JUDGMENT : Abhilasha Kumari, J. 1. Rule. Mr. Manav A. Mehta, learned advocate, waives service of notice of Rule for respondents Nos. 1 and 2, Mr. Dipen Desai, learned advocate, waives for respondent No. 3 and Mr. Dhaval G. Nanavati, learned advocate, waives for respondents Nos. 4 and 5. 2. The present application has been preferred for the review and/or recall of the order dated 19.12.2013, passed by this Court in Miscellaneous Civil Application No. 2825 of 2013, which had been preferred by respondents Nos. 1-3 herein, for the recall of the order dated 18.01.2013, passed by this Court in Special Civil Application No. 11883 of 2012 and to hear the said petition on merits. 3. The chequered history of the litigation between the parties, which emerges from the record and has been elaborated by learned counsel for the respective parties, necessitates the narration of some relevant background facts, in order to place the present application in its proper perspective. 4. The applicants and respondents Nos. 1 to 3 are heirs of deceased Rambhai Patel, who died in 1994. Three legal heirs, being two sons and the widow of the deceased are not parties to the present litigation. There has been extensive litigation in the Civil Court between the parties, the documents regarding which have been placed on record. The applicants are daughters of deceased Rambhai. According to respondents Nos. 1-3, the applicants (sisters) released their shares in the properties of deceased Rambhai in favour of the three brothers, that is, respondent No. 1, Pravinbhai Patel and Hasmukhbhai Patel. There was an agreement between the brothers that was challenged by Manguben (widow of the deceased), who passed away during the pendency of the suit, as well as by the applicants, by filing Regular Civil Suit No. 399 of 1999. 5. In the said suit, an application was filed at Exhibit 5, for the grant of an interim injunction, (i) restraining the defendants from selling, mortgaging or gifting the land; (ii) creating third party rights; (iii) using the land for any other use except as a godown; (iv) changing the use of land as well as the building and (v) maintaining status-quo in respect of the land in question. 6. Initially, an ex parte order was passed by the Trial Court, granting all the above prayers.
6. Initially, an ex parte order was passed by the Trial Court, granting all the above prayers. However, after bi-parte hearing, the Trial Court limited the ex parte injunction by an order dated 08.05.2000, confining it only to an injunction prohibiting the defendants (respondents Nos. 1-3 herein) from selling and transferring the land in question till the final disposal of the suit. The other, wider, prayers were not granted. Respondents Nos. 1 to 3, being aggrieved by the above order of the Trial Court restraining them from transferring or selling the land, preferred Miscellaneous Appeal No. 39 of 2000 before the District Court. However, the applicants did not choose to challenge that part of the order, whereby the other prayers sought by them had been rejected. The appeal preferred by respondents Nos. 1-3 herein was allowed by the District Court, Ahmedabad, by an order dated 24.02.2006. The order of the Trial Court restraining them from transferring or selling the land in question, was set aside. 7. Being aggrieved by the order passed by the District Court, the applicants herein filed Special Civil Application No. 6111 of 2006, before this Court, seeking the following prayers:- "(A) The Honourable Court may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order at Annexure: 'A' hereto; and consequently restoring the order passed by the Trial Court at Annexure: 'D' hereto; ... ... ..." 8. Apart from praying for the restoration of the order dated 08.05.2000 of the Trial Court, restraining respondents Nos. 1-3 from selling or transferring the property, no other relief was sought by the applicants. 9. During the hearing of Special Civil Application No. 6111 of 2006, respondents Nos. 1-3 agreed not to transfer or sell the property in question and a statement was made on their behalf by their counsel, which is recorded in the order dated 31.08.2006 passed by this Court, reference to which would be made at a later stage. 10. Thereafter, admittedly, respondents Nos. 1-3 made several changes on the land in question. The existing construction was partly demolished and partly redeveloped. Eventually, respondents Nos. 1-3 decided to construct two bungalows on the land which, according to them, would cover less than 1/3rd of the total area of the land. For this purpose, plans were submitted to the respondent Ahmedabad Municipal Corporation. 11.
1-3 made several changes on the land in question. The existing construction was partly demolished and partly redeveloped. Eventually, respondents Nos. 1-3 decided to construct two bungalows on the land which, according to them, would cover less than 1/3rd of the total area of the land. For this purpose, plans were submitted to the respondent Ahmedabad Municipal Corporation. 11. Several documents have been placed on record by the parties, regarding the consideration of the said plans by the respondent Corporation. The applicants have produced the entire record they obtained as a result of their queries under the Right to Information Act, 2005 ("the RTI Act"). During the consideration of the plans submitted by respondents Nos. 1-3 to the Corporation, there was an inter-se discussion within the Corporation as to whether, respondents Nos. 1-3 were required to carve out 1/3rd area of land and give an undertaking that they would not transfer or develop that area, or not. It was the contention of respondents Nos. 1-3 that since the proposed construction did not cover more than 1/3rd area and since there is no restriction on the use and development of the land for personal purposes, the demand of the Corporation that 1/3rd area be carved out and kept separate, is unacceptable. However, as the Corporation insisted that 1/3rd area be carved out before the application for Development Permission was considered, a communication dated 25.04.2012 was issued in this regard. Respondents Nos. 1-3 herein preferred Special Civil Application No. 11883 of 2012, with the following prayers: "(A) Issue appropriate writ order or direction to quash and set aside the letter dated 25.04.2012 issued by respondent No. 2 and direct the respondents to not to insist upon giving a notarized concession certificate; (B) Issue appropriate writ order or directing commanding the respondent authorities to grant permission as sought by the petitioners; (C) Grant such other and further relief as the Hon'ble Court may deem fit and necessary in the interest of justice;" 12. In the said petition, the only respondents were the Ahmedabad Municipal Corporation and its officers and the subject-matter of the petition was the above-mentioned dispute between respondents Nos. 1-3 and the Corporation. After the issuance of notice in the petition by this Court, the Corporation entered appearance and filed an affidavit-in-reply dated 17.01.2013. In paragraphs 7 and 8 of the said affidavit, it was stated as under: "7.
1-3 and the Corporation. After the issuance of notice in the petition by this Court, the Corporation entered appearance and filed an affidavit-in-reply dated 17.01.2013. In paragraphs 7 and 8 of the said affidavit, it was stated as under: "7. It is stated that the answering respondent - Corporation is ready and willing to process the development permission application if the application and plans so submitted by the petitioners are found eligible in accordance with provisions of Act and GDCR and have followed all the prescribed procedure and more particularly upon presentation of the undertaking by the parties i.e. present petitioner will not claim any equity or damages from the answering respondent - Corporation in any manner what so ever and 1/3rd portion will not be transferred and/or alienate in any manner what so ever in terms of the order dated 31.08.2006 passed in Special Civil Application No. 6111 of 2006. Since there were no restrictions the Corporation is bound to act in fare manner and the answering respondent-Corporation is within its rights to demand an undertaking from the petitioner in terms of the order dated 31.08.2006 passed in Special Civil Application No. 6111 of 2006. 8. It is stated that the application of the petitioner if found in accordance with the provisions of the Act and GDCR, can be consider for process and upon presentation of the specific undertaking and after receiving the specific undertaking from the present petitioner stating that the petitioner will not claim any equity or damages from the answering respondent-Corporation in case of party to the litigation loose the battle before the Civil Court or any other Court of Law in India besides the specific undertaking stating that 1/3rd portion will not be transferred and/or alienate in any manner what so ever in terms of the order dated 31.08.2006 passed in Special Civil Application No. 6111 of 2006, the answering respondent-Corporation will consider and process the application in accordance with law and grant permission if found eligible as per the provision of the GDCR." 13. In view of the stand taken by the Corporation in the said affidavit, respondents Nos. 1-3 filed a Purshis, seeking permission to withdraw the petition with a view to filing a fresh undertaking, as required by the Corporation as per its affidavit-in-reply. The said petition was permitted to be withdrawn, by an order dated 18.01.2013. 14. Thereafter, respondents Nos.
