Dismissed

The State of Madhya Pradesh v. Indrajeet Singh

Madhya Pradesh HC23 Jan 2024RP/716/2023

Case brief

AI extract

What is this about?

In this review petition under Order 47 Rule 1 and Section 115 CPC, the State challenged the High Court's first appeal judgment granting specific performance. The Court held that the arguments raised did not constitute errors apparent on the face of the record, barred it from acting as an appellate court, and dismissed the review.

What did the court decide?

Review petition is dismissed; judgment and decree dated 13-06-2023 are confirmed.

The State of Madhya Pradesh Vs… — Civil Procedure and Limitation | Madhya Pradesh HC (2024)

¶1

¶2

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR

¶3

BEFORE

¶4

HON'BLE SHRI JUSTICE GAJENDRA SINGH ON THE 23^rd OF JANUARY, 2024

¶5

REVIEW PETITION No. 716 of 2023

¶6

BETWEEN:-

¶7

1. THE STATE OF MADHYA PRADESH THROUGH THE COLLECTOR COLLECTOR DISTRICT BHOPAL (M.P) (MADHYA PRADESH)

¶8

2. NAZUL OFFICER RAJDHANI PROJECT JAWAHAR CHOWK NORTH T.T. NAGAR BHOPAL (MADHYA PRADESH)

¶9

.....PETITIONERS

¶10

(BY SHRI MUKUND AGARWAL - GOVT. ADVOCATE)

¶11

AND

¶12

INDRAJEET SINGH S/O SHRI BHANWAR SINGH, AGED ABOUT 51 YEARS, R/O E 4/136 ARERA COLONY BHOPAL (M.P) (MADHYA PRADESH)

¶13

.....RESPONDENTS

¶14

(BY SHRI AJAY KUMAR OJHA - ADVOCATE )

¶15

This petition coming on for admission this day, the court passed the following:

¶16

ORDER

¶17

This Petition under Order 47 Rule 1 r/w Section 115 of CPC is preferred seeking review/recall of judgment and decree dated 13-06-2023 passed in First Appeal No. 634/1999 filed by the respondent for its adjudication on merits.

¶18

2. Facts in brief are that the Civil Suit for specific performance of the agreement regarding plot No. E-2/15 Arera Colony, Bhopal and injuncting the appellant/defendant to put on re-auction or to transfer or to allot the same was filed before the District Court, Bhopal and the suit was registered as Civil Suit

¶19

Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 25 -01-2024 19:58:51

¶20

¶21

2-A/1996.

¶22

3. The review petitioners/ defendants opposed the suit filing the written statement and specific defence was advanced that there is no legal enforceable contract between the parties. It was also raised that suit has not been valued properly and proper court fees has not been paid.

¶23

4. The trial Court recorded the evidence of Dinesh Kumar Bajpayee ( PW-1), K.K.Jaiswal (PW-2), Reader to Commissioner- R.S. Tiwari (PW-3), Revenue Inspector-Muzaffar Hussain (PW-4), Plainiff-Indrajeet Singh (PW-4A) and defendant examined Muzibur Rahman Khan (DW-1) and the trial Court vide judgment dated 27-07-1999 dismissed the suit for specific performance and permanent injunction and ordered to refund Rs. 3310/- from the date of deposit till realisation with 12% interest to plaintiff/respondent.

¶24

5. The plaintiff filed appeal in the High Court and the High Court of Madhya Pradesh vide judgment dated 13-06-2023 in FA No. 634/1999 allowed the appeal and set aside the judgment and decree dated 27-07-1999 passed by the District Judge, Bhopal in Civil Suit No. 2-A/1996 and directed the appellant ( Indrajeet Singh)/plaintiff to pay the balance of the due amount to the respondents( petitioners ) by demand draft/bankers cheque within a period of one month from the date of judgment and take consequential steps in pursuance to auction sale being confirmed in favour of appellant after registration of sale deed in his name and take possession of the land in question.

¶25

6. Feeling aggrieved by judgment and decree dated 13-06-2023, this petition( review) has been preferred on the following grounds:-

¶26

(a) Because, due to lack of attention,the Hon'ble Court, ignored the defence taken by the petitioner, which was laid down in Para-8 of the judgment.

¶27

Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 25 -01-2024 19:58:51

¶28

¶29

(b) Because, the Hon'ble Court has failed to see that in the absence of notice under Section 80 of CPC, the suit was not maintainable and deserves to be rejected but, the Hon'ble Court due to lack of attention has made a prima facie observable error and has passed the impugned judgment.

