A grave error in allowing the review application: Supreme Court
Supreme Court takes stand against the decision taken by Gwalior High Court by allowing a review application with deletions in Section 114 read with Order 47 Rule 1 CPC. The supreme court shed light on the grave mistakes by the High Court in passing a judgement in the matter of Shri Ram Sahu(dead) v Vinod Kumar Rawat and Ors [CIVIL APPEAL NO.360 OF 2020]. The predecessor of the appellants instituted a suit before the Learned Trial Court against the respondents for declaration of registered Sale Deed dated 25.03.1995 executed by original defendant no.3 in favour of original defendant nos. 1 &amp; 2 regarding a particular 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 &amp; 2 restraining defendant nos. 1 &amp; 2 from transferring the disputed property to any other person. The original plaintiffs 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. He also claimed that he became the sole owner on the death of the executor and possession holder of the entire house and in the same capacity and that he is in continuous possession over the same. Later, Chhimmabai adopted the defendant, who sold the disputed property in favour of the respondent nos. 1 &amp; 2. Ram Sahu 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. The suit was filed in the Trial court where the court disbelieved the case on behalf of plaintiff with respect to the allegations of the will executed. The Learned Trial Court held that the defence had proved that defendant No.3 was adopted by Ghasilal on 26.01.1985 which was got registered later on by Chhimmabai vide Adoption Deed dated 13.05.1992. Further, 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. But, the said application was  dismissed by the High Court on the ground of delay and latches. 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. The plaintiff appealed further through a review application and deleting para 20 of the judgment and order dated 10.12.2013 passed in First Appeal No.241 of 2005, the original plaintiffs preferred the present appeal. The Supreme Court held that “At this stage, it is required to be noted that after a period of approximately three years from the date of disposal of the First Appeal 16.04.2005 by the High Court and after the impugned order 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.
Feeling aggrieved and dissatisfied with the impugned order filed by the respondent nos. 1 and 2 herein­ original defendants nos. 1 and 2 and has reviewed the judgment and order dated as regards the possession of the disputed house which were in That one Shri Ram Sahu the predecessor of the appellants Court against the respondents herein ­ original defendants for in Sube Ki Payga Jiwajiganj Lashkar as null and void and for permanent injunction against defendant nos. 1 & 2 restraining 2.1. That the original plaintiff Shri Ram Sahu claimed the by one Chhimmabai executed in his favour on 19.10.1993. The Chhimmabai adopted defendant No.3 and later on she got defendant no.3 sold the disputed property in favour of the defendant no.3 by the said Chhimmabai. The written statement was filed on behalf of the respondents. They denied that the nos. 1 and 2 also claimed to be the bona fide purchasers and in Ki Payga Jiwajiganj Lashkar Gwalior was purchased from 2. Whether the wife of Ghasilal namely Chhimmabai had 3. Whether Defendant No.3 was adopted by Ghasilal on 28.01.1985 which was got registered by Chhimmabai on 4. Whether Sale Deed dated 25.03.1995 regarding the 6. Whether Plaintiff is entitled to receive Permanent special compensation from the Plaintiff If Yes then how 2.3. Both the parties led the evidence oral as well as documentary 2.4. Original Plaintiff Shri Ram Sahu appellant herein was examined as PW1. He was also cross­examined while exercising the review jurisdiction the High Court ought not to have set aside the specific finding given with respect to possession which finding was based on appreciation of evidence 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 to possession was on merits and on appreciation of the evidence v) as such the High Court has committed a grave error in 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 the plaintiff that he is in possession of the suit property i.e. House vii) the defendants did not led any evidence with respect to even the plaintiff led the evidence specifically on the possession appreciation of the material on record. In support of his submission learned Senior Advocate appearing on behalf of the Bhuwan Singh v. Oriental Insurance Company Ltd. 5 SCC 136 and Sayeda Akhtar v. Abdul Ahad 7 SCC 52. It is that therefore the High Court has committed a grave error in passed in First Appeal No. 241 2005 with respect to possession the written statement in regard to possession. Learned Counsel appearing on behalf of the appellants has also taken us to the testimony of the plaintiff Shri Ram Sahu as well as the the application and affidavit dated 19.03.2012 in which the specifically prayed to direct the appellants to vacate the suit property. It is submitted that therefore in fact the respondents 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 3.2 It is further submitted that the High Court ought to have appreciated that the review application was filed with a malafide 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 decree of permanent injunction restraining the respondents­ 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 the aforesaid relief. It is submitted that therefore as such the has also heavily relied upon the order passed by the learned Magistrate on an application filed under Section 340 read with 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 forging creating concocting the documents to show their possession. It is submitted that only thereafter the learned Magistrate directed to register the case against the respondents under Sections 193 465 471 and 120­B of the IPC under the 3.5 It is submitted that even subsequently the suit filed by the defendants­respondents herein filed in the year 2017 has been impugned order passed by the High Court has vehemently Court has not committed an error in deleting para 20 of the judgment and order dated 10.12.2013 passed in First Appeal seeking cancellation of the sale deed dated 25.03.1995 and respondents herein) shall not transfer the property to any other therefore in absence of any specific issue framed by the Learned respect of possession. It is submitted that during the lifetime of Shri Ghisa Lal Sahu he was in possession of the property. After property. She continued to be in possession and after her the of adoption of Shri Dilip Kumar Sahu was a subject