Madhya Pradesh High Court
Gurudwara Nanak Darbar vs Bharat Sanchar Nigam Ltd. on 28 March, 2023
Author: Anjuli Palo
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANJULI PALO
ON THE 28 th OF MARCH, 2023
REVIEW PETITION No. 1045 of 2022
BETWEEN:-
GURUDWARA NANAK DARBAR
SOCIETY REGISTERED UNDER M.P. SOCIETY
REGISTRATION ACT 1973 THROUGH AUTHORISED
PERSON SARDAR RAJENDRA SINGH CHHABRA S/O
LATE GODERMAL CHHABRA AGED 76 YEARS R/O
GORAKHPUR JABLAPUR M.P. (MADHYA PRADESH)
.....PETITIONER
(BY SHRI AMIT SAHANI - ADVOCATE)
AND
BHARAT SANCHAR NIGAM LTD. THROUGH THE
MANAGER GMTD GORAKHPUR GURUDWARA ROAD
JABALPUR M.P. (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI RAHUL RAWAT - ADVOCATE)
RESERVED ON : 16.03.2023
PRONOUNCED ON: 28.03.2023
This petition coming on for admission this day, th e court passed the
following:
ORDER
By this petition preferred under Order 47 Rule 1 of the Code of Civil
Procedure has been filed seeking the review of the order dated 23.08.2022
passed by this Court in MP No.6900 of 2019.
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2. In the aforesaid petition, the petitioner has challenged the validity of the
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order dated 04.10.2019 passed in CS No.3-A of 2015 by learned Civil Judge,
Class â€" II, Jabalpur whereby the trial Court allowed the application under
Order 7 Rule 11 of the CPC. This Court referred to the provision of Section 8
of the Arbitration and Conciliation Act, 1996 and the decision in the case of
Ameet Lalchand Shah v. Rishabh Enterprises and Another, (2018) 15
SCC 678 and dismissed the petition by the impugned order.
3. Learned counsel for the petitioner has vehemently urged that in the
miscellaneous petition, the petitioner had raised the contention that under
Section 2 (3) of the Arbitration and Conciliation Act, 1996, the provisions of
Arbitration Act shall not affect any other law for the time being in force by
virtue of which certain disputes shall not be submitted to the arbitration. It is
further contended that if the said provision is read in juxtaposition with Section
12 of the MP Accommodation Control Act, it is clear that the tenant can be
evicted only under the provisions of the 1961 Act and provisions of the
Arbitration and Conciliation Act, 1996 shall not apply. In such a case, Section
8 of the 1996 Act would not help the tenant and eviction matter cannot be
referred to for arbitration. Even amended Section 8 of the Arbitration and
Conciliation Act is of no help to the tenant. In support of his submissions,
learned counsel for the petitioner, has placed reliance on the decisions in the
cases of Ranjeet Kumar Bose v. Ananya Choudhary and Others, (2013)
11 SCC 446 and Vidya Drolia v. Durga Trading Corporation, (2021) 2
SCC 1 and submitted that the order passed by this Court is contrary to the
aforesaid decisions. Counsel for the petitioner has also placed reliance on the
decisions in the cases of K.G. Derasari and another v. Union of India and
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Others, (2001) 10 SCC 496, Suresh Shah v. Hipad Technology India
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Private Ltd., (2021) 1 SCC 529 and K.G. Derasari v. Union of India, (2001)
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10 SCC 496.
4. On the other hand, counsel for the respondent has submitted that this
Court has rightly dismissed the petition affirming the order passed by the trial
Court in view of paragraphs 10 and 11 of the decision in the case of Ameet Lal
Chand Shah (supra). He has further contended that an order or judgment is
open to review only if there is error apparent on the face of the record. He has
placed reliance on the decisions in the cases of Union of India v. Sandur
Manganese and Iron Ores Ltd. and Others, (2013) 8 SCC 337, Johra Bi
and Others v. Jageshwar and Other, 2010 (1) MPLJ
5. Heard learned counsel for the parties and perused the documents.
6. Learned counsel for the petitioner has placed heavy reliance on the
decision in the case of Vidya Drolia and Others v. Durga Trading
Corporation, (2021) 2 SCC 1 and submitted that the ratio laid down in
Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706
has been overruled. In paragraph 80 of the judgment it has been held as follows:
“80. In view of the aforesaid, we overrule the
ratio laid down in Himangni Enterprises and hold that
landlord-tenant disputes are arbitrable as the Transfer
of Property Act does not forbid or foreclose arbitration.
