Rajasthan High Court

Dinesh Kumar Agrawal S/O Shri R.S. ... vs Rajasthan Housing Board on 20 December, 2021

Bench: Sanjeev Prakash Sharma

                                        (1 of 9)                  [WRW-179/2019]


      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

             S.B. Review Petition (Writ) No.179/2019

                                       In

               S.B. Civil Writ Petition No.1642/1993

Dinesh Kumar Agrawal S/o Shri R.S. Kejriwal, Aged About 55
Years, R/o 88, Panchsheel Enclave, Durgapura, Jaipur (Raj.).
                                                                  ----Petitioner
                                   Versus
Rajasthan Housing Board, Through Its Secretary, Jyoti Nagar,
Jaipur.
                                                                ----Respondent

For Petitioner(s) : Mr. N.K. Maloo, Senior Counsel with Mr. Vishnu Bohra Mr. Pratyush Sharma For Respondent(s) : Mr. J.K. Singhi, Senior Counsel with Mr. Tarun

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Order

20/12/2021

1. The present review petition seeking review of the order

passed by this court dated 11.04.2019 whereby the writ petition

No.1642/1993 was decided and order was passed to refund the

amount deposited by the petitioner with the Rajasthan Housing

Board with interest @ 14% p.a. i.e. the interest at the rate on

which the petitioner had taken loan from the bank at that

prevalent time.

2. Learned counsel for the review petitioner submits that the

order deserves to be reviewed to the extent that the interest rate

be clarified to be @14 % per annum compounded annually at

least, since the petitioner had taken loan on which the rate of

(2 of 9) [WRW-179/2019]

interest i.e. @ 14% per annum was compounded monthly.

Learned Senior Counsel submits that the order deserves to be

reviewed as apparently the fact escaped the notice of the court

which is factual in nature. Learned counsel has pointed out that

though an appeal has been preferred by the Rajasthan Housing

Board subsequent to the filing of the review petition but in view of

the law laid down by the Apex Court in the case of M/s.

Thungabhadra Industries Ltd Versus The Government of

Andhra Pradesh; AIR 1964 SC 1372, the present review

petition would still be maintainable at the behest of the petitioner

as the appeal has not been preferred by the petitioner but by the

respondents.

3. Learned Senior Counsel submits that there is an error

apparent from the face of the record and therefore, provisions of

Order 47 Rule 1 CPC would be applicable and the review ought to

be allowed to the aforesaid extent.

4. Per contra, learned Senior Counsel appearing for the

Rajasthan Housing Board submits that the issue being raised in

the present review petition can be said to be a subject matter of

appeal alone and on the said basis, review would not lie.

5. This court has while passing the order specifically directed

interest to be paid @ 14% p.a. which has to be understood to be

at simple interest rate alone. Moreover, learned Senior Counsel

submits that an appeal has already been preferred before the

Division Bench and notices have been issued on application under

Section 5 and therefore, there is no reason of review of the order

passed by this court dated 11.04.2019.

6. Learned counsel has also pointed out that earlier the matter

travelled all the way upto Supreme Court and a sum of Rs.5 lacs

(3 of 9) [WRW-179/2019]

has been lying with the petitioner which is to be deducted from

the amount which they have already paid as observed in the

order.

7. I have considered the submissions.

8. In the case of M/s. Thungabhadra Industries Ltd

(supra), the Supreme Court dealt with the issue with regard to

maintainability of review petition while an appeal is pending and

observed as under:-

"8.O. XLVII r. 1(1) of the Civil Procedure Code permits an application for review being filed "from a decree or order from which an appeal is allowed but from which no appeal has been preferred." In the present case, it would be seen, on the date when the application for review was filed the appellant had not filed an appeal to this Court and therefore the terms of O. XLVII r. 1(1) did not stand in the way of the petition for review being entertained. Learned Counsel for the respondent did not contest this position. Nor could we read the judgment of the High Court as rejecting the petition for review on that ground. The crucial date for determining whether or not the terms of O. XLVII. r. 1(1) are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the Court hearing the review petition would come to an end."

