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2018 DIGILAW 1967 (RAJ)

Lrs. of Jaigopalcharya v. Shyam Prakash

2018-09-24

P.K.LOHRA

body2018
JUDGMENT P.K. Lohra, J. By the instant petition under Section 114 read with Order 47 Rule 1 CPC, petitioners are seeking review of order dated 13th of August, 2018, rejecting S.B. Civil Revision No.11/2016 filed by them. In the revision petition petitioners challenged order dated 15th of December, 2015, passed by Sr. Civil Judge, Nathdwara, District Rajsamand whereby Court rejected their applications in Execution Case No.07/13 under Section 3 read with Article 136 of the Limitation Act, under Order 21 Rule 22 & 23(2) read with Section 151 CPC and under Order 7 Rule 11 read with Section 141 CPC, while simultaneously allowing the application dated 23rd of May, 2015 of the respondent decree-holders. According of respondent-decree holder's application also facilitated issuance of warrant against petitioner judgment-debtors under Order 21 Rule 30, Order 21 Rule 35 & Order 21 Rule 32 CPC. 2. For reviewing the order dated 13th of August, 2018 of the Court petitioners have buttressed undermentioned grounds: Original valuation of the suit being only Rs. 5000/-, as the disputed shop was mortgaged for loan for this amount only, the sale value of the shop mentioned in the compromise agreement was Rs. 2,50,000/-, was beyond the pecuniary jurisdiction of the trial Court. Decree passed by trial Court recognized and gave effect to the agreement whereby right, title and interest of a party in the suit became extinct and stood created in favour of another as such the decree was compulsorily registerable but not having been registered remained unenforceable. Execution petition itself had been filed beyond the period of limitation was not executable. As the decree holder defendant No.3 did not take any step and remained sleeping and allowed to elapse the limitation of twelve years prescribed under Section 18 read with Article 136 of the Limitation Act, he alone was to be blamed. Issue of redemption of mortgage, the subject matter of the original suit, remained unattended by the trial Court and execution Court. Condition regarding default in payment of mesne profit @Rs.50,000/- was imposed but from which date the amount became due or payable was required to be decided by the execution court only after evidence of both the parties. 3. Learned counsel in support of his submissions referred to followings decisions: Bhavan Vaja and Others. Vs. Solanki Hanuji Khodaji Mansang & Ors, (1972) AIR SC 1371 Kiran Singh and Others. Vs. 3. Learned counsel in support of his submissions referred to followings decisions: Bhavan Vaja and Others. Vs. Solanki Hanuji Khodaji Mansang & Ors, (1972) AIR SC 1371 Kiran Singh and Others. Vs. Chaman Paswan and Ors, (1954) AIR SC 340 Gurnam Singh (D) thr. L.Rs. and Others. Vs. Gurbachan Kaur (D) by L.Rs, (2017) AIR SC 2419 Tarsem Singh Vs. Sukhminder Singh, (1998) AIR SC 1400 Henry Earnest Meaney & Another. Vs. Mr. E.C. Eyre Walker,1947 AIR Allahabad 332 Tarun Bhargava Vs. State of Haryana & Anr, (2003) AIR(P&H) 98. 4. I have heard learned counsel for the petitioners at length and perused the order under review. 5. I have meticulously examined the grounds of review in the light of submissions of learned counsel and also gone through the precedents relied upon by him. The grounds for review, canvased by learned counsel for the petitioners, have been elaborately dealt in the order under review, and therefore, by reiterating the same grounds, whole endeavor of the petitioners is to re-hear the matter. In my opinion, review jurisdiction is not meant for rehearing matters and its invocation is desirable only when an aggrieved party has made out a case of an error apparent on the face of record of the judgment/order under review. 6. It is also well-settled that a party is not entitled to seek review of a judgment delivered by the Court merely for the purpose of a hearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. It is beyond dispute that a review proceeding cannot be equated with the original hearing of the case and finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. 7. The Supreme Court, in case of Chandra Kante and Ors. Vs. Sheikh Habib, (1975) 1 SCC 674 , while emphasizing on the ground for review, has observed that in the guise of review re-hearing of the matter is not permissible. 7. The Supreme Court, in case of Chandra Kante and Ors. Vs. Sheikh Habib, (1975) 1 SCC 674 , while emphasizing on the ground for review, has observed that in the guise of review re-hearing of the matter is not permissible. The Court held: "A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and over-ruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel's certificate which should not be a routine affair or a habitual step. It is neither fairness to the court which decided nor awareness of the precious public time lost what with a huge back-log of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be, as counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality." 