Mehsar Ali Khan and Another v. Mohammad Raza and 6 Others

Allahabad HC21 Feb 2019A227/9672/2018

Case brief

AI extract

What is this about?

In a writ petition under Article 227 challenging an appellate court's review order, this Court held that the review was illegal as it amounted to rehearing the case on merits. The Court found the appellate court misdirected itself by correcting mistakes based on fresh evidence assessment rather than patent errors, and set aside the review order.

What did the court decide?

Order dated 1.12.2018 passed in Civil Appeal No.57 of 2007 set aside; matter remanded to District Judge, Bareilly to place before another officer.

Mehsar Ali Khan and Another Vs Mohammad… — Civil Procedure and Limitation | Allahabad HC (2019)

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Court No. - 36

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Case :- MATTERS UNDER ARTICLE 227 No. - 9672 of 2018

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Petitioner :- Mehsar Ali Khan And Another Respondent :- Mohammad Raza And 6 Others Counsel for Petitioner :- Bhanu Bhushan Jauhari Counsel for Respondent :- Siddhartha Srivastava

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Hon'ble Mrs. Sunita Agarwal,J.

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Despite repeated time sought by Sri Siddharth Srivastava, learned counsel for the respondent nos.1 and 2, he did not assist the Court properly on the scope of review under Order 47 Rule 1 CPC. A judgment of the Apex Court in Satyanarayan Laxminarayan Hegde vs another AIR 1960 SC 137 para '17' has been placed before the Court today to assert that the “error apparent on the face of record” is one which is not required to be established by a long drawn process of reasoning on points and where there may not conceivably be two opinions. The said legal position was stated by the Apex Court while interpreting the scope of Article 227 of the Constitution of India in comparision is the scope of the Revisional jurisdiction under Article 115 of the Code of Civil Procedure. It is thus, found that the reference to the said observations is wholly out of context. From the reading thereof, no principle can be culled out nor a ratio deduced relevant to the issue which has been agitated by counsel for the petitioners and has engaged the attention of this Court. The reliance placed on the said judgment is

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of no help to the learned counsel for the petitioner.

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The question for adjudication before this Court is whether the order dated 1.12.2018 passed by the first appellate court on the review application filed in Civil Appeal No.57 of 2007, would be valid, within the scope of review under Order 47 Rule 1 CPC.

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The grounds taken by learned counsel for the respondent to defend the said order passed on the review application, is that the first appellate court had realized the mistake committed by it in disposal of the substitution application filed by the respondent nos.1 and 2 seeking substitution in place of Km.Amna, one of the parties in the Civil Appeal No.57 of 2007. The submission is that the inquiry made by the first appellate court while exercising its power under Order 22 Rule 5 CPC proceeded on wrong assumption and while passing the order of rejection of the substitution application dated 25.10.2018 it has wrongly considered the contents of the application under Order 9 Rule 3 filed by Km.Amna in the suit, out of which Civil Appeal No.57 of 2007 arose. It is contended that on the review application filed by the respondent nos.1 and 2, realizing the said mistake, the first appellate court having found that wrong reasons had been given for rejection of substitution application, had rightly recalled the order dated 25.10.2018.

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Submission is that the mistake which was evident on the face of the record having being found by the same court on the attention of it being drawn by the Review applicant would be “an error apparent on the face

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of the record” capable of being corrected by the first appellate court. The order impugned having been passed within the scope of review under Order 47 Rule 1 CPC, is not open for interference in exercise of the supervisory jurisdiction under Article 227 of Constitution of India.

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These submissions of learned counsel for the respondent nos.1 and 2 are found misconceived, in as much as, the scope of review under Order 47 Rule 1 is quite limited. A Court passing a wrong order cannot correct its mistake, if committed, by reviewing the order on merits by accepting old and overruled arguments, to reopen the concluded adjudications. The adjudication made on the merits of the claim of the parties can only be corrected by a higher Court on challenge. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. The “error apparent on the face of the record” is only an error which is based on clear ignorance or disregard of the legal provisions and which would not require fresh adjudication on the rights of the parties. In the name of review, it was not open for the first appellate court to say that a mistake was committed by it in ignoring certain facts and fresh appreciation of record was, therefore, permissible.

