Sri Shafeeq Ahmed vs Managing Committee Mosque Bee ...
2022 Latest Caselaw 5350 Tel

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
          FOR THE STATE OF TELANGANA

                           *****
           CIVIL REVISION PETITION No.602 of 2019

Between:
Sri Shafeeq Ahmed
                                                      ..   Petitioner
                              AND
Managing Committee Mosque Bee Saheba,
Panjagutta, Hyderabad and another.
                                                    .. Respondents


Date of Judgment Pronounced: 27.10.2022


SUBMITTED FOR APPROVAL:

     HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

     1. Whether Reporters of Local newspapers may
        be allowed to see the Judgments?
                                                           YES/NO
2.     Whether the copies of judgment may be marked
       to Law Reports/Journals?
                                                           YES/NO
3.     Whether Their Ladyship/Lordship wish to see the
       fair copy of the Judgment?
                                                           YES/NO



                                      ______________________
                                      A.SANTHOSH REDDY, J
                                   -2-




  * HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

           + CIVIL REVISION PETITION No.602 of 2019

% 27.10.2022


# Shri Shafeeq Ahmed

                                                       ..PETITIONER

      VS.

$ Managing Committee Mosque Bee Saheba,
Panjagutta, Hyderabad and another.


                                                   ..RESPONDENTS.

! Counsel For The Petitioner: Sri S.Ashok Anand Kumar

^ Counsel For Respondents: Sri M.A.Mukheed, Advocate for
respondent No.1 and Sri Abu Akram, learned Standing Counsel
for respondent No.2.

< Gist :

> Head Note :
? CITATIONS : -
 1. Civil Appeal No.3601 of 2020 (Special Leave Petition (Civil) No.28150
    of 2017, dated 03.11.2020.
 2. (2009) 14 Supreme Court Cases 663
 3. Rev.I.A.No.1 of 2020 in LPA.No.1 of 2018 & Review I.A.No.3 of
    2020in CA.No.33 of 2017, dated 27.04.2022.
 4. Civil Appeal No.5503-04 of 2022, dated 18.08.2022.
 5. (2005) 6 SCC 651
 6. (2006) 5 SCC 501
 7. (2013) 8 SCC 320
                                   -3-




     HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

         CIVIL REVISION PETITION No. 602 of 2019

ORDER:

This Civil Revision Petition is directed under Article 227 of

the Constitution of India to set aside the order dated 24.12.2018

passed in I.A.No.5016 of 2018 in O.S.No.138 of 2011 by the Chief

Judge, City Civil Court, Hyderabad.

2. Heard the submissions of Sri S.Ashok Anand Kumar,

learned Senior counsel appearing for the petitioner and Sri

M.A.Mukheed and Sri Abu Akram, learned counsel appearing for

the respondents respectively. Perused the record.

3. The facts relevant for consideration in disposal of this civil

revision petition, briefly, stated as under:

The respondents, who are the plaintiffs, filed suit in

O.S.No.138 of 2011 against the petitioner herein, who is the

defendant, for eviction from the suit schedule premises bearing

No.6-3-456, admeasuring 650 square yards situated at Punjagutta

and to pay Rs.35,35,000/- towards arrears of rent from 01.08.2001

to 01.01.2019 for 101 months and also to pay Rs.1,10,000/- per

month with effect from 01.01.2010. The petitioner herein resisted

the suit by filing written statement and during the pendency of the

suit, the petitioner vacated the schedule premises and handed over

the vacant possession of the same on 31.05.2012. The learned

Chief Judge, after considering the evidence, oral and documentary,

decreed the suit with costs by judgment, dated 04.12.2017.

Subsequently, the petitioner herein filed review application in

I.A.No.5016 of 2018 contending that no documentary evidence

was produced despite due diligence and the documents i.e.

