Madras High Court
At Present vs The Assistant Provident Fund ... on 31 January, 2022
REV.APLC(MD) No.22 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 31.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE MRS.JUSTICE S.ANANTHI
REV.APLC(MD) No.22 of 2022
and
C.M.P.(MD) No.591 of 2022
M/s.Vaigai Agro Products Ltd.
Rep.through Nagarajan
Assistant General Manager
315/1-14, Adaikalapattanam
Alangulam Taluk
Tirunelveli District
At present
M/s.Vaigai Agro Products Ltd
rep. through K.Pounraj
Directorate315/1-14, Adaikalapattanam
Alangulam Taluk
Tirunelveli District ... Petitioner
-vs-
1.The Assistant Provident Fund Commissioner
Employees Provident Fund Organization
Regional Office, Bhavishya Nidhi Bhavan
NGO “B” Colony, Tirunelveli-627 007
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REV.APLC(MD) No.22 of 2022
2.The Presiding Officer
The Employee's Provident Fund Appellate Tribunal
New Delhi ... Respondents
[Cause title accepted vide Court
order dated 24.01.2022 made in
C.M.P.(MD) No.7800 of 2021 in
Rev.Aplc.(MD) SR.No.42521 of
2021]
Review application filed under Order 47 Rule 1 read with Section 114 of
the Code of Civil Procedure to review the order dated 15.07.2021 passed in
W.A.(MD) No.1170 of 2021.
For Petitioner : Mr.V.O.S.Kalaiselvam
ORDER
S.VAIDYANATHAN, J.
and
S.ANANTHI, J.
This review has been filed to review the Judgment dated 15.07.2021
passed in W.A.(MD) No.1170 of 2021, wherein this Court in Paragraph No.31(i)
has passed the following orders:
“W.A.(MD) No.1170 of 2021 is dismissed and the
respondent – Organisation is directed to conduct a fresh
enquiry as ordered by the learned Writ Court for the
period in question and compute the contribution payable
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REV.APLC(MD) No.22 of 2022
by the Management. This exercise shall be completed
within a period of three months from the date of receipt
of a copy of this Judgment. Needless to state that the
appellant – Management shall extend full cooperation to
the enquiry.”
2. This Court, while interfering with the order dated 27.02.2018
passed in W.P.(MD) No.21130 of 2017, has categorically permitted the
petitioner - Management to putforth their submissions when the enquiry is
conducted by the Employees Provident Fund Organization and the
Management was also expected to extend their fullest cooperation.
3. This Court is of the view that no prejudice would be caused to the
petitioner – Management, if fresh enquiry is conducted, as the Management
will have ample opportunity to putforth all the defence available to them.
4. It is an axiomatic principle in law that rehearing of matter on
merits and re-appreciation of the arguments / pleas raised by the litigants in
the original order is certainly impermissible under review. It is to be
remembered that review cannot be heard as an appeal, even if the order is an
erroneous one. The ambit of review passed in writ petition is very limited.
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REV.APLC(MD) No.22 of 2022
That apart, for correcting an erroneous decision 'Review' does not lie. It
should also be remembered that it is well settled that the scope of review is
very minimal, as held by a Honourable Division Bench of this Court in the
case of The Special Officer, Kallal Co-operative Primary Agricultural and
Rural Development Bank Ltd., Karaikudi, Sivagangai District vs.
R.M.Rajarathinam and others [Review Application (MD)No.82 of 2013]
decided on 04.02.2015, by holding as under:
"10. From the records, it is seen that the review applicant did
not contest the claim of the first respondent on merits in the writ
petition. On the other hand, the learned counsel for the review
applicant admitted the contentions of the first respondent. Based on
the said admission only, an order was passed in the writ petition.
The review application and the writ appeal filed by the review
applicant herein were dismissed as not maintainable. W.A.(MD) No.
502 of 2009 filed against the order dated 26.07.2007 passed in
W.P.(MD) No.4636 of 2004, was dismissed by a Division Bench of
this Court, holding that the review applicant is not entitled to agitate
the issue on merits. It is well settled that the scope of review is
very limited. The review applicant cannot re-argue and he is
not entitled for re-hearing on merits.
11. The scope of review was considered by the Hon'ble Apex
Court in a judgment reported in 2000 (6) SCC 224 [Lilli Thomas and
Others Vs. Union of India and Others], wherein, in paragraph 52, it
was held as under:
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REV.APLC(MD) No.22 of 2022
"52.The dictionary meaning of the word "review" is "the act
of looking, offer something again with a view to correction
or improvement". It cannot be denied that the review is the
creation of a statute. This Court in Patel Narshi Thakershi
Vs. Pradyumansinghji Arjunsinghji [1971 (3) SCC 844 :
AIR 1970 SC 1273] held that the power of review is not an
inherent power. It must be conferred by law either
specifically or by necessary implication. The review is also
not an appeal in disguise. It cannot be denied that justice
is a virtue which transcends all barriers and the rules or
procedures or technicalities of law cannot stand in the way
of administration of justice. Law has to bend before
justice. If the Court finds that the error pointed out in the
review petition was under a mistake and the earlier
judgment would not have been passed but for erroneous
assumption which in fact did not exist and its perpetration
shall result in a miscarriage of justice nothing would
preclude the Court from rectifying the error. ....."
