TMI Blog2018 (5) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... S. K. Awasthi, JJ. Ms. Veena Mandlik, learned counsel for the petitioner Shri Sumit Nema, learned senior counsel with Shri Gagan Tiwari, learned counsel for the respondent. ORDER Heard on I.A. No.2052/2018, which is an application for condonation of delay. The same is allowed. Delay stands condoned. This present Review Petition is filed for reviewing the order dated 24.10.2017 passed in I.T.A. Nos.106/2018, 107/2016 and 108/2016. Learned counsel for the petitioner has argued before this Court that the appeals have been decided taking into account the issue of depreciation of assets and other grounds have not been considered. Shri Sumit Nema, learned senior counsel for the respondent has argued before this Court that other grounds have not at all argued before this Court. He has drawn the attention of this Court towards the judgment delivered in the case of Thakur Sukhpal Singh v/s Thakur Kalyan Singh and Another (1963) 2 SCR 733. The apex Court in the aforesaid case in para-4, 6, 7, 8, 10, 15 and 16 has held as under:- 4. Order 41 Rule 16 of the Code provides the procedure to be followed by the appellate Court on the hearing of an appeal which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e very means designed for the furtherance of justice be used to frustrate it. 08. The provisions of Rule 31 should therefore be reasonably construed and should held to require the various particulars to be mentioned in the judgment only when the appellate has actually raised certain points for determination by the appellate Court, and not when no such points have been raised as had been the case in the present instance when the appellant did not address the Court at all. The provisions of r.30 of O.XLI support our construction of r.31. This rule reads: The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceeding, whether on appeal or in the Court from whose decree the appeal is preferred to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders. It is to be noticed that this rule does not make it incumbent on the appellate Court to refer to any part of the proceedings in the Court from whose decree the appeal is preferred The appellate Court can refer, after hearing the parties and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of r. 31 of O.XLI C.P.C., when the appellant did not address the Court. In light of the aforesaid judgment, when the appellant has not addressed this Court on the issue, this Court has passed an order on the issue of depreciation of assets. There is no error apparent on face of record warranting review. The Apex Court in the case of Haridas Das Vs. Usha Rani Bank (Smt) and Ors., reported in (2006) 4 SCC 78 in paragraph 13 and 20 has held as under :- 13. In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it may make such order thereon as it thinks fit . The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing on account of some mistake or error apparent on the face of the records or for any other sufficient reason . The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 2 Rule 2 CPC. This was not a case where Order 2 Rule 2 CPC has any application. In the aforesaid case, the Apex Court has held that rehearing of a case can be done on account of some mistake or an error apparent on the face of the record or for any other sufficient reason. In the present case, there is no error apparent on the face of the record and the petitioner in fact under the guise of review is challenging the order passed by this Court, which is under review. Similarly the Apex Court in the case of State of West Bengal and Ors. Vs. Kamal Sengupta and Anr., reported in (2008) 8 SCC 612 in paragraphs 21, 22 and 35 has held as under:- 21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, 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 afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent ground for review. The party seeking review has also to show that such 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/tribunal earlier. In the aforesaid case the Apex Court has held that a mistake or an error apparent on the face of the record means a mistake or an error which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record, on the contrary this Court has decided the case on merits. The Apex Court again dealing with the scope of interference and limitation of review in the case of Inderchand Jain (dead) Through LRs Vs. Motilal (dead) Through LRs, reported in (2009) 14 SCC 663 in paragraphs 7, 22, 24, 29, 31 and 33 has held as under :- 7. Section 114 of the Code of Civil Procedure (for short the Code ) provides for a substantive power of review by a civil court and consequently by the appellate courts. The words subject as aforesaid occurring in Section 114 of the Code mean subject to such conditions and limitations as may be prescribed as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he premises vacated from the tenants within three months. (iv) The appellant had prayed for an alternative relief viz. that he was ready to get the decree for specific performance of contract by paying ₹ 1,15,000. The court did not consider the evidence of DWs 1 to 6 in their proper perspective. (v) The court did not consider that the property could not be restored back to the appellant- defendant and as such the court should have exercised its discretionary jurisdiction. 24. An appeal is a continuation of the suit. Any decision taken by the appellate court would relate back, unless a contrary intention is shown, to the date of institution of the suit. There cannot be any doubt that the appellate court while exercising its appellate jurisdiction would be entitled to take into consideration the subsequent events for the purpose of moulding the relief as envisaged under Order 7 Rule 7 read with Order 41 Rule 33 of the Code of Civil Procedure. The same shall, however, not mean that the court would proceed to do so in a review application despite holding that the plaintiff was not entitled to grant of a decree for specific performance of contract. 29. Order 41 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit. In our opinion, the principles of law enumerated by it, in the facts of this case, have wrongly been applied. The Apex Court while dealing with the scope of review has held that re-appreciation of evidence and rehearing of case without there being any error apparent on the face of the record is not permissible in light of provisions as contained U/s 114 and Order 47 Rule 1 of Code of Civil Procedure, 1908. The Apex Court in the case of S. Bagirathi Ammal Vs. Palani Roman Catholic Mission, reported in (2009) 10 SCC 464 in paragraphs 12 and 26 has held as under :- 12. An 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. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the court. If the error is so apparent that without fur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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