2006 (3) TMI 686 - SC - Indian Laws

Power of review its own order by High Court - Perusal of the Order XLVII, Rule 1 shows that review of a judgment or an order could be sought (a) from the discovery of new and important matter or evidence which after exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; (c) on account of some mistake or error apparent on the face of record or any other sufficient reason.

Summary

Issues Involved:
1. Application for review under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 (CPC).
2. Alleged infraction of Order II Rule 2 CPC.
3. Scope and ambit of review under Order XLVII Rule 1 CPC.
4. Jurisdictional and procedural errors in the High Court's judgment.

Issue-wise Detailed Analysis:

1. Application for Review under Order XLVII Rule 1 CPC:
The appeal challenges the order of a learned Single Judge of the Gauhati High Court, which reviewed a judgment and order dated 21.8.2002 in Second Appeal No.12 of 1993. The High Court had initially allowed the Second Appeal, reversing the judgment of the First Appellate Court and affirming the judgment and decree of the learned Munsif in Title Suit No. 2 of 1987. The review application was filed by respondent No.1, leading to the modification and dismissal of the Second Appeal.

2. Alleged Infraction of Order II Rule 2 CPC:
The High Court held that Title Suit No.1 of 1986 for specific performance of the agreement for sale was barred by the provisions of Order II Rule 2 CPC, as no leave under this provision was obtained in Title Suit No.201 of 1985. The appellant argued that the High Court erroneously overlooked the fact that the oral agreement and the right to institute a suit for specific performance were mentioned in the plaint of Title Suit No.201 of 1985. The High Court's conclusion that Order II Rule 2 CPC was infringed was incorrect.

3. Scope and Ambit of Review under Order XLVII Rule 1 CPC:
The judgment elaborates on the scope of review under Order XLVII Rule 1 CPC, emphasizing that review is permissible only on the discovery of new and important matter or evidence, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. It is not an appeal in disguise and cannot be used to reargue the case or correct erroneous decisions on merits. The High Court's acceptance of the review petition was deemed erroneous as it did not meet these stringent criteria.

4. Jurisdictional and Procedural Errors in the High Court's Judgment:
The Supreme Court found that the High Court had committed a jurisdictional error by adjudicating on the applicability of Order II Rule 2 CPC in Title Suit No.2 of 1987, a question irrelevant to that suit. Additionally, the High Court's assertion that no leave under Order II Rule 2 CPC was sought in Title Suit No.201 of 1985 was factually incorrect, as the reservation to file a suit for specific performance was explicitly mentioned in the plaint.

Conclusion:
The Supreme Court concluded that the High Court had erroneously accepted the review petition, misapplying the provisions of Order II Rule 2 CPC and exceeding the permissible scope of review under Order XLVII Rule 1 CPC. Consequently, the judgment and order of the High Court in the review application were set aside, and the original judgment and order passed in the Second Appeal were restored. The appeal was allowed with no order as to costs.