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2022 DIGILAW 1457 (ALL)

Bhola Nath v. Anus Rasheed

2022-09-12

ABDUL MOIN

body2022
ORDER : (Order on Review Application Non.1/1992 (9000170/2002) 1. Instant review application has been filed praying for review of judgment dated 5.9.2002 passed in Civil Revision No.29 of 1992 in re: Bhola Nath and another. Vs. Anas Raseed. 2. This Court, vide aforesaid judgment and order had held, after perusal of records, that the trial court had come to an incorrect conclusion regarding service of notice upon the defendant-revisionists as the /postman had not been examined and reliable evidence regarding service of notices under Section 106 of Transfer of Property Act had not been produced in the case ignoring the fact that the notice had been sent on correct address of noticee. 3. Placing reliance on the judgment of this Court in the case of Ghulam Waris Khan and another. Vs. Lt. Col. Ajeet Singh and another, reported in [2008 (26) 209], wherein this Court had placed reliance on the judgment of the Apex Court in the case of M/s. Madan & Company. Vs. Wazir Jaivir Chand, ARC 1989 (2) page 381 and held that if a registered letter addressed to a person at his residential address does not get served in normal course and is returned, it can only be attributed to the addressee's own conduct and thus, it is argued that the finding, as recorded by this Court in the judgment dated 5.9.2002 which pertains to the non-service of notice, is incorrect. 4. Placing reliance on the another judgment of this Court in the case of Smt. Indra Mukhi Verma. Vs. The 1st Additional District and Sessions Judge and others, reported in 1985 All. L.J.1188, learned counsel for petitioner states that this Court while exercising powers of revision, could not re-apprise the evidence as recorded by the Court below and substitute its own finding. On the basis of the aforesaid judgments, the Review Application has been filed. 5. Having heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Sri Mohd. Aslam Khan and perused the record, what emerges is that the judgment and order dated 5.9.2002 has given a clear finding that an incorrect conclusion had been arrived at by the Court below pertaining to the service of notice on the defendant-revisionists. 5. Having heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Sri Mohd. Aslam Khan and perused the record, what emerges is that the judgment and order dated 5.9.2002 has given a clear finding that an incorrect conclusion had been arrived at by the Court below pertaining to the service of notice on the defendant-revisionists. While arriving at the conclusion, the Court has place reliance on the reliable evidence regarding service of notice under Section 106 of Transfer of Property Act having not been produced and witnesses having not been examined. Thus, it is apparent that a clear finding has been recorded by this Court. 6. The review has been filed on two grounds as already indicated above. 7. The scope of review has been considered by the Apex Court in the case of S. Madhusudhan Reddy vs V. Narayana Reddy in Civil Appeal No. 5503-04 of 2022 decided on 18.08.2022 wherein it has been held as under:- “16. The error referred to under the Rule, must be apparent on the face of the record and not one which has to be searched out. While discussing the scope and ambit of Article 137 that empowers the Supreme Court to review its judgments and in the course of discussing the contours of review jurisdiction Under Order XLVII Rule 1 of the Code of Civil Procedure in Lily Thomas (supra), this Court held as under: "54. Article 137 empowers this court to review its judgments subject to the provisions of any law made by Parliament or any rules made under Article 145 of the Constitution. The Supreme Court Rules made in exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the grounds specified in Order 47 rule 1 of the Code of Civil Procedure which provides: "1. The Supreme Court Rules made in exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the grounds specified in Order 47 rule 1 of the Code of Civil Procedure which provides: "1. Application for review of judgment -(1) Any person considering himself aggrieved - (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from 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 decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.' Under Order XL Rule 1 of the Supreme Court Rules no review lies except on the ground of error apparent on the face of the record in criminal cases. Order XL Rule 5 of the Supreme Court Rules provides that after an application for review has been disposed of no further application shall be entertained in the same matter. XXX XXX XXX 56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment. XXX XXX XXX 58. Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal case. It is not the case of the petitioners that they have 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 before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words "any-other sufficient reason appearing in Order 47 Rule 1 CPC" must mean "a reason sufficient on grounds at least analogous to those specified in the rule" as was held in Chajju Ram v. Neki Ram and approved by this Court in Moran Mar Basselios Catholicos. v. Most Rev. Mar Poulose Athanasius. The words "any-other sufficient reason appearing in Order 47 Rule 1 CPC" must mean "a reason sufficient on grounds at least analogous to those specified in the rule" as was held in Chajju Ram v. Neki Ram and approved by this Court in Moran Mar Basselios Catholicos. v. Most Rev. Mar Poulose Athanasius. 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 T.C. Basappa v. T. Nagappa this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad, it was held: "It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error, cease to be mere error and become an error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, CJ in -'Batuk K Vyas v. Surat Borough Municipality', that no error could be said to be apparent on the face of the record if it was not self-evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order 47 Rule 1 CPC for reviewing the judgment in Sarla Mudgal case. The petition is misconceived and bereft of any substance." (emphasis added) 17. It is also settled law that in exercise of review jurisdiction, the Court cannot reappreciate the evidence to arrive at a different conclusion even if two views are possible in a matter. In Kerala State Electricity Board v. Hitech Electrothermics & Hydropower Ltd. and Others, this Court observed as follows: "10. ....In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise." (emphasis added) 18. Under the garb of filing a review petition, a party cannot be permitted to repeat old and overruled arguments for reopening the conclusions arrived at in a judgment. The power of review is not to be confused with the appellate power which enables the Superior Court to correct errors committed by a subordinate Court. Under the garb of filing a review petition, a party cannot be permitted to repeat old and overruled arguments for reopening the conclusions arrived at in a judgment. The power of review is not to be confused with the appellate power which enables the Superior Court to correct errors committed by a subordinate Court. This point has been elucidated in Jain Studios Ltd. V. Shin Satellite Public Co. Ltd. where it was held thus: "11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases. 12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of 'second innings' which is impermissible and unwarranted and cannot be granted." (emphasis added) 19. After discussing a series of decisions on review jurisdiction in Kamlesh Verma v. Mayawati and Others, this Court observed that review proceedings have to be strictly confined to the scope and ambit of Order XLVII Rule 1, CPC. As long as the point sought to be raised in the review application has already been dealt with and answered, parties are not entitled to challenge the impugned judgment only because an alternative view is possible. The principles for exercising review jurisdiction were succinctly summarized in the captioned case as below: "20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: 20.1. The principles for exercising review jurisdiction were succinctly summarized in the captioned case as below: "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 Chajju Ram vs. Neki, and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors. 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 v. Sandur Manganese & Iron Ores Ltd. & Ors. 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) Areview 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." 8. From the perusal of the aforesaid judgment of Apex Court in the case of S. Madhusudhan Reddy (supra), it clearly emerges that the scope of review is extremely limited and cannot be used for the purpose of re-arguing a matter or for re-hearing the matter. From the perusal of the aforesaid judgment of Apex Court in the case of S. Madhusudhan Reddy (supra), it clearly emerges that the scope of review is extremely limited and cannot be used for the purpose of re-arguing a matter or for re-hearing the matter. The judgment, which is sought to be reviewed, might be a wrong judgment but the same would not stand within the ambit of being judgment which can be reviewed by this Court inasmuch as, the scope of review cannot be extended to re-argue the matter which has not found favour earlier. 9. Keeping in view the judgment of Apex Court in the case of S. Madhusudan Reddy (supra), it is apparent that the review application has been filed by the petitioner trying to re-argue his revision which is legally impermissible. 10. Accordingly, no case for review of the judgment and order dated 5.9.2002 is made out. The review application is dismissed.