Dismissed

M/S Vardhman Spinning and General Mills Ltd. v. Vijay Kumar and Others

Himachal Pradesh HC9 Sept 2024RP/137/2023

Case brief

AI extract

What is this about?

Petitioner sought review of a judgment declining specific performance of a contract. The Court held that the review petition could not be treated as an appeal. Although the petitioner claimed the judgment was arbitrary, no error apparent on the face of the record was found. The Court dismissed the petition, affirming that the lower court correctly denied specific performance due to lack of readiness and willingness and lapse of time.

What did the court decide?

The review petition is dismissed. The judgment and decree are dismissed, so are the pending miscellaneous applications.

M/S Vardhman Spinning and General Mills Ltd. Vs… — Property and Title | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:8090 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Review Petition No. 137 of 2023 Reserved on: 7.8.2024 Date of Decision: 9.9.2024

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M/s Vardhman Spinning & General Mills Ltd. ...Petitioner Versus Vijay Kumar and others ...Respondents

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No. For the petitioner : Mr. G.D. Verma, Sr. Advocate with Mr. Digvijay Singh Bisht, Advocate. For the Respondents : Mr. H.S. Rana, Advocate.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition seeking review of the judgment and decree dated 25.8.2023, passed by this Court in RSA No. 107 of 2008. It has been asserted that defendant No.1 was held to be a non-bona fide purchaser by the

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learned Trial Court while deciding issues No.3 and 8(a). It was held that defendant No.1 was informed about the agreement at the time of the execution of the sale deed and he could not be

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called to be a bona fide purchaser for consideration. This finding

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Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Neutral Citation No. ( 2024:HHC:8090 )

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was upheld by the learned First Appellate Court. This Court restored the judgment and decree passed by learned Trial Court and the actual effect of defendant No.1 being declared a non- bona fide purchaser is required to be seen. This Court has not considered the question regarding the status of defendant No.1 as decided by the learned Courts below. Since defendant No.1 is not a bona fide purchaser for consideration, therefore, he was not entitled to approach this Court. This Court was required to consider whether defendant No.1 could have approached the Court when he was not a bona fide purchaser for consideration. This Court has agreed with the findings recorded by learned Courts below but failed to consider that defendant no.1 had no title, possession, ownership or any right over the suit property and he could not contest the lis claiming to be the owner of the suit property. The petitioner is in possession. Defendants No.2 to 9 are the legal representatives of Babu Ram and they have not challenged the judgment and decree. The judgment and decree could not have been set aside at the instance of defendant No.1. The time is not the essence of the contract and the suit could not be held to be barred by limitation. The findings in the judgment and decree are contradictory. Petitioner No.1 had performed its

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Neutral Citation No. ( 2024:HHC:8090 )

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part of the contract in the letter and spirit. The complete sale consideration was paid to Babu Ram who had handed over the possession of the suit property to the petitioner. The petitioner had a possessory title which was to be protected in view of Section 53A of the Transfer of Property Act. This Court held that the sale deed was to be executed within a reasonable time. The petitioner had paid the full consideration to Babu Ram and there was no question of reasonable time. Substantial questions of law arising in the matter have been left unanswered. The suit was governed by Article 54 and could not have been dismissed by incorporating the principle of reasonable time. Babu Ram had executed General Power of Attorney in favour of the ofÏcial of the petitioner company. The sale deed could not be executed due to the death of Babu Ram. The petitioner had specifically asserted that cause of action arose to the plaintiff for filing the suit on 30.6.2001 when they came to know about the illegal and fraudulent registration of the sale deed. The sale deed could not be executed after the death of Babu Ram on 25.7.1994 as defendants No.1 to 6 did not cooperate in submitting the fresh documents. No permission could have been obtained by the petitioner without the cooperation of the legal representatives.

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Neutral Citation No. ( 2024:HHC:8090 )

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The Court had re-appreciated the evidence while deciding the Regular Second Appeal. It was stated in para-14 of the judgment that the learned counsel for the plaintiff had supported the judgment and decree passed by the learned Trial Court which is incorrect as the petitioner was contesting the judgment and decree passed by the learned Trial Court. Therefore, it was prayed that the present petition be allowed and the judgment and decree passed by this Court be reviewed.