In view of the stand taken by the Corporation in the said affidavit, respondents Nos. 1-3 filed a Purshis, seeking permission to withdraw the petition with a view to filing a fresh undertaking, as required by the Corporation as per its affidavit-in-reply. The said petition was permitted to be withdrawn, by an order dated 18.01.2013. 14. Thereafter, respondents Nos. 1-3 filed the undertaking, as required by the Corporation. However, the Corporation, in a volte face from the stand taken before this Court as stated in the affidavit-in-reply, continued to insist upon an undertaking to carve out 1/3rd area of the land in question and separate the same. Under the circumstances, respondents Nos. 1-3 filed Miscellaneous Civil Application No. 2825 of 2013, in Special Civil Application No. 11883 of 2012, for the recall of the order dated 18.01.2013 passed by this Court, whereby the petition was permitted to be withdrawn and for the hearing of the petition on merits. During the course of hearing of Miscellaneous Civil Application No. 2825 of 2013, the Corporation again went back to its original stand as taken in the affidavit-in-reply. Under the Circumstances, Miscellaneous Civil Application No. 2825 of 2013 was disposed of by this Court vide the order dated 19.12.2013, as not pressed, with liberty to revive the application in case of difficulty. It is this order of which review/recall is being sought by the applicants. 15. Earlier, the applicants had sought leave to appeal to file a Letters Patent Appeal against the order dated 19.12.2013 passed in Miscellaneous Civil Application No. 2825 of 2013. The Letters Patent Appeal was withdrawn with liberty to file an application for review. As there was delay, an application for condonation of delay in filing the review application was preferred by the applicants, which came to be rejected by this Court, by an order dated 16.10.2015. The applicants preferred Letters Patent Appeal No. 1420 of 2015 along with an application for leave to appeal for challenging the order dated 16.10.2015. During the hearing of the Letters Patent Appeal, respondents Nos. 1 to agreed for the condonation of delay and the hearing of the review application on merits. They also agreed not to develop 1/3rd area of the land in question, till the application for review is heard and decided. This is how the matter stands presently. 16. Detailed, extensive and exhaustive submissions have been advanced by Mr.
1 to agreed for the condonation of delay and the hearing of the review application on merits. They also agreed not to develop 1/3rd area of the land in question, till the application for review is heard and decided. This is how the matter stands presently. 16. Detailed, extensive and exhaustive submissions have been advanced by Mr. D.C. Dave, learned Senior Counsel appearing with Mr. Anal S.S. hah, learned advocate for the applicants. 17. It is contended that the applicants were proper and necessary parties in Special Civil Application No. 11883 of 2012 as well as Miscellaneous Civil Application No. 2825 of 2013 but they were not joined as such by respondents Nos. 1-3. It is submitted that for this reason, the order dated 19.12.2013 is required to be recalled. According to learned Senior Counsel, this Court has "interpreted" the order dated 31.08.2006 passed in Special Civil Application No. 6111 of 2006, wherein the applicants were parties, which order was based on a consensus between the applicants and respondents Nos. 1-3 based on a statement made by respondents Nos. 1-3, therefore, when the said order came up for consideration, the applicants were required to be heard. As they could not be heard, not being impleaded, the said order deserves to be recalled. 18. It is further urged that the words "deal with", used in the order dated 31.08.2006 passed in Special Civil Application No. 6111 of 2006 prohibit the use and development of the property by respondents Nos. 1-3, who are required to carve out 1/3rd area, in case they desire to utilize and develop the same. 19. The above two submissions are the main grounds on which learned Senior Counsel for the applicants has urged the Court to recall the order dated 19.12.2013. Though several other submissions have been advanced which shall be referred to hereinafter, they all revolve around the above two grounds. 20. Learned Senior Counsel for the applicants has pointed out, in detail, the entire record of the internal correspondence between the officers of the respondent Corporation that has been obtained by the applicants under the RTI Act. Emphasis has been laid on the aspect that the respondent Corporation was reluctant to grant Development Permission to respondents Nos. 1-3 and took the opinion of one of its advocates, who opined that respondents Nos.
Emphasis has been laid on the aspect that the respondent Corporation was reluctant to grant Development Permission to respondents Nos. 1-3 and took the opinion of one of its advocates, who opined that respondents Nos. 1-3 were required to first carve out 1/3rd area of land and keep it separate. It was repeatedly underlined by learned Senior Counsel that the advocate for the Corporation has opined that the words "deal with" occurring in the order dated 31.08.2006 would necessitate such a course of action. It is submitted that there is also a conflicting opinion from another advocate of the very Corporation, on the basis of which a stand was taken by the Corporation in the affidavit-in-reply filed in Special Civil Application No. 11883 of 2012, that if the respondents file an undertaking that they would not alienate or transfer 1/3rd land in question then the Development Permission can be granted, if permitted by Rules. 21. Learned Senior Counsel for the applicants has painstakingly traced the movement of the files of the respondent Corporation from desk to desk, pointing out the endorsements made thereupon by different authorities. It is sought to be suggested by Mr. D.C. Dave, learned Senior Counsel, that had it not been for the order of this Court dated 19.12.2013, the respondent Corporation would not have granted Development Permission to respondents Nos. 1-3. 22. It is further submitted that when the Corporation declined to grant Development Permission to respondents Nos. 1-3 for the entire land, a right was created in favour of the applicants who, therefore, ought to have been joined in the petition filed by respondents Nos. 1-3, challenging the decision of the Corporation. That, the interpretation of the order dated 31.08.2006 passed in Special Civil Application No. 6111 of 2006 sought to be made by respondents Nos. 1-3 and the respondent Corporation, as evident from the reply filed by the Corporation in Special Civil Application No. 11883 of 2012, is erroneous. This could have been pointed out by the applicants, had they been joined as party respondents in the said petition. 23.
1-3 and the respondent Corporation, as evident from the reply filed by the Corporation in Special Civil Application No. 11883 of 2012, is erroneous. This could have been pointed out by the applicants, had they been joined as party respondents in the said petition. 23. It is submitted that though, in the present application for review/recall of the order, the true import of the words to "deal with" the property, as stated in the order dated 31.08.2006 passed in Special Civil Application No. 6111 of 2006, is not required to be gone into, however, without prejudice to this contention, even if it is considered in the present proceedings, the said words ought to be read to mean that respondents Nos. 1-3 have no right to ask for the development of the entire land, without separating 1/3rd portion thereof. 24. In support of the contentions regarding non-joinder of parties, learned Senior Counsel for the applicants has placed reliance on a judgment of the Supreme Court in the case of Pohla Singh alias Pohla Ram (D) by Lrs. & Ors. v. State of Punjab & Ors. reported in (2004) 6 SCC 126 . 25. Another judgment relied on is that in the case of Dattatreya & Ors. v. Mahaveer & Ors., (2004) 10 SCC 665 . 26. Mr. Shalin Mehta, learned Senior Advocate has appeared for applicant No. 2 with Mr. Tarak Damani, learned advocate, and has submitted that the applicants are prejudicially affected by the order sought to be reviewed, as they were not joined as parties. It is submitted that the respondent Corporation has "played mischief" by taking a stand in the affidavit-in-reply filed by it in Special Civil Application No. 11883 of 2012, leaving out the words "deal with", occurring in the order dated 31.08.2006. This Court, therefore, has been misled by the Corporation and respondents Nos. 1-3, and the order may be recalled. 27. Mr. S.N. Soparkar, learned Senior Advocate has appeared with Mr. Manav A. Mehta, learned advocate for respondents Nos. 1 and 2.
