Friends Associates through its authorized Representative v. Ravi HiTech Limited through its Official Liquidator
2017-11-10
D.N.PATEL
body2017
DigiLaw.ai
ORDER : I.A. No. 8152 of 2017 1. This interlocutory application has been preferred under Section 5 of the Limitation Act for condonation of delay of 700 days in preferring this Civil Review Application. 2. Having heard learned counsels for both the sides and looking to the reasons stated in this interlocutory application especially in paragraph nos. 3, 4 and 5, there are reasonable reasons for condonation of delay. I, therefore, condone the delay of 700 days in preferring this Civil Review Application. 3. I.A. No. 8152 of 2017 is, therefore, allowed and disposed of. Civil Review No. 29 of 2017 1. This Civil Review application has been preferred for modification/review of an order passed by this Court dated 13.4.2015 in I.A. No. 1038 of 2010 in Company Petition No. 3 of 2003. 2. Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that during pendency of Company Petition No. 3 of 2003, interlocutory application was preferred by this applicant for vacating or modifying the order of status quo granted by this Court vide order dated 11.12.2009 in Company Petition No. 3 of 2003 for the land admeasuring 1.5 acres of land situated at Industrial Plot No. NS-6, Phase-V, Adityapur Industrial Area. 3. Looking to paragraph 5 of the order dated 13.4.2015, I see no reason to modify or review the said order because Company Petition No. 3 of 2003 is already pending and the same can be heard by the learned Single Judge upon mentioning of the matter. Moreover, there is no error apparent on the face of record. There is no patent error in an order under review. This Civil Review application is not an appeal in disguise. No cogent reason has been pointed out by the learned counsel for the petitioner for reviewing the order passed by this Court dated 13.4.2015 in I.A. No. 1038 of 2010. Even otherwise also, status quo order granted by this Court dated 11.12.2009 in Company Petition No. 3 of 2003 has been continued till today. 4. It has been held by the Hon'ble Supreme Court in the case of Aribam Tuleshwar Sharma vs. Aibam Pishak Sharma, (1979) 4 SCC 389 in paragraph 3, which reads as under: "3. The Judicial Commissioner gave two reasons for reviewing his predecessors order.
4. It has been held by the Hon'ble Supreme Court in the case of Aribam Tuleshwar Sharma vs. Aibam Pishak Sharma, (1979) 4 SCC 389 in paragraph 3, which reads as under: "3. The Judicial Commissioner gave two reasons for reviewing his predecessors order. The first was that his predecessor had overlooked two important documents Exs.A1 and A-3 which showed that the respondents were in possession of the sites even in the year 1948-49 and that the grants must have been made even by then. The second was that there was a patent illegality in permitting the appellant to question, in a single writ petition, settlement made in favour of different respondents. We are afraid that neither of the reasons mentioned by the learned Judicial Commissioner constitutes a ground for review. It is true as observed by this Court in Shivdeo Singh vs. State of Punjab there is nothing in Article 226 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. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made, it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court." (Emphasis supplied) 5. It has also been held by the Hon'ble Supreme Court in the case of Meera Bhanja vs. Nirmala Kumari Choudhary, (1995) 1 SCC 170 in paragraphs 8, 9 and 15, which read as under: "8.
It has also been held by the Hon'ble Supreme Court in the case of Meera Bhanja vs. Nirmala Kumari Choudhary, (1995) 1 SCC 170 in paragraphs 8, 9 and 15, which read as under: "8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court in the case of Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma, speaking through Chinnappa Reddy, J. has made the following pertinent observations: "It is true as observed by this Court in Shivdeo Singh vs. State of Punjab, there is nothing in Article 226 of the Constitution to preclude the 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. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made, it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision we erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court." 9. Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground.
Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that 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. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde vs. Mallikarjun Bhavanappa Tirumale wherein, K.C. Das Gupta, J. speaking for the Court has made the following observations in connection with an error apparent on the face of the record: 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. 15. In our view the aforesaid approach of the Division Bench dealing with the review proceedings clearly shows that it has overstepped its jurisdiction under Order 47, Rule 1 CPC by merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error. It would not become a patent error or error apparent in view of the settled legal position indicated by us earlier. In substance, the Review Bench has re-appreciated the entire evidence, sat-almost as court of appeal and has reversed the findings reached by the earlier Division Bench. Even if the earlier Division Bench's findings regarding C.S. Plot No. 74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate court.
Even if the earlier Division Bench's findings regarding C.S. Plot No. 74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate court. Learned counsel for the respondent was not in a position to point out how the reasoning adopted and conclusion reached by the Review Bench can be supported within the narrow and limited scope of Order 47, Rule 1 CPC. Right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned. It could not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers. Only on that short ground, therefore, this appeal is required to be allowed. The final decision dated 8.7.1986 of the Division Bench dismissing the appeal from Appellate Decree No. 569 of 1973 insofar as C.S. Plot No. 74 is concerned as well as the review judgment dated 5.9.1984 in connection with the very same plot, i.e. C.S. Plot No. 74, are set aside and the earlier judgment of the High Court dated 3.8.1978 allowing the second appeal regarding suit Plot No. 74 is restored. The appeal is accordingly allowed. In the facts and circumstances of the case, there will be no order as to costs." (Emphasis supplied) 6. It has further been held by the Hon'ble Supreme Court in the case of Parsion Devi vs. Sumitri Devi, (1997) 8 SCC 715 in paragraphs 7, 8 and 9, which read as under: "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. Govt. of A.P. (SCR at p. 186) this Court opined: "What, however, we are now 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 the 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 the 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 distinction 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 and corrected but lies only for patent error." 8. Again, in Meera Bhanja vs. Nirmala Kumari Choudhury while quoting with approval a passage from Aribam Tuleshwar Sharma vs. Aibam Pishak Sharma this Court once again held that 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. 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 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. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise." (Emphasis supplied) 7. It has, further been held by the Hon'ble Supreme Court in the case of Haridas Das vs. Usha Rani Banik, (2006) 4 SCC 78 : 2006 (3) JLJR (SC) 14 in paragraphs 13 to 18, which read as under: "13. In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it may make such order thereon as it thinks fit.
In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it may make such order thereon as it thinks fit. The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing on account of some mistake or error apparent on the face of the records or for any other sufficient reason. The former part of the rule deals with a situation attributable to the applicant and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. 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 to Rule 1 of Order 47 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 Thungabhadra Industries Ltd. vs. Govt. of A.P. 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 characterised 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 stares 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." 14. In Meera Bhanja vs. Nirmala Kumari Choudhary, it was held that: "8.
In Meera Bhanja vs. Nirmala Kumari Choudhary, it was held that: "8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1 while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution this Court in Aribam Tuleshwar Sharma vs. Aibam Pishak Sharma speaking through Chinnappa Reddy, J. has made the following pertinent observations: It is true there is nothing in Article 226 of the Constitution to preclude the 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. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made, it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court." 15. A perusal of Order 47, Rule 1 shows that review of a judgment or an order could be sought: (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason. 16.
16. In Aribam Tuleshwar Sharma vs. Aibam Pishak Sharma this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order 47, Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the Judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to this Court it was held as under: "It is true as observed by this Court in Shivdeo Singh vs. State of Punjab there is nothing in Article 226 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. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made, it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court." 17. The judgment in Aribam case has been followed in Meera Bhanja. In that case, it has been reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long-drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in Satyanarayan Laxminarayan Hegde vs. Mallikarjun Bhavanappa Tirumale were 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." 18. It is also pertinent to mention the observations of this Court in Parsion Devi vs. Sumitri Devi. Relying upon the judgments in Aribam and Meera Bhanja it was observed as under: "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 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. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise." (Emphasis supplied) 8. In this set of circumstances and looking to the aforesaid decisions, I see no reason to entertain this Civil Review Application and the same is, therefore, dismissed.