9911796707
TMI Blog2020 (11) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... That one Shri Ram Sahu, the predecessor of the appellants herein instituted Civil Suit No.04A of 2005 before the Learned Trial Court against the respondents herein original defendants for declaration of registered Sale Deed dated 25.03.1995 executed by original defendant no.3 in favour of original defendant nos. 1 & 2 regarding House No.28/955 (previous House No.3/1582), situated in Sube Ki Payga, Jiwajiganj, Lashkar, as null and void and for permanent injunction against defendant nos. 1 & 2 restraining defendant nos. 1 & 2 from transferring the disputed property to any other person. 2.1. That the original plaintiff Shri Ram Sahu claimed the ownership of the disputed property on the basis of the will executed by one Chhimmabai executed in his favour on 19.10.1993. The original plaintiff also claimed that he became the sole owner on the death of the Chhimmabai and possession holder of the entire house and in the same capacity; he is in continuous possession over the same. It was the case on behalf of the defendants that the said Chhimmabai adopted defendant No.3 and later on, she got registered the Adoption Deed on 13.05.1992 and that the original defendant no.3 sold the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.6. Feeling aggrieved and dissatisfied with the Judgment and decree passed by the Learned Trial Court dismissing the suit, the original plaintiff - appellant herein preferred First Appeal No.241 of 2005 before the High Court. That during the pendency of the said appeal, respondent no.1 herein filed an application under section 151 C.P.C. on 19.03.2012 for dismissing the appeal and for directing the appellant herein to vacate the suit property. That during the pendency of the appeal the original plaintiff - appellant herein filed an application under Order 6 Rule 17 of the CPC by which the plaintiff sought amendment in the relief clause as regards the issuance of permanent injunction and restraining defendant nos.1 and 2 from dispossessing the plaintiffs forcibly from the disputed house. However, the said application came to be dismissed by the High Court on the ground of delay and latches (I.A. No.2244 of 2012). However, while dismissing the said application the High Court granted permission to the appellants to file a separate suit for the said relief against the defendants. Thereafter on appreciation of the evidence on record, the High Court dismissed the said appeal preferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed a grave error in deleting para 20 of the final judgment and order dated 10.12.2013 passed in First Appeal No. 241/2005, in exercise of its review jurisdiction inasmuch as, as such, there was no error apparent on the face of the record, which was required to be corrected; (iv) merely because the specific issue with respect to possession was not framed by the learned trial Court, cannot be a ground to set aside the finding by the High Court, when such finding with respect to possession was on merits and on appreciation of the evidence before the learned trial Court; (v) as such, the High Court has committed a grave error in considering the issues framed in another case being Civil Suit No. 3A/2005, which was related to House No. 28/956 and in which the parties were also different. It is submitted that the High Court has misdirected itself, while considering the issues framed in Civil Suit No. 3A/2005, related to House No. 28/956 and not considering the issues framed in Civil Suit No. 4A/2005; (vi) the High Court ought to have appreciated that the issue of possession was at large before the learned trial Court and, in fact, the parties also led evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is submitted that therefore, in fact, the respondents admitted the possession of the appellants. It is submitted that not only that, but subsequently in the month of September, 2017, the respondents filed a suit against the appellants for decree of possession, compensation and mesne profits. It is submitted that therefore, as such, the respondents herein specifically admitted the possession of the appellants in the suit property; 3.2 It is further submitted that the High Court ought to have appreciated that the review application was filed with a malafide intention faced with the proceedings under Section 340 read with Section 195 Cr.P.C and faced with the order passed by the learned Magistrate directing to register the case against respondent nos. 1 and 2 herein and others under Sections 193, 465, 471 and 120B of the IPC, dated 06.02.2016; 3.3 It is further submitted that, in fact, the appellants filed an application before the High Court under Order 6 Rule 17 CPC (IA No. 2244/2012) to amend the plaint by adding relief for the grant of decree of permanent injunction restraining the respondents defendants not to dispossess them forcibly. It is submitted that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t since no injunction from dispossession was sought and only injunction against further transfer was sought no issue was framed in respect of possession. It is submitted that therefore in absence of any specific issue framed by the Learned Trial Court in respect of possession of the property and when the suit was dismissed and even thereafter the appeal also came to be dismissed, there was no reason and/or occasion for the High Court to make any observation in respect of possession and therefore the High Court has rightly deleted the observations made in para 20 in respect of possession. It is submitted that during the lifetime of Shri Ghisa Lal Sahu, he was in possession of the property. After his death, his wife Smt. Chhimmabai came into possession of the property. She continued to be in possession and after her, the adopted son - Dilip Kumar Sahu came into possession. The issue of adoption of Shri Dilip Kumar Sahu was a subject matter of litigation in Suit No.4A of 2001, where the said adoption and the adoption deed dated 13.05.1992 was challenged. The said suit was finally dismissed by the High Court by an order dated 07.09.2009 in SA No.315 of 2005. The will setup by the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 passed in First Appeal No.241 of 2005 insofar as deleting the observations made in Para 20 as regards the possession of the disputed property, which were in favour of the appellants - original plaintiffs. From the impugned order passed by the High Court, it appears that the High Court has deleted the observations made in para 20 as regards possession of the plaintiffs mainly/solely on the ground that the issue of possession was neither before the Learned Trial Court nor was it before the First Appellate Court and no such issue with respect to possession was framed by the Learned Trial Court. Therefore, the short question falls for consideration before this Court is, whether in the facts and circumstances of the case the High Court is justified in allowing the review application in exercise of powers under Section 114 read with Order 47 Rule 1 CPC on the aforesaid grounds? 