JUDGMENT In Re: Review application 353959 of 2016 Hon’ble Pramod Kumar Srivastava, J.—This review application filed against judgment dated 13.5.2016 passed by this Court in second appeal No. 291 of 2016 (Rajendra Singh v. Chandra Pal). 2. The Original Suit No. 92 of 2009 (Rajendra Singh v. Chandra Pal) was filed for the relief of specific performance of contract. This suit was decided by the Court of Civil Judge (S.D.), Chandausi, Moradabad on 25.4.2012. By this judgment, trial Court had found the case of plaintiff proved but declined the main relief of specific performance of contract of sale of immovable property, and decreed the suit for alternative relief of return of advance consideration to plaintiff which he had paid to defendant at the time of execution of registered agreement to sell in question. Against said judgment of trial Court Civil Appeal No. 59 of 2012 (Rajendra Singh v. Chandra Pal) was preferred by plaintiff of the original suit, which was heard and dismissed by the judgment dated 30.11.2015 of Additional District Judge, Court No. 12, Moradabad. 3. Against the judgment of two lower Courts Second Appeal No. 291 of 2016 was preferred before this Court, in which both the parties appeared through counsel. This Court had afforded opportunity of hearing to counsels for the parties, considered their arguments on merits, discussed the points presented by them before the Court and thereafter allowed the appeal by its judgment dated 13.5.2016. By this judgment in Second Appeal, this Court had granted main relief of specific performance of contract to plaintiff/appellant and modified the judgments of lower Courts accordingly. 4. This judgment of this Court dated 13.5.2016 in Second Appeal has been challenged by the respondents (applicant of the review application) who had approached the Apex Court through Special Leave Petition to Appeal (C) No. 26902 of 2016 (Chandra Pal v. Rajendra Singh) that was heard and dismissed by following order of Hon’ble Apex Court: “Heard learned counsel for the parties. We see no reason to entertain in this petition under article 136 of the Constitution. The Special Leave Petition is, accordingly, dismissed. Pending applications stands disposed of.” 5. Against the judgment of this Court dated 13.5.2016 in Second Appeal, present review application has been filed on behalf of the respondent of the appeal. 6. We see no reason to entertain in this petition under article 136 of the Constitution. The Special Leave Petition is, accordingly, dismissed. Pending applications stands disposed of.” 5. Against the judgment of this Court dated 13.5.2016 in Second Appeal, present review application has been filed on behalf of the respondent of the appeal. 6. Sri Kshitij Shailendera, learned counsel for the applicant (respondent of the second appeal and applicant of the review application) contended that although Hon’ble Supreme Court had not admitted the appeal against the impugned judgment of this Court in Second Appeal and had dismissed the Special Leave Petition to Appeal (SLP) but by such order, power of review, which is inherent with the Court passing the order under challenge does not come to an end. 7. This submission was opposed by learned counsel for the opposite party (appellant of Second Appeal) who submitted that when Apex Court had dismissed the SLP with finding that there is no reason to entertain the SLP for admission of appeal, which means the impugned judgment of this Court has been confirmed by the Apex Court after consideration, therefore no change can be made in such judgment even in exercise of powers of review. 8. From perusal of record, it is found that this Court had passed detailed judgment on merits in Second Appeal No. 291 of 2016. Considering the rival submissions of the parties, abovementioned order was passed by Hon’ble Apex Court in SLP. In said order of Apex Court detail reasons for dismissing the SLP was not given. 9. Such situation and the right of the lower Court to exercise power of review has been considered by Apex Court in Kunhayammed and others v. State of Kerala and another, AIR 2000 SC 2587 (at page 2601), the Hon’ble Apex Court had held as under: “(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 41 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the Court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.” “Having thus made the law clear, the case at hand poses no problem for solution. The earlier order of the High Court was sought to be subjected to exercise of appellate jurisdiction of Supreme Court by the State of Kerala wherein it did not succeed. The prayer contained in the petition seeking leave to appeal to this Court was found devoid of any merits and hence dismissed. The order is a non-speaking and unreasoned order. All that can be spelled out is that the Court was not convinced of the need for exercising its appellate jurisdiction. The order of the High Court dated 17.12.1982 did not merge in the order dated 18.7.1983 passed by this Court. So it is available to be reviewed by the High Court.” 