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2003 DIGILAW 193 (AP)

Sharada Bai v. Padamlal

2003-02-04

G.ROHINI

body2003
O R D E R This is a petition to review the order in C.R.P.No.5696 of 2001 dated 19.4.2002. 2. Heard both sides and perused the grounds of Review. 3. The main Revision Petition was preferred against the order of the trial Court in I.A.No.632 of 2001 in O.S.No.231/1972 on the file of the Court of the court of the IX Junior Civil Judge, City Civil Court, Hyderabad, where under the Revision Petitioners were directed to produce the documents marked as exhibits in O.S.No. 231 of 1972which were returned to the 2nd Revision Petitioner earlier in pursuance of the order dated 5.2.1985 in I.A.No.11 of 1985. The Revision Petition was dismissed by this Court holding that-the order under Revision does not suffer from any illegality or material irregularity in exercise of the jurisdiction vested under law. Now this Review Petition is preferred by the Revision Petitioners under Section 114 read with0rder47 Rule 1 of Civil Procedure Code seeking review of the order in the Revision Petition. Since the facts leading to the filing of the Revision Petition were stated in detail in the order under review, it is not necessary to repeat the same. 4. It is pertinent to note that in the main revision, the petitioners contended ‘inter alia’ that the documents in question were returned to the 2nd revision petitioner in pursuance of the order dated 5.2.1985 in I.A.No.11 of 1985 and it is not open to the respondents to seek a direction for producing the said documents into the Court after more than 15 years. It was contended by the revision petitioners that the order to produce the documents would amount to recalling the order in I.A.No.11 of 1985 dated 5.2.1985 and the same is not permissible in view of the decision of the Apex Court in BUDHIA SWAIN VS. GOPINATH DEB(1). The said contention has been considered by this Court in detail and it was held as follows at Para 15 of the order: “However, I am of the view that the ratio laid down in the above case does not attract to the facts and circumstances of the present case. In my opinion the order under revision does not amount to recalling the earlier order made in I.A.No.11 of 1985. As expressed above the 2nd revision petitioner obtained return of the documents subject to an undertaking that he would produce. In my opinion the order under revision does not amount to recalling the earlier order made in I.A.No.11 of 1985. As expressed above the 2nd revision petitioner obtained return of the documents subject to an undertaking that he would produce. them whenever directed by the Court. Subsequently in view of the dispute raised by the respondents herein claiming that they are entitled to return of documents the Court below while conducting enquiry in I.A.No.631 of 2001 thought it fit to direct the 2nd revision petitioner to produce the documents in question to enable the Court to conduct a regular enquiry in I.A.No.631 of 2001. In my considered opinion the order under Revision is only a step in aid to conduct necessary enquiry in I.A.No.631 of 2001, which is in conformity with the undertaking given by the 2nd revision petitioner. Merely because the said direction was issued on an application made by the rival parties it cannot be said that the order suffers from any infirmity. “ 5. The main contention now raised in this Review Petition is that this Court while dismissing the Revision Petition and confirming the Order under Revision failed to properly appreciate the ratio laid down by the Apex Court in Budhia Swain Vs. Gopinath Deb (1 supra). The learned counsel for the Review Petitioners vehemently contended that the order passed in I.A.No.11 of 1985 about 15 years ago has attained finality and cannot be reopened, except on the ground of fraud. He further contended that the respondents failed to make out even a prima facie case to show any fraud on the part of the revision petitioners, and the order in I.A.No.11 of 1985 cannot be recalled at this length of time. Therefore according to the learned counsel the order dismissing the Revision Petition is not in conformity with the principles laid down in Budhia Swain Vs. Gopinath Deb case (1 supra) and therefore the order requires review. 6. The further contention raised by the learned counsel for the petitioners in support of he Review Petition is that the documents in question can be taken back only by the 2nd revision petitioner who produced them at the time of the trial and that the application filed by the respondents for production of the same is nothing but an attempt to grab the documents wrongfully from the Revision Petitioners. 7. 7. The further contention is that the respondents having filed I.A.No.453/2001 to prosecute the Revision Petitioners alleging that they obtained return of documents fraudulently, have withdrawn the said application for the reasons best known to them and therefore the present application is nothing but an abuse of process of law and this Court while dismissing the Revision Petition failed to appreciate the conduct of the respondents. He also contended that the provisions of Order 13, Rule 9 of Civil Procedure Code cannot be invoked to seek return of the documents after the matter attained finality. 8. I am afraid that the review as sought by the petitioners cannot be granted on any of the aforesaid grounds. All the said contentions have already been raised in the main revision petition and have been rejected by this Court. The petitioners cannot be permitted to reopen and re-agitate the issues, which have already been decided in the revision petition under the guise of a review petition. 9. So far as the contention of the petitioners that ths Court failed to properly’ appreciate the scope of Order 13 Rule 9 of Civil Procedure Code as well as the ratio laid down by the Apex Court in Budhia Swain Vs. Gopinath Deb case (1 supra) is concerned, the error if any on the said ground, in my opinion, cannot be said to be a sufficient ground to seek review. The law is well settled that an erroneous view on a question of law or failure to interpret the law correctly would not amount to an error apparent on the face of the record. 10. Therefore on the basis of the aforesaid grounds, I am unable to hold that there is any error apparent on the face of the record. 11. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and the ambit of order 47, Rule 1 of Civil Procedure Code. 11. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and the ambit of order 47, Rule 1 of Civil Procedure Code. 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 be exercised on any analogous ground. But it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of errors committed by the subordinate Court.” (vide Aribarn Tuleshwar Sharms Vs. Ari’bam Pishak Sharma AIR 1979 SC 1047 ). 12. For the aforesaid reasons I am of the considered opinion that the remedy available to the petitioners may be elsewhere but not by way of review application. The petitioners failed to make out any of the grounds stipulated under Order 47 Rule 1 of Civil Procedure Code. 13. However, though there is no specific ground in the memorandum of grounds, the learned counsel for the review petitioners strenuously contended that Para 11 of the order, where in this Court observed that apparently there are rival claims as to the title to immovable property, amounts to an error on the face of the record. Para- 11 of the order runs as follows: “From the facts narrated above, it can be seen that the Revision Petitioners and the respondents 1 to 9 are closely related. Apparently there are rival claims as to the title to immovable property. The averments of both the parties indicate that the title deeds relating to the said property are marked as exhibits in O.S.No.231 of 1972.” 14. Apparently there are rival claims as to the title to immovable property. The averments of both the parties indicate that the title deeds relating to the said property are marked as exhibits in O.S.No.231 of 1972.” 14. Having regard to the facts and circumstances of the case it is made clear that the aforesaid observation made by this Court shall not be taken as conclusive and it is open to the trial court to proceeded with the further proceedings without having regard to the above observation made by this Court. 15. In the result the Review Petition is dismissed subject to the above observation. --X--