Kashmiri Devi vs Lekh Raj

Sureshwar Thakur, J.—This review petition is directed against the orders rendered on 1.9.2011 by the Hon''ble Single Judge of this Court in CMPMO No. 647 of 2009.

The facts necessary for rendering an adjudication on this petition are of a suit having been instituted at the instance of the plaintiffs/respondents herein for permanent prohibitory injunction against the defendants/petitioners herein. The plaintiffs/respondents herein during the pendency of the suit had moved an application before the learned trial Court under Order 39, Rules 1 and 2 of the CPC for an ad interim injunction against the defendants/petitioners herein from the latter taking exclusive possession, forcibly occupying the office and other accounts and from selling the product (pucca bricks) of firm M/s Maa Durga Bhatha Co. Nakroh, Tehsil Amb, District Una, H.P. till the disposal of the civil suit. The learned trial Court was constrained to, on a consideration of the material as displayed before it grant ad interim injunction in favour of the plaintiffs/respondents herein. The defendants/petitioners herein carried the matter in appeal before the learned District Judge, Una, who took a view contrary to the view taken by the learned trial Court and consequently, the relief as afforded in favour of the plaintiffs/respondents herein by the learned trial Court was declined. The plaintiffs/respondents herein preferred a CMPMO No. 647 of 2009 before this Court against the order rendered in the exercise of appellate jurisdiction by the learned District Judge and this Court while deciding CMPMO No. 647 of 2009 sustained the view as taken by the learned District Judge, yet in paragraph No. 12 of its order for protecting the rights and interest of all the partners of the un-dissolved partnership firm rendered certain directions as enunciated in clause (a), (b), (c) and (d) of the paragraph No. 12.

The learned counsel appearing for the defendants/petitioners herein has urged that given the conclusions arrived by this Court in paragraph No. 11 qua the sustainability and the validity of the order rendered by the learned District Judge it was legally constrained to proceed to in paragraph No. 12 render directions as have come to be rendered. He contends that the rendition of directions by this Court comprised in paragraph No. 12 of the order, proposed to be reviewed, constitute glaring or a patent error or an error apparent on the face of the record, as such, the directions aforesaid are required to be reviewed or are liable to be quashed.

Before proceeding to adjudicate upon the tenacity and strength of the contention addressed by the learned counsel appearing for the defendants/petitioners herein, it is necessary that this Court equip itself with the parameters enshrined in a catena of judicial verdicts qua exercise of review jurisdiction. In Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, whereof is extracted hereinafter, it has been contemplated that a party asking or seeking review of the judgment delivered by a Court cannot in the garb of seeking review, propose a rehearing or a fresh decision of the case, rather it has been postulated therein that a review jurisdiction is not equivalent to nor can be equated with the original hearing of the case and the finality of the judgment delivered by a Court whose judgment is proposed to be reviewed, will not be reviewed unless there is a patent mistake therein or a grave error has crept in therein earlier by judicial fallibility. Paragraph No. 8 of the aforesaid judgment reads as under:-

"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 that a judgment pronounced by this 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. Sajjan Singh Vs. State of Rajasthan, . 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. Girdhari Lal Gupta Vs. D.H. Mehta and Another, . 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 Vs. The District Judge, Delhi and Another, . 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 what ever the nature of the proceeding, it is beyond dispute that a view 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 judicial fallibility''. Sow Chandra Kante and Another Vs. Sheikh Habib, ."

Further more in Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, , the relevant paragraph No. 8 whereof is extracted hereinafter, it has been envisaged that the jurisdiction of a Court seized of a review petition for reviewing a previous decision rendered by the same Court is exercisable only in the event of existence of an error apparent on the face of the record or an error which must strike one at the mere looking of the record and would not require any long drawn process of reasoning on points whereupon there may be conceivably two opinions. Paragraph No. 8 of the aforesaid judgment reads as under:-

"It is well settled that the 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, C.P.C. In connection with the limitation of the powers of the Court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma and Others, , speaking through Chinnappa Reddy, J., has made the following pertinent observations (para 3):

"It is true there is nothing in Article 226 of the Constitution to preclude the 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 to 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 power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court."

Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde and Others Vs. Millikarjun Bhavanappa Tirumale, , wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:

"An error which has to be established by a long drawn process of reasoning on points where they may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where as alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the power of the superior Court to issue such a writ."

An encapsulation of the essence of the pronouncements referred to hereinabove, whose relevant paragraphs stand extracted hereinabove, unfolds the factum that unless there is an error apparent on the face of the record, constituted by the fact of the Court which pronounced the earlier judgment which is proposed to be reviewed having committed a glaring and palpable mistake, review jurisdiction is unavailable to be exercised by a Court seized of a review petition. However, when the Court seized of a review petition is either necessitated or enjoined to substitute its own opinion for the opinion rendered previously in that event the exercise of review jurisdiction is barred. However, in the instant case even though this Court upheld the order rendered by the learned District Judge, Una, nonetheless in the concluding paragraph, it has for strong, tenable and valid reasons issued directions for protecting the health of the un-dissolved partnership firm as well for protecting the rights and interest of all the partners of the un-dissolved partnership firm. The directions as rendered by this Court were not issued by the learned District Judge, Una whose judgment was upheld by this Court in CMPMO No. 647 of 2009. The learned District Judge, Una had discarded the imminent fact that in case his judgment is carried forward, the health of the un-dissolved partnership firm would suffer as also would prejudice or jeopardize the rights of the partners of the un-dissolved partnership firm which factors, however, appear to have been revered by this Court. Consequently, for maintaining the health and vigour of the un-dissolved partnership firm, this Court deemed it fit, appropriate, just and expedient render directions comprised in paragraph No. 12 of its order. This Court finds that even otherwise there is no bar envisaged or engrafted under Order 39, Rules 1 and 2 of the CPC for this Court to not proceed to issue directions other than prayed for in the application instituted before it under Order 39, Rule 1 and 2 of the CPC when expediency and justice so require. With lack of statutory interdiction against this Court proceeding to issue directions other than the one contemplated in the application under Order 39, Rules 1 and 2 of the CPC, it was open for this Court for maintaining the health and vigour of the un-dissolved partnership firm as also for protecting the rights and interest of all the partners of the un-dissolved partnership firm, to in the interest of justice and expediency issue directions as contained in paragraph No. 12 of the order, proposed to be reviewed. The said view, hence, is a tenable view, more so when the directions comprised in paragraph No. 12 of the order of this Court are not demonstrated to be either lacking in expediency or being unjust, beside in case the view as taken by this Court earlier is sought to be substituted and replaced on rehearing of the review petition, it would constitute rewriting of the order, which is impermissible under law, preponderantly, when its incisive reading does not display that it is afflicted either with malady of an error apparent or a glaring mistake. Consequently, when the order proposed to be reviewed is not displayed to be suffering from the affliction of its containing an error apparent on the face of record or a glaring mistake in face of whose proven existence alone the trammeled jurisdiction of review is exercisable. In absence thereof this Court is constrained to dispel the contention of the learned counsel appearing for the defendants/petitioners.

For the foregoing reasons, the review petition preferred by the defendants/petitioner is dismissed. All pending applications, if any, also stand disposed of. No costs.