Dismissed

Bimal Kumar v. Sanjogita Devi (Deceased through LRs Sonia and Others)

Himachal Pradesh HC17 Sept 2024RP/81/2024

Case brief

AI extract

What is this about?

A plaintiff sought review of the dismissal of his Article 227 petition against refusal of interim injunction in a co-ownership dispute, relying on revenue orders, alleged res judicata and a date error. The Court held no error apparent on the face of the record existed, mutation entries create no title, and merits cannot be reargued in review; the petition was dismissed.

What the court decided

AI extract

Bimal Kumar Vs Sanjogita Devi (Deceased through… — Property and Title | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:8659 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Review Petition No. 81 of 2024 Reserved on: 23.08.2024 Date of Decision: 17.09.2024.

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Bimal Kumar ...Petitioner Versus Sajogita Devi & others ...Respondents

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No

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For the Petitioner : Ms. Varsha Raina, Advocate.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for seeking review of the order passed by this Court in CMPMO No.186 of 2022, decided on 10.06.2024, vide which the petition filed under Article 227 of the Constitution of India against the order dated 27.04.2022 passed by learned District Judge, Kangra at Dharamshala was ordered to be dismissed.

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

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Neutral Citation No. ( 2024:HHC:8659 )

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Briefly stated, the facts giving rise to the present petition are that the plaintiff filed a civil suit against the defendants before the learned Trial Court for seeking a permanent prohibitory injunction restraining the defendants from interfering in the suit land mentioned in para 2 of the judgment. He also filed an application under Order 39 Rules 1 and 2 of CPC, which was dismissed by the learned Trial Court. The petitioner filed an appeal before the learned District Judge who dismissed it. The petitioner approached this Court by filing a petition under Article 227 of the Constitution of India and this Court also dismissed the petition after holding that the parties were recorded to be co-owners of the suit land and a co-owner cannot restrain the other co-owner from raising construction over the joint land unless prejudice is shown to the co-owner seeking the injunction. Mere raising of the construction does not amount to any prejudice and learned Courts below had rightly dismissed the application seeking an ad-interim injunction.

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The petitioner filed the present review petition asserting that this Court had wrongly mentioned the date of the judgment and decree as 19.01.2023 whereas the same should have been 19.01.2013. The earlier judgment and decree suffered from

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Neutral Citation No. ( 2024:HHC:8659 )

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the defect of jurisdiction because the court had held that it had no jurisdiction to hear and entertain the suit. The findings recorded in the previous suit will not constitute a res judicata . The proceedings were conducted before the Revenue Court and the learned Financial Commissioner passed an order dated 17.10.2015 setting aside the order passed by learned Sub Divisional Collector, Baijnath dated 28.05.2008. The order of learned AC First Grade effected the mutation entry number 428. This entry is wrong, illegal and liable to be cancelled. The plaintiff’s previous suit was dismissed and does not create any right in favour of the defendants. The defendants wrongly used the order and judgment of the learned Trial Court dated 19.01.2013, which was passed without jurisdiction. The defendants ignored the order passed by the learned Financial Commissioner, which is valid and constitutes res judicata during the present proceedings. The Court had referred to the partition effected by the Kannungo in the presence of the petitioner on 26.05.2018. There was no free consent for the partition. The defendants made a complaint to SDM Baijnath regarding the plaintiff encroaching upon the government land. The field Kannungo visited the spot on 26.05.2018 and declared that demarcation and partition of

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private land had taken place between the parties. The defendants stated on 08.06.2018 that they wanted a family partition but they had no locus standi to demand the family partition. The proceedings were not properly conducted by the revenue authorities. The order of the learned Financial Commissioner could not have been ignored. The Court can take note of the subsequent proceedings while deciding the review petition. This Court had relied upon the findings recorded by the learned First Appellate Court that parties were co-owners in possession. The learned Appellate Court had observed that the plaintiff had denied the existence of family partition in para 12. This Court had wrongly perpetuated the status of co-ownership which is contrary to the plea taken by the plaintiff in para 3 of the plaint. The defendants are strangers and not the co-owners. They have suppressed the material facts from the Court. The entries in the jamabandi have no effect. Therefore, it was prayed that the present petition be allowed and the relief of injunction be granted to the plaintiff.

