Kashiram Liluram Ahir vs State Of Gujarat

Anant S. Dave, J

1 Rule. Learned Assistant Government Pleaders waive service of notice of Rule on behalf of respective respondent authorities.

2 The applicants have filed all these applications with a prayer to review the order dated 07.05.2012 passed by this Court in Letters Patent Appeal

No.1078 of 2019 and allied matters and to modify the same by dismissing entire appeal of the opponents and to direct the opponents to pay benefits as

directed by the learned Single Judge or the consent of the learned advocate Mr. Jeet Bhatt conceding 50% pension may be deleted from paragraph 10

of the oral order dated 07.05.2019.

3 Learned counsel for the applicants submits that the applicants have never given any instruction to the learned Advocate to the effect that the

applicants are willing to forgo 50% pension from the total receivable amount. It is further submitted that learned Single Judge did not grant the entire

relief as prayed in the writ petition, however, the applicant was contended with relief of 100% pension from the date of judgment and therefore the

applicant could not have given such consent for forgoing 50% pension. It is further submitted that the order dated 07.05.2012 passed by this Court is

required to be recalled and reviewed.

4 Heard Ms. Manisha Shah, learned Government Pleader appearing for the respondent â€" State authorities.

5 Considering overall facts and circumstances of the cases and keeping in mind the parameters of Section 114 read with Order 47 of the Code, 1908,

we find no substance in the arguments canvassed by learned counsel for the applicants for recalling and reviewing order dated 07.05.2012 passed by

this Court in Letters Patent Appeal No.1078 of 2019 and allied matters.

5.1 In the case of M/s. Northern India Caterers (India) Ltd. vs. Lt. Government of Delhi reported in AIR 1980 SC 674, the ApexÂ

Court has  observed, more particularly in paras:8 and 9, as under:

“8. It is 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 is that a judgment pronounced by the Court is final, and departure from the principle is justified only

when circumstances of a substantial and compelling circumstances of a substantial and compelling character make it necessary to do so. Sajjan Singh

v. State of Rajasthan, (1965) 1 SCR 933 at p.948. For instance, if the attention of the Court is not drawn to a material statutory provision during the

original hearing, the Court will revise its judgment. G.L. Gupta v. D.N.Mehta, (1971) 3 SCR 748 at p.760. The Court may also reopen its judgment if a

manifest wrong has been done and it is necessary to pass an order to do full and effective justice. O.N.Mohindroo v. Dist. Judge, Delhi, (1971) 2 SCR

11 at p.27. Power to review its judgments has been conferred on the Supreme Court by Art.137 of the Constitution, and that power is subject to the

provisions of any law made by Parliament or the rules made under Art.145. In a civil proceeding, an application for review is entertained only on a

ground mentioned in O.XLVII, Rule 1 of the Code of Civil Procedure and in a criminal proceeding on the ground of an error apparent on the face of

the record, (Order XL, R.1 Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding

cannot be equated with the original hearing of the case, and the 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 judgment fallibility’. Chandra Kanta v. Sheikh Habib,

(1975) 3 SCR 933.

Now, besides the fact that most of the legal material so assiduously collected and placed before us by the learned Additional Solicitor General, who

has now been entrusted to appear for the respondent, was never brought to our attention when the appeals were heard, we may also examine whether

the judgment suffers from an error apparent on the face of the record. Such an error exists if of two or more views canvassed on the point it is

possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible

view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record.â€​

In the case of Kamlesh Verma vs. Mayawati reported in (2013) 8 SCC 329, the Apex Court has observed, more particularly in paras:14, 15 and 16, as

under:

“14. Review of the earlier order cannot be done unless the court is satisfied that material error, manifest on the face of the order, undermines its

soundness or results in miscarriage of justice. This Court, in Col. Avtar Singh Sekhon v. Union of India and Ors. 1980@pageSC3306 (Supp) SCC 562

: (AIR 1980 SC 2041) held as under:

A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without

being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or

results in miscarriage of justice. In Sow Chandra Kante v. Sheikh Habib (AIR 1975 SC 1500) this Court observed :

1.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.... The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality.

