Madras High Court
M.Veerasubramanian vs The Chief Engineer on 25 October, 2024
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
Rev.Aplw(MD)No.128 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.10.2024
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
Rev.Aplw(MD)No.128 of 2023
in
W.P(MD)No.363 of 2022
M.Veerasubramanian ... Applicant/Petitioner
Vs.
1.The Chief Engineer,
Tamil Nadu Urban Habitat Development Board,
Chennai.
2.The Executive Engineer,
Tamil Nadu Urban Habitat Development Board,
Madurai Region,
169, K.K. Nagar Main Road,
Madurai – 625 020. ... Respondents/Respondents
Prayer : Review Application is filed under Order 47 Rule 1 r/w. Section
114 of C.P.C., to review the order of this Court, dated 14.06.2023 passed
in W.P(MD)No.363 of 2022.
1/18
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Rev.Aplw(MD)No.128 of 2023
For Petitioner : Mr.S.Mahesh Banu
ORDER
The Review Application has been filed by the writ petitioner
seeking to review an order dated 14.06.2023 in W.P.(MD)No.363 of
2022.
2. W.P.(MD)No.363 of 2022 had been filed in the nature of
Certiorarified Mandamus seeking interference with an order, dated
11.11.2021 in Na.Ka.No.1002/Sa.Va.A./2020 on the file of the second
respondent, Executive Engineer, Tamil Nadu Urban Habitat Development
Board, Madurai and to direct the said respondent to grant subsidy on the
basis of the sanction order, dated 24.08.2018.
3. In the residential site at Kumaran Village in S.No.34/9A1,
the petitioner had constructed a house and had approached the
respondents seeking subsidy under PMAY-HFA Urban BLC. Sanction
was granted on 24.08.2018 to the petitioner herein allotting Rs.2,10,000/-
(Rupees Two Lakhs and Ten Thousand only) to be paid in four months.
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4. It was the contention of the writ petitioner that he had
commenced construction and had informed at every stage of the
construction, through telephonically to the second respondent. It had also
been contended that one Durairaj, who was working under the second
respondent had visited the place and inspected the ongoing construction
and had given periodical reports to the second respondent. But however,
the impugned order came to be passed by stating that the petitioner had
constructed totally, 912 sq.ft., of construction in the ground floor and
120 sq.ft., in the first floor totally, 1102 sq.ft., whereas, the subsidy was
offered only on the basis that the petitioner would put up construction of
300 sq.ft.
5. It is contended by the learned counsel that the sanction
was to put construction of not less than 300 sq.ft. It had been contended
that this Court had wrongly interpreted the sanction order. It had been
further contended that there is no upper ceiling limit is fixed, so far as the
area of construction and therefore, the impugned order itself is wrong. It
had also been stated that in the counter affidavit false facts have been
stated by the respondents and on the basis of such facts, the Court had
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passed the impugned order. The Court cannot revisit the entire issue of
the facts as stated in the petition, the facts as stated in the counter
affidavit and the facts as stated in the impugned order. If there is an
analysis of the facts once again, then the only remedy available for the
writ petitioner would be only to file an appeal and not to seek review of
an order.
6. In the Madras High Court Writ Rules 2021, which equally
applies to the Madurai Bench also, Rule No.29 provides for Review of an
order. Rule 29 is as follows:
“29. Review
(1) The Court may review its orders but no
petition for review will be entertained except on the
grounds mentioned in Order XLVII, Rule 1 of the Code
of Civil Procedure, 1908.
(2) A petition for review shall be duly supported
by an affidavit and shall be filed within 30 days from the
date of the order sought to be reviewed and shall clearly
set out the grounds for review. However, the Court may
entertain a review petition filed thereafter, for sufficient
cause.
(3) A petition for review shall be disposed of, as
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far as practicable, by the same Judge who delivered the
order sought to be reviewed. The Court may either
dismiss the petition or direct notice to the respondents.
(4) No petition to review an order made on a
petition for review or on an order made in the main
petition consequent to a review being allowed shall be
entertained.”
7. A plain reading of the aforementioned stipulation, would
indicate that no petition for review will be entertained, except on the
grounds mentioned in Order 47 Rule 1 of the Code of Civil Procedure,
1908.
