Madras High Court
N.Dhanasekaran vs A.Vinoba on 23 February, 2022
Rev.Appl.No.67 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.02.2022
CORAM
THE HON'BLE MR. JUSTICE N.ANAND VENKATESH
Review Application No.67 of 2015
in
S.A.No. 359 of 2013
N.Dhanasekaran ... Petitioner
Vs
1. A.Vinoba
2. M. Arumugham ... Respondents
Prayer : Review Application filed under Section 114 of CPC to review
the final order dated 09.02.2015 passed by this Court in S.A.No.359 of
2013.
For Petitioner : Mr.SL.Sudarsanam
For Respondents : Mr.Y.Jothish Chander
ORDER
This petition has been filed to review the order passed by this
Court in the second appeal on 09.02.2015, wherein the second appeal
was dismissed on the ground that no substantial questions of law are
involved in the second appeal, warranting admission of the second
appeal.
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2. Heard, Mr. SL.Sudarsanam, learned counsel appearing for the
petitioner and Mr.Y.Jothish Chander learned counsel appearing for the
respondents.
3. This Court haS carefully gone through the grounds raised in the
review petition and also the submissions made on either side.
4. The scope of the review petition was considered in detail by the
Hon'ble Supreme Court of India in Haryana State vs Mawasi & Ors
reported in 2012 (7) SCC 200. The relevant portions are extracted
hereunder.
27. The aforesaid provisions have been interpreted in
several cases. We shall notice some of them. In S.
Nagaraj v. State of Karnataka 1993 Supp (4) SCC 595,
this Court referred to the judgments in Raja Prithwi
Chand Lal Choudhury v. Sukhraj Rai AIR 1941 FC 1
and Rajunder Narain Rae v. Bijai Govind Singh (1836)
1 Moo PC 117 and observed:
“19. Review literally and even judicially
means re- examination or re- consideration. Basic
philosophy inherent in it is the universal acceptance
of human fallibility. Yet in the realm of law the
courts and even the statutes lean strongly in favour
of finality of decision legally and properly made.
Exceptions both statutorily and judicially have been
carved out to correct accidental mistakes or
miscarriage of justice. Even when there was no
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statutory provision and no rules were framed by the
highest court indicating the circumstances in which
it could rectify its order the courts culled out such
power to avoid abuse of process or miscarriage of
justice. In Raja Prithwi Chand Lal Choudhury v.
Sukhraj Rai the Court observed that even though no
rules had been framed permitting the highest Court
to review its order yet it was available on the limited
and narrow ground developed by the Privy Council
and the House of Lords. The Court approved the
principle laid down by the Privy Council in Rajunder
Narain Rae v. Bijai Govind Singh that an order made
by the Court was final and could not be altered:
... nevertheless, if by misprision in embodying
the judgments, by errors have been introduced, these
Courts possess, by Common law, the same power
which the Courts of record and statute have of
rectifying the mistakes which have crept in .... The
House of Lords exercises a similar power of
rectifying mistakes made in drawing up its own
judgments, and this Court must possess the same
authority. The Lords have however gone a step
further, and have corrected mistakes introduced
through inadvertence in the details of judgments; or
have supplied manifest defects in order to enable the
decrees to be enforced, or have added explanatory
matter, or have reconciled inconsistencies. Basis for
exercise of the power was stated in the same decision
as under:
It is impossible to doubt that the indulgence extended
in such cases is mainly owing to the natural desire
prevailing to prevent irremediable injustice being
done by a Court of last resort, where by some
accident, without any blame, the party has not been
heard and an order has been inadvertently made as
if the party had been heard.
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Rectification of an order thus stems from the
fundamental principle that justice is above all. It is
exercised to remove the error and not for disturbing
finality. When the Constitution was framed the
substantive power to rectify or recall the order
passed by this Court was specifically provided by
Article 137 of the Constitution. Our Constitution-
makers who had the practical wisdom to visualise the
efficacy of such provision expressly conferred the
substantive power to review any judgment or order
by Article 137 of the Constitution. And clause (c) of
Article 145 permitted this Court to frame rules as to
the conditions subject to which any judgment or
order may be reviewed. In exercise of this power
Order XL had been framed empowering this Court to
review an order in civil proceedings on grounds
analogous to Order XLVII Rule 1 of the Civil
Procedure Code. The expression, for any other
sufficient reason in the clause has been given an
expanded meaning and a decree or order passed
under misapprehension of true state of
circumstances has been held to be sufficient ground
to exercise the power. Apart from Order XL Rule 1 of
the Supreme Court Rules this Court has the inherent
power to make such orders as may be necessary in
the interest of justice or to prevent the abuse of
process of Court. The Court is thus not precluded
from recalling or reviewing its own order if it is
satisfied that it is necessary to do so for sake of
justice”.