9. In the case of New Revitra Co-op. Housing Society

Versus The Special Land Acquisition Officer & Others,

(2000) 3 Bom CR 691, the Bombay High Court has also

observed as under:-

"6. According to Shri Gupta, the words, "no appeal has been preferred" occurring in sub-clause 1

(a) need not be restricted to mean the appeal by the

(4 of 9) [WRW-179/2019]

concerned aggrieved person only, who proposes to file a review application but they include appeal by any of the aggrieved persons. In other words, if there are two or more aggrieved persons and one of them files an appeal, then application by review by the other aggrieved person will not be maintainable as the condition "no appeal has been preferred" is not fulfilled. In short it is the contention of Shri Gupta that if an appeal is filed by any of the aggrieved persons, then no review of the judgment is permissible. The absence of the words "by him" after the words "no appeal has been preferred" would according to Shri Gupta mean that if an appeal is filed by an aggrieved person other than the person who intends to seek review of the order or judgment, then there is no fulfilment of the first condition and therefore, an application for review cannot lie. To some extent this may appear to be correct in cases where the aggrieved persons have common or joint interest and the order or judgment impugned commonly affect their interest. But where there is no such unity of interest then the above submission of Shri Gupta will not be good and correct in that situation. In my opinion, the present case falls under the second category. The interest of the Union of India which has filled the appeal and that of the society which has filed the present review application are altogether different. The position of the former is like a judgment debtor while that of the latter is like a decree holder. Therefore, a review application by the petitioner society is not barred under Order 47, Rule 1 of the C.P. Code."

10. In the case of Kunhayammed And Others Versus State

of Kerala And Another; (2000) 6 SCC 351, the Supreme Court

considered the aspect and examined the different stages where a

review would be maintainable and held that even if the SLP has

been rejected, a review would be maintainable. The Supreme

Court has held as under:-

"44. To sum up our conclusions are:

(i) Where an appeal or revision is provided against an order passed by a court, tribunal or

(5 of 9) [WRW-179/2019]

any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.

(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.

(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.

(iv) An order refusing special leave to appeal may be a non- speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court,

(6 of 9) [WRW-179/2019]

tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the apex court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties,

(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by Sub- rule (1) of Rule (1) of Order 47 of the C.P.C."

11. In view of above, this court is of the firm view that the

present review petition shall be maintainable and orders can be

passed even if the respondents have filed an appeal subsequently

which is pending before the Division Bench.

12. The next question which requires to be examined is whether

there should be any interference in the order and whether the

order should be reviewed.

13. Learned counsel for the respondents has relied on the

judgment passed by the Supreme Court in the case of Asharfi

Devi (Dead) Through Legal Representatives Versus State of

Uttar Pradesh & Others; 2019 (5) SCC 86 to submit that

review would not be maintainable wherein the Supreme Court held

as under:-

"18. It is a settled law that every error whether factual or legal cannot be made subject matter of review Under Order 47 Rule 1 of the Code though it can be made subject matter of appeal arising out of

(7 of 9) [WRW-179/2019]

such order. In other words, in order to attract the provisions of Order 47 Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case."

14. I have considered the submissions.

15. In M/s. Thungabhadra Industries Ltd (supra), the

Supreme Court has observed as under:-

"11. What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an "error apparent on the face of the record". The fact that on the earlier occasion the court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record", for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent". A review is by no means an appeal in disguise whereby an erroneous decision is regard and corrected, but lies only for patent error. We do not consider that this furnishes a 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. No questions of fact were involved in the decision of the High Court in T.R.Cs. 75 to 77 of 1956. The entire controversy turned on the proper interpretation of r. 18(1) of the Turnover & Assessment Rules and the other pieces of legislation which are referred to by the High Court in its order of February 1956; nor could it be doubted or disputed that these were substantial questions of law. In the circumstances therefore, the submission of the appellant that the order of September 1959 was vitiated by "error apparent" of the kind envisaged by O. XLVII r. 1, Civil Procedure Code when it stated that "no substantial question of law arose" appears to us to be clearly well-founded.

(8 of 9) [WRW-179/2019]

Indeed, learned Counsel for the respondent did not seek to argue that the earlier order of September 1959 was not vitiated by such error."

16. Thus, it is now a settled law that where there is an error

apparent on the face of the record, review would be maintainable

while any additional grounds or additional arguments which may

be raised, cannot be examined in review petition and that would

be subject matter of appeal only.

17. Asharfi Devi (Dead) Through Legal Representatives

(supra) lays down the same principle which I respectfully follow.

18. However, in the present case, it is an error apparent on the

face of the record which this court accepts. As while noting the

fact of the petitioner having obtained loan from LIC Housing

Finance Limited, factual error has crept in that @ 14% p.a. alone

as pointed out, the loan was taken @ 14 % p.a. compounded