FA No. 351 of 2009. is made out. Rreview petition fails and is hereby dismissed.

(DEEPAK KUMAR AGARWAL) Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 13-06-2023 10:36:59 AM

JUDGE MKB

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 13-06-2023 10:36:59 AM