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I have heard Mr G.D. Verma, learned Senior Counsel assisted by Mr. Digvijay Bisht, learned counsel for the petitioner/plaintiff and Mr. H.S. Rana, learned counsel for the respondents/defendants.

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Mr. G.D. Verma, learned Senior Counsel for the petitioner/plaintiff submitted that both the learned Courts below have consistently held that defendant No.1 is not a bona fide purchaser for consideration. Hence, he was not competent to file an appeal before the Court. This Court entertained the appeal and allowed the same. It was wrongly held that the sale deed was to be executed within a reasonable time. The suit was governed by Article 54 of the Schedule to the Limitation Act. The plaintiff had asserted in the plaint that cause of action arose to him on

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Neutral Citation No. ( 2024:HHC:8090 )

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30.6.2001 and the suit was within limitation. The plaintiff could not have been non-suited on the ground of delay. Therefore, he prayed that the present petition be allowed and the judgment and decree passed by this Court be set aside.

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Mr. H.S. Rana, learned counsel for the

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respondents/defendants supported the judgment and decree passed by this Court and submitted that there is no error apparent on the face of the record. The pleas taken by the petitioner/plaintiff could have been taken in the appeal and not in the review petition. The scope of the review is quite limited and the petition does not fall within the parameters of Order 47 Rule 1 of CPC. Therefore, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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Order 47 Rule 1 of CPC deals with an application for review. It reads as under:

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“1. Application for review of judgment

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(1) Any person considering himself aggrieved—

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(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

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Neutral Citation No. ( 2024:HHC:8090 )

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(b) by a decree or order from which no appeal is allowed, or

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and who, from 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 decree was passed or order made, or on account of some mistake or error apparent on the face of the record of for any other sufÏcient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

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(2) A party who is not appealing from a decree on order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

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Explanation—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.”

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It is apparent from the bare perusal of this Section

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Neutral Citation No. ( 2024:HHC:8090 )

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(2022) 4 CivCC 464 = (2022) 4 RCR(Civil) 36 that the Court cannot review an order unless it is satisfied that there is a material error manifest on the face of the record, which would result in the miscarriage of justice. It was observed:

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“18. A glance at the aforesaid provisions makes it clear that a review application would be maintainable on (i) discovery of new and important matters or evidence which, after exercise of due diligence, were not within the knowledge of the applicant or could not be produced by him when the decree was passed or the order made; (ii) on account of some mistake or error apparent on the face of the record; or (iii) for any other sufÏcient reason.

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In Col. Avatar Singh Sekhon v. Union of India and Others, 1980 Supp SCC 562 this Court observed that a review of an earlier order cannot be done unless the court is satisfied that the material error which is manifest on the face of the order, would result in a miscarriage of justice or undermine its soundness. The observations made are as under:

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'12. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in a miscarriage of justice. In Sow Chandra Kante and Another v. Sheikh Habib, (1975) 1 SCC 674 this Court observed:

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'A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. The present stage is not a virgin ground but a review of an earlier order which

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Neutral Citation No. ( 2024:HHC:8090 )

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has the normal feature of finality. ' (emphasis added)

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In Parsion Devi and Others v. Sumitri Devi and Others, (1997) 8 SCC 715 stating that an error that is not selfevident and one that has to be detected by the process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise the powers of review, this Court held as under:

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'7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P., 1964 SCR (5) 174 this Court opined:

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‘11. What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'. The fact that on the earlier occasion, the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error .'

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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, (1979) 4 SCC 389 this Court once again held that review proceedings are not by way of an appeal and have

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Neutral Citation No. ( 2024:HHC:8090 )

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to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.

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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 1 CPC. In exercise of this 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 ''. [emphasis added]

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The error referred to under the Rule, must be apparent on the face of the record and not one which has to be searched out. While discussing the scope and ambit of Article 137 that empowers the Supreme Court to review its judgments and in the course of discussing the contours of review jurisdiction under Order XLVII Rule 1 of the CPC in Lily Thomas (supra) , this Court held as under:

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'54. Article 137 empowers this court to review its judgments subject to the provisions of any law made by Parliament or any rules made under Article 145 of the Constitution. The Supreme Court Rules made in the exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the grounds specified in Order 47 Rule 1 of the Code of Civil Procedure which provides:

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'1. Application for review of judgment - (1) Any person considering himself aggrieved -

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(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

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Neutral Citation No. ( 2024:HHC:8090 )

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(b) by a decree or order from which no appeal is allowed, or

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(c) by a decision on a reference from a Court of Small Causes, and who, from 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 decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufÏcient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.'