10. The special leave under Article 136 of the Constitution of India is a discretionary remedy, and hence it can be dismissed for a variety of reasons and not necessarily on merits. It cannot said as to what was in mind of the Apex Court while dismissing the special leave petition without giving any reasons. So there is no merger of the judgment of the High Court with the order of Apex Court if SLP is dismissed by order not assigning any reason. It cannot said as to what was in mind of the Apex Court while dismissing the special leave petition without giving any reasons. So there is no merger of the judgment of the High Court with the order of Apex Court if SLP is dismissed by order not assigning any reason. The dismissal of a Special Leave Petition in limine does not amount to a clear affirmation of the High Court by Supreme Court. If, on the other hand, a SLP is dismissed with reason, however meager, then there is a merger of the judgment of the High Court in the order of the Supreme Court. 11. Thus legal position is explicitly clear that if order or judgment had become final because the appeal preferred was not admitted by non-speaking order, then in such cases, the judgment in question can be treated to have attained the finality, but non-admission of appeal by appellate Court cannot be taken as confirmation of impugned judgment by merger in order of such appellate or superior Court. 12. The right of review is inherent with every competent Court. This is statutory right conferred on the Court to be exercised as provided by the legislature under Code of Civil Procedure. If any clerical, arithmetical or typographical error or inadvertence occurred in judgment, then under the provisions of Code of Civil Procedure, such error can be rectified for the reasons discussed in Order XLVII of Code of Civil Procedure. 13. In view of above considering the order dated 23.9.2016 of Apex Court passed in SLP, it is found that inspite of said order, this Court should consider the maintainability of review petition on its merit. 14. Provision of Order XLVII Rule (2) CPC reads as under : “(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.” 15. In present matter the review of impugned judgment has been requested on the grounds of alleged legal defects of the judgment. In present matter the review of impugned judgment has been requested on the grounds of alleged legal defects of the judgment. For the alleged error, as contended by learned counsel for the applicant (/respondent), petition for appeal (SLP) was preferred before the Apex Court, but the appeal could not be admitted. Under sub-rule (2) of Rule 1 of Order XLVII CPC, review application could be moved by applicant only if he had not been appealing against said judgment. Since he had been appealing against said judgment or its decree, therefore his review application is not maintainable. 16. On merits, Sri K. Shailendra, learned counsel for the applicant of review application (respondent of Second Appeal) submitted that there is a mandatory provision of law that for deciding the appeal under Section 100 CPC. It is a condition precedent to exercise power of High Court to formulate superficial question of law and pass order accordingly and second appeal cannot be decided merely on the equitable ground. He further submitted that in present matter no specific question of law was framed, no lower Court record was summoned for consideration and at the time of admission, this Court had allowed the appeal after hearing arguments of counsel for the parties. According to him, this was apparently an illegal procedure adopted by this Court at the time of passing impugned judgment dated 13.5.2016, which is error apparent on the face of record. His submission was that although argument on points of judgment were placed by counsels for both the parties, but instead of framing of substantial question law before passing the judgment, this Court had erroneously passed the judgment of allowing the appeal, therefore said judgment should be set aside and matter should be re-heard and re-decided after framing substantial question of law. 17. These submissions were opposed by learned counsel for the opposite-party (appellant of Second Appeal) who submitted that in this matter, at the time of hearing of second appeal all the questions on facts and law including all the possible substantial question of law were appreciated and then after due consideration on every points, judgment in question was passed. 17. These submissions were opposed by learned counsel for the opposite-party (appellant of Second Appeal) who submitted that in this matter, at the time of hearing of second appeal all the questions on facts and law including all the possible substantial question of law were appreciated and then after due consideration on every points, judgment in question was passed. He contended that every fact in this matter was proved and admitted, and at the time of hearing of Second Appeal concurrent finding of fact was there, which had earlier been given by trial Court and was confirmed by first appellate Court, and said finding of fact was being supported by respondent side. The judgment in Second Appeal was on the point of pure question of law, for which admitted facts were available before this Court, which had considered them, discussed them and judgment in question was passed after appreciating and deciding those points. He further submitted that after considering those points in said judgment, Supreme Court had affirmed the judgment and it had specifically been observed that for said judgment of Second Appeal there is no reason to entertain SLP. His further alternative argument was that every probable substantial question of law was raised through argument of Second Appeal, that was mentioned specifically by this Court and was decided on merits without any factual or legal error. In such matter, there is no legal propriety to rehear the matter on technical ground for passing same judgment which is not erroneous on merits. So this review application should be rejected. 