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I have heard Ms. Varsha Raina, learned counsel for the petitioner, who reiterated the pleas taken in the petition and

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prayed that the present petition be allowed and the order passed by this Court be reviewed.

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I have given considerable thought to the submissions made at the bar and have carefully 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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(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 sufficient 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

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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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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 sufficient reason. It was laid down by the Hon’ble Supreme Court in S. Madhusudhan Reddy v. V. Narayana Reddy, 2022 SCC OnLine SC 1034 : (2022) 12 SCALE 261: (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 sufficient 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

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Neutral Citation No. ( 2024:HHC:8659 )

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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 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

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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 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

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Neutral Citation No. ( 2024:HHC:8659 )

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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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(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 sufficient 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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Neutral Citation No. ( 2024:HHC:8659 )

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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. 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

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Neutral Citation No. ( 2024:HHC:8659 )

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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 sufficient cause has been shown for reviewing the judgment. The words "any-other sufficient reason appearing in Order 47 Rule 1 CPC" must mean "a reason sufficient on grounds at least analogous to those specified in the rule" as was held in 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

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real difficulty 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 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

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arrive at a different conclusion even if two views are possible in a matter.”

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It was laid down in Arun Dev Upadhyaya v. Integrated

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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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“9. 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 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

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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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“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

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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 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

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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 a 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

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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 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

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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

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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 sufficient 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

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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 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.

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

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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.”

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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:

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“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.

¶132

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 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)

¶133

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

¶134

¶135

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¶136

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:

¶137

'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, caution and circumspection and only in exceptional cases .

¶138

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)

¶139

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

¶140

¶141

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review jurisdiction were succinctly summarized in the captioned case as below:

¶143

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

¶144

20.1. When the review will be maintainable:

¶145

(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;

¶146

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

¶147

(iii) Any other sufficient reason.

¶148

The words "any other sufficient reason" has been interpreted in Chajju Ram vs. Neki(supra) , and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors. (supra) 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. & Ors., (2013) 8 SCC 337 .

¶149

20.2. When the review will not be maintainable: -

¶150

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

¶151

(ii) Minor mistakes of inconsequential import.

¶152

¶153

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¶154

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

¶155

(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.

¶156

(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.

¶157

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

¶158

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

¶159

(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.

¶160

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

¶161

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

¶162

¶163

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¶164

the appellant had sought easementary rights to access his homestead. The said appeal was allowed by this Court with the following observations:

¶165

'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 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)

¶166

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:

¶167

'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

¶168

¶169

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¶170

might have altered the judgment. In other words, the mere discovery of new or important matter or evidence is not sufficient 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)

¶171

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

¶172

'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 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)

¶173

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 :

¶174

'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

¶175

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¶177

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)

¶178

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

¶179

'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 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)

¶180

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

¶181

27 Neutral Citation No. ( 2024:HHC:8659 )

¶182

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.

¶183

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 against 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 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 sufficient reason'. The said phrase has been explained to mean a reason sufficient 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).”

¶184

The present petition has to be decided as per the

¶185

parameters laid down by the Hon’ble Supreme Court.

¶186

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Neutral Citation No. ( 2024:HHC:8659 )

¶188

The main petition was concerned with the fact whether the parties are co-owners or not and whether the coowner can carry out construction on the joint land or not. The plaintiff asserted in the review petition that the status of the defendants as co-owners was challenged by him in para 3 of the plaint. Significantly, the plaintiff has filed a suit for an injunction without seeking any declaration regarding the entries recorded in the copy of jamabandi; rather he has relied upon the copy of jamabandi for the year 2013-14 in para 1 of the plaint. He asserted in para 6 of the main petition that he is the owner in possession of the suit property and being the owner was entitled to seek an injunction restraining the other co-owners from raising construction or changing the nature of the suit property till the property is partitioned. He further stated that he had constructed the house but this was no ground for raising the construction on the joint property. He asserted in para 8 that the well-settled principle for the grant of interim relief namely the preservation of the property and rights and liabilities of the co-sharers in respect of the joint land was also ignored. He stated in para 9 that the co-owner had the right in every inch of land and until the property was partitioned its nature could not be changed. The