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Under Order XL Rule 1 of the Supreme Court Rules, no review lies except on the ground of error apparent on the face of the record in criminal cases. Order XL Rule 5 of the Supreme Court Rules provides that after an application for review has been disposed of no further application shall be entertained in the same matter.

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XXX XXX XXX

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It follows, therefore, that 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 of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained . The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised.

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Neutral Citation No. ( 2024:HHC:8090 )

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However, this Court in the exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in the deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment.

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XXX XXX XXX

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Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal case [(1995) 3 SCC 635, Sarla Mudgal, President, Kalyani and Others v. Union of India and Others ]. It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal(supra) case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched . It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to a violation of some of the fundamental rights. No other sufÏcient cause has been shown for reviewing the judgment. The words "any-other sufÏcient reason appearing in Order 47

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Neutral Citation No. ( 2024:HHC:8090 )

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Rule 1 CPC" must mean "a reason sufÏcient on grounds at least analogous to those specified in the rule" as was held in Chajju Ram v. Neki Ram, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos. v. Most Rev. Mar Poulose Athanasius, 1955 SCR 520 Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa, 1955 SCR 250 this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad, AIR 1955 SC 233 it was held:

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'It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record . The real difÏculty with reference to 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 a mere error and become an error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.

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Mr Pathak for the first respondent contended on the strength of certain observations of Chagla, CJ in 'Batuk K Vyas v. Surat Borough Municipality', ILR 1953 Bom 191 that no error could be said to be apparent on the face of the record if it was not self-evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be

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Neutral Citation No. ( 2024:HHC:8090 )

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defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case .

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Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order 47 Rule 1 CPC for reviewing the judgment in the Sarla Mudgal case(supra) . The petition is misconceived and bereft of any substance.' (emphasis added)

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It is also settled law that in the exercise of review jurisdiction, the Court cannot reappreciate the evidence to arrive at a different conclusion even if two views are possible in a matter.”

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It is apparent from the bare perusal of this Section

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that the power of review can be exercised on the discovery of new and important matter, mistake or error apparent on the face of the record or for any other sufÏcient reason. It was laid down in Arun Dev Upadhyaya v. Integrated Sales Service Ltd., 2023 SCC OnLine SC 779 that the power of review can be exercised on the satisfaction of the conditions laid down in Order 47. Where a review is sought on the ground of error apparent on the face of the record, the error should be visible and not the one which is to be detected by the process of reasoning. It was observed:

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A plain reading of the above provisions in uncertain terms states that the power to review can be exercised only upon the existence of any of the three conditions expressed therein. 'A mistake or an error apparent on the

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Neutral Citation No. ( 2024:HHC:8090 )

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face of the record' is one of the conditions. It is only on this ground that review has been preferred. The above phrase has been consistently interpreted by authoritative pronouncement of this Court for decades. A three-judge Bench of this Court comprising of Hon’ble Sri S.R. Das, C.J., M. Hidayatullah and Sri K.C. Das Gupta, J.J. in the case of Satyanarayan Laxminarayan Hegde and others Vs. Millikarjun Bhavanappa Tirumale AIR 1960 SC 137 , discussed the scope of the phrase 'error apparent on the face of the record'. The challenge before this Court in the said case was the judgment of the High Court on the grounds whether it suffers from an error apparent on the face of the record. The High Court had issued a writ of certiorari and had quashed the order of the Tribunal and restored that of the Mamlatdar. In paragraph 8 of the report, the issue which was to be considered is reflected. The same is reproduced hereunder:

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“8. The main question that arises for our consideration in this appeal by special leave granted by this Court is whether there is any error apparent on the face of the record so as to enable the superior court to call for the records and quash the order by a writ of certiorari or whether the error, if any, was “a mere error not so apparent on the face of the record”, which can only be corrected by an appeal if an appeal lies at all.”