(emphasis supplied)
12. A Division Bench of this Court in a judgment reported in
2014 (3) TLNJ 245 (Civil) [M.Jai Kavitha Vs. The Authorised Officer,
Syndicate Bank, Regional Office, Chennai - 1 and others], in which,
one of us [V.DHANAPALAN, J.] is a party, has considered the scope
of judicial review, wherein the decision of the Honourable Apex
Court was noted with approval. Paragraph No.9 of the said
Judgment reads as under:
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REV.APLC(MD) No.22 of 2022
"9.The power of review under Order 47 Rule 1 of CPC can be
exercised by a court of law, if the order in question comprises a
mistake or an error apparent on the face of record. Once an order is
pronounced, it should not be altered, unless there is an apparent
error. Law is well settled that erroneous finding is not a ground for
review, so also improper consideration for that matter. In review
application, the court does not sit in appeal over its own judgment
and the said application cannot be treated as an appeal. This
position has been ruled by the Supreme Court in Lily Thomas Vs.
Union of India [2000 (6) SCC 224]. Therefore, in the absence of any
error apparent on the face of record, we are not inclined to interfere
with the order in question, except to the extent of deleting of the
portions in paragraphs 14 and 15 of the impugned order, with which
the applicant is concerned as to having an impact on the
proceedings pending before the tribunal, as stated in the foregoing
paragraph." (emphasis supplied)
5. In yet another decision, the Division Bench of this Court in
B.Dhanalakshmi vs M. Shajahan and Others, reported in AIR 2004
Madras 512, has opined that the power of review is not an appeal in disguise.
The relevant paragraphs of the said order are given below:
"11. From the above judgments, it is seen that the law is well
settled inasmuch as the power of review is available only when
there is an error apparent on the face of the record and not on
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REV.APLC(MD) No.22 of 2022
erroneous decision. If the parties aggrieved by the judgment on the
ground that it is erroneous, remedy is only questioning the said
order in appeal. The power of review under Order 47 Rule 1 C.P.C.
may be opened inter alia only if there is a mistake or an error
apparent on the face of the record. The said power cannot be
exercised as is not permissible for an erroneous decision to be
"reheard and corrected". A review application also cannot be
allowed to be "an appeal in disguise". Similarly, the error apparent
on the face of the record must be such an error, which must strikes
one on mere looking at record and would not require any long
drawn process of reasoning on points, where there may conceivably
be two opinions.
12. Based on the above principle of law, we are not inclined
to accede to the contention of the review applicants insofar as the
relief of review by placing reliance on the time taken by the
appellants from the date of return of the copy application and the
date of filing the writ petition. Though the learned counsel for the
review applicants Mr. R. Natesan and Mrs. Radha Gopalan may be
correct in contending that while computing the period of limitation
each day delay should be explained. The period taken by the
appellants to file writ petitions also may have bearing in computing
the period as the objectors cannot be allowed to take their own time
to file writ petition. However, for the reasons as to our limited power
of exercise of review our order in setting aside the grant on the
ground that the revision petitions were maintainable, we are not
inclined to review our order by adding the number of days taken by
the writ appellants for filing the writ petitions after the copy
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REV.APLC(MD) No.22 of 2022
application was received. As in that event, our order would be
completely reversed."
6. It is pertinent to mention here that Review should not be heard as
an appeal and even if the order is erroneous, it cannot be reviewed under
Order 47 Rule 1 CPC. In that regard, the Hon'ble Kerala High Court in
C.C.Sivaprasad vs. K.Sasidharan and another, reported in AIR 2006
Kerala 167 has been pleased to observe as under:
"9. It is clear from the impugned order of the learned Sub
Judge that the application for review was considered as if it was an
appeal. The learned Sub Judge has proceeded to rehear the
application filed under Rule 90 of Order XXI afresh ignoring the
limited power available under Order 47, Rule 1. No apparent error
was evident in the impugned order dated 6-4-2002 which was
reviewed by the learned Sub-Judge. Even if it is taken that the
order dated 6-4-2002 was erroneous that will not enable the
learned Sub Judge to review the order as if the petition was an
appeal. From the records of the executing Court, it cannot be said
that there was no settlement of proclamation, as has been found by
the Court below. Even if it is taken that there was no settlement of
proclamation, that will not itself enable the judgment debtor to get
the sale set aside unless he could satisfy the Court that by such
irregularity, substantial injury was sustained. The learned Sub
Judge in the impugned order did not even consider the existence of
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REV.APLC(MD) No.22 of 2022
a substantial injury and still reviewed the earlier order on the
ground that there is an apparent error when there was no such
apparent error. The learned Sub Judge was not correct in exercising
the power of review when there was no glaring omission or patent
mistake or grave error that has crept in the order dated 6-4-2002.