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The learned counsel for the respondent nos.1 and 2 vehemently asserted that in the application under Order 9 Rule 13 CPC moved by Km.Amna, she had claimed her exclusive right in the suit property and as such, the substitution application of respondent no.1 and

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2 based on the gift deed dated 2.6.2015, could not have been rejected. This submission, in the opinion of the Court would not take the matter any further, in as much as, there was no disclosure of any gift deed having been executed by Sri Imam Ali Khan in favour of Km. Amna, in the said application.

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The question as to whether the said issue was subject matter of scrutiny at the stage of Order 22 Rule 5 CPC or the first appellate court had exceeded in its jurisdiction in passing the rejection order dated 25.10.2018 is not a subject matter of consideration in the present petition. This petition is directed against the order which has been passed on the review application under Order 47 Rule 1 CPC and question is whether the order impugned would fall within the scope and ambit of review.

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The principles summarized by the Apex Court as to when the review will be maintainable and will not be maintainable, in Kamlesh Verma Vs. Mayawati and others 2013 8 SCC 32, are relevant to be noted hereunder:-

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20.1 When the review will be maintainable:-

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(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record;

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(iii) Any other sufficient reason.

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The words ‘any other sufficient reason’ has been

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interpreted in Chhajju Ram v. Neki, [AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius & Ors., [(1955) 1 SCR 520], to mean '‘a reason sufficient on grounds at least analogous to those specified in the rule’. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd.

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20.2 When the review will not be maintainable:(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

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(ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case.

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(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

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(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.

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(vi) The mere possibility of two views on the subject cannot be a ground for review.

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(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

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(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

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(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had

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been negatived.

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Reference may also be made to the judgment of Apex Court in Union of India vs Sandur Maganese and Iron Ores Limited And Others 2013 8 SCC 337 wherein it has held that it was deliberated and held time and again that the power of review jurisdiction can be exercised for correction of a mistake and not to substitute opinion. 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. Relevant paragraph 22 and 23 is quoted hereunder:

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22) It has been time and again held that the power of review jurisdiction can be exercised for the correction of a mistake and not to substitute a view. In Parsion Devi & Ors. vs. Sumitri Devi & Ors., (1997) 8 SCC 715, this Court held as under:-

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“ 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 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 I 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".

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23) This Court, on numerous occasions, had deliberated upon the very same issue, arriving at the conclusion 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 of CPC.”

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In the present case, error contemplated by the first appellate court was not one which is apparent on the face of the record, and could not have been corrected by review of the order dated 25.10.2018.

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Moreover, it may not be out of place to mention here that the facts noted in the order of rejection of substitution application dated 25.10.2018 that Km. Amna did not disclose of any gift having been executed by her father Sri Imam Ali in the application under Order 9 Rule 13 CPC moved by her in the suit, is also substantiated from the record.

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It was always open for the respondent nos.1 and 2 to assail the order dated 25.10.2018 on the points urged before this Court, but the first appellate court has committed manifest illegality and has exceeded in its jurisdiction in recalling the said order while exercising powers under Order 47 Rule 1 CPC.

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In view of the aforesaid, order dated 1.12.2018 passed in Civil Appeal No.57 of 2007 cannot be sustained, the same is hereby set aside. It is kept open for the respondent nos.1 and 2, who are aggrieved by the order dated 25.10.2018, to avail appropriate remedy available to them under law, to assail the said order.

