2024 (4) TMI 1247 - HC - Indian Laws

Maintainability or entertainability of the review application - Section 114 of the Code of Civil Procedure 1908 - Merits of grounds on which review has been sought. Maintainability/entertainability of the review application in view of the subsequent order passed by the trial court - HELD THAT - This Court finds that substantive provision of review of any judgment or order is contained under Section 114 of the Code and is governed by the procedure laid down under Order XLVII. The power of the appellate court to remand a case to the trial court is contained under Order XLI Rules 23 23-A and 25 of the Code and this Court does not find any such provision under the Code either express or implied that would take away the right of a party aggrieved by order of remand to raise a challenge to the same either before a superior court or before the same court by means of a review application merely because the remand order has been given effect to in terms of a subsequent order. The only prohibition against consideration of an application at an advanced stage of proceedings can be found in a case where an ex-parte decree drawn by the trial court merges into decree of appellate court and in that event application for setting aside the ex-parte decree would not lie before the trial court; vide Explanation attached to Rule 13 of Order 9 C.P.C. An appeal as well as review being creatures of statute the right to lay a challenge either by way of appeal or by review or otherwise would fall on the same footings and merely because the remand order has been given effect to in terms of a subsequent decision the same would not render the challenge as infructuous or not maintainable. Merits of grounds on which review has been sought - HELD THAT - Section 114 of the Code of Civil Procedure being the substantive provision for review clearly uses the words the Court may make such order thereon . It means that power to allow or reject a review application depends on discretion of the Court in given facts and circumstances of a particular case and the Court is not bound to allow the application in every case and situation - Review is not an appeal in disguise. Rehearing of the matter is impermissible in the garb of review. It is an exception to the general rule that once a judgment is signed or pronounced it should not be altered. It is well settled that injunction application is decided on the basis of stand taken in the affidavits as well as documents annexed thereto and focus is on prima facie case balance of convenience and irreparable loss only. The consideration of an injunction application cannot be equated with holding of full-fledged trial of the suit itself where decision is made on the basis of primary and secondary evidence led by the parties during the course of trial - Despite the same this Court neither expressed any final or even tentative opinion on the merits of rival claims of the parties nor did it record any finding thereon and admittedly the parties led additional evidence before the trial court in pursuance of the order of remand. If the documents already on record or those subsequently filed as additional evidence have or have not been considered or wrongly interpreted by the trial court in its subsequent order dated 30.01.2024 it may be a matter of scrutiny in pending appeal against the said order but cannot be a ground for reviewing the remand order - there are no error apparent on the face of the record nor any other ground to review my order of remand. Conclusion - The review application dismissed on merits finding no error apparent on the face of the record or other grounds justifying review. Application dismissed.

Summary

ISSUES PRESENTED and CONSIDERED

The judgment addresses two primary issues:

(i) The maintainability or entertainability of the review application in light of the subsequent order passed by the trial court.

(ii) The merits of the grounds on which the review has been sought.

ISSUE-WISE DETAILED ANALYSIS

Maintainability/Entertainability of the Review Application

Relevant Legal Framework and Precedents: The application for review is governed by Section 114 of the Code of Civil Procedure, 1908, and the procedure under Order XLVII. The power of appellate courts to remand cases is under Order XLI Rules 23, 23-A, and 25. The Court examined precedents, including Smt. Yasmeen Zia vs. Smt. Haneefa Khursheed and Nagesh Datta Shetti vs. The State of Karnataka, to determine the applicability of review despite the remand order being executed.

Court's Interpretation and Reasoning: The Court found no provision in the Code that precludes a party from challenging a remand order through review merely because the remand order has been executed. The Court emphasized that the right to appeal or review is a substantive right and should not be restricted unless explicitly stated by statute.

Key Evidence and Findings: The Court noted that the review application was filed before the trial court's subsequent decision, and no interim order was issued to stay the proceedings. The Court also referred to the procedural history and the timing of filings to support its decision.

Application of Law to Facts: The Court applied the principle that the execution of a remand order does not render a review application infructuous. It emphasized the importance of allowing substantive rights to be exercised unless specifically barred by law.

Treatment of Competing Arguments: The Court considered the respondent's argument that the review application was rendered infructuous by the subsequent trial court decision but found the precedents and statutory interpretation favored the applicants.

Conclusions: The Court concluded that the review application is maintainable and proceeded to examine the merits.

Merits of the Review Application

Relevant Legal Framework and Precedents: The Court discussed the grounds for review under Order XLVII Rule 1, emphasizing that review is limited to errors apparent on the face of the record, discovery of new evidence, or analogous grounds. The Court cited cases such as Thungabhadra Industries Ltd. vs. The Government of Andhra Pradesh and Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma to outline the scope of review.

Court's Interpretation and Reasoning: The Court found that the order dated 07.08.2023, which remanded the matter, did not record any findings on the merits of the case but addressed procedural deficiencies. The Court emphasized that the review process is not an appeal and is limited to correcting patent errors.

Key Evidence and Findings: The Court reviewed the procedural history, including the submission of documents and affidavits, and noted that the remand order was based on the lack of detailed findings by the trial court.

Application of Law to Facts: The Court applied the legal principles to determine that the remand order was procedural, not substantive, and that the review grounds did not meet the criteria for reviewable error.

Treatment of Competing Arguments: The Court addressed the applicants' claims of error and concealment but found that these arguments were more appropriate for the appeal against the trial court's subsequent decision rather than a review of the remand order.

Conclusions: The Court dismissed the review application on merits, finding no error apparent on the face of the record or other grounds justifying review.

SIGNIFICANT HOLDINGS

Preserve Verbatim Quotes of Crucial Legal Reasoning: The Court noted, "Review is not an appeal in disguise. Rehearing of the matter is impermissible in the garb of review."

Core Principles Established: The judgment reinforced that the execution of a remand order does not preclude a review application, provided the grounds for review are met. It also reiterated the limited scope of review, focusing on patent errors and procedural issues rather than substantive re-evaluation of the case.

Final Determinations on Each Issue: The Court held the review application maintainable but dismissed it on merits, leaving the substantive issues to be addressed in the pending appeal against the trial court's subsequent decision.