8. In Ajit Kumar Rath Vs. State of Orissa & Ors, (1999) 9 SCC 596 , the Supreme Court, while examining scope of review, held: "30. The provision extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The provision extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stared in the face without any elaborate arguments being needed for establishing it, it may be pointed out that the expression "any other sufficient reason" used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule. 31. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment." 9. The Apex Court in the matter of Delhi Administration Vs. Gurdip Singh Uban & Ors, (2000) 7 SCC 296 , while making a distinction between a merely erroneous decision and the decision which can be characterized as vitiated by "error apparent", clarified that review is not an appeal in disguise. 10. The Supreme Court, in its subsequent judgment, in case of State of West Bengal and Others. Vs. Kamal Sengupta & Anr, (2008) 8 SCC 612 , has reiterated the same principle and held: "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. Vs. Kamal Sengupta & Anr, (2008) 8 SCC 612 , has reiterated the same principle and held: "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". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise". 11. The Apex Court, in its later judgment in Union of India Vs. Sandur Manganese and Iron Ores Ltd. and Ors, (2013) 8 SCC 337 , laid emphasis that review proceedings are not by way of appeal and have to be strictly confined to scope and ambit of Order 47 Rule 1 CPC. The Court held: "23. This Court, on numerous occasions, had deliberated upon the very same issue, arriving at the conclusion 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 of Code of Civil Procedure. 24. In the present case, the error contemplated in the impugned judgment is not one which is apparent on the face of the record rather the dispute is wholly founded on the point of interpretation and applicability of Section 11(2) and 11(4) of the MMDR Act. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the dame. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the dame. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Hence, in review jurisdiction, the court shall interfere only when there is a glaring omission or patent mistake or when a grave error has crept in the impugned judgment, which we fail to notice in the present case." 12. The learned counsel for the review petitioners while referring to the provisions of Order 47 Rule 1 of the Code of Civil Procedure laid emphasis that the power of review is very wide and for this proposition placed reliance on the expression "or for any other sufficient relation" used therein. In my opinion, the words "or for any other sufficient reason" have been interpreted to mean "a reason sufficient on grounds at least analogous to those specified immediately previously", that is excusable failure to bring to the notice of the Court new and important matters, or error apparent on the face of the record, as has been held in Chajjuram v. Neki, (1922) AIR PC 112. Besides as observed by the Supreme Court in Northern India Caterers Vs. Lt. Governor of Delhi, (1980) AIR SC 674 whatever the nature of the proceeding, it is beyond dispute that the finality of the judgment delivered by the Court cannot be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. Therefore interpretation of Order 47 Rule 1 has to be in accordance with the law enunciated by the Privy Council and the Supreme Court. The legal precedents on which reliance is placed by the learned counsel are essentially touching the merits, therefore, cannot render any assistance to the petitioners because in review petition Court cannot embark upon the merits of the case for arriving at a different conclusion. 13. Turning to the facts of the instant case, the admitted position is that the only point raised in the revision petition before this Court was whether the finding of appellate Court was perverse or not. This Court held the finding to be based on materials and evidence on record and refused to interfere with the same. 13. Turning to the facts of the instant case, the admitted position is that the only point raised in the revision petition before this Court was whether the finding of appellate Court was perverse or not. This Court held the finding to be based on materials and evidence on record and refused to interfere with the same. The petitioners have thus not been able to make out a case for review of the judgment of this Court delivered in the revision petition. In fact, what the learned counsel for the review petitioners is seeking now is rehearing and a fresh decision. I am afraid it cannot be allowed by way of review. No glaring omission or patent mistake or grave error could be pointed out in the order delivered by this Court in the revision petition. 14. In view of aforesaid, I am satisfied that no case has been made out for review and accordingly, the review petition is dismissed.