8. This naturally necessitates examination of the stipulations
in Order 47 Rule 1 of the Code of Civil Procedure.
9. Even before examining Order 47 Rule 1 of the Code of
Civil Procedure, it would only be appropriate to examine Section 114 of
the Code of Civil Procedure.
10. Section 114 of the Code of Civil Procedure is as follows:
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“114. Review:
Subject as aforesaid, any person considering
himself aggrieved
(a) by a decree or order from which an appeal is
allowed by this Code, but from which no appeal has been
preferred,
(b) by a decree or order from which no appeal is
allowed by this Court, or (c) by a decision on a reference
from a Court of Small Causes, may apply for a review of
judgment to the Court which passed the decree or made
the order, and the Court may make such order thereon as
it thinks fit.”
11. Order 47 Rule 1 of the Code of Civil Procedure is as
follows:
“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
(c) by a decision on a reference from a Court of
Small Causes, and who, from the discovery of new and
important matter or evidence which, after the exercise
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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 of 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.”
12. A plain reading of the aforementioned provisions makes
it clear that a review would lie against a decree or order, against which,
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no appeal had been preferred or a decree or order from which no appeal is
allowed or a decision of a reference of a Court of Small Cases on the
following grounds:
(i) discovery of new and important matter of evidence, which was
not produced at the time when the order was made;
(ii) on account of some mistake or error apparent on the face of
record; and
(iii)any other sufficient reason.
13. In the instant case, there is no dispute that an intra Court
appeal could be filed as against the order in the writ petition. No reasons
had been advanced as to why such Writ Appeal has not been filed.
14. Further in a Review Application, there cannot be an
application of mind once again to examine whether the order in the
review had been passed correctly or not. There must be an error apparent
on the face of record.
15. In (1997) 8 SCC 715 [ Parsion Devi and Others Vs.
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Sumitri Devi and Others], the Hon'ble Supreme Court has held as
follows:-
“?9. 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 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 limited
purpose and cannot be allowed to be “an appeal in
disguise.
10. Considered in the light of this settled
position we fine that Sharma, J. clearly over~stepped
the jurisdiction vested in the court under Order 47
Rule 1 CPC. The observation of Sharma, J. that
“accordingly“, the order in question is reviewed and
it is held that the decree in question is reviewed and it
is held that the decree in question was of composite
nature wherein both mandatory and prohibitory
injunction were provided“ and as such the case was
covered by Article the scope of Order 47 Rule 1 CPC.
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There is a clear distinction between an erroneous
decision and an error apparent on the face of the
record. While the first can be corrected by the higher
forum, the later only can be corrected by exercise of
the review jurisdiction. While passing the impugned
order, Sharma, J. found the order in Civil Revision
dated 25.4.1989 as an erroneous decision, though
without saying so in so many words. Indeed, while
passing the impugned order Sharma, J. did record that
there was a mistake or an error apparent on the face
of the record which not of such a nature, “Which had
to be detected by a long drawn process of reasons“
and proceeded to set at naught the order of Gupta, J.
However, mechanical use of statutorily sanctified
phrases cannot detract from the real import of the
order passed in exercise of the review jurisdiction.
Recourse to review petition in the facts and
circumstances of the case was not permissible. The
aggrieved judgment debtors could have approached
the higher forum through appropriate proceedings, to
assail the order of Gupta, J. and get it set aside but it
was not open to them to seek a “review of the order of
petition. In this view of the matter, we are of the
opinion that the impugned order of Sharma, J. cannot
be sustained and accordingly accept this appeal and
set aside the impugned order dated 6.3.1997.?”
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16. In (2008) 11 SCC 107 [ T.Thimmaiah (dead) by Lrs.
