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TaxTMI 
TaxTMI 
2018 (5) TMI 634
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....an Singh and Another (1963) 2 SCR 733. The apex Court in the aforesaid case in para-4, 6, 7, 8, 10, 15 and 16 has held as under:- 4. Order 41 Rule 16 of the Code provides the procedure to be followed by the appellate Court on the hearing of an appeal which has not been dismissed under sub-r. (1) of r. 11 of that order. Rule 16 reads: "(1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heared in support of the appeal. (2) The Court shall then, if it does not dismiss the appeal at once, hear the respon- dent against the appeal, and in such case the appellant shall be entitled to reply." It is clear from sub-r. (1) that it is the duty of Appellate Court to hear the appellant in support of the appeal. This however, does not mean that the appellate Court cannot decide the appeal if the appellant does not make his submissions to the Court showing that the judgment and decree under appeal were wrong. The appellate Court is not to force the appellant to address it. It can, at best, afford him an opportunity to address it. If the appellant does not avail of that opportunity, the appellate Court can d....
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....of which notice shall be given to the parties or their pleaders." It is to be noticed that this rule does not make it incumbent on the appellate Court to refer to any part of the proceedings in the Court from whose decree the appeal is preferred The appellate Court can refer, after hearing the parties and their pleaders, to any part of these proceedings to which reference be considered necessary. It is in the discretion of the appellate Court to refer to the proceedings. It is competent to pronounce judgment after hearing what the parties or their pleaders submit to it for consideration. It follows therefore that if the appellant submits nothing for its consideration, the appellate Court can decide the appeal without any reference to any proceed- ings of the Courts below and, in doing so, it can simply say that the appellants have not urged anything which would tend to show that the judgment and decree under appeal were wrong. 10. The view that we take, also finds support from the object which the Legislature probably had in providing that the judgment must contain the matters mentioned in r.31. The object seems to be that the parties should know for what reasons ....
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....unt of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that 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. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. This Court in Thungabhadra Industries Ltd. v. Govt. of A.P.1 held as follows: (SCR p. 186) "[T]here is a distinction which is real, tho....
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.... a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional 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 earlier. 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 ....
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....14 SCC 663 in paragraphs 7, 22, 24, 29, 31 and 33 has held as under :- "7. Section 114 of the Code of Civil Procedure (for short "the Code") provides for a substantive power of review by a civil court and consequently by the appellate courts. The words "subject as aforesaid" occurring in Section 114 of the Code mean subject to such conditions and limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in Order 47 of the Code must be taken into consideration. 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....
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....ellate jurisdiction would be entitled to take into consideration the subsequent events for the purpose of moulding the relief as envisaged under Order 7 Rule 7 read with Order 41 Rule 33 of the Code of Civil Procedure. The same shall, however, not mean that the court would proceed to do so in a review application despite holding that the plaintiff was not entitled to grant of a decree for specific performance of contract. 29. Order 41 Rule 1 of the Code stipulates that filing of an appeal would not amount to automatic stay of the execution of the decree. The law acknowledges that during pendency of the appeal it is possible for the decree-holder to get the decree executed. The execution of the decree during pendency of the appeal would, thus, be subject to the restitution of the property in the event the appeal is allowed and the decree is set aside. The court only at the time of passing a judgment and decree reversing that of the appellate court should take into consideration the subsequent events, but, by no stretch of imagination, can refuse to do so despite arriving at the findings that the plaintiff would not be entitled to grant of a decree. 31. Contention o....