G.O.Ms.No.94, dated 30.11.1994 was superseded by G.O.Ms.No.7,

dated 01.02.1997 enhancing rent from Rs.1,000/- per month to

Rs.41,560/- per month. Subsequently, orders were issued

cancelling the same vide G.O.Ms.No.137, dated 15.07.2000.

Therefore, the G.O., forming the basis for issuance of the

proceedings dated 08.09.2001 did not exist and the said documents

were not filed and the suit was decreed without any record

supporting the said findings. Apart from that, the plaintiff

examined PW.1, who was not properly authorised to file the suit

and the rent fixed by the second respondent-Board is highly

excessive. Hence, prayed to set aside the judgment and decree

dated 04.12.2017 in O.S.No.138 of 2011. The said review

application was resisted by the respondents by filing counter

stating that the suit was decreed after considering the evidence of

both the parties and documents and the review is maintainable only

in lieu of any error or mistake occurred on the face of record and

the review application filed by the petitioner is not maintainable.

The learned Chief Judge, after hearing both the parties and

considering the material on record dismissed I.A.No.5016 of 2018

vide order, dated 24.12.2018.

4. While dismissing the application, the learned Chief Judge

at para Nos.7 and 8 observed as under:

" 7. He mainly questioned regarding the fixation of rent of Rs.35,000/- per month. Along with the Review Petition, he filed 13 documents, which were not filed during the pendency of the suit. He stated several facts and quoted several G.Os. which are filed presently and requested the Court to Review the judgment basing on the said documents, which are not part of the record at the time of disposing of main suit.

8. the respondent rightly pointed out that Review Petition is maintainable only when there is any error apparent on the face of the record. If at all the petitioner is aggrieved by the judgment of the Court, he is at liberty to prefer the appeal. The review sought by him basing on the documents filed by him

now is not maintainable and it is beyond the scope of the review and therefore, the Review Petition is devoid of merits and is liable to be dismissed."

5. Challenging the said order, the present Civil Revision

Petition is filed.

6. Learned Senior counsel for the petitioner vehemently

submitted that G.O.Ms.No.94, dated 30.11.1994 was superseded by

G.O.Ms.No.7, dated 01.02.1997, enhancing the rent from

Rs.1,000/- per month to Rs.41,560/- per month, which was

questioned in W.P.No.2627 of 1997 and interim suspension of the

said G.O. was granted, during the pendency of the interim

suspension, subsequently, the G.O.Ms.No.137 dated 15.07.2000

was issued cancelling the orders issued in G.O.Ms.No.7, dated

01.02.1997. Therefore, G.O. framing the basis for issuance of the

proceedings dated 08.09.2001 did not exist and no documentary

evidence was produced earlier despite the due diligence. He

further submits that the notice, dated 08.09.2011, clearly indicates

that there is no basis for the tentative fixation of rent of Rs.35,000/-

with retrospective effect from 01.08.2001, pending result of

WP.No.2627 of 1997, even after acknowledging the fact that

G.O.Ms.No.137, dated 15.07.2000 was issued cancelling the

G.O.Ms.No.7, dated 01.02.2007 and as such, there was no fixation

of rent.

7. Learned Senior counsel further submits that Rule 1 of Order

XLVII of the Code of Civil Procedure (C.P.C.) permits the filing of

review petition, notwithstanding the availability of an appeal

forum, only if no appeal has been filed. The review petition would

be filed in view of discovery of an important evidence and the

same was not within their knowledge and the same was unable to

produce before the Court even after exercising due diligence.

As such, the review petition is maintainable and he prays that the

impugned order may be set aside.

8. Learned Senior counsel relied on the following decisions:

i) Shri Ram Sahu (Dead) Through LRS & Others v. Vinod Kumar Rawat1.

ii) Inderchand Jain (Dead) Through Lrs. V. Motilal (Dead) through Lrs.2

iii) Rev.I.A.No.1 of 2020 in LPA.No.1 of 2018 & Review I.A.No.3 of 2020 in CA.No.33 of 2017, dated 27.04.2022.

