Madhya Pradesh High Court
Ramjee Patel vs Ramgopal on 29 March, 2023
Author: Anjuli Palo
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANJULI PALO
ON THE 29TH OF MARCH, 2023
REVIEW PETITION No. 1265 of 2022
BETWEEN:-
RAMJEE PATEL AGED ABOUT 40 YEARS S/O LATE SHRI
LAXMI PATEL, OCCUPATION: AGRICULTURE VILLAGE
MIRJAPUR TAHSIL PATHARIYA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI R.K. VERMA - SENIOR ADVOCATE ALONG WITH SHRI RAM
MURTI TIWARI -ADVOCATE)
AND
RAMGOPAL S/O SHRI CHHOTELAL PATEL
O C C U PAT I O N : AGRICULTURIST AND RETIRED
GOVERNMENT EMPLOYEE R/O OPPOSITE POLY
TECHNIQUE COLLEGE JABALPUR NAKA DISTRICT
DAMOH (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI AMIT MISHRA - ADVOCATE)
RESERVED ON : 15.02.2023
PRONOUNCED ON : 29.03.2023
---------------------------------------------------------------------------------------------
-------
This petition having been heard and reserved for orders, coming on for
pronouncement this day, the Court pronounced 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 03.11.2022
passed by this Court in Civil Revision No.94 of 2021 has been dismissed.
Signature Not Verified
SAN
2. Learned senior counsel for the petitioner has vehemently submitted
Digitally signed by KOUSHALENDRA
that this Court dismissed the revision under the influence of the judgment
SHARAN SHUKLA
Date: 2023.03.31 17:24:05 IST
passed in SA No.1031 of 2012 dated 03.11.2022 whereby the said second
appeal was dismissed whereas against the said judgment, a review petition
No.1261 of 2022 has been preferred. It is further contended that this Court
relied upon the demarcation report wherein the possession of the review
petitioner was found. It is not mentioned in the said report that the petitioner
took the possession forcibly. The respondent has not objected the demarcation
and further he filed application under Order 21 Rule 32 of the CPC after five
months of his alleged dispossession. It is further contended that if factum of
partition is rejected, the petitioner and the respondent would be treated as co-
owners of the properties in question. It is, therefore, prayed that order passed
by this Court dated 03.11.2022 in CR No.94 of 2021 may be reviewed.
3. On the other hand, learned counsel appearing for the respondent has
supported the order passed by this Court. It is further contented that this Court
while deciding the revision has appreciated the order passed by the Court in
proper perspective and found no illegality or perversity warranting interference
in revisional jurisdiction.
4. I have heard learned counsel for the parties and perused the impugned
order.
5. This Court while dismissing the revision by the impugned order has
held that executing Court while passing the order in question, from the oral and
documentary evidence found that the possession of the disputed land was
taken in violation of the judgment and decree passed by the Court. One of the
main contentions of the petitioner is that this Court while dismissing the
revision, took note of the fact that SA No.1031 of 2012 was dismissed vide
Signature Not Verified
SAN
judgment dated 03.11.2022 but this Court did not took note of the fact that
Digitally signed by KOUSHALENDRA
SHARAN SHUKLA
against the judgment of dismissal, a review petition RP No.1261 of 2022 was
Date: 2023.03.31 17:24:05 IST
preferred. In this context, suffice it to say, the said Review Petition No.1261 of
2022 has also faced dismissal today by this Court.
6. 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. 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 (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
advanced in a review petition. The appreciation of
evidence on record is fully within the domain of the
appellate court. If on appreciation of the evidence
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."
7. Under the garb of filing a review petition, a party cannot be
Signature Not Verified
permitted to repeat old and overruled arguments for reopening the conclusions
SAN
Digitally signed by KOUSHALENDRA
arrived at in a judgment. The power of review is not to be confused with the
SHARAN SHUKLA
Date: 2023.03.31 17:24:05 IST
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.
8. 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 reasonÂÂ. The said phrase has been explained to mean
reason sufficient on grounds, at least analogous to those specified in the rule.
9. It is well settled in law that in the guise of review, rehearing is not
Signature Not Verified
SAN permissible. In order to seek review it has to be demonstrated that order suffers
Digitally signed by KOUSHALENDRA
SHARAN SHUKLA
from error apparent on the face of record. The Court while deciding the
Date: 2023.03.31 17:24:05 IST
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.
10. 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
order passed by a bench of the same strength, where the remedy of appeal is
available the power of review should be exercised by the Court with greater
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, State of
West Bengal and Others v. Kamal Sengupta and Another, (2008) 8 SCC
612 and Asharfi Devi v. State of U.P., (2019) 5 SCC 86]
Signature Not Verified
SAN
11. At this juncture, it is apt to refer to the recent decision of
Digitally signed by KOUSHALENDRA
SHARAN SHUKLA
Hon'ble the Supreme Court rendered in the case of S. Murali Sundaram v.
Date: 2023.03.31 17:24:05 IST
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 wholly unjustified and exhibits a
tendency to rewrite a judgment by which the controversy
has been finally 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.
( i i ) 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 long drawn 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.
Signature Not Verified
SAN
( i v ) 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
Digitally signed by KOUSHALENDRA
SHARAN SHUKLA
Date: 2023.03.31 17:24:05 IST
advocate.
(v) An application for review may be necessitated by way
of invoking the doctrine actus curiae neminem gravabit.
1 6 . 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 to
be detected by a process of reasoning, can hardly be said
to be an error apparent on the face of record justifying the
court to exercise its power of review under Order 47 Rule
1 CPC.
1 8 . 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
Signature Not Verified
SAN
High Court discarded and/or not considered the Survey
Report dated 12.12.2007. Once the Survey Report dated
Digitally signed by KOUSHALENDRA
SHARAN SHUKLA
Date: 2023.03.31 17:24:05 IST
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 by
this Court while considering the review application.
Brushing aside a survey report, which was available on
record and which brought out tampering of official
records, ought to have been taken note of by the Learned
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 long drawn
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
Signature Not Verified
jurisdiction."
SAN
Digitally signed by KOUSHALENDRA
12. Thereafter Hon'™ble the Supreme Court has held that from
SHARAN SHUKLA
Date: 2023.03.31 17:24:05 IST
t h e 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.
13. 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.
14. In the light of the legal position crystalized above, there is no
apparent error on the face of the record. Hence, in the considered opinion of
this Court, no ground for review of the order dated 03.11.2022 passed in Civil
Revision No.94 of 2021 is made out. Accordingly, the review petition is
hereby dismissed
(SMT. ANJULI PALO)
JUDGE
ks
Signature Not Verified
SAN
Digitally signed by KOUSHALENDRA
SHARAN SHUKLA
Date: 2023.03.31 17:24:05 IST