An error which is not selfÂevident 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. A review is by no means an appeal in disguise whereby an erroneous decision is reheard

and corrected, but lies only for patent error. This Court, in Parsion Devi and Ors. v. Sumitri Devi and Ors., (1997) 8 SCC 715, 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. (AIR 1964 SC 1372) this Court opined:

“11. 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 (AIR 1995 SC 455) while quoting with approval a passage from Aribam Tuleshwar Sharma

v. Aribam Pishak Sharma (AIR 1979 SC 1047) this 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 selfÂevident 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"". (emphasis in original)

Error contemplated under the rule must be such which is a 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. The power of review can be exercised for correction of a mistake but not to substitute a view. The

mere possibility of two views on the subject is not a ground for review. ...â€​

5.2 In the case of Asharfi Devi (Dead) through Legal Representatives vs. State of Uttar Pradesh and Ors. [(2019)5 SCC 86] the Apex Court

revisited the law laid down on review, more particularly, exercise of review jurisdiction and preÂrequisites are summed up. Paras 16 to 23 of the said

judgment read as under:

“16. On perusal of the main order dated 14.03.2008, we find that the High Court dismissed the writ petition holding that the writ petitioner (original

appellant herein) failed to prove her possession over the land in question on the date of repeal. It was held that the State had taken possession of the

land in the year 1982 as per the panchnama prepared by the State.

In review, the High Court held that while recording the aforementioned finding in the main order, no apparent error, whether on facts or law within

the meaning of Order 47 Rule 1 of the Code, was committed attracting the rigor of Order 47 Rule 1 of the Code.

It is a settled law that every error whether factual or legal cannot be made subject matter of review under Order 47 Rule 1 of the Code though it

can be made subject matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 47 Rule 1 of the Code, the

error/mistake must be apparent on the face of the record of the case.

Learned counsel for the appellants then argued the appeal as if this appeal arises out of the main order dated 14.03.2008. He extensively referred

to the pleadings and several documents as if we are called upon to examine the legality of the main order itself.

We find no merit in any of his submissions for more than one reason. First, as mentioned above, this appeal does not arise out of the main order

but arises out of review order only and, therefore, we cannot examine the legality and correctness of the main order in this appeal like an Appellate

Court. Second, we examined the matter only with a view to find out as to whether the High Court was right in dismissing the review application and

thereby justified in upholding the main order dated 14.03.2008 holding that it did not contain any error/mistake apparent on the face of the record.

In other words, we examined the issue only with a view to find out as to whether the review order, which is subject matter of this appeal, was

passed in conformity with the requirements of Order 47 Rule 1 of the Code or not.

Third, having examined, we are of the view that the review order was passed in conformity with the requirements of Order 47 Rule 1 of the Code

and, therefore, the High Court rightly concluded that the main order impugned in the review application did not contain any factual or/and legal error(s)

within the meaning of Order 47 of the Code so as to entitle the review Court to recall the same in its review jurisdiction.

And lastly, once the finding was recorded by the High Court in the writ petition that the writ petitioner (original appellant) failed to prove her actual

possession on the land in question on the date of repeal, such finding could not have been examined de novo in review jurisdiction by the same Court

like an Appellate Court on the facts and evidence.â€​

5.3 In view of the above, the above grounds pressed into service for filing these review applications are thoroughly misconceived inasmuch as the

learned advocate for the respondents â€" original petitioners had taken a conscious decision and after hearing the parties at length the said concession

was given so that benefits already accrued to the original petitioners in the form of receiving salaries for years together, etc. granted by the learned

Single Judge are not taken away if the appeals filed by the State are allowed.

5.4 Besides, no error or mistake apparent on the face of record appeared and that there is no discovery of new or important material or evidence

which, after the exercise of due diligence was not within the knowledge of the applicants or could not be produced before the order dated 07.05.2012

came to be passed. Even no sufficient reason exists for reviewing / recalling or modifying the order as prayed for.

6 In view of the above, all these applications stands dismissed. Rule discharged.