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After discussing the relevant material on record, the conclusion is stated in paragraph 17 of the report. The view was that where 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. The view that a long-drawn process of arguments to canvass a point attacking the order in a review jurisdiction, cannot be said to be an error apparent on the face of record. The relevant extract from paragraph 17 of the report is reproduced hereunder:

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Neutral Citation No. ( 2024:HHC:8090 )

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“17.................... Is the conclusion wrong and if so, is such error apparent on the face of the record? If it is clear that the error if any is not apparent on the face of the record, it is not necessary for us to decide whether the conclusion of the Bombay High Court on the question of notice is correct or not. 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. As the above discussion of the rival contentions shows the alleged error in the present case is far from self-evident and if it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. In our opinion, the High Court was wrong in thinking that the alleged error in the judgment of the Bombay Revenue Tribunal, viz., that an order for possession should not be made unless a previous notice had been given was an error apparent on the face of the record so as to be capable of being corrected by a writ of certiorari.”

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Another case, which may be briefly dealt with is the case of Parison Devi Vs. Sumitri Devi[(1997) 8 SCC 715] , where, this Court ruled that under Order XLVII 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. It also observed that a review petition cannot be allowed to be treated as an appeal in disguise.

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A series of decisions may also be referred to herein, it has been held that power to review may not be exercised on the ground that the decision was erroneous on merits as the same would be the domain of the Court of Appeal. Power of review should not be confused with appellate

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Neutral Citation No. ( 2024:HHC:8090 )

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powers as the appellate power can correct all manners of errors committed by the subordinate courts. The following judgments may be referred to:

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(1) Shivdeo Singh Vs. State of Punjab; AIR 1963 SC 1909

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(2) Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma; AIR 1979 SC 1047

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(3) Meera Bhanja (Smt.) Vs. Nirmala Kumari Choudhary (Smt.); (1995) 1 SCC 170.

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(4) Uma Nath Pandey Vs. State of U.P.; (2009) 12 SCC 40 13. Recently, this Court in a judgment dated 24th February 2023 passed in Civil Appeal No.1167- 1170 of 2023 between S. Murali Sundaram Vs. Jothibai Kannan and Others observed that even though a judgment sought to be reviewed is erroneous, the same cannot be ground to review in the exercise of powers under Order XLVII Rule 1 CPC. Further, in the case of Perry Kansagra Vs. Smriti Madan Kansagra[(2019) 20 SCC 753] , this Court observed that while exercising the review jurisdiction in an application under Order XLVII Rule 1 read with Section 114 CPC, the Review Court does not sit in appeal over its own order.

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In another case between Shanti Conductors (P) Ltd. Vs. Assam SEB, (2020) 2 SCC 677 this Court observed that the scope of review under Order XLVII Rule 1 read with Section 114 CPC is limited and under the guise of review, the petitioner cannot be permitted to reagitate and reargue questions which have already been addressed and decided. It was further observed that 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.

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From the above, it is evident that a power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order XLVII Rule 1 CPC. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning

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on the points where there may conceivably be two opinions”

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It was held in S. Murali Sundaram v. Jothibai Kannan,

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2023 SCC OnLine SC 185 that the power of review is not equivalent to an appellate power. The Court cannot sit in appeal while considering the review application. It was observed:

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“15 While considering the aforesaid issue two decisions of this Court on Order 47 Rule 1 read with Section 114 CPC are required to be referred to? In the case of Perry Kansagra (supra) this Court has observed that while exercising the review jurisdiction in an application under Order 47 Rule 1 read with Section 114 CPC, the Review Court does not sit in appeal over its own order. It is observed that a rehearing of the matter is impermissible in law. It is further observed that the review is not an appeal in disguise. It is observed that 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 of the statute dealing with the exercise of power. It is further observed that it is wholly unjustified and exhibits a tendency to rewrite a judgment by which the controversy has been finally decided. After considering the catena of decisions on the exercise of review powers and principles relating to the exercise of review jurisdiction under Order 47 Rule 1 CPC this Court had summed upon as under:

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'(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.

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(ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But an error on the face of record must be such an error which must strike one on merely looking at the record and would not require any longdrawn process of reasoning on the points where there may conceivably by two opinions.

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(iii) Power of review may not be exercised on the ground that the decision was erroneous on merits. (iv) Power of review can also be exercised for any sufÏcient reason which is wide enough to include a misconception of fact or law by a court or even an advocate.

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(v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit.'

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It is further observed in the said decision that an error which is required to be detected by a process of reasoning can hardly be said to be an error on the face of the record.