Civil Appeal No.3601 of 2020, (Special Leave Petition (Civil) No.28150 of 2017), dated 03.11.2020

(2009) 14 Supreme Court Cases 663

9. Learned counsel for the respondents, on the other hand,

submits that the review petition is not maintainable, as the same

does not satisfy any of the conditions of review provided under

Rule 1 of Order XLVII of C.P.C. He further submits that the

grounds relied on by the petitioner are akin to those taken in the

written statement and as such, the trial Court has considered all the

grounds, while disposing of the main suit and if the petitioner is

aggrieved by the same, he can prefer an appeal, but the grounds

raised by him would not be corrected by way of entertaining the

review petition. Therefore, the trial Court has rightly dismissed the

review petition, as there is no error apparent on the face of record.

He placed reliance on the judgment of Apex Court in

S.Madhusudhan Reddy v. V.Narayana Reddy3.

10. After hearing the submissions of both the counsel and having

perused the impugned order, the question that falls for

consideration before this Court is; whether the impugned order is

sustainable in law?

Civil Appeal No.5503-04 of 2022, dated 18.08.2022.

11. While considering the aforesaid question, the scope and

ambit of the powers of Court under Section 114 read with Order

XLVII Rule 1 of C.P.C. is required to be considered.

12. Section 114 of C.P.C which is the substantive provision,

deals with the scope of review and states as follows:

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 Code; 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."

13. The grounds available for filing a review application against

a judgment have been set out in Order XLVII of C.P.C in the

following words:

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, 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.

1[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.]

14. A glance at the aforesaid provisions makes it clear that

a review application would be maintainable on (i) discovery of new

and important matters or evidence which, after exercise of due

diligence, were not within the knowledge of the applicant or could

not be produced by him when the decree was passed or the order

made; (ii) on account of some mistake or error apparent on the face

of the record; or (iii) for any other sufficient reason.

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15. It is also required to be considered the following principles

culled out at para No.35 of Shri Ram Sahu (Dead) through Lrs's

case stated (1 supra), which reads as under:

(i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a civil court under Section 114 read with Order 47 Rule 1 CPC.

(ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise.

(iii) The expression "any other sufficient reason" appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.

(iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f).

(v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review.

(vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.

(vii) While considering an application for review, the tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.

(viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier."

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16. In S.Madhusudhan Reddy's case (3 supra), the Apex Court

at para Nos.17 to 19 and 25 held as under:

17. It is also settled law that in exercise of review jurisdiction, the Court cannot reappreciate the evidence to arrive at a different conclusion even if two views are possible in a matter. In Kerala State Electricity Board v. Hitech Electrothermics & Hydropower Ltd. and Others4, this Court observed as follows:

"10. ....In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise."

(emphasis added)

18. Under the garb of filing a review petition, a party cannot be permitted to repeat old and overruled arguments for reopening the conclusions arrived at in a judgment. The power of review is not to be confused with the appellate power which enables the Superior Court to correct errors committed by a subordinate Court. This point has been elucidated in Jain Studios Ltd. V. Shin Satellite Public Co. Ltd.5 where it was held thus:

(2005) 6 SCC 651

(2006) 5 SCC 501

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"11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.

12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of 'second innings' which is impermissible and unwarranted and cannot be granted."

(emphasis added)

19. After discussing a series of decisions on review jurisdiction in Kamlesh Verma v. Mayawati and Others6, the Apex Court observed that review proceedings have to be strictly confined to the scope and ambit of Order XLVII Rule 1, CPC. As long as the point sought to be raised in the review application has already been dealt with and answered, parties are not entitled to challenge the impugned judgment only because an alternative view is possible. The principles for exercising review jurisdiction were succinctly summarized in the captioned case as below:

"20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: 20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not

(2013) 8 SCC 320

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within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason" has been interpreted in Chajju Ram vs. Neki17, and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors.18 to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. & Ors.(2013) 8 SCC 337)