¶30

(c) Because, the citation cited by the petitioner could not be considered by the Hon'ble Court and not a single word was said by the Hon'ble Court which is prima facie observable error, which needs to be reviewed on the basis of the citation, first appeal filed by the respondents/appellants should be rejected with cost.

¶31

(d) Because, on the face of record, it is clear that the case was time barred but, the Hon'ble Court has made a prima-facie observable error in not cnosidering the important facts as well as the law.

¶32

(e) Because, that the impugned order passed by the Civil Court was an absolute and perfect judgment and does not require any interference but, the Hon'ble Court has made a prima facie observable error and rejected the judgment passed by the learned Lower Court.

¶33

(f) Because, that the petitioner has filed the final written arguments but, the Hon'ble Court due to lack of attention did not even saw the final arguments as the Hon'ble Court has not mentioned the facts and citation stated in the final arguments.

¶34

(g) Because, that the Hon'ble Court by mistake did not consider the admission made by the respondents in the evidence adduced before the Lower Court thus, the Hon'ble Court has made a prima facie observable error and passed the impugned judgment which requires to be reviewed.

¶35

(h) Because, the Hon'ble Court has failed to appreciate the facts and

¶36

case law presented before the Hon'ble Court by way of written arguments.

¶37

Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 25 -01-2024 19:58:51

¶38

¶39

Thus, the judgment passed by the Hon'ble Court requires to be recalled/reviewed.

¶40

7. Heard.

¶41

8. Learned counsel for the respondent/plaintiff opposed the petition on the ground that the points raised by the appellant does not constitute the grounds for application for review of the judgment. This court cannot sit as an Court of Appeal. The respondent/plaintiff relied on Arun Dev Upadhayay Vs. Integrated Sales Services Limited and Another 2023 Livelaw SC 506.

¶42

9. Counsel for the petitioners/defendants based their argument referring to Gangadhar Palo Vs. The Revenue Divisional Officer and another 2011(II) MPWN 73, Rajender Singh Vs. Lt. Governor, Andaman & Nicobar Islands (2005) 13 SCC 289 and Rasiklal Manikchand Dhariwal Vs. M.S.S Food Products (2012) 2 SCC 196.

¶43

10. Before adverting to the main contents of the application we are referring to the judgment relied by the petitioners/defendants. In paragraph-15 of Gangadhar Palo ( supra ), it has been held as under :-

¶44

"15. By a judicial order, the power of review cannot be taken away as that has been conferred by the statute or the Constitution. This Court by judicial orders cannot amend the Statute or the Constitution."

¶45

In the case of Rasiklal Manikchand Dhariwal (supra) in paragraph-93 it has been held as under :-

¶46

"93. The doctrine of proportionality has been expanded in recent times and applied to the areas other than administrative law. However, in our view, its applicability to the adjudicatory process for determination of “civil disputes” governed by the procedure

¶47

Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 25 -01-2024 19:58:51

¶48

¶49

prescribed in the Code is not at all necessary. The Code is comprehensive and exhaustive in respect of the matters provided therein. The parties must abide by the procedure prescribed in the Code and if they fail to do so, they have to suffer the consequences. As a matter of fact, the procedure provided in the Code for trial of the suits is extremely rational, reasonable and elaborate. Fair procedure is its hallmark. The courts of civil judicature also have to adhere to the procedure prescribed in the Code and where the Code is silent about something, the court acts according to justice, equity and good conscience. The discretion conferred upon the court by the Code has to be exercised in conformity with settled judicial principles and not in a whimsical or arbitrary or capricious manner. If the trial court commits illegality or irregularity in exercise of its judicial discretion that occasions in failure of justice or results in injustice, such order is always amenable to correction by a higher court in appeal or revision or by a High Court in its supervisory jurisdiction."

¶50

In the case of Rajender Singh (supra) , in paragraph-15 it has been held as under:-

¶51

"15. We are unable to countenance the argument advanced by learned Additional Solicitor General appearing for the respondents. A careful perusal of the impugned judgment does not deal with and decide many important issues as could be seen from the grounds of review and as raised in the grounds of special leave petition/appeal. The High Court, in our opinion, is not justified in ignoring the

¶52

Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 25 -01-2024 19:58:51

¶53

6 materials on record which on proper consideration may justify the claim of the appellant. Learned counsel for the appellant has also explained to this Court as to why the appellant could not place before the Division Bench some of these documents which were not in possession of the appellant at the time of hearing of the case. The High Court, in our opinion, is not correct in overlooking the documents relied on by the appellant and the respondents. In our opinion, review jurisdiction is available in the present case since the impugned judgment is a clear case of an error apparent on the face of the record and non-consideration of relevant documents. The appellant, in our opinion, has got a strong case in his favour and if the claim of the appellant in this appeal is not countenanced, the appellant will suffer immeasurable loss and injury. Law is well settled that the power of judicial review of its own order by the High Court inheres in every court of plenary jurisdiction to prevent miscarriage of justice."