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In the case of Shanti Conductors (P) Ltd. (supra) , it is observed and held that the scope of review under Order 47 Rule 1 CPC read with Section 114 CPC is limited and under the guise of review, the petitioner cannot be permitted to reagitate and reargue questions which have already been addressed and decided. It is further observed that 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 record justifying the court to exercise its power of review under Order 47 Rule 1 CPC.

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18 Applying the law laid down by this Court in the aforesaid two decisions to the facts of the case on hand, we are of the opinion that in the present case while allowing the review application and setting aside the judgment and order dated 03.03.2017 passed in Writ Petition No.8606 of 2010 the High Court has exceeded in its jurisdiction and has exercised the jurisdiction not vested in it while exercising the review jurisdiction under Order 47 Rule 1 read with Section 114 CPC. From the reasoning given by the High Court, it appears that according to the High Court, the judgment and order passed in Writ Petition No.8606 of 2010 was erroneous. While passing the impugned judgment and order the High Court has observed and considered the Survey Report dated 12.12.2007 which was already dealt with by the High Court while deciding the main writ petition and the High Court discarded and/or not

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considered the Survey Report dated 12.12.2007. Once the Survey Report dated 12.12.2007 fell for consideration before the High Court while deciding the main writ petition thereafter the same could not have been considered again by the High Court while deciding the review application.

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19 From the impugned judgment and order passed by the High Court it appears that the High Court has decided the review application as if the High Court was exercising the appellate jurisdiction against the judgment and order dated 03.03.2017 passed in Writ Petition (MD) No.8606 of 2010 which is wholly impermissible while considering the review application under Order 47 Rule 1 read with Section 114 CPC.

¶128

From the impugned judgment and order passed by the High Court allowing the review application it is observed in paragraph 33 as under:

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'33. The above legal principles were born in mind by this Court while considering the review application. Brushing aside a survey report, which was available on record and which brought out tampering of ofÏcial records, ought to have been taken note of by the Learned Writ Court while considering the prayer sought for in the Writ Petition. This has led to an error, which is manifest on the face of the order. Furthermore, the Court proceeded on the basis that S.M. Gajendran had executed a gift deed without noting the fact that the gift deed was a document, which was unilaterally executed by him, not accepted by the respondent Corporation and could not have been treated to be a valid gift. These facts have emerged on the fact of the order passed in the Writ Petition without any requirement for longdrawn reasoning. Therefore, we are fully satisfied that we are justified in exercising our review jurisdiction. For the above reasons, we are of the clear view that the order passed in the Writ petition

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suffers from error apparent on the fact of the records warranting exercise of review jurisdiction.'

¶133

From the aforesaid it appears that the High Court has considered the review application as if it was an appeal against the order passed by the High Court in Writ Petition No.8606 of 2010. As observed hereinabove the same is wholly impermissible while deciding the review application. Even if the judgment sought to be reviewed is erroneous the same cannot be a ground to review the same in the exercise of powers under Order 47 Rule 1 CPC. An erroneous order may be subjected to appeal before the higher forum but cannot be a subject matter of review under Order 47 Rule 1 CPC.”

¶134

Similar is the judgment in Pancham Lal Pandey v.

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Neeraj Kumar Mishra, 2023 SCC OnLine SC 143 = AIR 2023 SC 948 , wherein, it was held:

¶136

“14. The provision of review is not to scrutinize the correctness of the decision rendered but rather to correct the error, if any, which is visible on the face of the order/record without going into as to whether there is a possibility of another opinion different from the one expressed.

¶137

The Division Bench in allowing the review petition has dealt with the matter as it is seized of the special appeal itself and has virtually reversed the decision by taking a completely new stand for the payment of salary to teachers subject-wise. It amounts to rehearing and rewriting the judgment in appeal without there being any error apparent on the face in the earlier order. The Division Bench thus clearly exceeded its review jurisdiction in passing the impugned order.” to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission

¶138

¶139

Neutral Citation No. ( 2024:HHC:8090 )

¶140

cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto . It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise ." (emphasis added)

¶141

Under the garb of filing a review petition, a party cannot be permitted to repeat old and overruled arguments for reopening the conclusions arrived at in a judgment. The power of review is not to be confused with the appellate power which enables the Superior Court to correct errors committed by a subordinate Court. This point has been elucidated in Jain Studios Ltd. V. Shin Satellite Public Co. Ltd., (2006) 5 SCC 501 where it was held thus:

¶142

'11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not a rehearing of an original matter. A repetition of old and overruled arguments is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care,

¶143

¶144

Neutral Citation No. ( 2024:HHC:8090 )

¶145

caution and circumspection and only in exceptional cases .

