JUDGMENT : Tarlok Singh Chauhan, J. This petition under Order 47 Rule 1 and Section 114 of the Code of Civil Procedure read with Civil Writ Rules 13 read with Original Side Rule 1.18 seeks review of the judgment passed by this Court on 26.4.2016 in LPA No. 172 of 2014 whereby the appeal filed by the review petitioner against the judgment of the learned writ Court came to be dismissed with costs of Rs. 10,000/-.. 2. It is averred that there is an error apparent on the face of the record inasmuch as this Court while deciding the appeal has erred in concluding that none of the parties had questioned the order of allotment of the shops and had further erred in concluding that the shop No.18 had been allotted to the petitioner and in fact it was shop No. 17 that had been allotted in his favour. 3. The official respondents have filed reply to this petition wherein it has been specifically averred that as regards the shop No. 17, the same was allotted to respondent No.5 herein (original writ petitioner), whereas no shop was allotted to the review petitioner. 4. Respondent No.5 has filed separate reply wherein it is averred that the review petitioner was never allotted shop No.17 as alleged, therefore, he had no right to remain in possession thereof. 5. The learned writ Court had directed respondent No.5 to be put in possession of shop No. 17 which admittedly was in possession of the review petitioner and said findings had been affirmed by us vide the impugned judgment. 6. As noticed above, the only question required to be determined by this Court in LPA was whether the review petitioner in fact had a right to remain in possession of shop No.17 and this question as observed earlier had been answered against the petitioner. 7. However, before considering the case on merits, the scope of review is required to be considered. 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 and Section 114 of CPC. There must be an error apparent on the face of the record.
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 and Section 114 of CPC. There must be 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. Similarly, wherein 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 way of review. Review Petition has a limited purpose and cannot be allowed to be “an appeal in disguise”. 8. What would be the scope and ambit of review petition has been considered in detail by the Hon’ble Supreme Court in Kamlesh Verma vs. Mayawati and others (2013) 8 SCC 320 and thereafter the legal position has been summarized as follows: Summary of the Principles: 20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: 20.1. When the review will be maintainable:- (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. The words “any other sufficient reason” has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., (1955) 1 SCR 520 , to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., JT 2013 (8) SC 275. 20.2. When the review will not be maintainable:- (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case.
20.2. When the review will not be maintainable:- (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.” 9. The same principle has been laid down by this Court in M/s Harvel Agua India Private Limited Versus State of H.P. & Ors., Review Petition No. 4084 of 2013, decided on 9th July, 2014 and in a very recent judgment delivered on 28.3.2017 in Review Petition No. 45 of 2015, titled Kameshwar Sharma and others Versus State of H.P. and others. 10. Adverting to the facts of the case, it would be noticed that on 28.12.1999, a Committee was constituted by the official respondents to allot the shops firstly to the existing tenants and only thereafter consider the claim of the new allottees through open auction. Respondent No.5, who was the writ petitioner before this Court was allotted shop No.17 by the Additional Deputy Commissioner, Kangra vide his order dated 7.4.2000 and was simultaneously directed to remove the Khokha which had unauthorisedly been constructed by him.
Respondent No.5, who was the writ petitioner before this Court was allotted shop No.17 by the Additional Deputy Commissioner, Kangra vide his order dated 7.4.2000 and was simultaneously directed to remove the Khokha which had unauthorisedly been constructed by him. However, the writ petitioner failed to get the possession of shop No. 17 and had instead been allotted shop No.18, which constrained him to approach this Court by filing CWP No. 6159 of 2010, claiming therein the following relief: “(a) Direct the respondents to allot Shop No.17, at Shopping Complex, Jawalamukhi Temple Road, Dehra, District Kangra and to give the possession of shop No.17 to the petitioner in terms of order dated 7.4.2000 (Annexure PD)”. 11. In the reply filed by the official respondents, it was admitted that the shop No.17 had been allotted to respondent No.5 herein, but the said shop was in illegal and unauthorized use and occupation of the review petitioner since 1998 and, therefore, the shop No.17 could not be allotted to respondent No.5. 12. As observed earlier, learned writ Court allowed the writ petition by directing the official respondents to evict the review petitioner from the shop No.17, which judgment was affirmed by us vide the impugned judgment sought to be reviewed. 13. Ms. Ritta Goswami, learned counsel for the petitioner would vehemently argue that the findings rendered by this Court that the order of allotment made by the Additional Deputy Commissioner was not assailed by any of the parties is factually incorrect, inasmuch as the review petitioner had specifically assailed this order by filing a suit before the learned Civil Court i.e. the Court of Sub Judge, Dehra, District Kangra. 14. Now, adverting to the suit filed by the review petitioner, it would be noticed that the same has been filed under Sections 38 and 39 of the Specific Relief Act whereby only a decree for perpetual and prohibitory injunction restraining the official respondents from interfering in the possession and dispossessing the petitioner from shop No.17 has been sought for, while no separate declaration under Section 34 assailing the order of allotment had been prayed for. 15. Ms.
