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2025 DIGILAW 1083 (HP)

Ambuja Cement Ltd. v. Manish Shukla

2025-05-21

SATYEN VAIDYA

body2025
JUDGMENT : Satyen Vaidya, J. The Ambuja Cements Limited (for short, the “ACL”) has preferred these review petitions against common judgement dated 08.05.2024 passed by this Court in CMPMO Nos. 66, 51, 69, 68, 67, 49 and 65 of 2024. All these review petitions are being decided by a common order as identical questions of fact and law are involved. 2. The ACL has been impleaded as one of the defendants in seven separate suits filed by the 1st respondents herein before the court of learned Civil Judge, Arki. The ACL is running its Cement Manufacturing Plant at Darlaghat in District Solan. The“Ambuja-Darla-Kashlog-Mangu Transport Co-operative Society (for short the ‘Society’) has been impleaded as the 2nd defendant in all said suits. The Society has been formed by the persons affected by the Cement Plant of ACL. 3. Parties, hereafter shall be referred to by their same status as they hold in the original Court. 4. The cause of action as pleaded in the said suits is common which allegedly has arisen from the action of ACL in placing check on the plying of trucks of plaintiffs. In other words, the trucks of plaintiffs were barred from being operated for the business of ACL. Plaintiffs claimed their rights to operate their respective trucks for the business of defendant by virtue of being members of the Society, which is registered under the Himachal Pradesh Co-operative Societies Act, 1968. 5. Plaintiffs claim themselves to be the affected persons on account of establishment of cement manufacturing plant of the ACL. 6. It has been alleged that the society and the ACL have a binding contract whereby the members of the society have a right of plying their respective trucks for the business of ACL. 7. Alongwith the suits, the plaintiffs also filed applications for interim injunction seeking to restrain ACL from placing any check or fetter in plying of their trucks by society for transportation of raw material or final produce manufactured by the ACL. 8. Learned Trial Court had allowed the applications of the plaintiffs for interim injunction and ACL was restrained from causing obstruction in the transport business of plaintiffs and also from implementing the orders of check put on the vehicles of the plaintiffs till final adjudication of the main suit. 9. 8. Learned Trial Court had allowed the applications of the plaintiffs for interim injunction and ACL was restrained from causing obstruction in the transport business of plaintiffs and also from implementing the orders of check put on the vehicles of the plaintiffs till final adjudication of the main suit. 9. The orders passed by learned Trial Court were assailed by plaintiffs by filing appeals under Order 43 Rule 1 (r) of the Code of Civil Procedure. Learned Appellate Court has also affirmed the orders passed by learned Trial Court. 10. Thereafter, the ACL sought intervention of this Court invoking jurisdiction under Article 227 of the Constitution of India. The petitions, so filed, by the ACL before this Court were decided vide common judgement dated 08.05.2024 and the orders passed by learned Appellate Court as also the learned Trial Court were affirmed. 11. By way of instant petitions, the above noted judgement dated 08.05.2024, passed by this Court is sought to be reviewed. 12. Mr. Neeraj Gupta, learned Senior Counsel, appearing for the defendant has contended that the ACL had blocked/stopped the trucks of plaintiffs on 28.08.2023 i.e. before the filing of the suits and accordingly the ACL had raised an argument before this Court that the suit and application for injunction simpliciter were not maintainable without seeking the relief of declaration and mandatory injunction, but this Court had not considered such plea. 13. During the hearing of these matters learned Senior Counsel for ACL filed an application in Review Petition No. 59 of 2024, to place on record following additional documents:- “(i) Copy of judgement dated 10.07.2024, passed by a Co-ordinate Bench of this Court in CMPMO No. 328 of 2024 and other connected matters titled as Ambuja Cement Limited Vs.Dinesh Kumar and another; (ii) copy of order dated 08.11.2024, passed by Hon’ble Supreme Court in Special Leave to Appeal (C) No. 24467 of 2024.” 14. On the basis of these judgments, it has been contended that since a co-ordinate Bench of this Court has taken a different view in identical fact situation, an anomalous situation has arisen for ACL, hence this Court should review its order. 15. Thereafter, learned Senior Counsel has contended that all other grounds taken in the review petition may also be considered by this Court. 16. 15. Thereafter, learned Senior Counsel has contended that all other grounds taken in the review petition may also be considered by this Court. 16. Having considered the submissions made by learned Senior Counsel for ACL, I am of the considered view that no ground for review is made out for the reasons detailed hereafter. 17. It is more than settled that remedy of review cannot be used as a disguise for appeal. The review can only be allowed on one or more of the grounds contemplated under Section 114 read with Order 47, Rule 1 of the Code of Civil Procedure. The judgment or order is open to review if there is a mistake or an error apparent on the face of the record. It is also settled that 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. Reference can be made to the following exposition of law made by the Hon'ble Supreme Court in Arun Dev Upadhyaya Vs. Integrated Sales Service Limited and another, (2023)8 SCC 11 :- “29. A three Judge Bench of this Court comprising of Hon’ble Sri S.R. Das, C.J., M. Hidayatullah and Sri K.C. Das Gupta, J.J. in the case of Satyanarayan Laxminarayan Hegde and others Vs. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 , discussed the scope of the phrase 'error apparent on the face of record'. The challenge before this Court in the said case was the judgment of the High Court on the ground whether it suffers from an error apparent on the face of the record. The High Court had issued a writ of certiorari and had quashed order of the Tribunal and restored that of the Mamlatdar. In paragraph 8 of the report, the issue which was to be considered is reflected.The same is reproduced hereunder: “8. The High Court had issued a writ of certiorari and had quashed order of the Tribunal and restored that of the Mamlatdar. In paragraph 8 of the report, the issue which was to be considered is reflected.The same is reproduced hereunder: “8. The main question that arises for our consideration in this appeal by special leave granted by this Court is whether there is any error apparent on the face of the record so as to enable the superior court to call for the records and quash the order by a writ of certiorari or whether the error, if any, was “a mere error not so apparent on the face of the record”, which can only be corrected by an appeal if an appeal lies at all.” 30. After discussing the relevant material on record, the conclusion is stated in paragraph 17 of the report. The view was that where 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. The view that long-drawn process of arguments to canvass a point attacking the order in a review jurisdiction, cannot be said to be an error apparent on the face of record. Relevant extract from paragraph 17 of the report is reproduced hereunder: “17....................Is the conclusion wrong and if so, is such error apparent on the face of the record ? If it is clear that the error if any is not apparent on the face of the record, it is not necessary for us to decide whether the conclusion of the Bombay High Court on the question of notice is correct or not. 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. As the above discussion of the rival contentions show the alleged error in the present case is far from self evident and if it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. In our opinion the High Court was wrong in thinking that the alleged error in the judgment of the Bombay Revenue Tribunal, viz., that an order for possession should not be made unless a previous notice had been given was an error apparent on the face of the record so as to be capable of being corrected by a writ of certiorari.” 31. Another case which may be briefly dealt with is the case of Parison Devi Vs. Sumitri Devi (1997)8 SCC 715 , where, this Court ruled that under Order XLVII 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. It also observed that a review petition cannot be allowed to be treated as an appeal in disguise. 32. A series of decisions may also be referred to wherein, it has been held that power to review may not be exercised on the ground that decision was erroneous on merits as the same would be the domain of the Court of appeal. Power of review should not be confused with appellate powers as the appellate power can correct all manners of errors committed by the subordinate courts. The following judgments may be referred: 1) Shivdeo Singh Vs. State of Punjab; AIR1963 SC 1909 (2) Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma; AIR 1979 SC 1047 (3) Meera Bhanja (Smt.) Vs. Nirmala Kumari Choudhary (Smt.); (1995) 1 SCC170. (4) Uma Nath Pandey Vs. State of U.P.; (2009) 12 SCC 40 33. Recently, this Court in a judgment dated 24.-2-2023 passed in S. Murali Sundaram Vs. Jothibai Kannan and Others, (2023)13 SCC 515 observed that even though a judgment sought to be reviewed is erroneous, the same cannot be a ground to review in exercise of powers under Order XLVII Rule 1 CPC. Futher, in the case of Perry Kansagra Vs. Recently, this Court in a judgment dated 24.-2-2023 passed in S. Murali Sundaram Vs. Jothibai Kannan and Others, (2023)13 SCC 515 observed that even though a judgment sought to be reviewed is erroneous, the same cannot be a ground to review in exercise of powers under Order XLVII Rule 1 CPC. Futher, in the case of Perry Kansagra Vs. Smriti Madan Kansagra (2019)20 SCC 753 , this Court observed that while exercising the review jurisdiction in an application under Order XLVII Rule 1 read with Section 114 CPC, the Review Court does not sit in appeal over its own order. 34. In another case between Shanti Conductors (P) Ltd. Vs. Assam SEB, (2020)2SCC 677, this Court observed that scope of review under Order XLVII Rule 1 read with Section 114 CPC is limited and under the guise of review, the petitioner cannot be permitted to reagitate and reargue questions which have already been addressed and decided. It was further observed that 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 record. 35. From the above, it is evident that a power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order XLVII Rule 1 CPC. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.” 