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Madhya Pradesh High Court · body

2013 DIGILAW 1017 (MP)

Gurupal Singh v. Govardhan Das

2013-08-27

Sheel Nagu

body2013
ORDER 1. This review petition seeks review of the final order dated 19.6.2013 whereby S.A. No. 450/11 had been dismissed on merits. 2. Learned counsel for the review petitioner raises solitary ground that an application under Order 41 Rules 27 CPC in S.A. No. 450/11 was not considered much less decided while finally deciding S.A. No. 450/11 and by relying on the decision of the apex Court in the case of Muzaffar Ali v. Jassaram reported in 2009 (II) MPWN 31 and it is contended that error which has crept in on account of non-consideration of the application under Order 41 Rule 27 CPC is palpable and apparent on the face of the record rendering the final order dated 19.6. 2013 passed in S.A. No. 450/11 amenable to review. 3. Per contra, the learned counsel for the respondent placing reliance on the decision in the case of Union of India v. Udai Pal reported in ILR 2013 MP 378 and the case of State of West Bengal and Others v. Kamal Sengupta and another reported in (2008) 8 SCC 612 to contend that the decision under review can at best, if the submission of learned counsel for the review petitioner are accepted, be termed as erroneous and not suffered from any error apparent on the face of the record. 4. Scrutiny of the order under review discloses that I.A. No. 4166/12 an application under Order 41 Rule 27 was filed on 21.9.2012 for production of additional documentary evidence before this Court in S.A. No. 450/11 in shape of registration certificate of establishment dated 19.11.1977 in original and money order receipts, five in umber in original, which was not considered much less decided. 5. In a matter involving similar factual matrix, the apex Court in the case of Muzaffar (supra) remitted the matter to the High Court to decide the second appeal afresh on the ground that the High Court while deciding the second appeal did not consider that part of the order of the first appellate Court by which the application under Order 41 Rule 27 CPC, filed before the first appellate Court, was rejected. The apex Court held that though the first appellate Court before whom the said application under Order 41 Rule 27 was filed considered and rejected the said application but the tenability of the grounds taken by the first appellate Court for rejecting this application were not adjudicated upon by the High Court in this second appeal. 6. In the instant case, the application under Order 41 Rule 27 was filed before this Court in the second appeal, which appears to be only difference in the factural matrix involved in this case when compared with the case before the apex Court. 7. The Single Bench decision in the case of Udai Pal (supra) is of no assistance to the respondents as this Court while declining exercise of review jurisdiction, no error apparent on the face of the record was found in that case where this Court refused interference on finding that at least a small part of the cause of action fell within territorial jurisdiction. Whereas decision in the case of Kamal Singh Gupta (supra) in para 22 lays down the scope of review jurisdiction under Order 47 Rule 1 CPC or section 22 (3) (f) of the Administrative Tribunals Act, 1985 in regard to which this Court has due deference but the said case does not assist the respondent as the apex Court lays down the review jurisdiction to be open only when error apparent on the face of the record is detected. 8. It is trite principle of law that ground taken or urged and in regard to which arguments have been extended is required to be considered and decided. In case consideration takes place but wrong decision is rendered then an erroneous decision would be the end result which would not be open to review but a mere appeal. But in case the ground is not even considered much less decided the final out come would certainly render itself amenable to review as the error would then fall within the purview of error apparent on the face of record. 9. Since this Court did not consider the application under Order 41 Rule 27 CPC being I.A. No. 4166/12, while deciding second appeal No. 450/11, an error apparent on the face of the record has cropped up thereby rendering this review petition worth allowing. 10. Consequently, this review petition deserves to be and is therefore allowed. 9. Since this Court did not consider the application under Order 41 Rule 27 CPC being I.A. No. 4166/12, while deciding second appeal No. 450/11, an error apparent on the face of the record has cropped up thereby rendering this review petition worth allowing. 10. Consequently, this review petition deserves to be and is therefore allowed. The final order dated 19.6.2013 under review passed in S.A. No. 450/11 is set aside, for the said S.A. No. 450/11 to be heard on merits along with I.A. No. 4166/12 (An application under Order 41 Rule 27). No order as to costs.