matter of in SA No.315 of 2005. The will setup by the petitioner dated tenants on 30.01.1995 by entering into compromises with them Shri Dilip Kumar Sahu executed sale deed dated 25.03.1995 in property was given to the respondents. The petitioner got 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 in I.A. No.1267 of 2012 which was filed by the respondents is since no relief could have been claimed arising out of a suit 4.3 It is submitted even the application submitted by the injunction restraining the defendants 4.4 It is submitted that therefore when the issue in respect to the High Court and despite the same observations were made in that the Court has an inherent power to correct the error if 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 the High Court it appears that the High Court has deleted the mainly solely on the ground that the issue of possession was framed by the Learned Trial Court. Therefore the short question review application in exercise of powers under Section 114 read 6. While considering the aforesaid question the scope and ambit 6.1 In the case of Haridas Das vs. Usha Rani Banik and “14. In Meera Bhanja v. Nirmala Kumari Choudhury 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 Constitution this Court in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma 4 SCC 389 speaking ‘It is true there is nothing in Article 226 of the Constitution to preclude the High Court from justice or to correct grave and palpable errors exercise of the power of review. The power of review may be exercised on the discovery of new and That would be the province of a court of appeal. A power of review is not to be confused with appellate all manner of errors committed by the subordinate discovery of new and important matters or evidence the knowledge of the applicant such important matter or evidence could not be produced by the order made and on account of some mistake or 16. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma AIR 1979 SC 1047 this Court held that there with Section 151 of the Code was filed which was allowed and the order passed by the Judicial Article 226 of the Constitution to preclude a High Court from exercising the power of review which to the exercise of the power of review. The power of That would be the province of a court of appeal. A power of review is not to be confused with appellate all manner of errors committed by the subordinate an error apparent on the face of the record for and would not require any long­drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in Satyanarayan Laxminarayan Hegde v Bhavanappa Tirumale AIR 1960 SC 137 were also process of reasoning on points where there may alleged error is far from self­evident and if it can be established it has to be established by lengthy and the court to exercise its power of review under for an erroneous decision to be ‘reheard and corrected’. A review petition it must be 6.2 In the case of Lily Thomas vs. Union of India 6 SC 224 other sufficient reason” appearing in Order 47 Rule 1 CPC must PC 112 and approved by this Court in Moran Mar Basselios 12.3 In the case of Inderchand Jain vs. Motilal 14 SCC 663 a civil court and consequently by the appellate courts of the Code mean subject to such conditions and 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 “17. The power of a civil court to review its 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 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 on the face of the record or for any other sufficient order made against him may apply for a review of are well settled. The first and foremost requirement of finality attached to the judgment order cannot be 9. The power of review can also be exercised by the or evidence takes place which despite exercise of due order has been passed on account of some mistake Furthermore an application for review shall also lie for court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It judgment is signed or pronounced it should not be altered. It is also trite that exercise of inherent “56. It follows therefore that the power of review can be exercised for correction of a mistake but not to the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in The dictionary meaning of the word “review” is “the act of looking offer something again with a view to correction or a statute. In the case of Patel Narshi Thakershi vs Pradyumansinghji Arjunsinghji 3 SCC 844 this Court has case of T.C. Basappa vs. T.Nagappa AIR 1954 SC 440. It is held Ishaque AIR 1955 SC 233 it is observed as under 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 record Learned counsel on either side were unable to suggest any clear­cut rule by which the boundary 8.1 In the case of Parsion Devi vs. Sumitri Devi in 7. It is well settled that review proceedings have to be 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. “What however we are now concerned with is whether the statement in the order of September 1959 that the erroneous. Similarly even if the statement was wrong it of the record’ for there is a distinction which is real though it might not always be capable of exposition 8. Again in Meera Bhanja v. Nirmala Kumari Choudhury supra) this Court once again held that review to review inter alia if there is a mistake or an error self­evident and has to be detected by a process of the jurisdiction under Order 47 Rule 1 CPC it is not 8.2 In the case of State of West Bengal and Others vs. Kamal Sengupta and Anr. 8 SCC 612 this Court had an occasion the face of record”. In para 22 to 35 it is observed and held as “22. The term “mistake or error apparent” by its very the record of the case and does not require detailed thereof requires long debate and process of reasoning it cannot be treated as an error apparent on the face of the case while exercising the power of review the court tribunal Section 22(3)(f) of the Act have been interpreted and 24. In Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao 27 IA 197 the Privy Council interpreted Sections 206 and 623 of the Civil matter and evidence which was not within his knowledge or could not be produced by him at the time the decree was those enumerated as was held in Roy Meghraj v. Beejoy Gobind Burral ILR1 Cal 197. In the opinion of Their Lordships the ground of amendment must at any rate be something which existed at the date of the decree and the a five­Judge Bench of the Federal Court while considering “That a decision is erroneous in law is certainly no and decided it erroneously the error could not be one When however the court disposes of a case without gives it jurisdiction to act in a particular way that may 26. In Moran Mar Basselios Catholicos v. Mar Poulose