TaxTMI 
TaxTMI 
2020 (11) TMI 555
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.... present appeal in nutshell are as under: That one Shri Ram Sahu, the predecessor of the appellants herein instituted Civil Suit No.04A of 2005 before the Learned Trial Court against the respondents herein ­ original defendants for declaration of registered Sale Deed dated 25.03.1995 executed by original defendant no.3 in favour of original defendant nos. 1 & 2 regarding House No.28/955 (previous House No.3/1582), situated in Sube Ki Payga, Jiwajiganj, Lashkar, as null and void and for permanent injunction against defendant nos. 1 & 2 restraining defendant nos. 1 & 2 from transferring the disputed property to any other person. 2.1. That the original plaintiff Shri Ram Sahu claimed the ownership of the disputed property on the basis of the will executed by one Chhimmabai executed in his favour on 19.10.1993. The original plaintiff also claimed that 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....
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....asilal on 26.01.1985 which was got registered later on by Chhimmabai vide Adoption Deed dated 13.05.1992. 2.6. Feeling aggrieved and dissatisfied with the Judgment and decree passed by the Learned Trial Court dismissing the suit, the original plaintiff - appellant herein preferred First Appeal No.241 of 2005 before the High Court. That during the pendency of the said appeal, respondent no.1 herein filed an application under section 151 C.P.C. on 19.03.2012 for dismissing the appeal and for directing the appellant herein to vacate the suit property. That during the pendency of the appeal the original plaintiff - appellant herein filed an application under Order 6 Rule 17 of the CPC by which the plaintiff sought amendment in the relief clause as regards the issuance of permanent injunction and restraining defendant nos.1 and 2 from dispossessing the plaintiffs forcibly from the disputed house. However, the said application came to be dismissed by the High Court on the 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 defendant....
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....ct to possession, which finding was based on appreciation of evidence before the learned trial Court; (iii) the High Court has committed a grave error in deleting para 20 of the final judgment and order dated 10.12.2013 passed in First Appeal No. 241/2005, in exercise of its review jurisdiction inasmuch as, as such, there was no error apparent on the face of the record, which was required to be corrected; (iv) merely because the specific issue with respect to possession was not framed by the learned trial Court, cannot be a ground to set aside the finding by the High Court, when such finding with respect to possession was on merits and on appreciation of the evidence before the learned trial Court; (v) as such, the High Court has committed a grave error in considering the issues framed in another case being Civil Suit No. 3­A/2005, which was related to House No. 28/956 and in which the parties were also different. It is submitted that the High Court has mis­directed itself, while considering the issues framed in Civil Suit No. 3­A/2005, related to House No. 28/956 and not considering the issues framed in Civil Suit No. 4­A/2005; (....
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.... 19.03.2012 in which the respondents in an application filed under Section 151 of the CPC specifically prayed to direct the appellants to vacate the suit property. It is submitted that therefore, in fact, the respondents admitted the possession of the appellants. It is submitted that not only that, but subsequently in the month of September, 2017, the respondents filed a suit against the appellants for decree of possession, compensation and mesne profits. It is submitted that therefore, as such, the respondents herein specifically admitted the possession of the appellants in the suit property; 3.2 It is further submitted that the High Court ought to have appreciated that the review application was filed with a malafide intention faced with the proceedings under Section 340 read with Section 195 Cr.P.C and faced with the order passed by the learned Magistrate directing to register the case against respondent nos. 1 and 2 herein and others under Sections 193, 465, 471 and 120­B of the IPC, dated 06.02.2016; 3.3 It is further submitted that, in fact, the appellants filed an application before the High Court under Order 6 Rule 17 CPC (IA No. 2244/2012) to amend the plaint by ....
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....dated 25.03.1995 and permanent injunction to the effect that the defendant nos. 1 & 2 (respondents herein) shall not transfer the property to any other person. It is submitted that since no injunction from dispossession was sought and only injunction against further transfer was sought no issue was framed in respect of possession. It is submitted that therefore in absence of any specific issue framed by the Learned Trial Court in respect of possession of the property and when the suit was dismissed and even thereafter the appeal also came to be dismissed, there was no reason and/or occasion for the High Court to make any observation in respect of possession and therefore the High Court has rightly deleted the observations made in para 20 in respect of possession. It is submitted that during the lifetime of Shri Ghisa Lal Sahu, he was in possession of the property. After his death, his wife Smt. Chhimmabai came into possession of the property. She continued to be in possession and after her, the adopted son - Dilip Kumar Sahu came into possession. The issue of adoption of Shri Dilip Kumar Sahu was a subject matter of litigation in Suit No.4A of 2001, where the said adoption and the ....