18. Similar reiteration of law has been made by the Hon'ble Supreme Court in Review Petition (Civil) No. 1620 of 2023, titled as Sanjay Kumar Agarwal vs. State Tax Officer (1) & Anr., along with connected matters, decided on 31st October, 2023, as under:- 8. Before adverting to the contentions raised by the learned counsels for the parties, let us regurgitate the well settled law on the scope of review as contemplated in Order XLVII of the Supreme Court Rules read with Order XLVII of CPC. 9. In the words of Krishna Iyer J., (as His Lordship then was) “a plea of review, unless the first judicial view is manifestly distorted, is like asking for the Moon. 9. In the words of Krishna Iyer J., (as His Lordship then was) “a plea of review, unless the first judicial view is manifestly distorted, is like asking for the Moon. A forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result......... A review in the Counsel’s mentation cannot repair the verdict once given. So, the law laid down must rest in peace.” 10. It is also well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing 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. 11. In Parsion Devi and Others vs. Sumitri Devi and Others (1987) 8 SCC 715, this Court made very pivotal observations: - “9. 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”. A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise.” 12. Again, in Shanti Conductors Private Limited vs. Assam State Electricity Board and Others (2020)2 SCC 677 , a three Judge Bench of this Court following Parsion Devi and Others vs. Sumitri Devi and Others (supra) dismissed the review petitions holding that the scope of review is limited and under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided. 13. 13. Recently, in Shri Ram Sahu (Dead) Through Legal Representatives and Others vs. Vinod Kumar Rawat and Others (2021) 13 SCC 1 , this Court restated the law with regard to the scope of review under Section 114 read with Order XLVII of CPC. 14. In R.P. (C) Nos. 1273-1274 of 2021 in Civil Appeal Nos. 8345- 8346 of 2018 (Arun Dev Upadhyaya vs. Integrated Sales Service Limited & Another), this Court reiterated the law and held that: - “15. From the above, it is evident that a power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order XLVII Rule 1 CPC. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.” 15. It is very pertinent to note that recently the Constitution Bench in Beghar Foundation vs. Justice K.S. Puttaswamy (Retired) and Others (2021) 3 SCC 1 , held that even the change in law or subsequent decision/ judgment of co-ordinate Bench or larger Bench by itself cannot be regarded as a ground for review. 16. The gist of the afore-stated decisions is that:- (i) A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record. (ii) 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. (iii) 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 record justifying the court to exercise its power of review. (iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be “reheard and corrected.” (v) A Review Petition has a limited purpose and cannot be allowed to be “an appeal in disguise.” (vi) Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided. (vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. (viii) Even the change in law or subsequent decision/ judgment of a co- ordinate or larger Bench by itself cannot be regarded as a ground for review.” 19. Coming to the case in hand, the first contention of the defendant that this Court had not considered the argument in respect of the non- maintainability of simplicitor suit for permanent prohibitory injunction, in light of the already existing stop order on the plying of trucks of plaintiffs at the time of institution of suit, is proved wrong by the record. In para-21 of the judgement dated 08.05.2024, passed by this Court, it has clearly been noticed and held as under:- “21. As regards the contention of learned senior counsel for the company that since the said defendant had already completed the action of stopping the vehicles of the plaintiffs from plying, injunction order could not have been passed during the pendency of the suit, the same deserves to be rejected. The stoppage of plying of vehicles of plaintiffs was not such an act which was permanent or otherwise in such nature that restraint placed could not be lifted. The action of the company was having continuous adverse effect on the rights of plaintiffs and its removal by way of impugned orders cannot be said to an illegal exercise of jurisdiction by learned trial and the appellate courts.” 20. As regards the different view taken by a Co-ordinate bench of this Court again the prayer for review cannot be entertained for the simple reason that the judgement passed by the co-ordinate bench is subsequent in time to the judgement passed by this Court and the judgement of this Court has neither been considered nor distinguished in the subsequent judgements passed by the co-ordinate Bench of this Court. Even otherwise, the issue before the co-ordinate bench was with respect to the legality of the order passed by learned Trial Court in the application of defendant for rejection of plaint, whereas this court had tested the orders of interim injunction passed against ACL. Even otherwise, the issue before the co-ordinate bench was with respect to the legality of the order passed by learned Trial Court in the application of defendant for rejection of plaint, whereas this court had tested the orders of interim injunction passed against ACL. This Court while passing the judgement dated 08.05.2024 had considered all those aspects as were relevant for adjudicating the plea for interim injunction in the given facts of the case. 21. All other grounds, as detailed in the review petition, amounts to calling upon this Court to reopen the merits of the issues, which is clearly impermissible in the exercise of Review jurisdiction. Mere existence of two opinions on an issue cannot be a ground for review. 22. In result, the prayer is declined and the petitions are accordingly dismissed. 23. Pending miscellaneous application(s), if any, also stand disposed of accordingly.