Jitendra Kumar and Others Vs Smt. Sursati

The instant review-application has been preferred against the judgment and order dated 21.07.2023 passed in Second Appeal No. 170 of 1995 whereby the second appeal was dismissed, affirming the order of the Lower Appellate Court dated 28.01.1995 passed in Appeal No. 69 of 1995.

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The instant review petition is also accompanied by an application seeking condonation of delay.

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The record indicates that notices were issued on the said application and in furtherance thereof Sri Ram Chandra Verma, learned counsel has put in appearance on behalf of the respondents.

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The Court has considered the application seeking condonation of delay and since the delay is of 120 days and considering the affidavit filed in support of the application, this Court finds that the cause has been sufficiently explained, accordingly, the delay is condoned, consequently, the application is allowed and the review application shall be treated to have been filed within time.

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On merits.

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The Court thereafter proceeded to hear the review-applications on its merits.

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Sri Vimal Kishore Verma, learned counsel for the review-petitioners submits that three issues require the attention of the Court in review:-

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CMRAD No. 284 of 2023

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(i) It is urged that in a suit for specific performance of contract which was based on a registered agreement to sell dated 03.11.1989 and it was duly proved by examining the attesting witnesses, however, this aspect has not been appropriately considered and it gives rise to an error apparent on the face of record.

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(ii) It is further urged that even the issue regarding the payment of sale consideration has not been properly assessed despite the fact that the witnesses were examined which proved that the review-petitioner had paid the consideration. Ignoring the material on record in shape of evidence also gives rise to an apparent on the face of record.

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(iii) The third ground urged by learned counsel for the review-petitioners is that Smt. Sursati apart from executing the said agreement to sell had earlier appeared before the Sub-Registrar's office and therefore she was aware of the procedure and the court while considering the evidence noticed and put the burden on the plaintiff to establish that Smt. Sursati was not aware of the nature of the agreement and despite the fact that Smt. Sursati was an illiterate lady but this reversal of burden of proof is also an error apparent on the face of the record, consequently, the judgment and order dated 21.07.2023 deserves to be set aside.

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Sri Ram Chandra Verma, learned counsel for the respondents submits that the scope of the review-jurisdiction is limited to an error apparent on the face of record. What is being attempted by the learned counsel for the review-petitioners is to engage the Court in the arena of re-appraisal of evidence which is not within the domain of a review-petition, thus, the review-petition deserves to be dismissed.

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The Court has considered the rival submissions and also perused the material on record.

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Apparently, the scope of the review has been noticed by the Apex Court in Ram Sahu (Dead) Through Lrs. and Ors. v. Vinod Kumar Rawat and Ors. (2021) 13 SCC 1 . This aspect has also been considered by the Apex Court in a recent decision in Maleeswari v. K. Suguna, 2025 SCC OnLine SC 1927 , wherein the earlier decisions have been noticed and it has been held as under:-

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"15. It is axiomatic that the right of appeal cannot be assumed unless expressly conferred by the statute or the rules having the force of a statute. The review jurisdiction cannot be assumed unless it is conferred by law on the authority or the Court. Section 114 and Order 47, Rule 1 of CPC deal with the power of review of the courts. The power of review is different from appellate power and is subject to the following limitations to maintain the finality of judicial decisions:

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15.1 The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47

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CMRAD No. 284 of 2023

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Rule 1 of CPC.2

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15.2 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.3

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15.3 In exercise of the jurisdiction under Order 47 Rule 1 of 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.4

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15.4 The power of review can be exercised for the correction of a mistake, but not to substitute a view. Such powers can be exercised within the limits specified in the statute governing the exercise of power.5

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15.5 The review court does not sit in appeal over its own order. A rehearing of the matter is impermissible. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered.6 Hence, it is invoked only to prevent a miscarriage of justice or to correct grave and palpable errors.7

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16. To wit, through a review application, an apparent error of fact or law is intimated to the court, but no extra reasoning is undertaken to explain the said error. The intimation of error at the first blush enables the court to correct apparent errors instead of the higher court correcting such errors. At both the above stages, detailed reasoning is not warranted.

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17. Having noticed the distinction between the power of review and appellate power, we restate the power and scope of review jurisdiction. Review grounds are summed up as follows:

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17.1 The ground of discovery of new and important matter or evidence is a ground available if it is demonstrated that, despite the exercise of due diligence, this evidence was not within their knowledge or could not be produced by the party at the time, the original decree or order was passed.

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17.2 Mistake or error apparent on the face of the record may be invoked if there is something more than a mere error, and it must be the one which is manifest on the face of the record.8 Such an error is a patent error and not a mere wrong decision.9 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 apparent on the face of the record.10

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17.3 Lastly, the phrase ‘for any other sufficient reason’ means a reason that is sufficient on grounds at least analogous to those specified in the other two categories.11

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CMRAD No. 284 of 2023

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18. Courts ought not mix up or overlap one jurisdiction with another jurisdiction. Having noted the appellate and review jurisdiction of the Court, we will apply these principles to the impugned order to determine whether the High Court was within its power of review jurisdiction or had exceeded it by reversing the findings, as if the High Court were sitting in appeal against the order dated 23.09.2022. We appreciate the above tabulated summary of the view taken in the impugned order while doing so."

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Applying the aforesaid principles to the submissions which have been advanced by the learned counsel for the review-petitioners, this Court finds that the three issues which have been raised regarding proof of an agreement to sell, proof regarding the payment of sale consideration and the fact that the respondent was aware of the formalities regarding registration and execution of documents, are all questions of fact.

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The Court cannot be tempted into entering into re-appraisal of evidence. There is no denial of the fact that the three issues which are sought to be raised were argued during the appeal and the same has been considered and the findings have been returned by the Court while deciding the second appeal.

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In this view of the matter, this Court is of the clear view that the submissions which are sought to be advanced is nothing but an attempt to get the second appeal re-heard on merits which is not within the scope of the review-jurisdiction, accordingly, the review being patently misconceived is accordingly dismissed . Consigned tor records.

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(Jaspreet Singh,J.)

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October 29, 2025

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Asheesh

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Digitally signed by :- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Jitendra Kumar and Others v. Smt. Sursati

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Jitendra Kumar and Others v. Smt. Sursati

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