Vs. Venkatachala Raju (dead) Lrs.], the Hon'ble Supreme Court has
held as follows:-
“2. During the course of hearing, the
learned counsel for the appellant has pointed out
that a bare perusal of the order in review would
reveal that it is based on a complete reappreciation
of the matter on facts and the provisions of Order
47 Rule 1 of the Code of Civil Procedure which
would govern an application for review, have been
completely ignored. It has been submitted by the
counsel that the Single Judge had, in the first
Judgment, examined the facts and dismissed the
appeal and on a reconsideration of the same facts,
had allowed the same, which was not justified. We
find merit in this plea. From a bare perusal of the
Judgment in review, it is clear that the principles
laid down under Order 47 Rule 1 CPC have been
completely ignored. We accordingly allow the
appeal, set aside the order in review dated
26.2.2001 and dismiss the appeal in the suit. We,
however, give liberty to the respondent herein to
challenge the Judgment dated 16.2.1999, if so
advised.”
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17. In (2018) 4 SCC 587 [ Sivakami and Others Vs.
State of Tamil Nadu and Others], the Hon'ble Supreme Court has held
as follows:-
“18. The scope of the appellate powers and the
review powers are well defined. The power of review
under Order 47 Rule 1 of the Code of Civil Procedure,
1908 is very limited and it may be exercised only if
there is a mistake or an error apparent on the face of
the record. The power of review is not to be confused
with the appellate power. The review
petition/application cannot be decided like a regular
intra court appeal. On the other hand, the scope of
appeal is much wider wherein all the issues raised by
the parties are open for examination by the Appellate
Court.
19. A fortiori, what was not decided in appeal
by the Division Bench could not be decided by the
Division Bench while deciding the review application.
It is for this reason, we are also constrained to set
aside the review order.”
18. Further it is contended by the learned counsel for the
petitioner that the points raised have not been addressed.
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19. But however, on perusal of the order and review shows
that the arguments advanced by the petitioner had been extracted
extensively, the counter had also been extracted and thereafter, the order
had been passed. If the false facts had been stated in the counter, then the
burden was on the petitioner herein to file a rejoinder to the counter and
point out the falsity made in the counter. Without a rejoinder having been
filed to the counter affidavit there cannot be a presumption that
statements made in the counter are false. Whether the sanction was
granted to construct a house of 300 sq.ft., or less than 300 sq.ft., or more
than 300 sq.ft., or whether there was a ceiling limit for the area for
construction are issues of fact which can be agitated only in a Writ
Appeal and not by way of Review.
20. In Aribam Tuleshwar Sharmma v. Aribam Pishak Sharma
and others (1974) 4 SCC 389, the the Hon'ble Supreme Court had very
clearly stated that merely because a document which formed part of the
record was not considered at the time of deciding the case, it cannot be
categorized as a mistake or error apparent on the face of record. The
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Hon'ble Supreme Court had held as follows:
“....The Judicial Commissioner gave two
reasons for reviewing his predecessor's order. The
first was that his predecessor had overlooked two
important documents Exs. A-1 and A-3 which
showed that the respondents were in possession of
the sites even in the year 1948-49 and that the
grants must have been made even by then. The
second was that there was a patent illegality in
permitting the appellant to question, in a single writ
petition, settlement made in favour of different
respondents. We are afraid that neither of the
reasons mentioned by the learned Judicial
Commissioner constitutes a ground for review. It is
true as observed by this Court in Shivdeo Singh v.
State of Punjab [AIR 1963 SC 1909] there is
nothing in Article 226 of the Constitution to
preclude a High Court from exercising the power of
review which inheres in every court of plenary
jurisdiction to prevent miscarriage of justice or to
correct grave and palpable errors committed by it.
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
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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.”
(emphasis supplied)
21. It had been clearly held that non-consideration of the
exhibits by the Judicial Commissioner, would not be a ground to review
the order.
22. Even in the instant case the charge of the learned counsel
that all points raised during arguments cannot be a ground to review the
order passed in the Writ Petition.
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23. I am afraid that the Review Application in the instant
case would not lie and therefore, the Review Application stands
dismissed. No costs.
25.10.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
RM
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To
1.The Chief Engineer,
Tamil Nadu Urban Habitat Development Board,
Chennai.
2.The Executive Engineer,
Tamil Nadu Urban Habitat Development Board,
Madurai Region,
169, K.K. Nagar Main Road,
Madurai – 625 020.
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C.V.KARTHIKEYAN, J.
RM
in
25.10.2024
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