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2022 DIGILAW 259 (ALL)

Sonu Kumar Yadav v. State Of U. P.

2022-02-25

K.J.THAKER, VIVEK VARMA

body2022
JUDGMENT : 1. By way of this Review Application, applicant, Sonu Kumar Yadav, has sought review of the judgment and order dated 2.7.2019 passed by this Court (Coram: Justice Govind Mathur and Justice Vivek Verma) in Special Appeal No.755 of 2019 (Sonu Kumar Yadav Vs. State of U.P. and others). 2. Factual matrix of the case is that Sri Rajendra Prasad Yadav father of the appellant-petitioner while holding the post of Constable in Provincial Armed Constabulary (PAC) 37th Battalion, Kanpur availed five days emergency leave. He did not return to the duties after completion of leave period. Looking to the continuous unauthorized absence, a notice was issued to Sri Rajendra Prasad Yadav for initiating disciplinary action against him and he was placed under suspension under an order dated 30th August, 2005. Disciplinary proceedings too were initiated and by the order dated 15th May, 2006 he was dismissed from service. 3. A missing report was filed by the present appellant-petitioner at Police Station Kotwali Bansdeeh. A civil suit then was filed to have a declaratory decree relating to death of Sri Rajendra Prasad Yadav being not seen from a period of more than seven years. On having such declaration, the appellant-petitioner submitted an application to the authority competent to have appointment on compassionate grounds. The application so submitted came to be rejected, hence, a petition for writ was filed which was dismissed. Against the dismissal of writ petition, special appeal was filed which was also came to be dismissed vide order dated 2.7.2019 which is under review before us. 4. It is submitted by learned counsel for the review-applicant that the Court has not properly appreciated the matter and judgment is not correct. 5. Having heard the learned counsel for the petitioner (review) and gone through the grounds taken in the Review Application, we find that virtually there is an attempt to reargue the matter which is not permissible in a Review Application. An application for review cannot be treated to be an opportunity to argue the case on merits afresh. In the garb of a review application reargument on merits of the case cannot be allowed. We are even fortified in our view by the following authoritative pronouncements. The suspension was dated 30.8.2005. The deceased was dismissed from service. An application for review cannot be treated to be an opportunity to argue the case on merits afresh. In the garb of a review application reargument on merits of the case cannot be allowed. We are even fortified in our view by the following authoritative pronouncements. The suspension was dated 30.8.2005. The deceased was dismissed from service. This fact would be relevant which has been minutely considered by the Division Bench of the this Court and, therefore, we find no reason to interfere in the judgment of the earlier Bench dated 2.7.2019. 6. In Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh AIR 1964 SC 1372 the Court said: “A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.” 7. In Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma 1979 (4) SCC 389 the Court said: “... 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.” 8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury AIR 1995 SC 455 while quoting with approval the above passage from Abhiram Taleshwar Sharma Vs. Abhiram Pishak Shartn (supra), the 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. Again, in Meera Bhanja v. Nirmala Kumari Choudhury AIR 1995 SC 455 while quoting with approval the above passage from Abhiram Taleshwar Sharma Vs. Abhiram Pishak Shartn (supra), the 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. In Parsion Devi and others Vs. Sumitri Devi and others 1997 (8) SCC 715 it was held that an error, which is not self evident and has to be detected by process of reasoning, can hardly be said to be error apparent on the face of the record justifying the court to exercise powers of review in exercise of review jurisdiction. 10. In Rajendra Kumar Vs. Rambai, AIR 2003 SC 2095 , the Apex Court has observed about limited scope of judicial intervention at the time of review of the judgment and said: "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." 11. Thus, Review is not an appeal in disguise. Rehearing of the matter is impermissible in the garb of review. It is an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. In Lily Thomas Vs. Union of India AIR 2000 SC 1650 , the Court said that power of review can be exercised for correction of a mistake and not to substitute a new. Such powers can be exercised within limits of the statute dealing with the exercise of power. The aforesaid view is reiterated in Inderchand Jain Vs. Motilal (2009) 4 SCC 665. 12. In Kamlesh Verma Vs. Mayawati and others 2013 (8) SCC 320 , the Court said: “19. 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 CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. Mayawati and others 2013 (8) SCC 320 , the Court said: “19. 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 CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. 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. 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., AIR 1954 SC 526 , 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., 2013 (8) SCC 337 . 22.2. 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 reheard 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. (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." (emphasis supplied) 13. In the case in hand, grounds for review, as above, and the review application do not satisfy the contours of entertaining the review petition, hence, we find no reason to interfere with the well reasoned order of this Court dated 2.7.2019. 14. This review application is, therefore, dismissed.