JUDGMENT 1. - This appeal under Order 43, Rule 1 (w) CPC is directed against order dated 27.01.1998 passed by the learned Additional District Judge, Sojat, whereby, application for review filed by respondent Municipal Board, Sojat has been accepted and the judgment and decree dated 16.05.1997 passed in regular first appeal by the said Court has been set aside and it has been directed that the appeal be registered again and be reheard. 2. The facts in brief are that the plaintiff-appellant filed a suit for declaration and injunction against respondent-Municipal Board, Sojat and State of Rajasthan in respect of Khasra No.773, ad measuring 17 biswa, renumbered as Khasra No.2040/3598 for declaration of his title and injunction against the defendants; the suit was contested by the Municipal Board, which disputed the possession of the plaintiff and raised issue about jurisdiction of the Court. 3. The learned trial court framed several issues. Evidence was led by the plaintiff, however, as no one was present on behalf of the Municipal Board, the matter was ordered to be proceeded ex parte. The application filed by the Municipal Board for setting aside ex parte order was dismissed and second application was also dismissed. The Municipal Board filed revision petition under Section 115 CPC before this Court, which was also dismissed. 4. The learned trial court after hearing the plaintiff decreed the suit on 22.10.1996 and granted decree of declaration of title and injunction against the defendants. 5. Feeling aggrieved by ex parte judgment and decree dated 22.10.1996, the defendant-respondents filed first appeal under Section 96 CPC before the learned Additional District Judge, Sojat. The learned appellate court by its judgment dated 16.05.1997 noticed the facts regarding the proceedings which took place before the learned trial court during the pendency of the suit, i.e. direction for proceeding ex parte, application for setting aside being rejected and the revision against such order also having been rejected by this Court. The learned appellate court also noticed the contents of the appeal, whereby, the findings on issues 1 to 7 were questioned and a prayer was made for setting aside the decree and the order whereby the suit was directed to be proceeded ex parte against the defendants and for remanding back the case to the learned trial court. 6. The learned appellate court also noticed the contents of the appeal, whereby, the findings on issues 1 to 7 were questioned and a prayer was made for setting aside the decree and the order whereby the suit was directed to be proceeded ex parte against the defendants and for remanding back the case to the learned trial court. 6. The learned first appellate court importantly noticed that during the course of arguments request was made that as the matter involves an important piece of land, in the interest of justice, the matter be remanded back and that no submissions were made regarding the merits of the judgment passed by the learned trial court. The learned appellate court also considered the fact that as no submissions have been made on the merits of the decree passed by the learned trial court, it is apparent that the appellant has abandoned the challenge to the judgment of learned trial court on merits. The relevant portion of the judgment on this aspect may be noticed thus:- " 15- eSus yk;d vf/koDrkx.k ds rdksZa ij xkSj fd;kA pwafd yk;d vf/koDrk vihykFkhZ us vf/kuLFk U;k;ky; ds fu.kZ; ds xq.kkoxq.k ij dksbZ cgl esa ,d 'kCn Hkh ugha dgk gS ftlls ;g Li"V gS fd mUgksaus vf/kuLFk U;k;ky; ds fu.kZ; ds xq.kkoxq.k ij viuh vihy dk vk/kkj NksM+ fn;k gSA " 7. Ultimately, the learned appellate court came to the conclusion that till such time that the order setting the suit ex parte against the defendants is set aside, which order has merged into the order of High Court with the dismissal of revision petition, the defendants cannot be granted opportunity to file documents and lead evidence and, consequently, the appeal filed by the defendant-respondents was dismissed. 8. Feeling aggrieved by the judgment dated 16.05.1997, the defendant-respondents filed review petition under Order 47, Rule 1 CPC on 02.07.1997. 9. It was submitted in the review petition that the submissions made by the learned counsel were neither mentioned nor were disposed of. The finding on jurisdiction was not recorded by the learned first appellate court, pecuniary jurisdiction was also not considered, public interest was not noticed and, therefore, there is error apparent on face of record and the judgment dated 16.05.1997 was required to be reviewed and the decree passed by the learned trial court dated 20.10.1996 was also liable to be set aside. 10. 10. A reply to the review petition was filed by the plaintiff supported by affidavit questioning the jurisdiction under Order 47, Rule 1 CPC, delay in filing the application for review, insufficient court fees and the fact that the review petition was mala fidely filed after the transfer of the Presiding Officer, who had passed the judgment and decree dated 16.05.1997. 11. The learned reviewing court noticed the fact that as the judgment was delivered by the predecessor Presiding Officer he cannot have any personal knowledge about what transpired before him and that he was 'required to perform a thankless job' to adjudicate whether there was error apparent in the judgment dated 16.05.1997. The learned reviewing court thereafter went on to hold that the appellate court had not given issue-wise judgment and, therefore, it was not according to law and, therefore, the judgment was liable to be reviewed. 12. The learned Judge further added that even if nothing was argued on the merits, it cannot be said that the grounds raised in the appeal were abandoned and it was the duty of the court to consider the legal aspects as the party cannot be penalised for the mistake or negligence of the counsel. 13. Consequently, the review petition was allowed by order dated 27.01.1998, setting aside the judgment and decree dated 16.05.1997 and directing registration and rehearing of the appeal as noticed hereinbefore. 14. It was contended by learned counsel for the appellant that the order impugned passed by the learned reviewing Judge is ex facie against the settled position of law. It was submitted that no affidavit either of the party or the counsel, who had originally argued the appeal, which led to the judgment dated 16.05.1997 was filed in support of the contention that the issues raised in the memo of appeal were argued/pressed before the first appellate court and in absence thereof, no credence can be given to the bald assertion made by the parties contrary to the record of the first appellate court. The application was deliberately filed after transfer of the Presiding Officer, who had delivered the judgment dated 16.05.1997, so as to take advantage of his absence and absolutely false averments were made in the application regarding pressing of the issues. The application was deliberately filed after transfer of the Presiding Officer, who had delivered the judgment dated 16.05.1997, so as to take advantage of his absence and absolutely false averments were made in the application regarding pressing of the issues. It was further submitted that so called non-compliance of the provisions of Order 41, Rule 31 CPC by the first appellate court cannot be a subject matter of filing a review and once the party chooses to abandon the issues raised by it, there is no requirement thereafter to follow the dictates of Order 41, Rule 31 CPC. It was submitted that no case for invoking review jurisdiction was made out as the respondents had failed to point out any error apparent on the face of record and, consequently, the order impugned deserves to be set aside. 15. Reliance was placed on the judgment of Hon'ble Supreme Court in the case of Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146 , Parsion Devi & Ors. v. Sumitri Devi & Ors., (1997) 8 SCC 715 and judgment of this Court in Tilok Chand v. Jeetmal, 1980 RLW 106 . 16. On the other hand, learned counsel for the respondents vehemently submitted that the judgment passed by the appellate court on 16.05.1997 was ex facie against the settled norms and practice to be adopted by the first appellate court and, therefore, the learned reviewing court was justified in setting aside the said judgment and allowing the review petition. It was submitted that a bare look at the judgment passed by the first appellate court would reveal that the provisions of Order 41, Rule 31 CPC have been given a complete go bye. Even if no evidence was led by the defendants and even when the same were allegedly not pressed by the defendants before the first appellate court, the issue relating to the jurisdiction etc. were bound to be considered by the first appellate court. It was also submitted that in view of the fact that the land belonging to Municipal Board was involved, the reviewing court was justified in allowing the review petition and, therefore, the order impugned should not be interfered with. 17. Reliance was placed on Union of India & Anr. v. Ranchod & Ors., AIR 2008 SC 938 , Moran Mar Basselios Catholicos and Anr. v. Most Rev. 17. Reliance was placed on Union of India & Anr. v. Ranchod & Ors., AIR 2008 SC 938 , Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526 , Rajendra Singh v. Lt. Governor, Andaman & Nicobar Islands & Ors., AIR 2006 SC 75 and Board of Control for Cricket, India & Anr. v. Netaji Cricket Club & Ors., AIR 2005 SC 592 , unreported judgment of Allahabad High Court in Ram Sajeevan Tiwari v. Smt. Usha Tripathi, Second Appeal No. 184 of 2008 decided on 07.07.2008 , Punjab National Bank, Betul v. Deviram & Ors., AIR 1985 Madhya Pradesh 87 . 18. I have considered the rival submissions made at the Bar. 19. It is not in dispute that in the appeal filed by the respondents before the learned first appellate court besides questioning setting the suit ex parte against the defendants several grounds arising from the judgment and decree passed by the trial court were raised. However, the learned appellate court by its judgment and decree dated 16.05.1997 specifically, as quoted above, noticed that the appellant therein did not argue a single word on merits of the judgment passed by the learned trial court and it is apparent that it has abandoned its grounds regarding the merits of the judgment passed by the trial court. Once such an aspect is indicated in a judgment, then its implication and as to the course open for a party has been considered by the Hon'ble Supreme Court in State of Maharashtra v. Ramdas Shrinivas Nayak & Anr., AIR 1982 SC 1249 wherein it was held as under:- "4. When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submission made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". (Per Lord Atkinson in Samasundaran v. Subramanian, AIR 1926 PC 136 ). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan v. Chandrabati, AIR 1917 PC 30 ). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment. 7. So the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else." (emphasis supplied) 20. 7. So the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else." (emphasis supplied) 20. In view of the above pronouncement of Hon'ble Supreme Court the submissions regarding the fact as to whether any arguments were advanced on merit of the grounds raised in the memo of appeal or were pressed before the court, could only be done before the same Judge. In the present case, as has been the allegation by the appellant herein, the review petition was failed after the Presiding Officer was transferred and the reviewing Judge has also noticed his predicament on the said issue and was even forced to claim his duty as a 'thankless job'. 21. In the said context the argument raised by the learned counsel for the appellant gains significance that in support of the review petition neither the party nor the counsel filed affidavit so as to give credence to the submission made in this regard. It is also important to notice that the counsel who had argued the appeal initially, which resulted in judgment dated 16.05.1997, had in fact argued the review petition as well, therefore, the counsel was very much available to file his affidavit. In similar circumstances this Court in the case of Tilok Chand (supra) held as under:- "4........ To my mind, if an application for review is submitted on the ground that a particular point was urged during the course of arguments and had not been decided in the judgment, or that the counsel for the applicant was not heard on a particular point, then such an application must be accompanied by an affidavit of the party or his counsel. The onus is always on the applicant to make out a case for review, and the case can only be said to have been made out when such allegations in the application are supported by an affidavit, as already observed above. Therefore, it can be said that by mere mention in the application for review that this ground was argued at the time of arguments, the applicant cannot be said to have made out a case for review of the judgment on this ground......" 22. Therefore, it can be said that by mere mention in the application for review that this ground was argued at the time of arguments, the applicant cannot be said to have made out a case for review of the judgment on this ground......" 22. Consequently, on the point that grounds raised in the memo of appeal were pressed before the learned appellate court and they were not decided while delivering the judgment dated 16.05.1997 cannot be termed as an error apparent on face of record in the present facts and circumstances, wherein, the defendants-review-petitioners have failed to file affidavit either of the counsel or the party in support of its allegation in this regard. 23. So far as the issue raised by the learned reviewing Court that provisions of Order 41, Rule 31 CPC were not complied with by the first appellate court is concerned, once a party decides to abandon the grounds raised by it in the memo of appeal, it cannot be assumed that the Court is thereafter also required to deliver the judgment on all the grounds raised in the memo of appeal. The Hon'ble Supreme Court way back in the case of Thakur Sukhpal Singh (supra) while posing the said question answered the same as under:- "1. This appeal, by special leave, against the decree of the Madhya Bharat High Court dated January 5, 1955, raises the question whether the Appellate Court is bound to decide an appeal on merits on the basis of the material on record when the appellant appears at the hearing but does not address the Court. 6. The Privy Council observed in Mt. Fakrunisa v. Moulvi Izarus, AIR 1921 PC 55 at p. 56 : "In every appeal it is incumbent upon the appellants to show some reason why the judgment appealed from should be disturbed; there must be some balance in their favour when all the circumstances are considered, to justify the alteration of the judgment that stands. Their Lordships are unable to find that this, duty has been discharged." With respect, we agree with this and hold that it is the duty of the appellant to show that the judgment under appeal is erroneous for certain reasons and it is only after the appellant has shown this that the appellate Court would call upon the respondent to reply to the contention. It is only then that the judgment of the appellate Court can fully contain all the various matters mentioned in R. 31, O.XLI. 7. This Court observed in Sangram Singh v. Election Tribunal, Kotah, 1955-2 SCR 1 : ((S) AIR 1955 SC 425 ) at p.8 of SCR : (at p. 429 of AIR) . "Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: ... Too technical construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it." The provisions of R.31 should therefore be reasonably construed and should be held to require the various particulars to be mentioned in the judgment only when the appellant 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. 8. 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 proceedings, 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 their pleaders, to any part of these proceedings to which reference be considered necessary. It is in the discretion of the appellate Court to refer to the proceedings. It is competent to pronounce judgment after hearing what the parties or their pleaders submit to it for consideration. The appellate Court can refer, after hearing the parties and their pleaders, to any part of these proceedings to which reference be considered necessary. It is in the discretion of the appellate Court to refer to the proceedings. It is competent to pronounce judgment after hearing what the parties or their pleaders submit to it for consideration. It follows therefore that if the appellant submits nothing for its consideration, the appellate Court can decide the appeal without any reference to any proceedings of the Courts below and, in doing so, it can simply say that the appellants have not urged anything which would tend to show that the judgment and decree under appeal were wrong. 16. We therefore repel the contention for the appellant that the High Court had to decide the appeal after going through the record of the case and the judgment of the Court below and must have complied with the provisions of R.31 of O.XLI C.P.C., when the appellant did not address the Court." (emphasis supplied) 24. In view of the above pronouncement of Hon'ble Supreme Court and in view of the fact that no submissions were made before the first appellate court as noticed by the learned first appellate court in its judgment, there was no duty cast on the first appellate court to thereafter decide the appeal on the grounds raised in the memo of appeal. 25. So far as submissions made by the learned counsel for the respondents regarding following the requirements of Order 41, Rule 31 CPC are concerned, there is no dispute that the first appellate court is bound to comply with the requirements of Order 41, Rule 31 CPC, but for that it is required that the appellant before it should decide to press the grounds raised in the appeal, if the appellants decides to abandon the said grounds, the principles laid down by the Hon'ble Supreme Court in innumerable judgments would have no application. 26. However, besides the fact, as to whether the compliance of Order 41, Rule 31 CPC was required to be followed or not, the important issue in the present case is whether such an aspect could have been examined while deciding a review petition under Order 47, Rule 1 CPC. 27. 26. However, besides the fact, as to whether the compliance of Order 41, Rule 31 CPC was required to be followed or not, the important issue in the present case is whether such an aspect could have been examined while deciding a review petition under Order 47, Rule 1 CPC. 27. The legal position regarding the scope and nature of the power of review is settled by the decisions of the Supreme Court in a long line of decisions. In Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715 , where dealing with the scope of a review under Order 47, Rule 1 CPC, the Court declared:- "Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident 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". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise"." (emphasis supplied) To the same effect is the decision of the Supreme Court in Ajit Kumar Rath v. State of Orissa & Ors., AIR 2000 SC 84 , where the Court said : "A review cannot be sought merely for a fresh hearing or arguments or correction of an erroneous view taken earlier. The power of review 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." The Supreme Court in Meera Bhanja v. Nirmala Kumari Choudhary, AIR 1995 SC 455 , where the Court, while dealing with the scope of review, has observed:- "The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. The review petition has to be entertained only on the ground of error apparent on the fact of the record and not on any other ground. An error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. The limitation of powers of courts under Order 47 Rule 1, CPC is similar to the jurisdiction available to the High Court while seeking review of the orders under Article 226." 28. Applying the above principles to the present case, there is no gainsaying that the review of the judgment passed by the appellate court could not have been sought on the basis of what was never argued or urged before the said Court. 29. The alleged non-compliance of provisions of Order 41, Rule 31 CPC may be a subject matter of appeal but it cannot certainly be a ground of review. The review must remain confined to finding out whether there was any error apparent on the face of the record as the power of review can be used to correct a mistake but not to substitute one view for another. 30. So far as the judgment of Hon'ble Supreme Court of Rajendra Singh (supra) on which strong reliance was placed by the learned counsel for the respondents is concerned, in para 15 and 16 of the said judgment it has been held as follows:- "15. We are unable to countenance the argument advanced by learned Additional Solicitor General appearing for the respondents. A careful perusal of the impugned judgment does not deal with decide many important issues as could be seen from the grounds of review and as raised in the grounds of special leave petition/appeal. We are unable to countenance the argument advanced by learned Additional Solicitor General appearing for the respondents. A careful perusal of the impugned judgment does not deal with decide many important issues as could be seen from the grounds of review and as raised in the grounds of special leave petition/appeal. The High Court, in our opinion, is not justified in ignoring the materials on record which on proper consideration may justify the claim of the appellant. Learned counsel for the appellant has also explained to this Court as to why the appellant could not place before the Division Bench some of these documents which were not in possession of the appellant at the time of hearing of the case. The High Court, in our opinion, is not correct in overlooking the documents relied on by the appellant and the respondents. In our opinion, review jurisdiction is available in the present case since the impugned judgment is a clear case of an error apparent on the face of the record and non-consideration of relevant documents. The appellant, in our opinion, has got a strong case in their favour and if the claim of the appellant in this appeal is not countenanced, the appellant will suffer immeasurable loss and injury. Law is well-settled that the power of judicial review of its own order by the High Court inheres in every Court of plenary jurisdiction to prevent miscarriage of justice. 16. The power, in our opinion, extends to correct all errors to prevent miscarriage of justice. The Courts should not hesitate to review its own earlier order when there exists an error on the face of the record and the interest of the justice so demands in appropriate cases. The grievance of the appellant is that though several vital issues were raised and documents placed, the High Court has not considered the same in its review jurisdiction. The grievance of the appellant is that though several vital issues were raised and documents placed, the High Court has not considered the same in its review jurisdiction. In our opinion, the High Court's order in the revision petition is not correct which really necessitates our interference." The Hon'ble Supreme Court in para 11 of the judgment has also referred to the following arguments advanced by learned counsel for the appellant therein:- "It was argued that the High Court has committed an error of fact by over-looking the documents relied on by the appellant particularly the documents showing bias on the part of the respondents/members of the Screening Committee and the discrimination and harassment to which the appellant has been subjected since 27.03.2000 and the incorrect submission made by their respondents in their affidavits which bear direct relation to the case of the appellant and as such non-adjudication on the grounds of mala fide/fraud falls within the scope of Order 47, CPC." In that factual background only, the Hon'ble Supreme Court held as follows:- "In our opinion, review jurisdiction is available in the present case since the impugned judgment is a clear case of an error apparent on the face of the record and non-consideration of relevant documents." However, in the case in hand, it is not the case of the respondents that documents placed before the appellate court by it were not considered by the appellate court. 31. In that view of the matter, the facts of the case in Rajendra Singh's case and the facts of the case in hand are totally different and the said judgment is not applicable to the facts of present case. 32. The unreported judgment of Allahabad High Court was delivered in an appeal wherein the parameters are wholly different than in a review petition. The judgments of Hon'ble Supreme Court in the case of M.M.B. Catholices (supra) and the Madhya Pradesh High Court in the case of Punjab National Bank (supra) were cases of wrong concession made on a legal point by the counsel and the said cases had nothing to do with not pressing of any point and not supporting the review petition with an affidavit. The judgment in the case of Board of Control for Cricket (supra) also dealt with a case of misconception of fact or law by a Court or even an advocate and again had nothing to do with the aspect as involved in the present case. 33. In view of the above discussion, it is apparent that the appellate court was not required to decide the appeal after going through the record of the case and the judgment of the court below and after complying with the provisions of Rule 31ORDER41 CPC when the appellant before it did not address the Court on the said issues. 34. In absence of affidavit by either the party or the counsel, who appeared before the appellate court, stating that during the course of arguments grounds raised in the appeal were urged and had not been decided in the judgment, no ground for review on the said count was made out. Jurisdiction in a review petition is to correct 'an error apparent on the face of record' and not to correct 'an erroneous decision'. 35. Applying the above principles to the case in hand the learned reviewing court by coming to the conclusion that it was the duty of first appellate court to consider the grounds raised in appeal even if the same were not pressed committed error of law and fact in allowing the review petition filed by the defendants. 36. Consequently, this appeal is allowed. The judgment dated 27.01.1998 passed by the learned Additional District Judge, Sojat is set aside and the application for review filed by the respondent-defendants is dismissed. No costs.Appeal Allowed. *******