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TMI Blog2020 (11) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. The High Court has clearly overstepped the jurisdiction vested in the Court under Order 47 Rule 1 CPC. No ground as envisaged under Order 47 Rule 1 CPC has been made out for the purpose of reviewing the observations made in para 20. It is required to be noted and as evident from para 20, the High Court made observations in para 20 with respect to possession of the plaintiffs on appreciation of evidence on record more particularly the deposition of the plaintiff (PW1) and his witness PW2 and on appreciation of the evidence, the High Court found that the plaintiff is in actual possession of the said house. Therefore, when the observation with respect to the possession of the plaintiff were made on app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he became the sole owner on the death of the Chhimmabai and possession holder of the entire house and in the same capacity; he is in continuous possession over the same. It was the case on behalf of the defendants that the said Chhimmabai adopted defendant No.3 and later on, she got registered the Adoption Deed on 13.05.1992 and that the original defendant no.3 sold the disputed property in favour of the respondent nos. 1 2. The original plaintiff denied the adoption of defendant no.3 by the said Chhimmabai. The written statement was filed on behalf of the respondents. They denied that the disputed property was the Joint Hindu Family property. Defendant nos. 1 and 2 also claimed to be the bona fide purchasers and in possession of the suit property. 2.2. The Learned Trial Court framed the following issues: 1. Whether, the Disputed House No.28/95 situated in Sube Ki Payga, Jiwajiganj, Lashkar, Gwalior was purchased from the income of Joint Hindu Family of Ghasilal and Mangaliya? 2. Whether, the wife of Ghasilal namely Chhimmabai had executed Will of aforesaid House in favour of the Plaintiff on 19.10.1993? 3. Whether, Defendant No.3 was adopted by Ghasilal on 28.01.1985, which was g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground of delay and latches (I.A. No.2244 of 2012). However, while dismissing the said application the High Court granted permission to the appellants to file a separate suit for the said relief against the defendants. Thereafter on appreciation of the evidence on record, the High Court dismissed the said appeal preferred by the original plaintiff. However, while dismissing the appeal the High Court also made observations as regards the possession of the disputed house and on analysis of the deposition of PW1 and PW2 and considering the material on record and considering the fact that during the pendency of the appeal the original defendant no.1 himself filed an application under Section 151 CPC on 02.12.2013 for getting the possession from the plaintiff of the disputed house, which was withdrawn, the High Court made observations in regards the possession of the plaintiffs of the disputed house. 2.7 Thereafter almost 2 years after the judgment of the High Court in the First Appeal, the Respondent Nos.1 2 herein Original Defendant Nos. 1 2 filed an application before the High Court seeking review of observations in para 20 of the judgment as regards the possession of the disputed h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amed in Civil Suit No. 3 A/2005, related to House No. 28/956 and not considering the issues framed in Civil Suit No. 4 A/2005; (vi) the High Court ought to have appreciated that the issue of possession was at large before the learned trial Court and, in fact, the parties also led evidence with respect to possession. It is submitted that the High Court ought to have appreciated that there was a specific averment in the plaint as well as in the testimony of the plaintiff that he is in possession of the suit property, i.e., House No. 28/955; (vii) the defendants did not led any evidence with respect to possession. It is submitted therefore that when there were specific averments and pleadings in the plaint in regard to possession, and even the plaintiff led the evidence specifically on the possession, non framing of the specific issue with respect to possession would not vitiate the finding recorded by the High Court, which was on appreciation of the material on record. In support of his submission, learned Senior Advocate appearing on behalf of the appellants has relied upon the following decisions of this Court, Sri Gangai Vinayagar Temple v. Meenakshi Ammal (2015) 3 SCC 624; Bhuwan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the High Court under Order 6 Rule 17 CPC (IA No. 2244/2012) to amend the plaint by adding relief for the grant of decree of permanent injunction restraining the respondents defendants not to dispossess them forcibly. It is submitted that the said application was opposed by the respondents herein by submitting that they are not threatening to dispossess the appellants during the pendency of the suit. Therefore, the High Court dismissed the said application under Order 6 Rule 17 CPC reserving liberty in favour of the appellants to file a separate suit for the aforesaid relief. It is submitted that therefore, as