¶146

When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of 'second innings' which is impermissible and unwarranted and cannot be granted .' (emphasis added)

¶147

After discussing a series of decisions on review jurisdiction in Kamlesh Verma v. Mayawati and Others, (2013) 8 SCC 320 this Court observed that review proceedings have to be strictly confined to the scope and ambit of Order XLVII Rule 1, CPC. As long as the point sought to be raised in the review application has already been dealt with and answered, parties are not entitled to challenge the impugned judgment only because an alternative view is possible. The principles for exercising review jurisdiction were succinctly summarized in the captioned case as below:

¶148

'20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

¶149

20.1. When the review will be maintainable:

¶150

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

¶151

(ii) Mistake or error apparent on the face of the record;

¶152

(iii) Any other sufÏcient reason.

¶153

The words "any other sufÏcient reason" has been interpreted in Chajju Ram vs. Neki(supra) , and approved by this Court in

¶154

¶155

Neutral Citation No. ( 2024:HHC:8090 )

¶156

Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors. (supra) to mean "a reason sufÏcient 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. & Ors., (2013) 8 SCC 337 .

¶157

20.2. When the review will not be maintainable: -

¶158

(i) A repetition of old and overruled arguments is not enough to reopen concluded adjudications.

¶159

(ii) Minor mistakes of inconsequential import.

¶160

(iii) Review proceedings cannot be equated with the original hearing of the case.

¶161

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

¶162

(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.

¶163

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

¶164

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

¶165

(viii) The appreciation of evidence on record is fully within the domain of

¶166

¶167

Neutral Citation No. ( 2024:HHC:8090 )

¶168

the appellate court, it cannot be permitted to be advanced in the review petition.

¶169

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

¶170

In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma(supra) , this Court was examining an order passed by the Judicial Commissioner who was reviewing an earlier judgment that went in favour of the appellant, while deciding a review application filed by the respondents therein who took a ground that the predecessor Court had overlooked two important documents that showed that the respondents were in possession of the sites through which the appellant had sought easementary rights to access his homestead. The said appeal was allowed by this Court with the following observations:

¶171

'3 -It is true as observed by this Court in Shivdeo Singh and Others v. State of Punjab, (1979) 4 SCC 389 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 knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not

¶172

¶173

Neutral Citation No. ( 2024:HHC:8090 )

¶174

to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court .' (emphasis added)

¶175

In State of West Bengal and Others v. Kamal Sengupta and Another, (2008) 8 SCC 612 this Court emphasized the requirement of the review petitioner who approaches a Court on the ground of discovery of a new matter or evidence, to demonstrate that the same was not within his knowledge and held thus:

¶176

'21. At this stage, it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, the mere discovery of new or important matter or evidence is not sufÏcient 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 .' (emphasis added)

¶177

In the captioned judgment, the term 'mistake or error apparent' has been discussed in the following words:

¶178

'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 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

¶179

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Neutral Citation No. ( 2024:HHC:8090 )

¶181

the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision '. (emphasis added)

¶182

In S. Nagaraj and Others v. State of Karnataka and Another, 1993 Supp (4) SCC 595 this Court explained as to when a review jurisdiction could be treated as statutory or inherent and held thus :

¶183

'18. Justice is a virtue, which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the court should not be prejudicial to anyone. The rule of stare decisis is adhered to for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. The entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. The mistake is accepted as a valid reason to recall an order. The difference lies in the nature of the mistake and the scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court '. (emphasis added)

¶184

In Patel Narshi Thakershi and Others v. Shri Pradyuman Singhji Arjunsinghji, (1971) 3 SCC 844 this Court held as follows:

¶185

'4.. It is well settled that the power to review is not an inherent power . It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to notice from

¶186

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Neutral Citation No. ( 2024:HHC:8090 )

¶188

which it could be gathered that the Government had the power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order.' (emphasis added)

¶189

In Ram Sahu (Dead) Through LRs and Others v. Vinod Kumar Rawat and Others, (2020) SCC Online SC 896 citing previous decisions and expounding on the scope and ambit of Section 114 read with Order XLVII Rule 1, this Court has observed that Section 114 CPC does not lay any conditions precedent for exercising the power of review; and nor does the Section prohibit the Court from exercising its power to review a decision. However, an order can be reviewed by the Court only on the grounds prescribed in Order XLVII Rule 1 CPC. The said power cannot be exercised as an inherent power and nor can appellate power be exercised in the guise of exercising the power of review.