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At this stage, before parting with this judgment, the observations of the first appellate court in the order of review dated 01.12.2018 are relevant to be quoted here under:-

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orZeku okn eas izkFkZuk i= 134 x ds lkFk layXu lwph 136 x esa izLrqr izi= dks iquZfopkj.k izkFkZuk i= ds fuLrkj.k ij ugha ns[kk tk jgk gSA orZeku okn esa izkFkhZx.k vgen jtk o eks0 jtk mDr dfFkr fgck ds vk/kkj ij e`rdk foi{kh la0&3 vkeuk ds fof/kd okfjl ds :i esa muds LFkku ij mijksDr okn esa izfrLFkkfir gksuk pkgrs gSA fgck dh uksVjh }kjk izekf.kr izfrfyfi i=koyh ij miyC/k gS] bl fgck dks fof/kd :i ls gksuk ;k u gksuk ;k lkfcr gksuk izfrLFkkiu izkFkZuk i= ds fuLrkj.k ds le; egRoiw.kZ ugha gS] tSlk fd mijksDr of.kZr fof/k O;oLFkkvksa esa ekuuh; loksZPp U;k;ky; rFkk ekuuh; mPp U;k;ky; us Li"V fd;k gSA mijksDr =qfV ds pyrs bl U;k;ky; viuk vkns'k fnukafdr 25-10-2018 ikfjr fd;k vkSj izkFkhZx.k vgen jtk o eks0 jtk dk izkFkZuk i= fujLr fd;kA bu =qfV ds vk/kkj ij iquZfopkj.k izkFkZuk i= iks"k.kh; gSA

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It has further been pointed by Sri B.B. Jauhri learned counsel for the petitioner from the reading of the order dated 29.9.2018 itself, that the substitution application by respondent no.1 and 2 seeking their right on the basis of the gift deed dated 25.05.2015, (allegedly reduced in writing on 02.06.2015), was filed, after disposal of the substitution application filed by the appellants in Civil Appeal No.57 of 2007 for bringing the fact of death of Km. Amna. Same judicial officer while passing the order dated 25.10.2018, has noticed that the fact of death of Km. Amna on 13.07.2015 was brought on record of the appeal by a substitution application which was allowed by means of the order dated 09.11.2016 and incorporation in this regard has been made in the memo of appeal. But, in the order of review, he has incorrectly recorded that no substitution application had earlier been filed to seek

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substitution on behalf Km. Amna by anyone else and only the applicants namely respondent no.1 and 2 had claimed their substitution to assert the independent and exclusive rights of Km. Amna by means of the substitution application Paper no.110-Ka.

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It has further been pointed out that the officer concerned had completely ignored the fact that in the substitution application dated 03.11.2016 filed on behalf of the appellants, they had categorically asserted that they were looking after Km. Amna during her lifetime and after her death, they were survived with the rights, if any, with her, including the right to sue against the respondents.

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The first appellate court has thus, completely ignored that the appellants had claimed their right in the suit property after death of Km. Amna being her heirs and legal representatives and the question whether respondent nos.1 and 2, i.e. applicants of application 110Ka were having a right of substitution on the basis of the gift deed dated 25.5.2015/2.6.2015, was decided on merits vide order dated 25.10.2018, on the contest of the appellants asserting their right of substitution to represent Km.Amna.

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Also noticing the said fact evident from the record, this Court finds that the officer concerned namely Sri Ravi Nath who is presently posted as Additional District Judge, Second, Bareilly has completely overlooked and disregarded the legal provisions pertaining to review under Order 47 Rule 1 of the Code of Civil Procedure and has completely misdirected himself

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in deciding review application. Further, the officer concerned has couched the order cleverly in a manner so to bring it within the scope of review. The language of the impugned order of review is crafted to provide undue advantage to the respondent nos.1 and 2, i.e. the applicants of review application paper no.134-Ga.

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In the said scenario, the concerned Officer namely Ravi Nath, Additional District Judge, Second, Bareilly, is directed not to proceed with the hearing of Civil Appeal No.57 of 2007on merits. The record of the appeal shall be placed before the District Judge, Bareilly who shall place it before any other officer to decide the same in accordance with law, as expeditiously as possible.

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Subject to the above observations and directions, the present petition is disposed of.

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Order Date :- 21.2.2019/Harshita

Mehsar Ali Khan and Another v. Mohammad Raza and 6 Others

Case brief

What is this about?

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Mehsar Ali Khan and Another v. Mohammad Raza and 6 Others

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