Madhya Pradesh High Court
Ank Trade And Finance Ltd. Through ... vs M/S Kanika Real Built (Opc) Pvt. Ltd. ... on 7 January, 2025
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
REVIEW PETITION 556 OF 2024
(ANK TRADE AND FINANCE LTD. THROUGH
SATISH AND OTHERS)
Vs.
(KANIKA REAL BUILT (OPC) PVT. LTD. THROUGH ITS DIRECTOR
AMIT ARORA AND OTHERS)
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Appearance:-
Shri Amol Shrivastava- Advocate for petitioners.
Shri Vijay Kumar Ashudani- Advocate for respondents.
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Reserved on 20-12-2024
Pronounced on 07-01-2025
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This review petition having been heard and reserved for orders, coming
on for pronouncement this day, Justice Hirdesh pronounce the following:-
ORDER
This petition under Order 47 Rule 1 of CPC has been filed by petitioners
for review of order dated 15 th of April, 2024 passed by this Court in Civil
Revision No. 560 of 2023.
2. Factual matrix, in a nutshell, is that plaintiffs (herein review petitioners)
filed a suit on 2nd of March, 2023 before the concerning Civil Court, seeking
cancellation/annulment of sale deed, purportedly to have been executed by
Plaintiff No.2 (herein review petitioner No.2) in favour of Plaintiff No.1 (herein
review Petitioner No.1- Company) on 23-06-2015 and registered on 12-11-2018
in favour of defendant No.1 (herein respondent No.1-Company'') on the ground
of fraud committed by Defendants, so also claiming perpetual injunction against
Defendant No.1 from alienating the suit land and recovery of damages.
Defendants No.1 and 2 filed an application under Order 7 Rule 11 CPC on the
ground that the suit of the Plaintiffs is barred under Order 1 Rule 3-B of CPC as
the State has not been a party nor given notice under Section 80 of CPC and
there is a statutory bar under Section 257 of MPLRC for entertainment of suit
and the suit is barred by limitation and the same is frivolous and vexatious and
does not disclose clear right to sue. The Plaintiffs submitted their reply to the
application under Order 7 Rule 11 of CPC. After hearing both the parties, the
Trial Court vide order dated 12th of May, 2023 dismissed the application filed by
Defendants under Order 7 Rule 11 of CPC against which, Civil Revision No.560
of 2023 was filed by Defendants- respondents No.1 and 2. This Court vide
impugned order dated 15th of April, 2023 set aside the order of the Trial Court,
by allowing the civil revision as well as application of Defendants filed under
Order 7 Rule 11 of CPC and rejecting plaint as well as suit of the Plaintiffs
holding that the suit is time-barred. Hence, this review petition has been filed at
the instance of Plaintiff for review of impugned order on the following grounds:-
(i) The findings given by this Court in Paras 21 to 24 of impugned
order are wholly outside the plaint averments and accompanying
documents and merely based upon the statements made by the Defendants
in the application under Order 7 Rule 11 of CPC.
(ii) There is error apparent on the face of record that the Board
Resolution dated 15-06-2015 allegedly passed by Plaintiff- Company for
execution of sale deed of suit property in favour of Defendants is not a
document filed by plaintiff with plaint but filed by Defendants subsequent
to rejection of application under Order 7 Rule 11 of CPC by the Trial
Court on 12th of May, 2023 as well as reply to the application of Plaintiff
filed under Order 39 Rule 1 and 2 of CPC. The said Resolution is
suspicious and doubtful as Defendant No.1-Company itself was
incorporated on 18th of June, 2015.
(iii) In plaint averments, Plaintiffs have specifically pleaded that
sale consideration of Rs.1.5 crore is still lying with Defendant No.4 M/s.
Babylon Company, which is under the Directorship of Defendant No.2,
therefore, the said sale deed in question is, thus null and void being
fraudulent and altogether without any consideration but this aspect has not
been taken into consideration by this Court.
(iv) Although there is specific pleadings of Plaintiffs in Para 17 of
the plaint that mutation proceedings to be an outcome of fraud, but same
have been escaped towards attention of this Court in its Para 22 of the
order.
(v) As per plaint averments made by Plaintiffs in Para 16 that till
date of filing of suit, previously no notice was instituted upon them and
they only got knowledge of the said suit after police report. The said error
apparent on the face of record, has resulted into the findings of fact upon
disputed questions of fact at the stage of deciding application.
