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Judgment
Manmohan, J.
CM No. 23189/2010 IN REV. PET 542/2010
Allowed, subject to all just exceptions.
The application is, accordingly, disposed of.
CM No. 23188/2010 IN REV. PET 542/2010
This is an application for condonation of delay in filing the review petition.
For the reasons stated in the application, delay in filing the review petition is condoned.
The application is, accordingly, disposed of.
REVIEW PET. 542/2010 and CM 23187/2010 IN LPA 526/2010
The present review petition has been filed under Order 47 read with Section 151 of the Code of Civil Procedure, 1908 for review of the order dated 2nd August, 2010 passed by this Court in LPA 526/2010 whereby the appeal was dismissed.
Mr. Harish Malhotra, learned senior counsel for Petitioner submitted that the allotment of shops by the Ministry of Defence was for the purposes of rehabilitation of war widows and ex-servicemen, which was a welfare measure, and thus, the court erred in limiting itself only to the legal aspects of termination of licence.
Mr. Malhotra further submitted that Ministry of Defence is the sole licensor of the said shop which cannot be taken away by issuance of Standing Operating Procedure (SOP) dated 13th April, 2007 issued by Station Commander, who is a subordinate executive, at his whims and fancies. Further, Mr. Malhotra submitted that this Court erred in not appreciating the distinction between regimental shops and shops in shopping centre. He further submitted that the said shops were allotted in pursuant to letter No. 1750/DGR/Shop/SE-10 dated 31st August, 1998 by the Ministry of Defence and not in pursuance of SOP of 2001 or SOP 2007.
Having heard the parties, we are of the considered opinion that the present petition is not within the purview of Order 47 Rule 1 of CPC. In fact, the present petition though styled as a review, is an appeal in disguise. In this connection, we may refer with profit to a judgment of Supreme Court in Parsion Devi and Others Vs. Sumitri Devi and Others, wherein the Apex Court has held as under :
It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. (SCR at p.186) this Court opined :
What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an "error apparent on the face of the record"). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record", for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.
(emphasis ours)
Again, in Meera Bhanja v. Nirmala Kumari Choudhury while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharmathis 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.
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".
Considered in the light of this settled position we find that Sharma, J. clearly overstepped the jurisdiction vested in the Court under Order 47 Rule 1 CPC. The observations of Sharma, J. that "accordingly, the order in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunctions were provided" and as such the case was covered by Article 182 and not Article 181 cannot be said to fall within the scope of Order 47 Rule 1 CPC. 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....
Consequently, the present review petition and application are dismissed but with no order as to costs.