However, landlord-tenant disputes covered and
governed by rent control legislation would not be
arbitrable when specific court or forum has been given
exclusive jurisdiction to apply and decide special rights
and obligations. Such rights and obligations can only be
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adjudicated and enforced by the specified court/forum,
and not through arbitration.â€
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7. In the case of Himangni Enterprises (supra) Hon’ble the Apex
Court was dealing with the factual aspect where the application filed by the
defendant tenant under Section 8 of the Arbitration Act was rejected in a civil
suit seeking its eviction from a shop in a commercial complex in New Delhi.
The suit was also for recovery of arrears of rent and permanent injunction. The
tenency in question was not protected under the rent control legislation and the
rights and obligations were governed by the Transfer of Property Act.
8. In the case at hand, a rental agreement was executed between the parties in
which as per clause 24 of the agreement, there is express provision that if any
dispute arises between the parties the same shall be referred to the Sole
Arbitrator. The trial Court has allowed the application under Order 7 Rule 11 of
the Code of Civil Procedure filed by the respondent and dismissed the suit filed
by the petitioner. In that backdrop, this Court vide impugned order dismissed
the petition filed by the petitioner challenging the order passed by the trial
Court.
9. Now, it is deemed fit to deal with the scope of review which is very limited
and has been dealt with in catena of decisions by the Supreme Court. The
grounds available for filing a review application against a judgment have been
set out in Order XLVII of the CPC in the following words:
“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
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(c) by a decision on a reference from a Court of Small
Causes, and who, from the discovery of new and
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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.
1[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.]â€
10. It is settled law that in exercise of review jurisdiction, the Court cannot re-
appreciate the evidence to arrive at a different conclusion even if two views are
possible in a matter. In Kerala State Electricity Board v. Hitech
Electrothermics & Hydropower Ltd. and Others â€" (2005) 6 SCC 651,
the Supreme Court has observed as follows:
“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. 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
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advanced in a review petition. The appreciation of
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evidence on record is fully within the domain of the
appellate court. If on appreciation of the evidence
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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."
11. Under the garb of filing a review petition, a party cannot be permitted
to repeat old and overruled arguments for reopening the conclusions arrived at
in a judgment. The power of review is not to be confused with the appellate
power which enables the Superior Court to correct errors committed by a
subordinate Court. This point has been elucidated in Jain Studios Ltd. V.
Shin Satellite Public Co. Ltd. - (2006) 5 SCC 501 where it was held thus:
“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
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in exceptional cases.
12. When a prayer to appoint an arbitrator by the
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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.â€
12. It has been consistently held by the Supreme Court in several judicial
pronouncements that the Court’s jurisdiction of review, is not the same as
that of an appeal. A judgment can be open to review if there is a mistake or an
error apparent on the face of the record, but an error that has to be detected by
a process of reasoning, cannot be described as an error apparent on the face of
the record for the Court to exercise its powers of review under Order XLVII
Rule 1 CPC. In the guise of exercising powers of review, the Court can correct
a mistake but not substitute the view taken earlier merely because there is a
possibility of taking two views in a matter. A judgment may also be open to
review when any new or important matter of evidence has emerged after passing
of the judgment, subject to the condition that such evidence was not within the
knowledge of the party seeking review or could not be produced by it when the
order was made despite undertaking an exercise of due diligence. There is a
clear distinction between an erroneous decision as against an error apparent on
the face of the record. An erroneous decision can be corrected by the Superior
Court, however an error apparent on the face of the record can only be
corrected by exercising review jurisdiction. Yet another circumstance referred
to in Order XLVII Rule 1 for reviewing a judgment has been described as
“for any other sufficient reasonâ€. The said phrase has been explained to
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mean “a reason sufficient on grounds, at least analogous to those specified
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in the ruleâ€
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13. It is well settled in 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 order passed by it. An
order or decision or judgment cannot be corrected merely because it is
erroneous in law or on the ground that a different view could have been taken
by the Court/Tribunal on a point of fact or law. In any case, while exercising the
power of review, the concerned Court/Tribunal cannot sit in appeal over its
judgment/decision. It is apparently clear that all the grounds taken by the learned
counsel for the petitioner in detail are mentioned in the petition with the intention
to obtain the fresh findings of this Court.