¶190

As can be seen from the above exposition of law, it has been consistently held by this Court in several judicial pronouncements that the Court's jurisdiction of review, is not the same as that of an appeal. A judgment can be open to review if there is a mistake or an error apparent on the face of the record, but an error that has to be detected by a process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise its powers of review under Order XLVII Rule1 CPC. In the guise of exercising powers of review, the Court can correct a mistake but not substitute the view taken earlier merely because there is a possibility of taking two views in a matter. A judgment may also be open to review when any new or important matter of evidence has emerged after passing of the judgment, subject to the condition that such evidence was not within the knowledge of the party seeking review or could not be produced by it when the order was made despite undertaking an exercise of due diligence. There is a clear distinction between an erroneous decision as an error apparent on the face of the record. An erroneous decision can be corrected by the Superior Court, however, an error apparent on the face of

¶191

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Neutral Citation No. ( 2024:HHC:8090 )

¶193

the record can only be corrected by exercising review jurisdiction. Yet another circumstance referred to in Order XLVII Rule 1 for reviewing a judgment has been described as 'for any other sufÏcient reason'. The said phrase has been explained to mean a reason sufÏcient on grounds, at least analogous to those specified in the rule' (Refer: Chajju Ram v. Neki Ram(supra) and Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Others(supra).”

¶194

The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

¶195

It was submitted that defendant No. 1 was held to be a non-bona fide purchaser and no appeal could have been entertained on his behalf. This submission is not acceptable. The question of bona fide purchaser for consideration would have come into the picture in the event of the decree of the suit because Section 19(b) of the Specific Relief Act provides that the specific performance of a contract can be enforced against any person claiming under a party by a title arising subsequently to the contract except a transferee for value and without notice of the original contract. This means that the plaintiff can claim specific performance against a person getting title for consideration after his contract only if he had notice of the contract with the plaintiff and not otherwise. A person who has acquired the property with a notice of a previous contract can

¶196

¶197

Neutral Citation No. ( 2024:HHC:8090 )

¶198

always defeat the claim of the plaintiff by taking the pleas which are available to him and the law does not debar him from taking such a plea. It was laid down by the Hon’ble Supreme Court in B. Vijaya Bharathi v. P. Savitri, (2018) 11 SCC 761 that a subsequent purchaser who may not be a bona fide purchaser can always claim the dismissal of the suit because of a lack of readiness and willingness. It was observed: -

¶199

“17… The High Court was clearly right in finding that the bar of Section 16( c ) was squarely attracted to the facts of the present case, and that therefore, the fact that Defendants 2 and 3 may not be bona fide purchasers would not come in the way of stating that such suit must be dismissed at the threshold because of lack of readiness and willingness, which is a basic condition for the grant of specific performance .” (emphasis supplied)

¶200

No precedent to the contrary was brought to the

¶201

notice of this Court. Hence, the plea that defendant No.1 who was a subsequent purchaser with the notice could not have filed the appeal before the Court cannot be accepted.

¶202

This Court recorded a finding that the plaintiff did not take any steps to get the sale deed executed. The plaintiff’s plea that it kept on waiting for the execution of the sale deed for seven years without doing anything would show that the plaintiff was not ready and willing to perform its part of the contract. Further,

¶203

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Neutral Citation No. ( 2024:HHC:8090 )

¶205

the Court held that even if the time is not the essence of the contract, the sale deed has to be executed within a reasonable time and the lapse of seven years would disentitle the plaintiff from seeking the relief of specific performance. The plaintiff had failed to show readiness and willingness and the suit could not have been decreed as the plaintiff had not approached the Court within a reasonable time. It was held by the Hon’ble Supreme Court in Azhar Sultana v. B. Rajamani, (2009) 17 SCC 27 that when the plaintiff had failed to show his readiness and willingness and had not filed the suit within a reasonable time, the Court can decline the discretionary relief of specific performance. It was observed: -

¶206

“28. Section 16( c ) of the Specific Relief Act, 1963 postulates continuous readiness and willingness on the part of the plaintiff. It is a condition precedent for obtaining relief of grant of specific performance of contract. The court, keeping in view the fact that it exercises a discretionary jurisdiction, would be entitled to take into consideration as to whether the suit had been filed within a reasonable time. What would be a reasonable time would, however, depend upon the facts and circumstances of each case. No hard-and-fast law can be laid down therefor. The conduct of the parties in this behalf would also assume significance.