28. In Moran Mar Basselios Catholicos v. Most Rev.
Mar Poulose Athanasius AIR 1954 SC 526, the three-
Judge Bench referred to the provisions of the
Travancore Code of Civil Procedure, which was similar
to Order 47 Rule 1 CPC and observed:
“32. It is needless to emphasise that the
scope of an application for review is much more
restricted than that of an appeal. Under the
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provisions in the Travancore Code of Civil
Procedure which is similar in terms to Order 47
Rule 1 of our Code of Civil Procedure, 1908, the
court of review has only a limited jurisdiction
circumscribed by the definitive limits fixed by the
language used therein.
It may allow a review on three specified
grounds, namely, (i) discovery of new and
important matter or evidence which, after the
exercise of due diligence, was not within the
applicant's knowledge or could not be produced by
him at the time when the decree was passed, (ii)
mistake or error apparent on the face of the record,
and (iii) for any other sufficient reason.
It has been held by the Judicial Committee
that the words any other sufficient reason must
mean a reason sufficient on grounds, at least
analogous to those specified in the rule. See
Chhajju Ram v. Neki AIR 1922 PC 12 (D). This
conclusion was reiterated by the Judicial
Committee in Bisheshwar Pratap Sahi v. Parath
Nath AIR 1934 PC 213 (E) and was adopted by on
Federal Court in Hari Shankar Pal v. Anath Nath
Mitter AIR 1949 FC 106 at pp. 110, 111 (F).
Learned counsel appearing in support of this
appeal recognises the aforesaid limitations and
submits that his case comes within the ground of
mistake or error apparent on the face of the record
or some ground analogous thereto”.
29. In Thungabhadra Industries Ltd. v. Govt. of A.P.
(1964) 5 SCR 174, another three-Judge Bench reiterated
that the power of review is not analogous to the
appellate power and observed:
“11. ....A review is by no means an appeal
in disguise whereby an erroneous decision is
reheard and corrected, but lies only for patent
error. We do not consider that this furnishes a
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suitable occasion for dealing with this difference
exhaustively or in any great detail, but it would
suffice for us to say that where without any
elaborate argument one could point to the error
and say here is a substantial point of law which
stares one in the face, and there could reasonably
be no two opinions, entertained about it, a clear
case of error apparent on the face of the record
would be made out”.
30. In Aribam Tuleshwar Sharma v. Aibam Pishak
Sharma (1979) 4 SCC 389, this Court answered in
affirmative the question whether the High Court can
review an order passed under Article 226 of the
Constitution and proceeded to observe:
“3. ...But, there are definitive limits to the
exercise of the power of review. The power of
review may be exercised on the discovery of new
and important matter or evidence which, after
the exercise of due diligence was not within the
knowledge of the person seeking the review or
could not be produced by him at the time when
the order was made; it may be exercised where
some mistake or error apparent on the face of the
record is found; it may also be exercised on any
analogous ground. But, it may not be exercised
on the ground that the decision was erroneous on
merits. That would be the province of a court of
appeal. A power of review is not to be confused
with appellate powers which may enable an
appellate court to correct all manner of errors
committed by the subordinate court”.
31. In Meera Bhanja v. Nirmala Kumari Choudhury
(1995) 1 SCC 170, the Court considered as to what can
be characterised as an error apparent on the fact of the
record and observed:
“9. ....it has to be kept in view that an error
apparent on the face of record must be such an error
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which must strike one on mere looking at the record and
would not require any long-drawn process of reasoning
on points where there may conceivably be two opinions.
We may usefully refer to the observations of this Court
in the case of Satyanarayan Laxminarayan Hegde v.