This Court, therefore, has been misled by the Corporation and respondents Nos. 1-3, and the order may be recalled. 27. Mr. S.N. Soparkar, learned Senior Advocate has appeared with Mr. Manav A. Mehta, learned advocate for respondents Nos. 1 and 2. He has strongly opposed the submissions advanced on behalf of the applicants and has contended that the present proceedings are not in the nature of a petition where the applicants seek to challenge the action of the Corporation, but are review proceedings, which have to be examined within the parameters of review jurisdiction under Order 47 Rule 1 of the Code of Civil Procedure, 1908 ("CPC" for short). It is submitted that the provisions of Order 47 Rule 1 speak of a decree passed, or an order, made against a person. In the present case, no decree has been passed or order made against the applicants. The dispute which necessitated the filing of Miscellaneous Civil Application No. 2825 of 2013, was between the present respondents Nos. 1-3 and the Corporation, which had not acted in accordance with its affidavit-in-reply filed in Special Civil Application No. 11183 of 2012, the said petition had not been pressed by respondents Nos. 1-3 on the basis of the stand taken in the reply. It is submitted that neither is the case of the applicants to the effect that new or important evidence has been discovered or that there is an error apparent on the face of the order sought to be recalled. No grounds for the review or recall of the order of this Court are made out. 28. It is further submitted that the applicants have not challenged the action of the Corporation in granting Development Permission to respondents Nos. 1-3 till date. This action, therefore, cannot be challenged in the present proceedings. What has not been done directly cannot be permitted to be done indirectly. 29. Mr. Soparkar, learned Senior Counsel, has contended that respondents Nos. 1-3 had filed the petition against the Corporation, in which the Corporation filed an affidavit, on the basis of which the petition was withdrawn. It is only when the Corporation did not act as per the stand taken in the said affidavit, that respondents Nos. 1-3 filed the Miscellaneous Civil Application for the recall of the order disposing of the petition as withdrawn and for its revival.
It is only when the Corporation did not act as per the stand taken in the said affidavit, that respondents Nos. 1-3 filed the Miscellaneous Civil Application for the recall of the order disposing of the petition as withdrawn and for its revival. The Corporation again took the same stand as it had taken in the affidavit filed before this Court, therefore the application was withdrawn. It is contended that the dispute was between respondents Nos. 1-3 and the Corporation. The applicants cannot seek review of the order by which the application of respondents Nos. 1-3 was permitted to be withdrawn. 30. It is emphasized by learned Senior Counsel that, in fact, there is no order on merits; therefore there is nothing to be reviewed in the order of this Court. It is contended that the aspect whether, as per the applicants, the Corporation wrongly understood the order dated 31.08.2006, or wrongly granted Development Permission to them, cannot become the subject-matter of the present review proceedings as this action has never been challenged by the applicants at any point of time. All these aspects are, therefore, wholly irrelevant in review proceedings. It is submitted that the present application for review is totally devoid of merit and deserves to be rejected. 31. Learned Senior Counsel has further contended that it is the specific case of respondents Nos. 1-3, stated on oath in the affidavit-in-reply, that the applicants were aware of the filing of Special Civil Application No. 11883 of 2012 and Miscellaneous Civil Application No. 2825 of 2013. After the issuance of notice a learned advocate, whose name is mentioned in Paragraph 3 of the affidavit-in-reply (at running page 206), appeared on the returnable date and stated, on instructions, that he would be appearing in the matter and filing an application for joining as parties to the proceedings. The matter was adjourned at his request. However, this fact has been suppressed by the applicants, with a view to misleading the Court. Later on, no application was preferred, in spite of knowledge on the part of the applicants regarding the pendency of the proceedings. Having such knowledge, the applicants cannot be permitted to reopen the proceedings on the ground of not having been joined as parties or not being heard. It is submitted that the fact that the learned advocate did appear has not been denied by the applicants.
Having such knowledge, the applicants cannot be permitted to reopen the proceedings on the ground of not having been joined as parties or not being heard. It is submitted that the fact that the learned advocate did appear has not been denied by the applicants. It is only stated in the rejoinder that the applicants had not instructed him to appear. It is contended by learned Senior Counsel that the applicants have suppressed material facts and the present application is a gross abuse of the process of law. 32. Learned Senior Counsel further contends that the applicants have relinquished their rights in the land in question and a revenue entry has been recorded in this regard. The applicants have also made statements before the revenue authorities in this regard, duly signed by them. Applicant No. 2, who lives abroad, has sent a notarized statement from the USA. Learned Senior Counsel has referred to the record annexed by respondents Nos. 1-3 in this regard and stated that the applicants have been issued notices under Section135-D of the Bombay Land Revenue Code, which have been received by them. No challenge was made by them to the notices. The applicants have waived their rights in the property before the Mamaltdar and have also made a declaration to this effect. 33. Learned Senior Counsel has further pointed out that the applicants have challenged the order of the Deputy Collector in RTS proceedings, regarding deletion of their names from the record, before the Collector. The revision application was rejected. The order of the Collector was challenged by the applicants before the State Government but the challenge failed and the matter has not been carried any further and has attained finality. It is submitted that, though revenue entries are made for fiscal purposes and would not decide the rights of parties, it is necessary to point out these undisputed facts to show that the applicants have failed in the revenue proceedings. They cannot, therefore, be heard to say that any rights of theirs are being affected by the order of this Court. The said order does not decide the rights of any person and it does not contain any decision on merits. 34.
They cannot, therefore, be heard to say that any rights of theirs are being affected by the order of this Court. The said order does not decide the rights of any person and it does not contain any decision on merits. 34. Learned Senior Counsel has further submitted that Special Civil Application No. 6111 of 2006 was filed by the applicants with a prayer to restore the order of injunction granted by the Trial Court which, admittedly, only extended to the transfer and sale of the property and not to its use or development. They have accepted the order of the Trial Court, which did not grant the wider relief prayed by them and granted by the ex parte injunction earlier. Such wider relief was rejected and the applicants never challenged this part of the order. The statement made by respondents Nos. 1-3, as recorded in the order dated 31.08.2006, has to be read and understood in that context. Respondents Nos. 1-3 would never give a concession wider than the prayers sought by the applicants. Referring to the "Advanced Law Lexicon", Mr. Soparkar, learned Senior Counsel, has submitted that the words "deal with" in the statement of respondents Nos. 1-3, as recorded in the order dated 31.08.2006, mean analogous to, or flowing from, 'transfer' or 'alienate'. The words are analogous to an Agreement to Sell or creation of third party rights. The words "deal with" have to be seen and understood in the context of the controversy before the Court. The applicants had never sought an injunction against the use or development of the property in Special Civil Application No. 6111 of 2006, therefore, they cannot attempt to do so in the present proceedings. Learned Senior Counsel has further contended that there was no injunction against the use or development of the property from the date of the order of the Trial Court till the petition was filed by the applicants in which the prayers were only confined to the restoration of the order of the Trial Court, whereby respondents Nos. 1-3 were restrained from selling or transferring the property. The use or development of the property was never in issue. It is contended that the entire statement as a whole, recorded in the order dated 31.08.2006, has to be read and its meaning understood in the proper context.