¶207

29. In Veerayee Ammal v. Seeni Ammal [(2002) 1 SCC 134 ] it was observed: (SCC p. 140, para 11)

¶208

“ 11 . When, concededly, the time was not of the essence of the contract, the appellant-plaintiff was

¶209

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Neutral Citation No. ( 2024:HHC:8090 )

¶211

required to approach the court of law within a reasonable time. A Constitution Bench of this Hon'ble Court in Chand Rani v. Kamal Rani [(1993) 1 SCC 519] held that in the case of the sale of immovable property, there is no presumption as to time being of the essence of the contract. Even if it is not of the essence of the contract, the court may infer that it is to be performed in a reasonable time if the conditions are ( i ) from the express terms of the contract; ( ii ) from the nature of the property; and ( iii ) from the surrounding circumstances, for example, the object of making the contract. For the purposes of granting relief, the reasonable time has to be ascertained from all the facts and circumstances of the case.”

¶212

It was furthermore observed: ( Veerayee Ammal case [(2002) 1 SCC 134 ], SCC pp. 140-41, para 13)

¶213

“ 13 . The word ‘reasonable’ has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word ‘reasonable’. The reason varies in its conclusion according to the idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of ‘reasonable time’ is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words, it means, as soon as circumstances permit. In P. Ramanatha Aiyar's Law Lexicon it is defined to mean:

¶214

‘A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances,

¶215

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Neutral Citation No. ( 2024:HHC:8090 )

¶217

conveniently to do what the contract requires should be done; some more protracted space than “directly”; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and the attending circumstances; all these convey more or less the same idea.’ ”

¶218

30. It is also a well-settled principle of law that not only the original vendor but also a subsequent purchaser would be entitled to raise a contention that the plaintiff was not ready and willing to perform his part of the contract. (See Ram Awadh v. Achhaibar Dubey [(2000) 2 SCC 428], SCC p. 431 para 6.)

¶219

Much was made out of the fact that in para-14 there is

¶220

a clerical error inasmuch as the Court has mentioned learned Trial Court instead of Appellate Court in the first line, however, the Appellate Court was mentioned subsequently in the rest of the paragraphs. A mere clerical error of mentioning the Trial Court when it is apparent from the whole of the judgment including paragraph 14 that the Court meant to refer to the Appellate court is not a ground for review. It is merely a clerical error of the minor nature which does not affect the outcome of the suit.

¶221

Reference was made to Article 54 to submit that the suit was within limitation, however, the Court had held that relief of specific performance is a discretionary relief which can

¶222

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Neutral Citation No. ( 2024:HHC:8090 )

¶224

be denied to the plaintiff if he fails to approach the Court within a reasonable time. Since the plaintiff had failed to approach the Court within the reasonable time, therefore, the relief was declined to the plaintiff. Hence, in such a situation, the reference to Article 54 of the Limitation Act will not help the plaintiff.

¶225

It was submitted that the defendant no. 1 had no right, title or interest in the suit property. This is not correct. He had acquired the title by a valid sale deed executed in his favour.

¶226

There is a force in the submission of Mr. H.S. Rana, learned counsel for the respondents/defendants that the plaintiff has taken the pleas which are available to it in the appeal. The Court exercising the jurisdiction of reviewing the judgment does not sit in appeal and cannot review the judgment based on the pleas which can be taken in appeal.

¶227

Thus, there is no reason to review the judgment and decree passed by this Court. Hence, the present petition fails and the same is dismissed, so also the pending miscellaneous application(s), if any.

¶228

(Rakesh Kainthla) Judge 9^th September, 2024 (Chander)

M/S Vardhman Spinning and General Mills Ltd. v. Vijay Kumar and Others

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M/S Vardhman Spinning and General Mills Ltd. v. Vijay Kumar and Others

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