20.2. When the review will not be maintainable: -

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

25. In Ram Sahu (Dead) Through LRs and Others v. Vinod Kumar Rawat and Others7, citing previous decisions and expounding on the scope and ambit of Section 114 read with Order XLVII Rule 1, the Court has observed that Section 114 CPC does not lay any conditions precedent for exercising the

(2020) SCC online SC 896

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power of review; and nor does the Section prohibit the Court from exercising its power to review a decision. However, an order can be reviewed by the Court only on the grounds prescribed in Order XLVII Rule 1CPC. The said power cannot be exercised as an inherent power and nor can appellate power be exercised in the guise of exercising the power of review.

17. In the light of above exposition of law, let me now consider

the grievance of the petitioner. The first ground urged by the

petitioner for reviewing the judgment and decree,

dated 04.12.2017, is that the G.O.Ms.No.94, dated 30.11.1994 was

superseded by G.O.Ms.No.7, dated 01.02.1997 enhancing the rent

from Rs.1,000/- per month to Rs.41,560/- per month. The

petitioner questioned the same before this Court by filing

W.P.No.2627 of 1997 and obtained interim suspension of the said

G.O. Later during the pendency of interim suspension,

G.O.Ms.No.137, dated 15.07.2000 was issued cancelling the

G.O.Ms.No.7, dated 01.02.2007. The G.O. forming the basis for

issuance of the notice in proceedings, dated 08.09.2011, did not

exist and no documentary evidence was produced earlier despite

due diligence. A perusal of the written statement, it would reveal

that the said facts have been mentioned by him.

Similarly, the other ground raised by the petitioner is that

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notice, dated 08.09.2001, clearly indicates that there is no basis for

the tentative fixation of rent with effect from 01.08.2001 pending

WP.No.2627 of 1997, G.O.Ms.No.137, dated 15.07.2000 was

issued cancelling the G.O.Ms.No.7, dated 01.02.2007 and as such,

there was no fixation of rent. The grounds urged by the petitioner

have already been pleaded before the trial Court by filing the

written statement. It also appear that after filing of written

statement, during the trial, the petitioner issued notice dated

25.05.2012 and handed over the vacant physical possession of the

property on 31.05.2012. Therefore, the trial Court, after taking into

consideration of the oral and the documentary evidence of both the

parties, passed the judgment and decree in O.S.No.138 of 2011 for

payment of arrears of rent. It appears that the petitioner has filed

(13) documents in support of grounds urged by him for review

application. Apparently, nothing prevented him from filing the said

documents during the trial of the suit. The review application

would be entertained only on discovery of new or important matter

or evidence, but that itself is not a sufficient ground for review.

The party seeking review would also show that such matter or

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evidence was not within its knowledge and even after the exercise

of due diligence, the same could not be produced before the Court

earlier. A cursory glance at the documents relied on by the

petitioner in the review application shows that they are relevant to

the pleadings stated in the written statement. It is not as though

that something new is discovered, which is an important evidence

and that was not referred in the judgment. The grounds urged by

the petitioner, stated supra, for review are not errors apparent on

the face of it. The grounds raised by the petitioner in the review

application have already been adequately examined by the trial

Court. Thus, the petitioner failed to make out sufficient grounds in

the review application. Since the present review application did

not fall within the parameters and the principles as enunciated

above for entertaining the review application, the trial Court rightly

took a view that the review petition is not maintainable and passed

the impugned order, as there is no error apparent on the face of

record.

18. In view of what has been discussed above and law on the

subject, I am of considered opinion that there is no error or

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manifest irregularity in the impugned order warranting interference

by invoking the jurisdiction of this Court under Article 227 of the

Constitution of India.

19. Accordingly, this Civil Revision Petition is dismissed.

However, the petitioner is at liberty to avail remedies, if the same

are available in law. There shall be no order as to the costs.

Pending miscellaneous applications, if any, shall stand closed.

_______________________ A.SANTHOSH REDDY,J 27.10.2022 Nvl

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