18. From perusal of judgment in question, it is found that this judgment was passed after considering the admitted facts and admitted legal position. It is a fact that ordinary procedure is that before allowing of any appeal, generally substantial question of law should be framed at the time of admission of appeal, and respondents should be afforded opportunity of hearing, and if matter requires, then the original records should be summoned. But in present matter at the time of hearing of Second Appeal, this Court had not found any reason to summon original record because of relevant records and their copies were found available with the memorandum of Second Appeal and relevant facts were admitted. Parties were afforded opportunity of hearing, and the impugned order was passed on merits after appreciating the arguments of the parties. Parties were afforded opportunity of hearing, and the impugned order was passed on merits after appreciating the arguments of the parties. The judgment in question was not passed with erroneous knowledge of law or procedure. After hearing, this Court had found that relevant points, relating to the matter in appeal, can be decided immediately on the basis of material available before this Court in view of relevant legal provisions. Accordingly this Court had passed the said judgment, in which detailed discussion of contentions of both the parties was made and the matter was decided. Although no formal substantial question of law was framed by this Court, but the question or point of law relating to matter was properly considered, appreciated and discussed by this Court at the time of passing said judgment dated 13.5.2016 on its merits. Such judgment was knowingly passed by this Court without any inadvertence or error apparent on the face of record. In fact no error appears to have been committed by this Court in said judgment dated 13.5.2016. It has been passed on merits, and that too after affording opportunity of hearing to parties, after considering meticulously their arguments and after perusing record, therefore in fact no legal prejudice was caused to rights of respondent (applicant of review application) when appeal was decided on merits. Therefore said judgment needs no review for being quashed. 19. In Rajender Kumar v. Rambhai, (2007) 15 SCC 513 , (at page 514) the Apex Court had held: “6. The limitations on exercise of the power of review are well-settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed.” 20. In Inderchand Jain v. Motilal, (2009) 14 SCC 663 , the Supreme Court had held: “8. An application for review would lie inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice.” 21. In present matter the judgment dated 13.5.2016 had been passed on merits of the case, after full fledged hearing and after considering points raised by the parties during their arguments. In present matter the judgment dated 13.5.2016 had been passed on merits of the case, after full fledged hearing and after considering points raised by the parties during their arguments. No point was shown by the applicant-respondent side that may indicate that there is any error on merits of the judgment. Said judgment was passed knowingly and without inadvertance. The order passed knowingly and deliberately requires no review under Order XLVII CPC. 22. The merits of the impugned judgment has also been touched by counsel for the applicant of review petition, during arguments on point of review. The review is also not an appeal in disguise. The merits of same judgment cannot be reappreciated in garb of review. Power of review is exercised to remove the error and not for disturbing the finality of judgment. The power of review can be exercised for correction of a mistake but not for substituting a view. The mere fact that two views on the same subject are possible is no ground to review the earlier judgment. 23. It is not the case of the applicant/petitioner that he has discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised were in fact addressed for and on behalf of the applicant before the Court, and after considering those pleas, judgment was passed. For the review an error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In the absence of any such error, finality attached to the judgment/order cannot be disturbed. I have also not found any mistake or error apparent on the face of the record requiring a review. 24. In view of above, this review application is dismissed.