¶54

11. Now, we are considering the scope of review -

¶55

The scope of review before this Court is limited to the extent of ground available under Order 47 rule 1 CPC which is reproduced below for ready reference and convenience:-

¶56

Order XLVII

¶57

1. Application for review of judgment.—

¶58

(1) Any person considering himself aggrieved—

¶59

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

¶60

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

¶61

Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 25 -01-2024 19:58:51

¶62

¶63

(c ) b y a decision o n a reference from a Court o f 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 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.

¶64

(2) A party who is not appealing from a decree or 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 applied for the review.

¶65

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.

¶66

12. The Hon'ble Apex Court in the matter of Kamlesh Verma Vs. Mayawati and Others, (2013) 8 SCC 320,has laid down t h e following principles ''when review will be maintainable'':-

¶67

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

¶68

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

¶69

Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 25 -01-2024 19:58:51

¶70

¶71

(iii) Any other sufficient reason.

¶72

13. Similarly, in the matter of Moran Mar Basselios Catholicos Vs. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 the Hon'ble Apex Court has laid down the following principles ''when review will not be maintainable'':-

¶73

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

¶74

(ii) Minor mistakes of inconsequential import.

¶75

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

¶76

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

¶77

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

¶78

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

¶79

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

¶80

(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.

¶81

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

¶82

14. In the matter of Board of Control of Cricket India vs. Netaji Cricket

¶83

Club (AIR 2005 SC 592), it is observed by the Hon'ble Apex Court that the

¶84

Signature Not Verified

¶85

Signed by: PARMESHWAR GOPE Signing time: 25 -01-2024 19:58:51

¶86

¶87

words “sufficient reason”occurring in Rule 1 of Order 47 of CPC is wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine 'actus curiae neminem gravabit'” Similarly, in the matter of Union of India Vs. Harinagar Sugar Mills Ltd., (AIR 2008 (Gau) 161,it is observed that the review is not an appeal in disguise. The scope of review as well as the appeal is completely different. While the review petition is limited, the appellate jurisdiction is wide. In the matter of Akhilesh Yadav Vs. Vishwanath Chaturvedi & Ors. (2013 AIR SCW 1316),the Hon'ble Apex Court held that scope of review petition is very limited and submissions made on questions of fact cannot be a ground to review the order. It was further observed that review of an order is permissible only if some mistake or error is apparent on the fact of the record, which has to be decided on the facts of each and every case. Further, held that an erroneous decision, by itself, does not warrant review of each decision.

¶88

15. The scope of compass of review of an order by a Court of Civil Judicature, is circumscribed by Section 114 of the Code which provides that a review of an order is permissible upon a discovery of new and important matter of evidence. But in the present case no new and important matter has been brought before the Court by the review petitioner. It is also well settled that only error apparent on the face of record is liable to be reviewed and such error must state one in the face where no elaborate arguments are necessary to pin-point the error.(See:Abhijit Tea Company Pvt. Ltd. v. M/s Terai Tea Company Pvt.Ltd. (AIR 1995 Cal 316).

¶89

16. It is well-settled principle of law that in the guise of review, rehearing

¶90

Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 25 -01-2024 19:58:51

¶91

¶92

is not permissible. In order to seek review, it has to be demonstrated that order suffers from error apparent on the face of record. The Court while deciding the application for review cannot sit on appeal over the judgment or decree passed by it. The review petitioner cannot be given liberty to readdress the Court on merits because it is not an appeal in disguise where the judgment/order is to be considered on merits.[See: J.R. Raghupathy Vs. State of A.P. (AIR 1988 SC1681), S. Bagirathi Ammal v. Palani Roman Catholic Mission, (2009) 10 SCC 464 and State of West Bengal and Others v. Kamal Sengupta and Another, (2008) 8 SCC 612 ].

¶93

17. The Hon'ble Apex Court further in the matter of State Of West Bengal & Ors. Vs. Kamal Sengupta & Anr., (2008) 8 SCC 612 has held that mistake or error apparent on the face of the record means that mistake or error which is prima facie visible and does not require any detail examination. Erroneous view of law is not a ground for review and review cannot partake the category of the appeal."