14. In the case of Asharfi Devi v. State of U.P., (2019) 5 SCC 86 it has
been held by Hon’ble the Supreme Court that it is a settled law that every
error whether factual or legal cannot be made subject matter of review under
Order 47 Rule 1 of the Code though it can be made subject matter of appeal
arising out of such order. In other words, in order to attract the provisions of
Order 47 Rule 1 of the Code, the error/mistake must be apparent on the face of
the record of the case.
15. For review there must be error apparent on the face of record, re-
appraisal of the entire evidence on record for finding the error would amount to
exercise the appellate jurisdiction which is not permissible. Mere fact that two
views on the same subject are possible is not a ground for review of the earlier
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order passed by a bench of the same strength, where the remedy of appeal is
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available the power of review should be exercised by the Court with greater
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circumspection. The petitioner cannot be given liberty to readdress the Court
on merits because it is not an appeal in disguise where the judgment is to be
considered on merits. [See : Meena Bhanja v. Nirmal, (1995) 1 SCC 170;
Haridas Das v. Usha Rani 2006 (3) MPLJ (SC) 226; Union of India v.
Sandur (2013) 8 SCC 337; State of Rajasthan v. Surendra, 2014 MPLJ
OnLine (SC) 1; Sivakami v. State of Tamil Nadu , (2018) 4 SCC 587; 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 ]
16. At this juncture, it is apt to refer to the recent decision of Hon’ble
the Surpeme Court rendered in the case of S. Murali Sundaram v. Jothibai
Kannan and Others, 2023 SCC OnLine SC 185 wherein in paragraphs 15 to
20 it has been held as follows:
“15. While considering the aforesaid issue two
decisions of this Court on Order 47 Rule 1 read with
Section 114 CPC are required to be referred to? In the
case of Perry Kansagra (supra) this Court has observed
that while exercising the review jurisdiction in an
application under Order 47 Rule 1 read with Section
114 CPC, the Review Court does not sit in appeal over
its own order. It is observed that a rehearing of the
matter is impermissible in law. It is further observed
that review is not appeal in disguise. It is observed that
power of review can be exercised for correction of a
mistake but not to substitute a view. Such powers can
be exercised within the limits of the statute dealing with
the exercise of power. It is further observed that it is
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wholly unjustified and exhibits a tendency to rewrite a
judgment by which the controversy has been finally
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decided. After considering catena of decisions on
exercise of review powers and principles relating to
exercise of review jurisdiction under Order 47 Rule 1
CPC this Court had summed upon as under:
“(i) Review proceedings are not by way of appeal
and have to be strictly confined to the scope and ambit
of Order 47 Rule 1 CPC.
(ii) Power of review may be exercised when some
mistake or error apparent on the fact of record is found.
But error on the face of record must be such an error
which must strike one on mere looking at the record and
would not require any longÂdrawn process of
reasoning on the points where there may conceivably by
two opinions.
(iii) Power of review may not be exercised on the
ground that the decision was erroneous on merits.
(iv) Power of review can also be exercised for any
sufficient reason which is wide enough to include a
misconception of fact or law by a court or even an
advocate.