Even if the order was erroneous and could have been interfered in
an appeal, that cannot be reviewed under Order 47, Rule 1 of the
Code. On the facts and the records available, the finding of the
learned Sub Judge is unsustainable. The order dated 6-4-2002
could not have been reviewed exercising the power under Order 47,
Rule 1 on the grounds alleged."
7. Furthermore, this Court, in R.Mohala vs. M.Siva and others
[Review Petition No.61 of 2018 and WMP No. 10818 and 10819 of 2018]
decided on 25.04.2018, has elaborately discussed the scope of reviewing the
order passed in the writ petition, by holding as under:
“5. In the Writ petition, the contentions of the learned counsel
for the parties were heard in detail and a detailed order has been
passed to demolish the violated portions caused by the Review
Petitioner / 7th Respondent within a time frame. Even though the
Review Petitioner drew the attention of this Court to the provisions
of Sections 197 to 203 of Tamilnadu District Municipalities Act,
1920 and contended that it does not fall under any of the said
provisions, this Court has taken note of the entire facts and passed
final orders and the Supreme Court has come down heavily with
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REV.APLC(MD) No.22 of 2022
regard to encroachment matters. That apart, there is no ground to
review this order.
6. To maintain a review application, the review petitioner
must satisfy the three requirements of Order 47 Rule 1 of C.P.C.,
which are as under:
(i) From discovery of new and important matter or evidence
which after 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;
(ii) There is some mistake (or) error apparent on the face of the
record in the judgment under review; and
(iii) or any other sufficient reasons.
7. The basic principle to entertain the review under Order 47
Rule 1 C.P.C. is to correct the errors but not to substitute a view.
The judgment under review cannot be reversed (or) altered taking
away the rights declared and conferred by the Court under the
said judgment; once a judgment is rendered, the Court becomes
functus officio and it cannot set aside its judgment or the decree;
no inherent powers of review were conferred on the Court; the
review Court cannot look into the trial Court judgment; it can look
into its own judgment for limited purpose to correct any error or
mistake in the judgment pointed out by the review petitioner
without altering or substituting its view in the judgment under
review; the review court cannot entertain the arguments touching
the merits and demerits of the case and cannot take a different
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REV.APLC(MD) No.22 of 2022
view disturbing the finality of the judgment; the review cannot be
treated as appeal in disguise, as the object behind review is
ultimately to see that there should not be miscarriage of justice and
shall do justice for the sake of justice only and review on the
ground that the judgment is erroneous cannot be sustained.
8. It is settled law that even an erroneous decision cannot be
a ground for the Court to undertake review, as the first and
foremost requirement of entertaining a review petition is that the
order under review of which is sought, suffers from any error
apparent on the face of the order and in absence of any such error,
finality attached to the judgment/order cannot be disturbed.
9. In “Shanmuga Sundara Nadar vs.Tamil Nadu
Housing Board, rep. by its Chairman, Madras and others”,
reported in 1988 (2) L.W. 57 (MAD.), this Court held as under:
"The power to review is a restricted power which authorises
the Court to look through the judgment not in order to substitute a
fresh or second judgment but in order to correct it or improve it,
because some material which it ought to have considered has
escaped consideration or failed to be placed before it for any other
reason or because it suffers from a patent error which cannot be
sustained by any process of reasoning. The Court cannot under
cover of review arrogate to itself the power to decide the case over
again because it feels then that the assessment of evidence, etc.,
done formerly was faulty or even incorrect. An erroneous view of
evidence of law is not a ground for review. A wrong exposition of
the law, a wrong application of the law and failure to apply the
correct law have been held to be not a ground for review."
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REV.APLC(MD) No.22 of 2022
10. In “Meera Bhanja vs. Nirmala Kumari Choudhury”
reported in (1995) 1 SCC 170, the Supreme Court, while
considering the scope of the power of review of the High Court
under Order 47, Rule 1, C.P.C., held as under:
"The review proceedings are not by way of an appeal and
have to be strictly confined to the scope and ambit of Order 47,
Rule 1 C.P.C. The review petition of error apparent on the face of
the record and not on any other ground. An error apparent on the
face of the record must be such an error which must strike one on
mere looking at the record and would not require any longdrawn
process of reasoning on points where there may conceivably be two
opinions. The limitation of powers on court under Order 47, Rule 1,
C.P.C. is similar to jurisdiction available to the High Court while
seeking review of the orders under Article 226."