15. Ms. Ritta Goswami, learned counsel for the petitioner would vehemently argue that in para-6 of the plaint, a specific reference has been made with regard to the order passed by learned Additional Deputy Commissioner, Kangra dated 7.4.2000 and would contend that the challenge to the decision is therefore implicit in the suit so filed. 16. We are afraid that this contention is rather too far-fetched. In case the petitioner was really aggrieved by the order passed by the learned Additional Deputy Commissioner whereby shop No.17 was allotted to respondent No. 5, then it was incumbent upon him to have sought a specific declaration to this effect under Section 34 of the Specific Relief Act and having failed to do so, this Court has rightly concluded that none of the parties had assailed the order of allotment of the shops. 17. As a matter of fact, this Court while disposing of LPA No.172 of 2014, had in no uncertain terms concluded that the petitioner in order to retain the premises which were in his illegal possession had instituted the aforesaid frivolous appeal and yet the review petitioner does not seem to have learnt any lesson despite this Court having imposed costs upon him. Therefore, this Court has no hesitation to once again hold that this petition is nothing but an abuse of the process of the Court. 18. This Court while disposing of LPA No.172 of 2014 had observed as follows: “19. It is evident from the material placed on record that the entire endeavour of both the parties was only to get illegal and undue enrichment that too by raising untenable pleas. It is well settled that a party, who approaches a court of law, must not only come with clean hands, but also clean heart, clear mind and clear objective. The court proceedings are not a game of chess. At no cost can the stream of justice be permitted to be polluted by unscrupulous litigants. The writ court while exercising the writ jurisdiction exercises equitable jurisdiction. The estoppel stems from equitable doctrine and it requires that he who seeks equity must do equity. Not only this, a person who seeks equity, must act in a fair and equitable manner. The equitable jurisdiction cannot be exercised in case of a person who himself has acted unfairly. Even compassion cannot be shown in such cases.
The estoppel stems from equitable doctrine and it requires that he who seeks equity must do equity. Not only this, a person who seeks equity, must act in a fair and equitable manner. The equitable jurisdiction cannot be exercised in case of a person who himself has acted unfairly. Even compassion cannot be shown in such cases. The compassion cannot be allowed to bend the arms of justice in a case where an individuals have tried to acquire the property by unscrupulous method and by forcibly occupying the premises which neither belong to them nor have been allotted in their favour. 20. Now, coming to the question of adjustment of equities. As already observed earlier, the principle that one who seeks equity must do equity is well known. Writ jurisdiction is equitable jurisdiction. It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief. 21. We have referred to the provisions of Article 226 of the Constitution being fully conscious of the fact that we are dealing with Letters Patent Appeal. As it is more than settled that a writ appeal is a continuation of the writ petition and merely because it is an appeal under the Letters Patent of the Court, it does not change its character from being a writ appeal and, therefore, the appellate powers of this Court cannot be circumscribed and would remain the same as that of the writ Court. It is equally settled that Letters Patent Appeal being an intra-Court appeal and in continuation of the writ petition under Article 226 of the Constitution of India, the relief prayed for can be moulded and final relief can be granted.
It is equally settled that Letters Patent Appeal being an intra-Court appeal and in continuation of the writ petition under Article 226 of the Constitution of India, the relief prayed for can be moulded and final relief can be granted. The proceedings of the intra-Court appeal are, normally, governed and regulated by the statutory provisions conferring right of appeal and jurisdiction to decide the appeal. However, intra-Court appeal under Clause 10 of the Letters Patent, arising out of the proceedings under Article 226 of the Constitution, is not at par with other statutory intra-Court appeals. It is, indeed, continuation of the proceedings under Article 226 of the Constitution. 22. Evidently, both the parties to the lis have reaped undue advantage by resorting to all sorts of unscrupulous methods in order to retain possession of the properties which had not even been allotted to them. None of the parties had the right to take law in their own hands and were required to approach the official respondents to resolve any difficulty rather than forcibly occupying the shops as per their convenience. Even the writ petitioner could not have retained and carried his business from the Khokha in violation to the orders passed by the Samiti. To say the least, the conduct of both the parties has been reprehensible and definitely not above board. 23. In view of the aforesaid discussion, there is no merit in this appeal and the same is dismissed with costs assessed at Rs.10,000/- to be paid by the appellant to the Samiti. However, at the same time, even the conduct of the writ petitioner has been totally unfair and he is therefore, required to compensate the Samiti for having gained unfair advantage by retaining possession of the Khokha as also shop No.18, therefore, before taking possession of shop No. 17, the writ petitioner is directed to pay a sum of Rs. 20,000/- to the Panchayat Samiti towards unfair advantage gained by him prior to filing of the petition.” 19. As would be evident from the aforesaid discussion, despite this Court having made scathing observations against the conduct of both the individual parties to this lis, the petitioner does not appear to have taken these seriously and has rather ventured for another misadventure by instituting this frivolous review petition which clearly establishes that his conduct is nothing short of being cantankerous.
The manner in which the petitioner has successfully managed to prolong this litigation not only indicates rather establishes that he has successfully turned this litigation into a fruitful litigation. It is, therefore, the duty of this Court to neutralize any unjust enrichment and undeserved gain made by any litigants only on account of keeping the litigation alive. 20. The Hon’ble Supreme Court in South Eastern Coalfields Limited vs. State of M.P. and others (2003) 8 SCC 648 , held as under: "28 ......Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation." 21. Similar issue came up before the Hon’ble Supreme Court in Indian Council for Enviro Legal-Action vs. Union of India and others (2011) 8 SCC 161 , wherein after taking into notice the conduct of the parties, the Hon’ble Supreme Court held as follows:- “197. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view: 1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court. 2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.
2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party. 3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court. 4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system. 5. No litigant can derive benefit from the mere pendency of a case in a court of law. 6. A party cannot be allowed to take any benefit of his own wrongs. 7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court. 8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts.” 22. In view of aforesaid discussion, not only has the petitioner failed to make out a case calling for interference in this review petition, but we are of the firm view that by keeping the litigation alive, the petitioner has reaped certain undue benefits which needs to be neutralized. Accordingly, the review petition is dismissed with costs of Rs.50,000/- to be paid by the petitioner to respondent No.2 within 30 days from the receipt of this order, failing which, the respondents shall be at liberty to execute the said order, which needless to say shall be entirely at the risk, peril and costs of the review petitioner.