1-3 were restrained from selling or transferring the property. The use or development of the property was never in issue. It is contended that the entire statement as a whole, recorded in the order dated 31.08.2006, has to be read and its meaning understood in the proper context. Two words, "deal with", cannot be picked up and read or interpreted out of context as the applicants are attempting to do. It is submitted that even today, more than 1/3rd of the land is open. The stage of separating 1/3rd land has not arrived, as there has been no transfer or alienation of the land by respondents Nos. 1-3. The said respondents are only developing the land and constructing two bungalows, after permission to do so has been accorded by the Corporation. 35. It is submitted that the applicants were neither necessary nor proper parties in Special Civil Application No. 11883 of 2012 or Miscellaneous Civil Application No. 2825 of 2013. Respondents Nos. 1-3 were constrained to file the petition in view of the stand taken by the Corporation. The dispute was purely between respondents Nos. 1-3 and the Corporation. Merely because the order dated 31.08.2006 was the subject-matter of discussion, would not make the applicants either proper or necessary parties. 36. It is submitted that there is no error apparent on the face of the order of which review is sought. In fact, there is no order on merits as the application was permitted to be withdrawn. The Corporation has maintained its earlier stand in the application, that led to its withdrawal by respondents Nos. 1-3. The observations made in the order are correct and in consonance with the order dated 31.08.2006. The grievance of the applicants against the Corporation cannot be made the subject-matter of the present review proceedings. 37. In support of his contentions, learned Senior Counsel Mr. Soparkar has relied upon the judgment of the Supreme Court in the case of Parsion Devi & Ors. v. Sumitri Devi & Ors., (1997) 8 SCC 715 . 38. Mr. R.S. Sanjanwala, learned Senior Advocate has appeared for respondent No. 3 with Mr. Dipen Desai, learned advocate. 39. While adopting the submissions advanced on behalf of respondents Nos. 1 and 2, Mr.
v. Sumitri Devi & Ors., (1997) 8 SCC 715 . 38. Mr. R.S. Sanjanwala, learned Senior Advocate has appeared for respondent No. 3 with Mr. Dipen Desai, learned advocate. 39. While adopting the submissions advanced on behalf of respondents Nos. 1 and 2, Mr. Sanjanwala, learned Senior Advocate has, in addition, submitted that for the applicants to succeed in the review proceedings, they must first show that they were necessary parties and there is an error apparent on the face of the order. 40. It is submitted that respondents Nos. 1-3 filed Special Civil Application No. 11883 of 2012 because of the contrary stand taken by the respondent Corporation. Their dispute was with the Corporation alone. It is contended that it cannot be said that when an earlier order of the Court comes up for consideration in later, collateral proceedings, all parties are required to be joined even though no relief is sought against them. There was no prayer for the clarification or modification of the order dated 31.08.2006. The stand of the Corporation, based upon its reading of the order, was under consideration, on the two contentions made by respondents Nos. 1-3 that (i) the demand of the Corporation to carve out a separate 1/3rd area is premature and misconceived as respondents were proposing to raise constructions over an area less than 1/3rd area and (ii) in any case, the order does not prohibit the development and use of the land by respondents Nos. 1-3 for their own purposes. In such proceedings, the applicants cannot claim to be either necessary or proper parties. It is contended that, in any case, the applicants had taken time through a learned advocate to file an application for impleadment but had, thereafter, not chosen to do so. The applicants are, therefore, not entitled to file or maintain the present application on the ground of their not being joined as parties. 41. Mr. R.S. Sanjanwala, learned Senior Counsel, further submits that there is no error apparent on the face of the order passed by this Court. The order dated 31.08.2006 is to be construed in the background of the facts leading to the filing of the petition which were, that the Trial Court had not granted any injunction in favour of the applicants and against respondents Nos. 1-3, for development or use of the property by respondents Nos. 1-3.
The order dated 31.08.2006 is to be construed in the background of the facts leading to the filing of the petition which were, that the Trial Court had not granted any injunction in favour of the applicants and against respondents Nos. 1-3, for development or use of the property by respondents Nos. 1-3. The injunction was limited to the transfer or sale of the property or creation of third party rights. It is contended that respondents Nos. 1-3 made the statement that is recorded in the order dated 31.08.2006, in which the words "deal with" are stated as being analogous to 'transfer' or 'alienate'. The true meaning and import of the order was clear to the applicants, who did not raise any objections when respondents Nos. 1-3 removed the godown on the property. It is only when the applicants realized that some Officers of the Corporation, on the strength of the opinion of one of their lawyers, had interpreted the words "deal with", to include use and development, did they decide, in an opportunistic manner, to latch on to such interpretation to suit their own purposes. The interpretation that is now being placed on the said words by the applicants, is thus an afterthought, which cannot be countenanced. It is submitted that there is no error apparent on the face of the order and as the applicants have failed to make out sufficient grounds for reviewing/recalling the order of this Court, the application be rejected. 42. Mr. Dhaval G. Nanavati, learned advocate, has appeared for the respondent-Corporation and has submitted that the applicants have not challenged the action of the Corporation in granting Development Permission to respondents Nos. 1-3. Insofar as the review petition is concerned, according to the learned counsel, it is a dispute between the applicants and respondents Nos. 1-3. 43. While making submissions in rejoinder, Mr. D.C. Dave, learned Senior Advocate for the applicants, has reiterated his earlier submissions and pointed out that, as stated in the affidavit-in-rejoinder, the applicants had not instructed any advocate to appear in the earlier proceedings. 44. He has further submitted that the provisions of Order 47 Rule 1 of CPC cannot be strictly applied to writ proceedings and this Court is only called upon to apply principles analogous to the CPC in the present proceedings. In support of this contention, Mr.
44. He has further submitted that the provisions of Order 47 Rule 1 of CPC cannot be strictly applied to writ proceedings and this Court is only called upon to apply principles analogous to the CPC in the present proceedings. In support of this contention, Mr. Dave, learned Senior Advocate has cited a judgment of the Division Bench of this Court, dated 23.10.2015 in the case of Collector v. Liquidator - Petrofils Cooperative Limited And Ors. - Miscellaneous Civil Application No. 1412 of 2015 and connected matters. 45. It is reiterated by Mr. Dave that an order affecting the rights of parties would constitute an error apparent and the principles of Order 47 Rule 1 are elastic enough to encompass such an error. 46. Reliance has been placed upon a judgment of the Supreme Court in Board of Control for Cricket in India and Anr. v. Netaji Cricket Club and Ors., (2005) 4 SCC 741 . 47. It is contended that if one looks at the order sought to be reviewed "sequentially", the withdrawal of the application appears to be innocuous. However, it is not so. The Corporation took time to take instructions and then changed its stand, therefore it is not a case of withdrawal, simpliciter. 48. It is submitted that the revenue proceedings referred to by respondents Nos. 1-3 have only fiscal value and do not decide the rights of parties. 49. Insofar as the prayers made in Special Civil Application No. 6111 of 2006 by the applicants are concerned, it is submitted that the order dated 31.08.2006 was a consensus order which cannot be interpreted only in light of the prayers in the petition. 50. Lastly, it is contended that the order granting Development Permission to respondents Nos. 1-3 by the Corporation is an "outcome" of the order of the Court dated 19.12.2013, which is sought to be reviewed. 51. On the above grounds, it is reiterated on behalf of the applicants, that the application be allowed and the said order be recalled. 52. This Court has heard learned counsel for the respective parties at great length and detail and carefully considered the rival submissions. 53.