such, the issue with respect to possession was at large even before the High Court; 3.4 Learned Senior Advocate appearing on behalf of the appellants has also heavily relied upon the order passed by the learned Magistrate on an application filed under Section 340 read with Section 195 Cr.P.C., in which the learned Magistrate took note of the affidavit dated 19.03.2012 filed by the respondents and also took note of the specific observation and finding with respect to possession made in para 20 of the judgment and order dated 10.12.2013. It is submitted that there is a spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Suit No.4A of 2001, where the said adoption and the adoption deed dated 13.05.1992 was challenged. The said suit was finally dismissed by the High Court by an order dated 07.09.2009 in SA No.315 of 2005. The will setup by the petitioner dated 19.10.1993 was also a subject matter of suit No.45A of 2003 filed by Dilip Kumar Sahu. The said suit was decreed by a judgment dated 07.09.2009 in SA No.946 of 2005. Some parts of the property was in possession of Tenants (i) Om Babu Saxena and (ii) Kashmir Singh Yadav. Shri Dilip Kumar Sahu got possession from the said tenants on 30.01.1995 by entering into compromises with them. Shri Dilip Kumar Sahu executed sale deed dated 25.03.1995 in favour of the Respondents. Under the said sale, possession of the property was given to the respondents. The petitioner got possession of another portion of the property from another tenant Parvesh Singh Jadon pursuant to a judgment and decree dated 18.10.2014. The petitioner has not shown as to how, under what capacity and when the petitioner came into possession of the property, constructive or otherwise. 4.2 So far as the withdrawal of the application dated 02.12.2013 in I.A. No.1267 of 2012 which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 114 read with Order 47 Rule 1 CPC is required to be considered and for that few decisions of this Court are required to be referred to. 6.1 In the case of Haridas Das vs. Usha Rani Banik (Smt.) and Others, (2006) 4 SCC 78 while considering the scope and ambit of Section 114 CPC read with Order 47 Rule 1 CPC it is observed and held in paragraph 14 to 18 as under: 14. In Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 it was held that: 8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. In connection with the limitation of the powers of the court under Order 47 Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution, this Court, in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389 speaking through Chinnappa Reddy, J. has made the following pertinent observations: It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court. 17. The judgment in Aribam case has been followed in Meera Bhanja. In that case, it has been reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 were also noted: An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 114 of the Code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47 of the Code; Rule 1 whereof reads as under: 17. The power of a civil court to review its judgment/decision is traceable in Section 114 CPC. The grounds on which review can be sought are enumerated in Order 47 Rule 1 CPC, which reads as under: 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 of the court which passed the decree or made the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be said to be an error apparent on the face of the proceedings has been dealt with and considered by this Court in the case of T.C. Basappa vs. T.Nagappa, AIR 1954 SC 440. It is held that such an error is an error which is a patent error and not a mere wrong decision. In the case of Hari Vishnu Kamath vs. Ahmad Ishaque, AIR 1955 SC 233, it is observed as under: It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear cut rule by which the boundary between the two classes of errors could be demarcated. 8.1 In the case of Parsion Devi vs. Sumitri Devi, (Supra) in paragraph 7 to 9 it is observed and held as under: 7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P., A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vident 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. 23. We may now notice some of the judicial precedents in which Section 114 read with Order 47 Rule 1 CPC and/or Section 22(3)(f) of the Act have been interpreted and limitations on the power of the civil court/tribunal to review its judgment/decision have been identified. 24. In Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao (1899 1900) 27 IA 197 the Privy Council interpreted Sections 206 and 623 of the Civil Procedure Code and observed: (IA p.205) Section 623 enables any of the parties to apply for a review of any decree on the discovery of new and important matter and evidence, which was not within his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any other sufficient reason. It has been held by the Judicial Committee that the words any other sufficient reason must mean a reason sufficient on grounds, least analogous to those specified in the rule . 27. In Thungabhadra Industries Ltd. v. Govt. of A.P. (supra) it was held that a review is by no means an appeal in disguise whereof an erroneous decision can be corrected. 