Mallikarjun Bhavanappa Tirumale AIR 1960 SC 137
wherein, K.C. Das Gupta, J., speaking for the Court has
made the following observations in connection with an
error apparent on the face of the record:
17. ....An error which has to be established by a
long-drawn process of reasoning on points where there
may conceivably be two opinions can hardly be said to
be an error apparent on the face of the record. Where an
alleged error is far from self-evident and if it can be
established, it has to be established, by lengthy and
complicated arguments, such an error cannot be cured
by a writ of certiorari according to the rule governing
the powers of the superior court to issue such a writ”.
32. In Parsion Devi v. Sumitri Devi (1997) 8 SCC 715,
the Court observed:
“9. ....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.. A review petition, it must be
remembered has a limited purpose and cannot be
allowed to be an appeal in disguise”.
33. In Lily Thomas v. Union of India (2000) 6 SCC 224,
R.P. Sethi, J., who concurred with S. Saghir Ahmad, J.,
summarised the scope of the power of review in the
following words:
“56. ....Such powers can be exercised within the
limits of the statute dealing with the exercise of power.
The review cannot be treated like an appeal in disguise.
The mere possibility of two views on the subject is not a
ground for review. Once a review petition is dismissed
no further petition of review can be entertained. The
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rule of law of following the practice of the binding
nature of the larger Benches and not taking different
views by the Benches of coordinated jurisdiction of
equal strength has to be followed and practised”.
34. In Haridas Das v. Usha Rani Banik, the Court
observed :
“13. ....The parameters are prescribed in Order
47 CPC and for the purposes of this lis, permit the
defendant to press for a rehearing on account of some
mistake or error apparent on the face of the records or
for any other sufficient reason. The former part of the
rule deals with a situation attributable to the applicant,
and the latter to a jural action which is manifestly
incorrect or on which two conclusions are not possible.
Neither of them postulate a rehearing of the dispute
because a party had not highlighted all the aspects of
the case or could perhaps have argued them more
forcefully and/or cited binding precedents to the court
and thereby enjoyed a favourable verdict”.
35. In State of West Bengal v. Kamal Sengupta (2008) 8
SCC 612, the Court considered the question whether a
Tribunal established under the Administrative Tribunals
Act, 1985 can review its decision, referred to Section
22(3) of that Act, some of the judicial precedents and
observed:
“21. At this stage it is apposite to observe
that where a review is sought on the ground of
discovery of new matter or evidence, such matter or
evidence must be relevant and must be of such a
character that if the same had been produced, it
might have altered the judgment. In other words,
mere discovery of new or important matter or
evidence is not sufficient ground for review ex debito
justitiae. Not only this, the party seeking review has
also to show that such additional matter or evidence
was not within its knowledge and even after the
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exercise of due diligence, the same could not be
produced before the court earlier.
22. 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
or Section 22(3)(f) of the Act. To put it differently 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
court/tribunal concerned cannot sit in appeal over
its judgment / decision”.
6. It is clear from the above judgment that the key for entertaining
the review petition is that there must be a mistake or an error apparent on
the face of the judgment. It is also possible to review the judgment for
any other sufficient reason which must also be apparent on the face of the
record.
7. In the present case, this Court found that the findings of both
the Courts below was based on evidence and hence this Court refused to
interfere with the findings since it was not within the scope of Section
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100 of CPC. This Court found that there were no substantial questions of
law involved even to admit the second appeal.
8. A careful reading of the grounds raised in the review petition
shows that the appellant is virtually attempting to re-argue the entire
second appeal once again. Whatever has been pointed out in the review
petition are all facts which was dealt with by both the Courts below and
this Court found that there was no ground to interfere with the same.
Therefore, if this review petition is heard based on the grounds raised, it
will virtually amount to rehearing the second appeal. The grounds raised
are beyond the scope of a review petition as could be found from the
judgment of the Hon'ble Supreme Court of India referred supra.
9. In the result, the review petition is dismissed. Considering the
facts and circumstances of the case, there will be no order as to costs.
23.02.2022
Index :Yes/No
Internet :Yes/No
Lpp
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Rev.Appl.No.67 of 2021
N.ANAND VENKATESH.,J
Lpp
Review Application No.67 of 2015
in
S.A.No. 359 of 2013
23.02.2022
https://www.mhc.tn.gov.in/judis
