9911796707
TMI Blog2019 (2) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... r apparent on the face of the record is not permissible in light of provisions as contained U/s 114 and Order 47 Rule 1 of Code of Civil Procedure, 1908. - R.P. No.1073/2018 - - - Dated:- 8-2-2019 - S.C. Sharma And S.K. Awasthi JJ. For the Petitioner : Shri P.M. Choudhary, learned senior counsel along with Shri Anand Prabhawalkar, learned counsel For the Respondent : Ms. Veena Mandlik, learned counsel ORDER The petitioner before this Court has filed this present review petition for reviewing the order dated 07.05.2018 passed Division Bench of this Court in I.T.A. No.223/2017. The Division Bench of this Court by a very detailed and exhaustive order has decided the appeal on merits and has arrived at a conclusion that no substantial question of law arises in the present appeal. In the considered opinion if this Court, there is no error apparent on the face of record warranting review and in case, it is an erroneous order, the only remedy available to the present petitioner to approach the Apex Court. The Apex Court in the case of Haridas Das Vs. Usha Rani Bank (Smt) and Ors., reported in (2006) 4 SCC 78 in paragraph 13 and 20 has held as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he crucial question which according to the High Court was necessary to be adjudicated was the question whether Title Suit No. 201 of 1985 (sic 1 of 1986) was barred by the provisions of Order 2 Rule 2 CPC. This question arose in Title Suit No. 1 of 1986 and was irrelevant so far as Title Suit No. 2 of 1987 is concerned. Additionally, the High Court erred in holding that no prayer for leave under Order 2 Rule 2 CPC was made in the plaint in Title Suit No. 201 of 1985. The claim of oral agreement dated 19-8-1982 is mentioned in para 7 of the plaint, and at the end of the plaint it has been noted that the right to institute the suit for specific performance was reserved. That being so, the High Court has erroneously held about infraction of Order 2 Rule 2 CPC. This was not a case where Order 2 Rule 2 CPC has any application. In the aforesaid case, the Apex Court has held that rehearing of a case can be done on account of some mistake or an error apparent on the face of the record or for any other sufficient reason. In the present case, there is no error apparent on the face of the record and the petitioner in fact under the guise of review is challenging the order passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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. In the aforesaid case the Apex Court has held that a mistake or an error apparent on the face of the record means a mistake or an error which is primafacie visible and does not requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the High Court did not pass any specific order, the application for review filed by the respondent was on the merit of the judgment. The relevant grounds of review which have been placed before us relate to: (i) Unconditional withdrawal of some amount by one of the creditors of the defendant as also the defendant himself. (ii) The defendant's application before the executing court that he was ready and willing to get the sale deed executed on receipt of amount in cash and the said admission allegedly was not brought to the notice of the court. (iii) While holding that there was no agreement to reduce the sale consideration, the High Court had ignored the fact that it was an admitted case of the parties, as stipulated in the contract, that the defendants would get the premises vacated from the tenants within three months. (iv) The appellant had prayed for an alternative relief viz. that he was ready to get the decree for specific performance of contract by paying ₹ 1,15,000. The court did not consider the evidence of DWs 1 to 6 in their proper perspective. (v) The court did not consider that the property could not be restored back to the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious other High Courts may be summarised as hereunder: (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 be two opinions. (iii) Power of review may not be exercised on the ground that the decision was erroneous on merits. (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. In our opinion, the principles of law enumerated by it, in the facts of this case, have wrongly been applied. The Apex Court while dealing with the scope of review has held that re-appreciation of evidence and rehearing of case without there being any error apparent on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