(v) An application for review may be necessitated by
way of invoking the doctrine actus curiae neminem
gravabit.â€
16. It is further observed in the said decision that an
error which is required to be detected by a process of
reasoning can hardly be said to be an error on the face
of the record.
17. In the case of Shanti Conductors (P) Ltd. (supra), it
is observed and held that scope of review under Order
47 Rule 1 CPC read with Section 114 CPC is limited
and under the guise of review, the petitioner cannot be
permitted to reagitate and reargue questions which have
already been addressed and decided. It is further
observed that an error which is not self evident and has
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to be detected by a process of reasoning, can hardly be
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said to be an error apparent on the face of record
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justifying the court to exercise its power of review
under Order 47 Rule 1 CPC.
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18. Applying the law laid down by this Court in the
aforesaid two decisions to the facts of the case on hand,
we are of the opinion that in the present case while
allowing the review application and setting aside the
judgment and order dated 03.03.2017 passed in Writ
Petition No.8606 of 2010 the High Court has exceeded
in its jurisdiction and has exercised the jurisdiction not
vested in it while exercising the review jurisdiction
under Order 47 Rule 1 read with Section 114 CPC.
From the reasoning given by the High Court, it appears
that according to the High Court the judgment and order
passed in Writ Petition No.8606 of 2010 was
erroneous. While passing the impugned judgment and
order the High Court has observed and considered the
Survey Report dated 12.12.2007 which was already
dealt with by the High Court while deciding the main
writ petition and the High Court discarded and/or not
considered the Survey Report dated 12.12.2007. Once
the Survey Report dated 12.12.2007 fell for
consideration before the High Court while deciding the
main writ petition thereafter the same could not have
been considered again by the High Court while deciding
the review application.
19. From the impugned judgment and order passed by
the High Court it appears that the High Court has
decided the review application as if the High Court was
exercising the appellate jurisdiction against the
judgment and order dated 03.03.2017 passed in Writ
Petition (MD) No.8606 of 2010 which is wholly
impermissible while considering the review application
under Order 47 Rule 1 read with Section 114 CPC.
20. From the impugned judgment and order passed by
the High Court allowing the review application it is
observed in paragraph 33 as under:
“33. The above legal principals were born in mind
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by this Court while considering the review application.
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Brushing aside a survey report, which was available on
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record and which brought out tampering of official
records, ought to have been taken note of by the Learned
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Writ Court, while considering the prayer sought for in
the Writ Petition. This has led to an error, which is
manifest on the face of the order. Furthermore, the Court
proceeded on the basis that S.M. Gajendran had
executed a gift deed without nothing the fact that the gift
deed was a document, which was unilaterally executed
by him, not accepted by the respondent Corporation and
could not have been treated to be a valid gift. These
facts have emerged on the fact of the order passed in the
Writ Petition without any requirement for a longÂdrawn
reasoning. Therefore, we are fully satisfied that we are
justified in exercising our review jurisdiction. For the
above reasons, we are of the clear view that the order
passed in the Writ petition suffers from error apparent
on the fact of the records warranting exercise of review
jurisdiction.â€
Thereafter Hon’ble the Supreme Court has held that from the order
passed by the High Court, it appears that the High Court has considered the
review application as if it was an appeal against the order passed by it in the
writ petition and as observed hereinabove the same is wholly impermissible
while deciding the review application.
17. Hence, it is apparent that even if the judgment sought to be reviewed is
erroneous the same cannot be a ground to review the same in exercise of
powers under Order 47 Rule 1 CPC. An erroneous order may be subjected to
appeal before the higher forum but cannot be a subject matter of review under
Order 47 Rule 1 CPC.
18. In the light of the legal position crystalized above, this Court finds that
there is no apparent error on the face of the record. Hence, in the considered
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opinion of this Court, no ground for review of the judgment dated 23.08.2022
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passed in MP No.6900 of 2019 is made out. Accordingly, the review petition
is hereby dismissed.
(SMT. ANJULI PALO)
JUDGE
ks
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Date: 2023.03.31 17:24:04 IST