(vi) This Court has mistakenly observed in Para 23 of the order that
date of knowledge of Plaintiffs was from the first week of February, 2020
and the suit filed in March 2023 is beyond limitation whereas, as per Para
26 of plaint averments, period of limitation should be calculated from 15-
03-2020 to 28-03-2022.
(vii) While setting aside well- reasoned order of the Trial Court in a
limited scope of revision under Section 115 of CPC, this Court cannot
travel much beyond correction of jurisdictional error.
3. It is contended that the plaint could not be rejected on the basis of defence
averments and documents touching upon the disputed questions of fact which are
wholly extraneous to plain averments and documents. The order of trial Court
rejecting application under Order 7 Rule 11 of CPC cannot be reversed on the
basis of documents filed subsequently by defendants after the decision of the
trial Court. The factual pleas were not present at the time of deciding the
application under Order 7 Rule 11 of CPC. The documents filed by Defendants,
before the trial Court and after rejection of application under Order 7 Rule 11 of
CPC, have not been considered by this Court in civil revision.
4. In support of contentions, learned Counsel for review petitioners relied on
the judgments in PV Gururaj Reddy Vs. P. Neeradha 2015 (8) SCC 331, Salim
D Agboatwala Vs. Shamalji Oddhavaji 2021 SCC Online SC 735, Ku. Geetha
Vs. Nanjndaswamy (Civil Appeal 7413/2023)(SC), Eldeco Housing Vs. Ashok
Vidyarthi 2023 Live Law (SC) 1033, Soumitra Kumar Sen Vs. Shyamlal 2018
(5) SCC 644:, Urvashiben Vs. Krishnakant 2019(13)SCC372:, Chhotanben
Vs.Kirtibhai 2018 (6) SCC 422, Cognizance for extension of limitation, in re
(2021) 17 SCC 231 and S Murli Sundaram Vs. Jothibai Kannan 2023 SCC
Online SC 185.
5. On the other hand, relying on the judgments passed by Hon'ble Supreme
Court in the case of Sow Chandra Kante and Another Vs Sheikh Habib (1975)
1 SCC 674, Parsion Devi and Others Vs. Sumitri Devi and Others (1997) 8
SCC 715 and Meera Bhanja (Smt.) Vs. Nirmala Kumari Choudhury (1995) 1
SCC 170, learned counsel for respondents submits that once an order has been
passed, a review thereof must be subject to the rule and practice of the Court and
cannot be likely entertained. A review of a judgment is a serious step and
reluctant resort to it is proper only where a glaring omission or patent mistake or
like grave error has crept in earlier by judicial fallibility. The review petition has
to be entertained only on the ground of error apparent on the face of the record
and not on any other ground. An error apparent 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 term process of reasoning on points where there may
conceivably be two opinions. Under Order 47 Rule 1 CPC, a judgment may be
open to review inter alia if there is a mistake or an error apparent on the face of
the record. 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 the record
justifying the Court to exercise its power of review under Order 47 Rule 1 CPC.
In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible
for an erroneous decision to be "reheard and corrected". A review petition, it
must be remembers has a limited purpose and cannot be allowed to be "an appeal
in disguise". Hence, prayed for dismissal of this review petition.
6. Heard learned counsel for the parties and perused the impugned order.
7. 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, 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."
8. The Hon'ble Apex Court in the case of Kamlesh Verma Vs. Mayawati
and Others (2013) 8 SCC 320 has laid down the following principles when the
review is not 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 the 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 re-heard 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) Review is not maintainable when the same relief sought at the
time of arguing the main matter had been negatived. ''
9. Further, in the case of 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'".
10. 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.
11. 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 face of the record,
which has to be decided on the facts of each and every case. Further, it was held
that an erroneous decision, by itself, does not warrant review of each decision.
12. 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 petitioners. It is also well-settled principle of law 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)].
13. In the light of above, it is well- settled principle of law that the scope of
review is very limited. There is no error apparent on the face of record in the
impugned order passed by this Court, which has already considered all
arguments advanced by learned counsel for the parties as well as documents
available on record.
14. Consequently, on the basis of aforesaid discussion and taking into
consideration the settled principal of law, no case for reviewing the order dated
15th of Appeal, 2024 passed by this Court in Civil Revision No.560 of 2023 is
made out.
15. Resultantly, this review petition fails and is hereby dismissed.
(HIRDESH )
JUDGE
MKB