6. While considering the aforesaid question, the scope and ambit of the Court's power under Section 114 read with Order 47 Rule 1 CPC is required to be considered and for that few decisions of this Court are required to be referred to. 6.1 In the case of Haridas Das vs. Usha Rani Banik (Smt.) and Others, (2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , AIR 1979 SC 1047, this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order 47 Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the Judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to this Court it was held as under: (SCC p. 390, para 3) "It is true as observed by this Court in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the limits of the statute dealing with the exercise of power. It is further observed in the said decision that 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 Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526. 12.3 In the case of Inderchand Jain vs. Motilal, (2009) 14 SCC 663 in paragraphs 7 to 11 it is observed and 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 appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in Order 47 of the Code must be taken into consideration. Section 114 of the Code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order. 11. Review is not appeal in disguise. In Lily Thomas v. Union of India this Court held: (SCC p. 251, para 56) "56. It follows, therefore, that the power of review can be exercised for 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." 7. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. In the case of Patel Narshi Thakershi vs. Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844, this Court has held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. 8. What can be said to be an error apparent on the face of the proceedings has been dealt with and considered by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to review inter alia if there is a mistake or an error apparent on the face of the record. 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 justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the 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". 8.2 In the case of State of West Bengal and Others vs. Kamal Sengupta and Anr., (2008) 8 SCC 612, this Court had an occasion to consider what can be said to be "mistake or error apparent on the face of record". In para 22 to 35 it is observed and held as under: "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 selfevident and detection thereof requires long debate and process of reasoning, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, the court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order 47 Rule 1, Civil Procedure Code." 26. In Moran Mar Basselios Catholicos v. Mar Poulose Athanasius (supra) this Court interpreted the provisions contained in the Travancore Code of Civil Procedure which are analogous to Order 47 Rule 1 and observed: "32. ... Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely, (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amply evident from the Explanation to Rule 1 of Order 47 which states that 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. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection." 30. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (Supra) this Court considered the scope of the High Courts' power to review an order passed under Article 226 of the Constitution, referred to an earlier decision in Shivdeo Singh v. State of Punjab (Supra) and observed: (Aribam Tuleshwar case (Supra), SCC p. 390, para 3) "3. ... It is true as observed by this Court in Shivdeo Singh v. State of Punjab (Supra), 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, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression 'any other sufficient reason' used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the Rule. 31. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment." 33. In State of Haryana v. M.P. Mohla, (2007) 1 SCC 457 this Court held as under: (SCC pp. 46566, para 27) "27. A review petition filed by the appellants herein was not maintainable. There was no error apparent on the face of the record. The effect of a judgment may have to be considered afresh in a separate proceeding having regard to the subsequent cause of action which might have arisen but the same by itself may not be a ground for filing an application for review." 34. In Gopal Singh v. State Cadre Forest Officers' Assn., (2007) 9 SCC 369 this Court held that after rejecting the original application filed by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or evidence is not sufficient 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." 9. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t no issue was framed by the learned Trial Court with respect to possession and/or there was no issue before the Learned Trial Court with respect to the possession and therefore the observations made in para 20 with respect to possession of the plaintiff - appellant herein was unwarranted and therefore, the same was rightly deleted is concerned first of all on the aforesaid ground the powers under Order 47 Rule 1 could not have been exercised. At the most, observations made in para 20 can be said to be erroneous decision, though for the reasons stated herein below the same cannot be said to be erroneous decision and as observed hereinabove the said observations were made on appreciation of evidence on record, the aforesaid cannot be a ground to exercise of powers under Order 47 Rule 1 CPC. 11.1 Even otherwise nonframing of the issue with respect to possession would have no bearing and/or it fades into insignificance. It is required to be noted that there were necessary pleadings with respect to possession in the plaint as well as in the written statement. Even the parties also led the evidence on the possession. The original plaintiff - appellant herein led the evidence with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or whatever reasons was withdrawn. During the pendency of the appeal, the appellants filed an application under Order 6 Rule 17 of the CPC by which the appellants sought amendment in the relief clause as regards the issue of permanent injunction restraining the respondents defendant nos. 1 and 2 from dispossessing the appellants forcibly from the disputed house. The said application was opposed by the respondents - original defendants. It was submitted that the proposed averment is not necessary at the appellate stage as no averments have been pleaded in the application as to why such a prayer is sought belatedly. It was also submitted that if during the pendency of the suit the plaintiffs have neither been threatened nor have been sought to be dispossessed of the aforesaid property such a prayer at the appellate stage may not be entertained. The High Court dismissed the said application, not on merits but on the ground that the same was submitted belatedly. However, the High Court dismissed the said application with the grant of permission to file a separate suit for the aforesaid relief against the defendants. 13.1 At this stage, it is required to be noted that after a per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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