51. On the above grounds, it is reiterated on behalf of the applicants, that the application be allowed and the said order be recalled. 52. This Court has heard learned counsel for the respective parties at great length and detail and carefully considered the rival submissions. 53. At the very outset, it is required to be kept in mind that the present application has been filed for the review/recall of the order dated 19.12.2013, passed by this Court in Miscellaneous Civil Application No. 2825 of 2013 that had been preferred by the present respondents Nos. 1-3 against respondent No. 4-Corporation. The details of the litigation between the parties and how the application came to be filed, have already been narrated. The application had been filed for the revival of Special Civil Application No. 11883 of 2012, by recalling the order dated 18.01.2013, passed in the said petition, whereby the petition had been permitted to be withdrawn. Miscellaneous Civil Application No. 2825 of 2013 was disposed of, as not pressed, as the Corporation decided to adhere to its earlier stand taken in Special Civil Application No. 11883 of 2012. The application was, therefore, not decided on merits. The order sought to be reviewed is not an order on the merits of the application and no decision has been rendered by the Court. However, it has been contended by Mr. D.C. Dave, learned Senior Counsel for the applicants, that the said order is not an "innocuous" order but is an order that prejudicially affects the rights of the applicants. 54. One may examine, in the background of the rival submissions advanced before this Court as detailed hereinabove, what are the purported rights of the applicants that, according to learned Senior Counsel, have been adversely affected by the order of this Court. As is evident from the pleadings and documents on record, civil litigation is going on between the applicants and respondents Nos. 1-3, who are members of the same family. It is this civil litigation that led the applicants to approach this Court by filing Special Civil Application No. 6111 of 2006, which was directed against the order of the District Court, Ahmedabad, whereby the appeal filed by respondents Nos. 1-3 against the order of injunction made by the Trial Court was allowed.
It is this civil litigation that led the applicants to approach this Court by filing Special Civil Application No. 6111 of 2006, which was directed against the order of the District Court, Ahmedabad, whereby the appeal filed by respondents Nos. 1-3 against the order of injunction made by the Trial Court was allowed. The history of the civil litigation between the parties is an admitted fact, as also the fact that the Trial Court had granted an order of injunction restraining respondents Nos. 1-3 from transferring or selling their property only. No injunction was granted in terms of the much wider prayer sought by the applicants. Even the limited injunction against the transfer and sale of the property was lifted by the District Court, which led to the filing of Special Civil Application No. 6111 of 2006. The prayers made in that petition were only for the restoration of the order of the Trial Court. The refusal of the wider relief sought in the application for injunction before the Trial Court was never challenged by the applicants. The issue then was only that confined to the sale and transfer of the property and not its use or development by respondents Nos. 1-3. The above petition was disposed of as withdrawn by the applicants, in view of the statement made on behalf of respondents Nos. 1-3, as recorded in the order dated 31.08.2006, as below: By filing this petition, the petitioners, who are the original plaintiffs of Regular Civil Suit No. 399/1999 have challenged the order passed by Presiding Officer, Fast Track Court No. 5, Ahmedabad (Rural) in Misc. Civil Appeal No. 39/2000 by which the appeal of respondents No. 1 to 3 is allowed by setting aside the order of injunction granted by Civil Judge (J.D.), Ahmedabad (Rural) in Regular Civil Suit No. 399/1999. During the course of hearing learned advocate Mr. Kavina appearing for respondents No. 1 and 3 and learned advocate Mr. Pujara appearing for respondent No. 2 have submitted that in case their respective clients decide to transfer, alienate or deal with the suit property in any manner or to create right in favour of any third party, at that time, 1/3rd area of the land in question will be carved out and kept separately and the same will not be subject matter of transfer, alienation in any manner till the suit is decided finally.
It is also submitted that respondents No. 1 to 3 will be free to deal with the rest of the property, however, such transaction shall be subject to the decision of the suit. In short, as indicated above, any transaction in connection with disputed property shall be subject to the result of pending suit. It is further submitted that this concession is made only in order to see that the interim controversy is put to an end, however, it is submitted that the respondents No. 1 to 3 reserve their right to take all points, including the point that the plaintiffs have no right, title or interest in suit property and they are not entitled to get any relief in the suit. Aforesaid concession given by respondents No. 1 to 3 is acceptable to the petitioners. Therefore, the parties are directed to act as per the aforesaid arrangement. It is clarified that this concession is only for the purpose of interim arrangement during the pendency of the suit and learned trial Judge shall decide the suit in accordance with law by considering the points raised by the parties, without being influenced by the concession made before this Court. Considering the fact that it is an unfortunate litigation between the family members, learned trial Judge may give top priority to the suit and may dispose of the same as early as possible and latest within a period of one year from today. It is also agreed between the parties that they will cooperate with early hearing and disposal of the suit. In view of what is stated herein above, Mr. A.J. Patel, learned advocate for the petitioners wants permission to withdraw this petition. Permission is granted. Accordingly, this petition is disposed of as withdrawn. Rule is discharged. Interim relief, if any, granted earlier stands vacated." 55. It has been emphatically submitted by learned Senior Counsel for the applicants that the words "deal with" in the statement should be read to mean the use and development of the property, in addition to its transfer or sale. According to the applicants, in the order sought to be reviewed, the Court has not taken into consideration the words "deal with", therefore, the said order is prejudicial to their rights. 56.
According to the applicants, in the order sought to be reviewed, the Court has not taken into consideration the words "deal with", therefore, the said order is prejudicial to their rights. 56. Insofar as the purported rights of the applicants are concerned, apart from the civil litigation that is still going on, the record reveals that there were revenue proceedings, as well. It has come on record that the applicants had relinquished their rights in the property and had given statements and filed declarations before the revenue authorities in this regard. Notices under Section 135-D of the Bombay Land Revenue Code were issued and served upon the applicants and their names came to be deleted from the record. The applicants challenged this action of the revenue authorities, unsuccessfully, and the final order of the State Government against the applicants has attained finality. It is, no doubt, true that revenue entries are made only for fiscal purposes and it is only the Civil Court that would ultimately decide the rights of the parties. The civil litigation is still pending. As can be seen from the order dated 31.08.2006, the statement recorded therein and the direction issued to parties by the Court to abide by it, is but an interim arrangement during the pendency of the suit. The final decision would be rendered by the Civil Court. 57. There would not have been any requirement to refer to anything other than the order under review, but for the submissions advanced by learned Senior Counsel for the applicants to the effect that the order of the Court prejudicially affects the rights of the applicants. 58. The order dated 31.08.2006 has to be read in the context of the dispute between the parties that was before the Court when it was passed. The fact that it is an order of consensus does not confer on the applicants any right to which they were not held entitled by the Civil Court. The petition was an outcome of the order of the Civil Court. The statement made by respondents Nos. 1-3, therefore, is required to be understood in the context of the dispute between the parties that was before this Court. 59. Connected with this submission is the contention that the applicants were not joined as parties to Special Civil Application No. 11883 of 2012 and Miscellaneous Civil Application No. 2825 of 2013.
The statement made by respondents Nos. 1-3, therefore, is required to be understood in the context of the dispute between the parties that was before this Court. 59. Connected with this submission is the contention that the applicants were not joined as parties to Special Civil Application No. 11883 of 2012 and Miscellaneous Civil Application No. 2825 of 2013. According to the applicants, had they been joined, they could have pointed out the meaning and import of the words "deal with" occurring in the order dated 31.08.2006, to which they were parties. As per the applicants, they were necessary parties and ought to have been joined. 60. In the view of this Court, the order dated 31.08.2006, is required to be read as a whole and not in a piece-meal manner. It is only when the order is read as a whole will its true meaning and import be evident. It is also meant to be read in the proper factual and legal context. By picking up two words - "deal with" - out of context and attempting to infuse them with a particular meaning, as is being done by the applicants, is not the proper manner of reading the said order. 61. This Court, while passing the order dated 19.12.2013 sought to be reviewed, has focused only on the litigation it was called upon to decide - which was whether, or not, to accept the prayer made by respondents Nos. 1-3 in Miscellaneous Civil Application No. 2825 of 2013, to review Special Civil Application No. 11883 of 2012. The grievance of respondents Nos. 1-3 was purely against the respondent Corporation that had taken a certain stand in its affidavit-in-reply filed in the petition, as already discussed hereinabove. According to respondents Nos. 1-3, the Corporation had not acted in accordance with the said stand, stated on oath, that led to the filing of the Miscellaneous Civil Application. However, before this Court could render any decision, the Corporation reverted to its original stand taken in Special Civil Application No. 11883 of 2012, resulting in the application being disposed of, as not pressed. The Court has referred to the order dated 31.08.2006 only in the context of the dispute between respondents Nos. 1-3 and the Corporation and has, by no stretch of imagination, interpreted the said order or rendered any 'finding' regarding it, as has been argued on behalf of the applicants.