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....impugned order the High Court in exercise of powers under Section 114 read with Order 47 Rule 1 CPC has allowed the review petition and has reviewed the judgment and order dated 10.12.2013 passed in First Appeal No.241 of 2005 insofar as deleting the observations made in Para 20 as regards the possession of the disputed property, which were in favour of the appellants - original plaintiffs. From the impugned order passed by the High Court, it appears that the High Court has deleted the observations made in para 20 as regards possession of the plaintiffs mainly/solely on the ground that the issue of possession was neither before the Learned Trial Court nor was it before the First Appellate Court and no such issue with respect to possession was framed by the Learned Trial Court. Therefore, the short question falls for consideration before this Court is, whether in the facts and circumstances of the case the High Court is justified in allowing the review application in exercise of powers under Section 114 read with Order 47 Rule 1 CPC on the aforesaid grounds? 6. While considering the aforesaid question, the scope and ambit of the Court's power under Section 114 read with Order 47 ....
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.... the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason. 16. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047, this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order 47 Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the Judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to this Court it was held as under: (SCC p. 390, para 3) "It is true as observed by this Court in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are 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 ....
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....allowed to be 'an appeal in disguise'." 6.2 In the case of Lily Thomas vs. Union of India, (2000) 6 SC 224, it is observed and held that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. It is further observed in the said decision that the words "any other sufficient reason" appearing in Order 47 Rule 1 CPC must mean "a reason sufficient on grounds at least analogous to those specified in the rule" as was held in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526. 12.3 In the case of Inderchand Jain vs. Motilal, (2009) 14 SCC 663 in paragraphs 7 to 11 it is observed and 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....
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....o lie if the order has been passed on account of some mistake. Furthermore, an application for review shall also lie for any other sufficient reason. 10. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order. 11. Review is not appeal in disguise. In Lily Thomas v. Union of India this Court held: (SCC p. 251, para 56) "56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise." 7. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. In the case of Patel Narshi Thakershi vs. Pra....
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....r." 8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (supra) this Court once again held that 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. 9. 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 self­evident 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". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise". 8.2 In the case of State of West Bengal and Others vs. Kamal Sengupta and Anr., (2008) 8 SCC 612, this Court had an occasion to consider what can be said to be "mistake or error apparent on the face of record". ....
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....ile considering the question whether the Calcutta High Court was justified in not granting relief to non­appealing party, whose position was similar to that of the successful appellant, held: (FCR p. 48) "That a decision is erroneous in law is certainly no ground for ordering review. If the court has decided a point and decided it erroneously, the error could not be one apparent on the face of the record or even analogous to it. When, however, the court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order 47 Rule 1, Civil Procedure Code." 26. In Moran Mar Basselios Catholicos v. Mar Poulose Athanasius (supra) this Court interpreted the provisions contained in the Travancore Code of Civil Procedure which are analogous to Order 47 Rule 1 and observed: "32. ... Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the court of review has only a ....
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....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." 30. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (Supra) this Court considered the scope of the High Courts' power to review an order passed under Article 226 o....
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....be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression 'any other sufficient reason' used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the Rule. 31. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment." 33. In State of Haryana v. M.P. Mohla, (2007) 1 SCC 457 this Court held as und....
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....annot 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." 9. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowe....
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....pplication was dismissed as withdrawn. Therefore, the High Court took note of the fact that even according to the defendant nos. 1 & 2 the appellants were in possession of the disputed house. Therefore, in light of the fact situation, the High Court has clearly erred in deleting para 20 in exercise of powers under Order 47 Rule 1 CPC more particularly in the light of the settled preposition of law laid down by this Court in the aforesaid decisions. 11. Now so far as the submission on behalf of the respondents - original defendant nos. 1 & 2 and the reasons given by the High Court while allowing the review application and deleting para 20 that no issue was framed by the learned Trial Court with respect to possession and/or there was no issue before the Learned Trial Court with respect to the possession and therefore the observations made in para 20 with respect to possession of the plaintiff - appellant herein was unwarranted and therefore, the same was rightly deleted is concerned first of all on the aforesaid ground the powers under Order 47 Rule 1 could not have been exercised. At the most, observations made in para 20 can be said to be erroneous decision, though for the reaso....
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.... record to suggest/show the possession of the appellants herein/original plaintiff. During the pendency of the appeal the respondents ­ original defendant nos. 1 and 2 filed an application under Section 151 CPC for dismissing the appeal filed by the appellant and for directing the appellant ­ original plaintiff to vacate the suit property. In the said application filed on 19.03.2012 the respondents ­ original defendant nos. 1 & 2 never stated that they are in possession of the disputed suit house. On the contrary, they prayed for an order directing the appellants ­ original plaintiff to vacate the suit property. The said application for whatever reasons was withdrawn. During the pendency of the appeal, the appellants filed an application under Order 6 Rule 17 of the CPC by which the appellants sought amendment in the relief clause as regards the issue of permanent injunction restraining the respondents ­ defendant nos. 1 and 2 from dispossessing the appellants forcibly from the disputed house. The said application was opposed by the respondents - original defendants. It was submitted that the proposed averment is not necessary at the appellate stage as no averme....