¶94

18. The Hon'ble Apex Court in the case of Arun Dev Upadhyaya(supra) in paragraph-15 has held as under :-

¶95

"15. From the above, it is evident that a power of 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."

¶96

19. The trial Court in paragraph-9 of the judgment had decided the issue No. 5 regarding limitation and had decided that the suit is within limitation. The trial Court has also held in paragraph-10 of the judgment regarding issue No. 6

¶97

Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 25 -01-2024 19:58:51

¶98

¶99

that proper courts fees has been paid.

¶100

20. The High Court of Madhya Pradesh at Jabalpur in Managing Director Corporation Lamta Project Balaghat Vs. Bhejanlal ( dead) through LRs & Ors. in Second Appeal No. 1551/2020 judgment dated 0202-2023 has held in paragraph-16 to 20 as hereinunder :-

¶101

"16. Thus, it is clear that the basic purpose of the notice under Section 80 of CPC is to give an opportunity to the State and its functionaries to resolve the dispute thereby saving the valuable time and money of the State. However, it is a procedural law. Although,provision of Section 80 of CPC is mandatory but it can be waived by the defendants.

¶102

17. If the written statement filed by the defendants is considered, then it is clear that no objection was raised before the Trial Court . Even,the said objection has been raised for the first time during the course of arguments only.

¶103

18. Be that as it may.

¶104

19. Since the requirement of Section 80 of CPC can be waived by the defendants and by not having raised the same in the written statement, this Court is of the considered opinion that once the defendants have waived the requirement of Section 80 of CPC, the respondents cannot be non-suited on the ground of premature nature of suit.

¶105

20.Accordingly, the first contention made by the counsel for the appellant is hereby rejected."

¶106

21. Perusal of written statement filed on behalf of appellant/defendant reveals the objection regarding non-compliance of Section 80 of CPC was not

¶107

Signature Not Verified

¶108

Signed by: PARMESHWAR GOPE Signing time: 25 -01-2024 19:58:51

¶109

¶110

raised at the first opportunity. In the light of Madhya Pradesh at Jabalpur in Managing Director Corporation Lamta Project Balaghat (supra), the ground No. (b) has no force.

¶111

22. The paragraph-8 of the judgment is the summary of arguments and contents of the written arguments filed on behalf of appellants/defendants in which judgment relied by appellants/defendants are mentioned.

¶112

23. The judgment referred by the appellants/defendants in paragraph-15, 16 and 17 of the written arguments i.e. Haryana State Agriculture Marketting Board & Ors Vs. Sadhuram 2008 (16) SCC 405, Union of India and Ors. Vs. Bhimsen Walaitiram 1969 (3) SCC 146 and Haryana Urban Development Authorities & Ors. Vs. Orchid Infrastructure Developer Pvt. Ltd. 2017 (4) SCC 243 are referred in paragraph-7 and 8 of the Judgment dated 13-06-2023 and the findings are recorded in paragraph-17 of the judgment.

¶113

24. Perusal of paragraph-14 to 18 of the judgment dated 13-06-2023 reveals that through a judicial process of reasonings, the High Court has reversed the finding recorded by the Trial Court with regard to issue Nos.1, 3 and 7 and allowed the appeal in favour of the respondent/plaintiff. An erroneous decision on merits (Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma (1979) 4 SCC 389 or an erroneous view of law (Thungabhadra Industries Ltd. Vs. Govt. Of A.P. AIR 1964 SC 1372) or that different conclusions would have been arrived at, are not errors apparent on the face of record.

¶114

25. A perusal of aforesaid provisions as well as law laid down by the Hon'ble Apex Court reveals that none of the grounds available for review under Order 47 Rule 1 of CPC is made out on the basis of grounds raised by the petitioner in the present matter.

¶115

Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 25 -01-2024 19:58:51

¶116

¶117

26. In view of above, the judgment and decree dated 13-06-2023 passed by this Court does not suffer from any error apparent on the face of record warranting review of the same by this Court.

¶118

27. Review petition fails and is hereby dismissed.

¶119

(GAJENDRA SINGH) JUDGE

¶120

¶121

Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 25 -01-2024 19:58:51

The State of Madhya Pradesh v. Indrajeet Singh

Case brief

What is this about?

What did the court decide?

The State of Madhya Pradesh v. Indrajeet Singh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases