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2013 DIGILAW 835 (ALL)

Kamlta Prasad Verma v. Kesha Devi

2013-03-14

SAEED-UZ-ZAMAN SIDDIQI

body2013
JUDGMENT Saeed-Uz-Zaman Siddiqi,J.: - Heard learned counsel for the parties and have gone through the records. 2. Through C.M. Application No. 20221 of 2013, the opposite parties have sought for a review of the judgment and order dated 18.09.2012, by which the writ petition was allowed and the proposed amendment was directed to be carried on. 3. The application has been moved on the ground that this court has omitted to consider the proviso to order 6 rule XVII of the C.P.C. while allowing the amendment and deciding the writ petition. There is no need for mentioning any provision. The court must have considered that the proposed amendment could not be made well within time, in spite of the due diligence and as such the application for review is not maintainable. Moreover, the scope of order XLVII rule 1 C.P.C runs as follows: - "1. Application for review of judgment.- (1) Any person considering himself aggrieved,? (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (C) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, 6r on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation : 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." 4. The impugned application does not fall under the provision of order 47 as mentioned above. 5. In Haridas Das vs. Smt. Usha Rani Banik & Ors. reported in 2006 (3) Supreme 125 , the Hon'ble Apex Court has held as under: - "Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1 of the Order XLVII 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. This Court in M/s. Thungabhadra Industries Ltd. (in all the Appeals) v. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, [AIR 1964 1372] held as follows: "There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by "error apparent". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which states one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out." 6. Where without any elaborate argument one could point to the error and say here is a substantial point of law which states one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out." 6. In Meera Bhanja v. Smt. Nirmala Kumari Choudary [ AIR 1995 SC 455 ] it was held that : "It is well settled law that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1, CPC. In connection with the limitation of the powers of the Court under Order XLVII, Rule 1. In the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tiruymale [ AIR 1960 SC 137 ] it was also noted: "An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ." 7. While concluding it may be mentioned here that 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 powers of review under order 47 rule 1 C.P.C., in exercise of the jurisdiction under order 47 rule 1 C.P.C. It is not permissible for an erroneous decision to be reheard and corrected. 8. A review petition, it must be numbered as a limited purpose and cannot be allowed to be an appeal in disguise. 9. In view of the above, writ petition is dismissed.