Telangana High Court

C. Rajendar, vs B. Jagan, on 22 July, 2021

Bench: B.Vijaysen Reddy

         THE HONOURABLE SRI JUSTICE B. VIJAYSEN REDDY

               CIVIL REVISION PETITION No.5358 of 2017

ORDER:

This revision petition arises out of order dated 09.08.2017 in

I.A. No.513 of 2017 in O.S. No.146 of 2011 passed by the XXV

Additional Chief Judge, City Small Causes Court whereunder

application filed by the Petitioner/Plaintiff to review the judgment in

O.S.No.146 of 2011 dated 06.02.2017 has been dismissed.

2. The Petitioner/Plaintiff instituted suit in O.S. No.146 of 2011 for

specific performance of agreement of sale-cum-GPA and to declare

document bearing No.6833 of 2006 dated 12.12.2006 registered as

Deed of Cancellation of Agreement of Sale-cum-GPA as not binding on

the Petitioner/Plaintiff; to declare registered sale deed bearing

document No.5186 of 2007 dated 21.09.2007 executed in favour of

defendant Nos.2 and 3 as null and void as not binding on

Petitioner/Plaintiff; to direct the defendants to deliver vacant and

physical possession of suit scheduled property and for incidental

reliefs.

3. The suit was dismissed by judgment dated 09.08.2017.

The Petitioner filed application in I.A.No.513 of 2017 to review the said

judgment under Order 47 Rule 1 read with Section 151 CPC.

4. The grounds of review can be summarized as under:

(i) Ex.A1 is a registered Sale-cum-GPA coupled with Interest.

(ii) The defendant having received full sale consideration ceased to be the owner and has no power to unilaterally cancel Ex.A1.

(iii)The trial court erred in holding Ex.A1 is a nominal document and no sale consideration is paid, such finding goes against the recitals of Ex.A1.

(iv)The Court committed serious error in believing testimony of D.W.1 who did not dispute execution of Ex.A1. The recitals of

Ex.A1 bind the executant, as such findings of the trial Court are against law and constitute error apparent on the face of record.

(v) The property purchased under Ex.A1 by the Petitioner/Plaintiff and the Property purchased under Ex.A6 under by the defendant Nos.2 and 3 are different and Court ought not to have dismissed the suit.

(vi)The so-called cheque under Ex.D3 issued in favor of D.W.4 has no relationship whatsoever with the suit transaction and such inquiry and irrelevant finding constitute error apparent on the face of record.

(vii)The trial court ignored decision in I.A.No.2000 of 2006 in O.S.No.6348 of 2006 and subsequent withdrawal of suit by the defendant No.1 constitutes res judicata as such suit ought to have been decreed.

5. The review application was dismissed by order dated

09.07.2017 by the trial Court by holding that no new or important

matter of evidence was produced by the review petitioner; review can

be sought only on the pre-text of any mistake or error apparent on the

face of record within limited scope of review power, the court is called

upon to examine the material on record vis-à-vis the impugned

judgment after appreciation of evidence; Ex.A1 was held to be

unenforceable. The Court cannot reassess the evidence which was

already appreciated under the judgment in one way or the other.

Further, referring to judgment of Supreme Court in SURAJ LAMP

INDUSTRIES v. STATE OF HARYANA [(2009) 7 SCC 363] the court

concluded that it cannot substitute the view taken by the predecessor

Judge in the judgment under review and no grounds are made out to

review the judgment.

6. In this revision, same grounds urged in the review application

have been taken.

7. Heard Mr. Mohd. Vequar Hussain for Mr. Mahmood Ali, learned

counsel for the Petitioner; Mr. D. Khasim Saheb, learned counsel for

the respondent Nos.1 and 5 and Mr. K. Shankar Rao, learned counsel

for the respondent Nos.2 and 3.

8. The learned counsel for the Petitioner/Plaintiff submitted that

the respondent Nos.2 and 3 are subsequent purchasers.

The respondent Nos.4 and 5 are family members of the respondent

No.1 and are attesting witnesses to the suit agreement under Ex.A1

which is a registered document. There was no question of unilaterally

cancelling Ex.A1 Agreement-cum-GPA which is a contract of sale

coupled with interest. The learned counsel relied on the following

judgments to buttress his contention that the order of the trial Court

ought to have been reviewed and the conditions laid down under Order

47 Rule 1 CPC have been satisfied:

SETH LOON KARNA SETHIYA v. IVAN E. JOHN1;

SMT. TARA DEVI v. SMT. SUDESH CHAUDHARY2; RITA WANGDI

v. LODEN TSHERING BHUTIA3; SHANIT BUDHIYA VESTA PATEL

v. NIRMALA JAYPRAKASH TIWARI4; U. MANJUNATH RAO v.