The Court has referred to the order dated 31.08.2006 only in the context of the dispute between respondents Nos. 1-3 and the Corporation and has, by no stretch of imagination, interpreted the said order or rendered any 'finding' regarding it, as has been argued on behalf of the applicants. The Court is not precluded from referring to an order which is related to a dispute in collateral proceedings. Nothing more has been done. The words "deal with" cannot, therefore, be introduced or imported in the order of this Court of which review is sought when they were not used in the first place, colouring them with the particular meaning that the applicants want to give. The reference to the order dated 31.08.2006 in the order sought to be reviewed is made only in the context of the dispute between respondents Nos. 1-3 and the Corporation, more especially as the Corporation had deviated from its earlier stand stated on oath before this Court. In any event, the order does not decide any rights of the applicants, which will be decided by the Civil Court in accordance with law. This Court, therefore, is of the view that the submissions advanced by Mr. D.C. Dave, learned Senior Counsel, that the rights of the applicants have been prejudicially affected by the order, are devoid of any merit. 62. The occasion for filing Miscellaneous Civil Application No. 2825 of 2013 was the change in stand of the respondent Corporation. The dispute was one between respondents Nos. 1-3 and the Corporation. As such, it cannot be said that the applicants were going to be affected and were necessary parties in the context of the said dispute, without ever objecting to any action of the Corporation. 63. It has been stated on oath in the reply filed by respondent No. 3 to the present application, that the applicants had knowledge of the proceedings as a learned advocate had appeared on their behalf and stated that he had instructions to file an application for impleadment. According to respondent No. 3, the applicants, being aware of the proceedings, cannot now say that they are necessary parties and as they were not joined, the order may be recalled.
According to respondent No. 3, the applicants, being aware of the proceedings, cannot now say that they are necessary parties and as they were not joined, the order may be recalled. To this, the applicants have replied in the affidavit-in-rejoinder, stating that they have never instructed any learned advocate to appear on their behalf, but have not denied that an advocate may have appeared before the Court. From the above submissions and counter-submissions, it is not possible for this Court to ascertain whether the applicants had knowledge of the proceedings and wanted to file an application for joining, or not. Suffice it to say that this Court has not decided any issue on merits in the order dated 19.12.2013, therefore, as there is no decision and the application has, simply, not been pressed, the issue regarding whether the applicants were necessary parties or not, cannot be a reason for recalling the said order. 64. Another aspect that requires consideration is that the use of the property by respondents Nos. 1-3 was not objected to by the applicants when the godown on the land in question was pulled down. It has been submitted on behalf of respondents Nos. 1-3 that even now, more than 1/3rd land is open and only two bungalows have been constructed. This has not been denied by the applicants. 65. At no point of time, except from 07.07.1999 to 09.05.2000, when the ex parte injunction of the Trial Court operated, were the applicants prohibited from using the land in question for their own use. The wider ex parte injunction was lifted by the Trial Court and restricted to the sale or transfer of the property. It has remained thus, to this day. The Development Permission pertains to the use of the property by respondents Nos. 1-3, which was never prohibited. Even the order dated 31.08.2006 contains no such prohibition, therefore, the Court has committed no error in passing the order sought to be reviewed. The applicants cannot seek to get a wider relief through these proceedings, by attempting to get the Court to interpret the words "deal with", as they want, than what they have been granted. The fact that the order dated 31.08.2006 was passed on consensus, cannot take it out of the context of the actual dispute between the parties, which was the cause of action for filing the petition by the applicants. 66.
The fact that the order dated 31.08.2006 was passed on consensus, cannot take it out of the context of the actual dispute between the parties, which was the cause of action for filing the petition by the applicants. 66. This Court, therefore, fails to understand, or perceive, the so-called prejudice that has purportedly been caused to the applicants by the order of this Court. 67. The applicants cannot be permitted to use the present review proceedings to challenge the action of the Corporation in granting Development Permission to respondents Nos. 1-3. This is exactly what the attempt appears to be on their part. No action of the Corporation has ever been challenged by the applicants, including that of granting Development Permission to respondents Nos. 1-3, in any proceedings. Despite this, it is sought to be canvassed before this Court that it is only because of the order dated 19.12.2013 passed by this Court, that the Corporation granted such permission. This submission is factually incorrect, to the knowledge of the applicants. The affidavit-in-reply in Special Civil Application No. 11883 of 2012 was affirmed on 17.01.2013, wherein a stand was taken in Paragraphs 7 and 8 that respondents Nos. 1-3 are to give an undertaking that they would not transfer or alienate 1/3rd portion of the land in terms of the order dated 31.08.2006 and upon the undertaking being given, Development Permission would be granted if permitted by Rules. This stand was taken by the Corporation much before this Court passed the order dated 19.12.2013. This clearly shows that the action of the Corporation in granting Development Permission is not an "outcome" of the order of this Court. The applicants appear to be challenging the said action of the Corporation through the present review proceedings in an oblique manner. 68. Learned Senior Counsel for the applicants has produced the voluminous record obtained by him under the RTI Act and has taken the Court through it. He has submitted that one learned advocate of the Corporation had given an opinion that the words "deal with" include use and development of the land. However, another learned advocate has given a contrary opinion. Whatever may be the opinions given by the counsel of the Corporation, whether conflicting or not, is their internal matter and this Court has no concern with the internal proceedings of the Corporation.
However, another learned advocate has given a contrary opinion. Whatever may be the opinions given by the counsel of the Corporation, whether conflicting or not, is their internal matter and this Court has no concern with the internal proceedings of the Corporation. What is relevant and of importance is the stand taken by the Corporation on oath, before this Court. That was the subject-matter of the order of this Court, which has been passed in the context of the volte face done by the Corporation after taking a stand in its affidavit-in-reply. That is the only context and perspective in which the order dated 19.12.2013 has been passed. Neither was the presence of the applicants required for the dispute before the Court to be resolved nor have any of their rights been decided by this order. 69. Learned counsel for the applicants proceeded to read the order dated 19.12.2013 "sequentially", to use his words, and has submitted that after this Court had recorded its observations in Paragraphs 10 to 12 of the order, it is recorded in Paragraph 13, that the learned advocate for the Corporation sought the permission of the Court in the morning session, to take appropriate instructions and report back in the second session. In Paragraph 14, it is recorded that the learned advocate submitted, on the basis of instructions that the communication dated 15.10.2013 would be recalled and the application of respondents No. 1-3 for the grant of Development Permission for the entire property would be considered afresh. 70. Submissions have been advanced on behalf of the applicants that these instructions are an "outcome" of the order of the Court. Certain insinuations are sought to be made, which are not in good taste and are factually untrue and false to the record. As recorded in the order, upon taking instructions the Corporation had only reverted to its original stand taken in the affidavit-in-reply filed in Special Civil Application No. 11883 of 2012. This affidavit was filed before the order of this Court was passed. The Corporation is capable of taking its own decisions and has done so. To cast aspersions on the order of this Court is nothing but a desperate attempt on the part of the applicants to twist facts subjectively, which cannot be permitted. 71.