Athanasius this Court interpreted the provisions “32. … Under the provisions in the Travancore Code of of our Code of Civil Procedure 1908 the court of review has only a limited jurisdiction circumscribed by the definitive It may allow a review on three specified grounds namely after the exercise of due diligence was not within the apparent on the face of the record and for any other 27. In Thungabhadra Industries Ltd. v. Govt. of A.P said to be an error apparent on the face of the record be ‘reheard and corrected’. There is a clear distinction face of the record. While the first can be corrected by the 29. In Haridas Das v. Usha Rani Banik this 47 by the Code of Civil Procedure Act 1976 114 CPC has to be read but this section does not even adumbrate the ambit of interference expected of the court reason’. The former part of the rule deals with a situation which is manifestly incorrect or on which two conclusions of the case or could perhaps have argued them more 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 30. In Aribam Tuleshwar Sharma v. Aribam Pishak the Constitution referred to an earlier decision in Shivdeo Singh v. State of Punjab and observed: SCC p. 390 para 3 “3. … It is true as observed by this Court in Shivdeo Singh v. State of Punjabthere is nothing in Article 226 of the Constitution to preclude a High Court from 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 where some mistake or error apparent on the face of the decision was erroneous on merits. That would be the confused with appellate powers which may enable an 31. In K. Ajit Babu v. Union of India 6 SCC 473 it have to be extended to them else there would be no limitation on the power of review and there would be no expressed in Gopabandhu Biswal v. Krishna Chandra power of review granted to the tribunals is similar to the 32. In Ajit Kumar Rath v. State of Orissa 9 SCC “30. The provisions extracted above indicate that the CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be new and important matter or evidence which after the exercise of due diligence was not within his knowledge or or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier that is to say 31. Any other attempt except an attempt to correct an out in Order 47 would amount to an abuse of the liberty 33. In State of Haryana v. M.P. Mohla 1 SCC 457 the record. The effect of a judgment may have to be the same by itself may not be a ground for filing an 34. In Gopal Singh v. State Cadre Forest Officers’ Assn. 2007) 9 SCC 369 this Court held that after rejecting the original application filed by the appellant there was no “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 how the review was justified and for what reasons. No it discussed. Thereby the Tribunal sat as an appellate authority over its own judgment. This was completely 35. The principles which can be culled out from the under Section 22(3)(f) of the Act is akin analogous to the iii) The expression “any other sufficient reason” v) An erroneous order decision cannot be corrected in vi) A decision order cannot be reviewed under Section vii) While considering an application for review the tribunal must confine its adjudication with reference to The happening of some subsequent event or development cannot be taken note of for declaring the initial viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party due diligence the same could not be produced before the same is a substantive provision for review when a person the Court which may order or pass the decree. From the bare reading of Section 114 CPC it appears that the said substantive power of review under Section 114 CPC has not laid down any nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However an order can in Order 47 Rule 1 CPC which has been elaborately discussed the definite limit mentioned in Order 47 Rule 1 CPC itself. The 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 purpose of reviewing the observations made in para 20. It is made observations in para 20 with respect to possession of the plaintiffs on appreciation of evidence on record more particularly is in actual possession of the said house. Therefore when the observation with respect to the possession of the plaintiff were which were required to be reviewed in exercise of powers under to plaintiff in possession also took note of the fact that the application being I.A. No.1267 of 2012 which was filed under from the appellants and the said application was dismissed as withdrawn. Therefore the High Court took note of the fact that possession of the disputed house. Therefore in light of the fact Court while allowing the review application and deleting para 20 possession and or there was no issue before the Learned Trial made in para 20 with respect to possession of the plaintiff appellant herein was unwarranted and therefore the same was decision though for the reasons stated herein below the same cannot be said to be erroneous decision and as observed hereinabove the said observations were made on appreciation of 11.1 Even otherwise non­framing of the issue with respect to possession would have no bearing and or it fades into with supporting documents to show his possession and to that The defendants ­ respondents did not lead any evidence to show their possession. Therefore the parties were aware of the rival 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 Others if the parties are aware of the rival cases the failure to formally formulate the issue fades into insignificance when an 12. Hence on the grounds stated in the impugned order the High Court in exercise of review jurisdiction could not have without sufficient and just reasons reviewed its own judgment and order and deleted the observations made in para 20 with respect to 13. Even otherwise there is ample material on record to suggest show the possession of the appellants herein original plaintiff. During the pendency of the appeal the respondents ­ 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 appellants sought amendment in the relief clause as regards the issue of permanent injunction restraining the respondents ­ respondents original defendants. It was submitted that the proposed averment is not necessary at the appellate stage as no Court dismissed the said application not on merits but on the 13.1 At this stage it is required to be noted that after a period of approximately three years from the date of disposal of the First 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 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 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 Under the circumstances the impugned order is and order 10.12.2013 passed in First Appeal No.241 of 2005 is