Banshidhar Agrawala v. The State of Manipur — 1970 DIGILAW 81 (GAU)

ORDER :- This order will dispose of review applications Nos. 91, 92 and 96 to 109 as the questions involved in each one of them are identical. 2. The relevant facts are that the suits of the present applicants for khas possession of certain plots of land forming part of erstwhile British Reserve in the town of Imphal were dismissed by the Subordinate Judge, Manipur, by a common judgment dated 10-3-1967, in consequence of his finding on a preliminary issue which was worded as follows :- "1-A. Whether the resumption of the suit land by cancelling the patta by the then Political Agent of Manipur prior to the Independence of India on 15-8-1947 and the subsequent acts of the Political Agents and erstwhile State of Manipur in granting the lands to some of the defendants before the integration on 15-10-49 arose out of and during an act of State? Is the suit, therefore, unmaintainable in the ordinary Civil Court?" The present applicants having felt aggrieved with the dismissal of their suits filed revision petitions in this Court under Section 115 of the Civil Procedure Code read with Section 34 of the Manipur (Courts) Act, 1955. When those revision petitions came up for hearing in this Court on 7-8-1970, the Government Advocate raised the preliminary objection that they were not maintainable inasmuch as the suits having been dismissed and decrees of dismissal having been passed, the aggrieved plaintiffs could have challenged the decrees by way of appeal. In support of that contention the learned Government Advocate placed reliance on the decision in AIR 1964 SC 497 , Major S. S. Khanna v. Brig, F. J. Dillon, to the effect that "If an appeal lies against the adjudication directly to the High Court, or to another Court from the decision of which an appeal lies to the High Court, it has no power to exercise its revisional jurisdiction." That contention of the Government Advocate prevailed in this Court. The relevant passage in the judgment dated 7-8-1970 of this Court by which the revision petitions were dismissed as not maintainable runs as under : "Since all the suits relate to immovable properties and a number of questions of law are involved, second appeal to this Court would be competent after the first appeal is disposed of by the District Court. Therefore, the case would fall within the ambit of the rule laid by the Supreme Court in the case of Major S. S. Khanna, AIR 1964 SC 497 ." Other observations made in that order were that one of the essential conditions which must be established to enable an aggrieved party to file revision petition even under Section 34 of the Manipur (Courts) Act is that no appeal lies to the High Court against the impugned order of the Subordinate Court, and that consequently there is no difference between Section 115 of the Code and Section 34 of the Act in that respect. In the instant batch of 16 applications, review is sought of that order dismissing the revision petitions. 3. Shri K. Misra, appearing for the applicants, submitted that review was claimable on the ground that there is mistake of law apparent on the face of the record. The mistake mentioned by him is that the view expressed by this Court in the order dated 7-8-1970 that a review under Section 34 of the Act would be competent only if no appeal lay to the High Court against the impugned order of the Subordinate Court is manifestly erroneous. The expression "some mistake or error apparent on the face of the record" used in Rule 1, Order XLVII, of the Code has been interpreted in a large number of judicial pronouncements. The consensus of opinion is that a mistake or error mentioned in the rule should be so manifest and clear that no Court would stand its being retained on the record, and that an erroneous view of the law on a controversial point or a wrong exposition of the law cannot be considered as a mistake or error apparent on the face of the record. In other words, no review is competent if the decision though erroneous had been considerately reached and rendered in awareness. An error or mistake as a consequence of a wrong judgment on a point debated before the Court must obviously be the subject of an appeal or revision in the higher Court rather than be assailed in a review application. In other words, no review is competent if the decision though erroneous had been considerately reached and rendered in awareness. An error or mistake as a consequence of a wrong judgment on a point debated before the Court must obviously be the subject of an appeal or revision in the higher Court rather than be assailed in a review application. The Bombay High Court held in AIR 1959 Bom 466 , S. P. Awate v. C. P. Fernandes, that the error contemplated by Rule 1 of Order XLVII is not an error which could be demonstrated by a process of ratiocination, nor would it be correct to say that when two views on a question of law are possible and the Court has taken one view, the fact that the other view is acceptable view would render the first view an error apparent on the face of the record. 4. When the matter in controversy is examined in the background of the principles stated above, it looks evident that the order dated 7-8-1970 does not suffer from the vice of an error or mistake apparent on the face of the record. The precise point raised by Shri Misra at the hearing of the revision petitions was that the special right of revision given by Section 34 of the Act is not subject to the condition that no appeal should lie to the High Court from an order made by a Court subordinate to it. This contention of Shri Misra was rejected. Assuming for the sake of argument that the view taken by this Court is wrong, it is not open to Shri Misra to contend that there is an error apparent on the face of the record. If the contention of Shri Misra were to prevail then the decision by a Court on every controversial question of law could be open to challenge by an application for review instead of the matter being taken in the superior Court of appeal or revision. Surely, this could not have been the intention of the Legislature underlying the provisions enacted in Order XL VII. The power of review enjoyed by the High Court in terms of Order XL VII is indeed very limited. Therefore, I have no difficulty in holding that the present review applications are altogether misconceived and so merit rejection. 5. Surely, this could not have been the intention of the Legislature underlying the provisions enacted in Order XL VII. The power of review enjoyed by the High Court in terms of Order XL VII is indeed very limited. Therefore, I have no difficulty in holding that the present review applications are altogether misconceived and so merit rejection. 5. On merits as well, it is not possible to accept the contention of Shri Misra. The relevant part of Section 34 of the Act is in the following terms : "In addition to the powers conferred by Section 115 of the Code of Civil Procedure, 1908, the Court of the Judicial Commissioner may, on application made to it, call for the record of any case which has been decided by a civil Court subordinate to it and in which no appeal lies to it and if the Court of the Judicial Commissioner is of opinion that there is an important question of law or custom and the question requires further consideration, the Court of the Judicial Commissioner may make such order in the case as it thinks fit." It looks clear to me that this special power of revision can be exercised by the High Court only if no appeal can lie to it in either of the manners pointed by the Supreme Court in the case of Major S. S. Khanna, AIR 1964 SC 497 (supra). Shri Misra urged that the underlined words of Section 34 just reproduced refer not to the special right of revision given by that section but relate to such right conferred by Section 115 of the Code. I regret my inability to accept that contention as well founded. The plain words of the section clearly negative such an interpretation. 6. For the reasons stated above, the review applications fail and so they all stand rejected in limine. Applications dismissed.