¶189

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respondents were raising construction to usurp the best portion of the property. Thus, the plaintiff himself had projected before this Court that he and the defendants were co-owners and it is impermissible for him to claim in the review petition that he is an exclusive co-owner and defendants have no right.

¶192

The Court had noticed in Para 10 of the judgment that the learned counsel for the petitioner/plaintiff had submitted that the co-owner cannot raise construction over the joint land to deprive the other co-owners of the use of the land. Thus, the status of the parties being co-owners was never disputed before the Court. Merely because the plaintiff had asserted in the plaint that the entries in favour of the defendants were wrongly recorded does not mean that this plea was to be accepted by the Court when learned Trial Court and learned First Appellate Court had consistently concluded that the parties were co-owners and the petition was filed before this Court on the premise that the parties were co-owners. Thus, there is no error apparent on the face of the record in treating the parties to be the co-owners.

¶193

A heavy reliance is placed upon the order passed by the learned Financial Commissioner. It was submitted that the

¶194

30 Neutral Citation No. ( 2024:HHC:8659 )

¶195

order passed by the learned Financial Commissioner constitutes res judicata and the Civil Courts would be precluded from going into the validity of the order. This submission is not acceptable. It was laid down by the Hon'ble Privy Council about 100 years ago in Nirman Singh vs. Lal Rudra Partab Narain Singh AIR 1926 P.C. 100 that the mutation proceedings are not judicial and they do not decide the title. It was observed:-

¶196

“The perusal by their Lordships of the judgment of the Court of the Judicial Commissioner of Oudh leads their Lordships to think that it is to a great degree based on the mischievous but persistent error that the proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind, as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into the occupation of it with the greater confidence that the revenue for it will be paid.” 15. This position was reiterated by the Hon'ble Supreme

¶197

Court in H. Lakshmaiah Reddy Vs. Venkatesh Reddy A.I.R. 2015 SC 2499 wherein it was held as under:-

¶198

“9. … The assumption on the part of the High Court that as a result of the mutation, 1^st defendant divested himself of the title and possession of half share in suit property is wrong. The mutation entries do not convey or extinguish any title and those entries are relevant only for the pur-

¶199

¶200

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pose of collection of land revenue. The observations of this Court in Balwant Singh's case (supra) are relevant and are extracted below :

¶202

"21. We have considered the rival submissions and we are of the view that Mr Sanyal is right in his contention that the courts were not correct in assuming that as a result of Mutation No. 1311 dated 19-7-1954, Durga Devi lost her title from that date and possession also was given to the persons in whose favour mutation was effected. In Sawarni vs. Inder Kaur (1996) 6 SCC 223 , Pattanaik, J., speaking for the Bench has clearly held as follows: (SCC p. 227, para 7)

¶203

"7. ... Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment."

¶204

Applying the above legal position, we hold that the widow had not divested herself of the title in the suit property as a result of Mutation No. 1311 dated 19-7-1954. The assumption on the part of the courts below that as a result of the mutation, the widow divested herself of the title and possession was wrong. If that be so, legally, she was in possession on the date of coming into force of the Hindu Succession Act and she, as a full owner, had every right to deal with the suit properties in any manner she desired."

¶205

In the circumstances, we are of the opinion that the High Court erred in concluding that the 1st defendant by his conduct had acquiesced and divested himself of the title of his half share in the suit property and the said erroneous conclusion is liable to be set aside.”