11. Having regard to the above, this Court does not find any
error apparent on the face of the order in order to entertain the
present review application.
Accordingly, this Review Petition is dismissed. Consequently,
connected miscellaneous petitions are closed.
8. In the case in Parsion Devi vs. Sumitri Devi, reported in 1997
(8) SCC 715, the Honourable Apex Court has reiterated the position with
regard to review of an order as follows:
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REV.APLC(MD) No.22 of 2022
"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
remembered has a limited purpose and cannot be allowed to be
"an appeal in disguise."
9. The applicant, in the guise of seeking for review cannot adopt the
tactics of apprising the facts once again, which is impermissible in law, as no
fresh documents and new facts cannot be considered and perused in an
application filed for review and the Court cannot rehear the matter afresh / de
novo, in the light of the judgment of the Hon'ble Supreme Court in the case of
Ajit Kumar Rath vs. State of Orissa and Others, reported in 1999 (9) SCC
596, wherein it was categorically held as follows:
".......The provisions extracted above indicate that the power
of review available to the Tribunal is the same as has been given
to a court under Section 114 read with Order 47 CPC. The power is
not absolute and is hedged in by the restrictions indicated in Order
47. The power can be exercised on the application of a person on
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REV.APLC(MD) No.22 of 2022
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 order was
made. The power can also be exercised on account of some
mistake or error apparent on the face of the record or for any other
sufficient reason. A review cannot be claimed or asked for merely
for a fresh hearing or arguments or correction of an erroneous view
taken earlier, that is to say, the power of review can be exercised
only for correction of a patent error of law or fact which stares in
the face without any elaborate argument being needed for
establishing it. It may be pointed out that the expression "any other
sufficient reason" used in Order 47 Rule 1 means a reason
sufficiently analogous to those specified in the rule.
Any other attempt, except an attempt to correct an apparent
error or an attempt not based on any ground set out in Order 47,
would amount to an abuse of the liberty given to the Tribunal
under the Act to review its judgment."
10. At this stage, this Court wants to emphasize that the well settled
legal position is that 'Review' erases the order / judgment from an inception.
In review, a Court of Law cannot rehear the matter De novo. Moreover, re-
appraisal of the whole gamut of materials on record for unearthing an
error/errors would amount to an exercise of appellate jurisdiction, which is
legally impermissible. There is no second opinion of a prime fact that the
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REV.APLC(MD) No.22 of 2022
'Power of Review' is a creation of a statute. A mere fact that divergent/different
views on the same subject are quite plausible/possible, it is not a ground to
review the earlier order passed by a Court of Law. To put it precisely, the
'Power of Review' is not to be exercised for substituting the earlier views
arrived at by the concerned Competent Court. An erroneous decision can be
subject to an appeal to a Higher Forum. But, a review is impermissible on the
ground that the Court of Law proceeded on a wrong proposition of law.
Generally speaking, an error apparent on the face of record means that an
error must be quite obvious and self evident and in short, it does require an
elaborate argument to be established, as per decision of the Honourable
Supreme Court in Thungabhadra Industries Limited vs. The Government
of A.P., reported in 1964 AIR 1372.
11. In view of the settled proposition of law in the matter of reviewing
the order, having regard to the facts and circumstances of the present case,
this Court finds no apparent error on the face of the judgment made in W.A.
(MD) No.1170 of 2021, dated 15.07.2021, as the applicant has failed to satisfy
the three ingredients of Order 47 Rule 1 of C.P.C., [referred to above in the
order of this Court in R.Mohala vs. M.Siva and others (supra)], necessitating
review of the order so passed.
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REV.APLC(MD) No.22 of 2022
12. In fine, this review application is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
[S.V.N., J.] [S.A.I., J.]
31.01.2022
Index : Yes / No
Internet : Yes / No
Note :
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the
Order may be utilized for official purposes,
but, ensuring that the copy of the Order
that is presented is the correct copy, shall
be the responsibility of the advocate /
litigant concerned.
krk
To:
1.The Assistant Provident Fund Commissioner,
Employees Provident Fund Organization,
Regional Office, Bhavishya Nidhi Bhavan,
NGO “B” Colony, Tirunelveli-627 007.
2.The Presiding Officer,
The Employee's Provident Fund Appellate Tribunal,
New Delhi.
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REV.APLC(MD) No.22 of 2022
S.VAIDYANATHAN, J.
and
S.ANANTHI, J.
krk
REV.APLC(MD) No.22 of 2022
and
C.M.P.(MD) No.591 of 2022
31.01.2022
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