This affidavit was filed before the order of this Court was passed. The Corporation is capable of taking its own decisions and has done so. To cast aspersions on the order of this Court is nothing but a desperate attempt on the part of the applicants to twist facts subjectively, which cannot be permitted. 71. The scope of a review application cannot be extended beyond the scope of the petition from which it has arisen. There was no occasion to interpret the words "deal with" in Special Civil Application No. 11883 of 2012, therefore, this Court does not propose to do so at this stage, especially in proceedings of this nature, even though learned counsel for the respective parties have made lengthy submissions in this regard. 72. Learned Senior Counsel for the applicants has not been successful in pointing out any error apparent on the face of the order. Merely by mentioning, cursorily, in the application, that there is an error apparent, the so-called error does not automatically become apparent. Any so-called error that requires a long process of reasoning cannot be considered to be an error apparent on the fact of the order, so as to necessitate its review or recall. 73. The scope of review proceedings has been delineated by the Supreme Court in Parsion Devi & Ors. v. Sumitri Devi & Ors. (supra), in the following terms: "7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, (1965) (5) SCR 174 at 186) this Court opined: "What, however, we are not concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an "error apparent on the face of the record". The fact that on the earlier occasion that Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous.
The fact that on the earlier occasion that Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record", for there is a distinct which is real, though it might not always be capable of exposition between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent." A review is by no means an appeal in disguise whereby an erroneous decision is reheard corrected but lies only for patent error." (Emphasis ours) 8. Again, in Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury ( 1995 (1) SCC 170 ) while quoting with approval a passage from Abhiram Taleshwar Sharma Vs. Abhiram Pishak Sharma & Ors. ( 1979 (4) SCC 389 ), this Court once again held that review proceedings are not by way of an appeal and have to strictly confined to the scope and ambit of Order 47 Rule 1 CPC. 9. 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 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". A review petition, it must be remembered has limited purpose and cannot be allowed to be "an appeal in disguise." (emphasis supplied) 74. As stated by the Supreme Court in the above-quoted judgment, an error which is not self evident and has to be detected by a long drawn out process of reasoning, as is being attempted in the present case, cannot be said to be an error. The error should be apparent on the face of the order. Read in this manner, this Court does not find any error apparent on the face of the order passed by this Court, necessitating its review or recall. 75.
The error should be apparent on the face of the order. Read in this manner, this Court does not find any error apparent on the face of the order passed by this Court, necessitating its review or recall. 75. It is settled law that review proceedings cannot be used as an appeal in disguise. Not having challenged the action of the Corporation at any stage, the applicants cannot use the present proceedings to do so indirectly, in an oblique manner, by trying to get the Court to read the words "deal with" in the manner that they want. The Court has not interpreted those words in the order sought to be reviewed and would not do so in the present proceedings, the scope of which is much narrower. 76. Learned counsel for the applicants has relied upon the judgment of the Supreme Court in Pohla Singh alias Pohla Ram (D) by Lrs. & Ors. v. State of Punjab & Ors. (supra), wherein it is held as below: If a decision rendered in a writ petition adversely affects the interest of a third person who was not impleaded as a party in the writ petition, it is always open to him to ask for recall of the judgment which has been rendered without affording any opportunity of hearing to him. The basic grievance of the appellants was that though they were in possession since 1962 i.e. for nearly 18 years, but the order declaring the land as surplus had been set aside in a writ petition, wherein they were not impleaded as parties. The recourse taken to the second writ petition by the allottees, therefore, cannot be said to be illegal. In the circumstances of the case, the writ petition filed by the allottees was rightly allowed by the learned Single Judge. (Paras 18.1 and 19) 77. This judgment speaks of a "decision rendered" which adversely affects the interest of a third person. In the order sought to be reviewed, there is no decision at all, much less any decision affecting the applicants. The application was not decided on merits, as it was not pressed. This judgment would, therefore, not aid the applicants in the present case. 78. Another judgment relied on is that in the case of Dattatreya & Ors. v. Mahaveer & Ors. (supra), wherein the Supreme Court has held as below: ...
The application was not decided on merits, as it was not pressed. This judgment would, therefore, not aid the applicants in the present case. 78. Another judgment relied on is that in the case of Dattatreya & Ors. v. Mahaveer & Ors. (supra), wherein the Supreme Court has held as below: ... The incumbent upon the respondents to have got the order reviewed or modified. By not impleading the present respondents as parties in the writ petition the appellants deprived the respondents of an opportunity to challenge that order; rather they were kept in the dark about the whole proceeding. Any order to consider the application of the appellants moved in 1985 was likely to affect the order of 1979 passed in favour of the respondents. The appellants knew it, being parties in the earlier proceedings. The fact thus remains that the material facts to be affected were avoided to be impleaded as parties. It was merely not a question of non-impleadment of necessary parties technically and strictly in accordance with the provisions of the Code of Civil Procedure, rather was very much a question of proper parties being there before the Court particularly in proceedings under Article 226 of the Constitution. The Tribunal and the High Court also felt that the question of rights of the parties in that land stood decided in 1979 and there was no occasion to reopen that matter, still it was reopened in view of the direction to dispose of the application on merits given by the Single Judge in the absence of the respondents as parties in the writ petition. The direction never meant that the application moved in 1985 could not be disposed of saying that the matter had already been decided in respect of the same land in the presence of the same parties or the land was no more available for passing an order to register occupancy. The appellants cannot be allowed to claim any bona fides in not impleading the respondents as parties in that writ petition or about non-disclosure of the earlier order of 1979 in respect of the same land and within their knowledge on the ground that it was not necessary to disclose it. They knew well that if any order is passed in their favour the respondents would be the affected persons.
They knew well that if any order is passed in their favour the respondents would be the affected persons. The respondents were deprived from raising this point before the Single Judge regarding a pre-existing order relating to the same land and non-disclosure of the same. The conduct of the appellants had been far from being fair if not fraudulent. It was a deliberate suppression of material fact which caused prejudice to the respondents. Fair play is the basic rule to seek relief under Article 226 of the Constitution. (Para 10) 79. This judgment, rendered on the facts of the case before the Apex Court, would not be relevant in the context of the present matter, as there is no suppression of material facts or fraudulent conduct and the rights of the parties were never reopened. 80. Reference has also been made by the learned Senior Counsel for the applicants to an order dated 23.10.2015 of a Division Bench of this Court in Collector v. Liquidator - Petrofils Cooperative Limited And Ors. - Miscellaneous Civil Application No. 1412 of 2015 and connected matters, wherein it has been observed as below: "29. Coming to the question of limitation under Order XLVII Rule 9, we may notice that the Constitution Bench of the Supreme Court in case of Shivdeo Singh (supra), held that the High Court has inherent powers to review its own judgements to prevent miscarriage of justice or to correct grave and palpable errors committed by it. It was held as under: "It is sufficient to say that there is nothing in Article226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. 30. This view has been reiterated in several decisions later. In case of Gujarat University v. Sonal P. Shah reported in 1982 AIR GUJ 58, Full Bench of this Court had held that the provisions of the Code of Civil Procedure, Order-XLVII, are not applicable to the High Court's power of review in the proceedings under Article 226 of the Constitution. It was however, recognized that such inherent powers are not treated as unlimited or unabridged, but they are to be invoked on the grounds analogous to the grounds mentioned in Order XLVII Rule 1.