¶206

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¶208

16. Similar is the judgment in Bhimabai Mahadeo

¶209

Kambekar Vs. Arthur Import and Export Company AIR 2019 SC 719

¶210

wherein it was observed: -

¶211

“8. This Court has consistently held that mutation of land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. (See Sawarni(Smt.) vs. Inder Kaur, 1996 6 SCC 223, Balwant Singh & Anr. Vs. Daulat Singh(dead) by L.Rs. & Ors., 1997 7 SCC 137 and Narasamma & Ors. vs. State of Karnataka & Ors., 2009 5 SCC 591 ).”

¶212

This position was reiterated in Jitendra Singh Versus

¶213

State of Madhya Pradesh & others (2021) 10 SCALE 413 wherein it

¶214

was observed:

¶215

“6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., 1997 7 SCC 137 , this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on the title. Such entries are relevant only for the purpose of collecting land revenue. A similar view has been expressed in the series of decisions thereafter.

¶216

6.1 In the case of Suraj Bhan v. Financial Commissioner, 2007 6 SCC 186 , it is observed and held by this Court that an entry in revenue records does not confer a title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only "fiscal purpose", i.e., payment of land revenue, and no ownership is conferred on

¶217

33 Neutral Citation No. ( 2024:HHC:8659 )

¶218

the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. A similar view has been expressed in the cases of Suman Verma v. Union of India, 2004 (12) SCC 58; Faqruddin v. Tajuddin, 2008 (8) SCC 12; Rajinder Singh v. State of J&K, 2008 (9) SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, 2015 (16) SCC 689; T. Ravi v. B. Chinna Narasimha, 2017 (7) SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., 2019 (3) SCC 191; Prahlad Pradhan v. Sonu Kumhar, 2019 (10) SCC 259; and Ajit Kaur v. Darshan Singh, 2019 (13) SCC 70. ”

¶219

Therefore, the order passed by the revenue authorities setting aside the mutation does not confer any title on the parties and the Court has to be independently look into the title of the parties. Thus, no advantage can be derived from the order passed by the learned Financial Commissioner by the review petitioner/plaintiff.

¶220

It was submitted that this Court had wrongly conferred the status of co-ownership upon the defendants. It is a challenge on merits and does not fall within the scope of the review petition. The plaintiff can take further proceedings to challenge the findings recorded by the Court in accordance with the law and the review Court cannot set in appeal over the order passed by it. Its jurisdiction is limited and this challenge does not

¶221

34 Neutral Citation No. ( 2024:HHC:8659 )

¶222

fall within the purview of the limited jurisdiction to review the order.

¶223

Further, the Court has specifically noticed in para 24 of the judgment that the observations were made regarding the disposal of the petition and would have no bearing whatsoever with the merits of the case. These findings take care of the grievance of the plaintiff that the findings recorded by the Courts would prejudice the case of the review petitioner/plaintiff on merits.

¶224

Reliance was placed upon various documents filed along with the review petition. It was submitted that these documents pertain to the subsequent events. This is factually incorrect inasmuch as all the documents had come into existence before the decision of this Court in the petition under Article 227 of the Constitution of India. Even the chronology of the events mentioned in para 3 does not mention any fact, which has taken place subsequent to the passing of the order in the petition under Article 227 of the Constitution of India. Thus, the plea that the Court can take notice of the subsequent event does not apply to the present case.

¶225

35 Neutral Citation No. ( 2024:HHC:8659 )

¶226

Much was made out of the fact that this Court had noticed in para 3 of its judgment that previous judgment and decree were dated 19.01.2023 whereas they were dated 19.01.2013. This is merely a clerical error, which did not make any difference to the outcome of the proceedings and is not sufficient to invalidate the order.

¶227

Consequently, there is no merit in the present petition and the same cannot be allowed. Hence, the same is dismissed.

¶228

The observations made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.

¶229

Pending application(s), if any, also stand(s) disposed of.

¶230

(Rakesh Kainthla) Judge

¶231

17^th September, 2024 (Nikita)

Bimal Kumar v. Sanjogita Devi (Deceased through LRs Sonia and Others)

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Bimal Kumar v. Sanjogita Devi (Deceased through LRs Sonia and Others)

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