U. CHANDRASHEKAR5 and M. MANIKANDAN v. THE

SUB-REGISTRAR, THAMARAIPATTI6

9. Per contra learned counsel for the respondent Nos.2 and 3

submitted that Ex.A1 is not supported by any consideration; there is

no evidence that Petitioner/Plaintiff has paid Rs.30 lakhs towards sale

consideration. The cheque for 3 lakhs under Ex.A6 bounced.

The review court has got limited jurisdiction. The grounds of review

urged by the Petitioner/Plaintiff do not fit into any of the criteria

enumerated under Order 47 Rule 1 CPC. In the guise of review, the

Petitioner/Plaintiff seeks to argue the case on merits and impeach the

AIR 1969 SC 73

1997 SCC Online Raj 79

2005 SCC Online Sikk 1

(2010) 5 SCC 104

(2017) 15 SCC 309

2017 SCC OnLine Mad 5499

judgment of the trial court by reassessing evidence which is

impermissible. Further, the revision is totally devoid of merits.

The grounds urged in the revision is nothing but repetition of grounds

urged in review petition; nothing is stated as to how order of lower

court suffers from error of law or jurisdiction so as to exercise

revisional jurisdiction by this Court. The learned counsel for the

respondent Nos.1 and 5 adopted the arguments of the learned counsel

for the respondent Nos.2 and 3.

10. Having giving earnest consideration to the submissions of the

counsel appearing for the respective parties, this Court is of the view

that there are no merits in this revision petition. Review is not an

appeal in disguise. Review Court has limited jurisdiction. The grounds

on which review can be sought are enumerated under Order 47 Rule 1

CPC which is extracted below:

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 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, or 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.

11. It is clear from the above provision that review can be sought

for only when there is error apparent on the face of the record, decree

was passed on account of some mistake etc. Going by the grounds

urged in the review application, it cannot be said that conditions

prescribed under Order 47 Rule 1 are satisfied by the

Petitioner/Plaintiff. There is a judgment passed by trial Court on

merits. It was held by the trial Court that Ex.A1 is unenforceable.

The Court having appreciated oral and documentary evidence came to

such conclusion. It is not for the review court to examine as to

whether such finding on facts and evidence are correct or not. In doing

so, the review court is not expected to reassess the evidence as

otherwise it would amount to review court substituting itself as a court

of appeal which is impermissible under law.

12. This Court has gone through the judgments cited by the learned

counsel for the petitioner. The principle of law enunciated from to time

as to the parameters for the Court to entertain a review application

have been reiterated in the aforesaid judgments under different fact

situations. This Court is not convinced with the submission of the

learned counsel for the petitioner on the basis of the above judgments.

It would be relevant to refer to a recent decision in RAM SAHU v.

VINOD KUMAR RAWAT7 wherein after elaborately discussing the

review jurisdiction of the High Court under Article 226 of the

Constitution of India and Section 114 read with Order 47 Rule 1 CPC

2002 SCC Online SC 896

and by relying on its earlier decisions, the Supreme Court observed as

under:

"27. In the case of Lily Thomas v. Union of India, (2000) 6 SC 224, it is observed and held that the 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.

30. 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. In the case of Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844, this Court has 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.

33. In the case of State of West Bengal v. Kamal Sengupta, (2008) 8 SCC 612, this Court had an occasion to consider what can be said to be "mistake or error apparent on the face of record". In para 22 to 35 it is observed and held as under:

"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.

34. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is

preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review."

13. It is brought to the notice of this court that appeal in A.S.No.22

of 2017 is filed by the petitioner/plaintiff challenging the judgment of

the lower court and is pending before this court. It is argued by

learned counsel for the petitioner that review petition is maintainable

not withstanding appeal being filed challenging the judgment under

review. As this Court has decided the CRP on merits, the issue of

maintainability of the review petition is not necessary to be dealt with

separately.

14. As pointed out in the preceding paragraphs the grounds of

review raised by the petitioner do not fit into any of the conditions

prescribed under order 47 Rule 1 CPC. A review cannot be expected to

conduct a detailed and roving enquiry into the reasons and assessment