Orissa High Court

Tahetul Masjid & Others ....... Review vs Sk. Golam Maqusud & Others ....... ... on 13 February, 2025

                   THE HIGH COURT OF ORISSA AT CUTTACK

                                RVWPET No.160 of 2023

        In the matter of an application under Section 114 read with Order
        XLVII, Rule 1 of the Code of Civil Procedure, 1908 read with Chapter-
        XII of Orissa High Court Rules, 1948.

                                           ------------

Tahetul Masjid & Others ....... Review Petitioners

-Versus-

SK. Golam Maqusud & Others ....... Opposite Parties

For the Review Petitioners: Mr. Ramakanta Mohanty, Senior Advocate along with M/s. Imran Khan, A.K. Mohanty & S. Parija, Advocates

For the Opposite Parties : None

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 05.02.2025 : Date of Judgment: 13.02.2025

S.S. Mishra, J. The present Review Petition arises out of S.A. No.169 of 1994

which was disposed of by this Court vide Judgement dated 10th of March

2023.

2. Heard Mr. Ramakanta Mohanty, learned Senior Counsel for the

Review Petitioners.

3. Mr. Mohanty, learned Senior Counsel submitted that while

adjudicating the Second Appeal, this Court overlooked Ext.2 and 2A, the

Wakf Deed, which clearly establishes that the plaintiff Mosque is a

private Wakf. The deed explicitly conveys the intention of conferring its

management upon a private entity, aligning with Chapter-19, Synopsis

12 of Mulla Mohammedan Law. He further asserts that since the plaintiff

Mosque is a private Wakf, its Mutawalli is not accountable to any

external authority regarding its management, as upheld by the Allahabad

High Court in the judgment of Mohammad Qamar Shah Khan v.

Mohammad Salamat Ali Khan1.

Additionally, he contends that the Court, while deciding the

Second Appeal, failed to consider the true purport of the Wakf Deed

executed in favour of Orfan Bibi by all co-sharers. The recitals within

the deed unmistakably establish that the Mosque is a private Mosque

AIR 1933 Allahabad 407

founded by an individual who is entirely a private person. The petitioner

emphasizes that the dismissal of the plaintiff's suit in the Second Appeal

was based on the ground that the Mutawalli lacked the authority to

institute the suit, as such, power rests with the Wakf Board. However,

the settled legal position is that the Wakf Board holds no authority to

constitute any committee concerning a private Mosque.

Furthermore, it is argued that, as per the Wakfnama, Niazuddin

Khan was a descendant of the Mutawalli, and the plaintiff is a direct

descendant of the original founder, Sahebzama Khan, whose sister,

Halima Bibi, was the mother of Niazuddin Khan. Thus, the plaintiff

traces lineage directly from the original founder. It is also pointed out

that the decision in the Second Appeal failed to consider Article 219 of

Mohammedan Law by M. Hidayatullah, which allows a stranger to file a

suit, even if the Mosque is not recognized as a juristic person. This is

particularly relevant as the office of Mutawalli is hereditary, as

prescribed under Chapter-19, Synopsis 36 of Mulla Mohammedan Law.

On these grounds, it is argued that the decision in the Second Appeal is

manifestly erroneous on the face of the record.

All the grounds highlighted by learned Senior Counsel to question

the impugned Judgement are essentially on the merits of the case. In a

review jurisdiction this Court can't venture into the merits of the case, in

the absence of any apparent error being pointed. The jurisdiction of the

review court is forbidden under law to traverse through the merits of the

case beyond the grounds contemplated under Order XLVII, Rule 1 of the

Code of Civil Procedure, 1908.

4. It is a well-established law that the review cannot be treated as an

appeal in disguise. It will be apposite to refer to the precedent set by the

Hon'ble Apex Court in the Judgement of Lily Thomas and Ors. Vs.

Union of India (UOI) and Ors.2, in which the Hon'ble Court held thus:

"56. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated 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 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. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon

(2000) 6 SCC 224

satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment."

The Apex Court in a recent Judgement reiterated the aforementioned

view. The Hon'ble Supreme Court in S. Murali Sundaram V/s Jothibai

Kannan & Ors.3 held thus:

"5.1 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.

(ii) 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.

2023 SCC OnLine SC 185

(iv) 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 advocate.

(v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit." 5.2 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.

5.3 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."

In view of the well-settled principles governing the scope of review

jurisdiction, it is no more res integra that a review jurisdiction cannot be

invoked as appellate jurisdiction in disguise, because in a review petition

the Court can't sit over the appeal against the judgment of the Single

Judge. The Hon'ble Supreme Court in Lily Thomas (supra)

unequivocally held that the power of review is confined to the correction

of a mistake and cannot be exercised to substitute a different view. This

view has been echoed in S. Murali Sundaram (supra), wherein the

Court held that a review petition must be strictly confined within the

ambit of Order XLVII, Rule 1 CPC, and the mere existence of two

possible views does not warrant invocation of review jurisdiction. It has

been further held that an error apparent on the face of the record must be