It was however, recognized that such inherent powers are not treated as unlimited or unabridged, but they are to be invoked on the grounds analogous to the grounds mentioned in Order XLVII Rule 1. N.H. Bhatt, J. in his judgment which through separate reasons, was concurred by other two members forming the Bench, observed as under: "So I find that the following legal propositions stand firmly established:- (1) The provisions of the civil procedure Code in Order 47 are not applicable to the High Court's power of review in proceedings under Art. 226of the Constitution: (2) The said Powers are to be exercised by the High Court only to prevent miscarriage of justice or to correct grave and palpable errors. (The epithet "palpable" means that which can be felt by a simple touch of the order and not which could be dug out after a long drawn out process of argumentation and ratiocination). (3) The inherent powers, though ex facie Plenary, are not to be treated as unlimited or unabridged, but they are to be invoked on the grounds analogous to the grounds mentioned in Order 47 Rule 1; namely; (i) discovery of new and important matter or evidence which the party seeking the review could not produce at the time when the earlier order sought to be reviewed was made, despite exercise of due diligence, (ii) existence of some mistake or error apparent on the face of the record, and (iii) existence of any analogous ground. (These are the very three grounds referred to in order 47 Rule 1Civil P.C. and by declaration of law at the hands of the Supreme Court in the above case they are the hedges or limitations of the High Court's power.)"" 81. In Paragraph 31 of the said judgment, the Division Bench has held thus: "31. We are conscious that in later judgments, the Supreme Court has with greater emphasis laid down that the scope of the review by the Supreme Court under Article 226 would be confined to the review powers under Rule 1 of Order XLVII namely, to correct the error apparent on the face of the record. These observations were made by the Supreme Court in case of Meera Bhanja (Smt.) (supra) as pointed out by the learned senior counsel Shri Chidambaram as also in case of B. Valluvan and others (supra).
These observations were made by the Supreme Court in case of Meera Bhanja (Smt.) (supra) as pointed out by the learned senior counsel Shri Chidambaram as also in case of B. Valluvan and others (supra). These observations however, were made more to highlight that even while exercising such inherent plenary powers of review, the High Court would not be justified in reversing its earlier decision on reconsideration of the entire evidence taking a different view on merits. In other words, if two views are possible, it would not be a ground for reviewing the earlier judgment." (emphasis supplied) 82. The principles enunciated by the Division Bench above have been culled out after discussing several judgments of the Supreme Court on the issue of review jurisdiction. Applying the above principles to the present case, it transpires that review jurisdiction can be invoked in proceedings arising out of writ petitions, on grounds analogous to the grounds mentioned in Order 47 Rule 1. None of those grounds are made out in the present case. Under Article 226 of the Constitution the High Court would confine the powers of review to correct an error apparent on the face of the record. No error apparent has been successfully pointed out in the order. Even while exercising the inherent, plenary powers of review, the High Court would not be justified in reversing its earlier decision on reconsideration of the entire evidence, taking a different view on merits. Considered from this angle, the order sought to be reviewed does not disclose any such apparent error that necessitates its recall. As clearly stated by the Division Bench, if two views are possible, it would not be a ground for reviewing the earlier judgment. 83. Another judgment relied on by the applicants is that of the Supreme Court in the case of Board of Control for Cricket in India and Anr. v. Netaji Cricket Club and Ors. (supra), wherein it is observed as follows: "89. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. 90.
Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. 90. Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a Court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit". 84. According to learned Senior Counsel for the applicants, as review powers are wide enough to include a misconception of fact or law by the Court, as stated in the above judgment, the order of this Court ought to be reviewed. However, what is the "misconception of fact or law" in the said order has not been pointed out. No decision was rendered and no law laid down by the said order. This judgment, therefore, would not take the case of the applicants any further. 85. Mr. Shalin N. Mehta, learned Senior Counsel appearing for one of the applicants has relied upon a decision of the Supreme Court in the case of Ram Chandra Mahadev Jagpat & Ors. v. Chief Executive Officer & Ors., (2006) 11 SCC 661 , on the point of non-joinder of necessary parties. In that case, the facts were on a different footing, in the context of which the proper and necessary party was not joined, as can be seen by the following extract of the judgment: After the dismissal of the special leave petition there against, the order of the High Court dated 11.3.2005 attained finality and there was no proposal of Keya before SRA on 13.4.2006 and, therefore, there was no question of SRA considering the proposal made by the new developer.
In any subsequent proceedings where the termination of the agreement of applicant Sigtia with the Society and replacement of Sigtia by a new developer was a subject-matter, Sigtia was a proper and necessary party to it. The applicant Sigtia has also the right to have a hearing before SRA along with Keya, the new appointee. Hence Sigtia was a necessary and proper party to Writ Petition No. 1277 of 2006 and to Special Leave Petition No. 10281 of 2006 as it was directly affected by any order appointing Keya as developer. The Society has also entered into an agreement and also executed an irrevocable general power of attorney wherein it expressed its satisfaction with the progress in the work made by Sigtia and also by an undertaking where the Society undertook to continue with Sigtia as developer till the completion of the SRA project. (Para 40) 86. The above judgment is a judgment rendered on the facts of the case. In the present case, the order sought to be reviewed does not decide any issue on merits, therefore, this judgment would not be applicable in the present case. 87. Mr. R.S. Sanjanwala, learned Senior Counsel for respondent No. 3 has relied upon the judgment of the Supreme Court in the case of Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524 wherein, it is held as below: "13. A clear distinction has been drawn between suits relating to property and those in which the subject-matter of litigation is a declaration as regards status or legal character. In the former category, the rule of present interest as distinguished from the Commercial interest is required to be shown before a person may be added as a party. 14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved that would only make him a necessary witness-and not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance.
What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved that would only make him a necessary witness-and not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally, that is, by curtailing his legal rights. it is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action." 88. Seen in light of the above pronouncement, in the application filed by respondents Nos. 1-3 which was disposed of by the order of this Court that is the subject-matter of the present proceedings, no relief had been claimed against the applicants. No order has been passed against the applicants. As stated earlier, the order is not one on merits as the application was disposed of, as not pressed. 89. It is difficult to accept that in any subsequent proceedings if an order comes up for consideration in order to adjudicate a limited issue, as can happen in any proceedings, the Court is precluded from doing so only because some of the parties are not involved in the dispute and against whom no relief is claimed, have not been joined. In the present case, no adverse order has been passed against the applicants and no decision has been taken, therefore the question of applicants being prejudiced by the order does not arise. 90.
In the present case, no adverse order has been passed against the applicants and no decision has been taken, therefore the question of applicants being prejudiced by the order does not arise. 90. The culmination of the entire discussion on all the issues raised by the parties collectively is that, in the considered view of this Court, there exists no error apparent on the face of the order sought to be reviewed and none has been successfully pointed out. A long drawn out process of reasoning, in order to fish out an error is not permissible. The error should be palpable on the face of the record, easily discernible at a glance. The order suffers from no such error. 91. The order sought to be reviewed is not an order on merit and, therefore, does not decide any rights of any parties, much less those of the applicants. The rights of the parties will be decided by the Civil Court and the interim arrangement contemplated by the Court in the order dated 31.08.2006, subsists till then. 92. The applicants have not brought the full facts on the record regarding the civil and revenue litigations between the parties, while harping on their "rights" which are under adjudication before the Civil Court. On the other hand, they have produced the internal documents of the Corporation obtained by them under the RTI Act, which are of no relevance in the context of review jurisdiction. The applicants have remained unsuccessful in making out a case for the review/recall of the order of this Court. 93. Considering the case of the applicants from all possible angles and for reasons stated hereinabove, this Court is of the firm view that the present application, being devoid of merit, deserves to be rejected. 94. The application is, accordingly rejected. Rule is discharged. Parties to bear their own costs.