28. In Parsion Devi v. Sumitri Devi (Supra) it was held as under: (SCC p. 716) Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be reheard and corrected . There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court. 31. In K. Ajit Babu v. Union of India, (1997) 6 SCC 473, it was held that even though Order 47 Rule 1 is strictly not applicable to the tribunals, the principles contained therein have to be extended to them, else there would be no limitation on the power of review and there would be no certainty or finality of a decision. A slightly different view was expressed in Gopabandhu Biswal v. Krishna Chandra Mohanty, (1998) 4 SCC 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Tribunal to review its order and allow the revision of the appellant. Some of the observations made in that judgment are extracted below: (SCC p. 387, para 40) 40. The learned counsel for the State also pointed out that there was no necessity whatsoever on the part of the Tribunal to review its own judgment. Even after the microscopic examination of the judgment of the Tribunal we could not find a single reason in the whole judgment as to how the review was justified and for what reasons. No apparent error on the face of the record was pointed, nor was it discussed. Thereby the Tribunal sat as an appellate authority over its own judgment. This was completely impermissible and we agree with the High Court (Sinha, J.) that the Tribunal has travelled out of its jurisdiction to write a second order in the name of reviewing its own judgment. In fact the learned counsel for the appellant did not address us on this very vital aspect. 35. The principles which can be culled out from the abovenoted judgments are: (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. Considered in the light of the aforesaid settled position, we find that the High Court has clearly overstepped the jurisdiction vested in the Court under Order 47 Rule 1 CPC. No ground as envisaged under Order 47 Rule 1 CPC has been made out for the purpose of reviewing the observations made in para 20. It is required to be noted and as evident from para 20, the High Court made observations in para 20 with respect to possession of the plaintiffs on appreciation of evidence on record more particularly the deposition of the plaintiff (PW1) and his witness PW2 and on appreciation of the evidence, the High Court found that the plaintiff is in actual possession of the said house. Therefore, when the observation with respect to the possession of the plaintiff were made on appreciation of evidence/material on record, it cannot be said that there was an error apparent on the face of proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion by the defendants respondents. The defendants respondents did not lead any evidence to show their possession. Therefore, the parties were aware of the rival cases. On a holistic and comprehensive reading of the pleadings and the deposition of PW1 and PW2, it is unescapable that the plaintiff had intendedly, directly and unequivocally raised in its pleadings the question of possession. As observed hereinabove even in the written statement, the defendants also made an averment with respect to possession. Thus neither prejudice was caused nor the proceedings can be said to have been vitiated for want of framing the issue. As observed and held by this Court in the case of Sri Gangai Vinayagar Temple vs. Meenakshi Ammal and Others, (Supra), if the parties are aware of the rival cases, the failure to formally formulate the issue fades into insignificance when an extensive evidence has been recorded without any demur. Even the observations made by the High Court that there was no issue with respect to possession before the Learned Trial Court and/or even before the High Court is not correct. As observed hereinabove in the pleadings in the plaint and even in the written statement file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated 14.07.2017 passed by the High Court in review application, the defendant nos. 1 and 2 respondents herein in fact filed a separate suit in the Court of Learned Civil Judge, Class I, Gwalior against the appellants herein for receiving possession of the disputed house and compensation, in which the possession of the appellants has been admitted. In the said suit, it is pleaded that the plaintiffs have sent a legal notice to the said defendants appellants herein, through the Advocate on 09.08.2017 and demanded to vacate the disputed place but have not vacated and handed over the possession of the disputed place. 14. The sum and substance of the aforesaid discussion is that the High Court has committed a grave error in allowing the review application and deleting the observations made in para 20 of its order dated 10.12.2013 passed in First Appeal No.17.04.2005 in exercise of powers under Section 114 read with Order 47 Rule 1 CPC. Under the circumstances the impugned order is unsustainable and deserves to be quashed and set aside. 15. In view of the above and for the reasons stated hereinabove, the appeal is allowed. The above impugned order dated 14.07.2017 passed by the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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