Makhan Chandra Das vs Parimal Chandra Das

Harish Tandon, J.—This is an application for review of an order dated February 17, 2011 passed in C.O. No. 377 of 2010 by Shyamal Kanti Chakraborty, J., (His lordship the then was). Shorn of unnecessary details, the plaintiff/opposite party in this review application filed a suit for declaration of his title in respect of the property as described in Schedule ''A'' to the plaint and a decree for permanent injunction restraining the petitioner in this review application from creating any obstructions and hindrances in taking free access in the property owned by the opposite party and also from forcible occupying the Room No. 3 and any other property in occupation of the opposite party on the ground floor and the first floor of the Schedule premises. The plaintiff averred in the plaint that the ''A'' Schedule property was originally belonged to the mother of the parties who during her lifetime gifted half of the said property to the petitioner and the other half is gifted to the petitioner. Subsequently, the opposite party obtained a sanction plan for construction of a building in the portion gifted by the mother of the parties and constructed a partly two storied building thereupon. Subsequently, the petitioner tried to forcible occupy one room located on the extreme north of the portion exclusively gifted to the opposite party although, he has no semblance of right, title and interest therein. Precisely for such threat of dispossession, the suit was filed for declaration of title and permanent injunction. In the said suit, an application under Order 39 Rule 1 of the Code was taken out for an order of injunction restraining the petitioner from creating any obstructions and hindrances in peaceful enjoyment of the ''A'' Schedule property. The Trial Court passed an ad interim order of injunction restraining the petitioner from creating any hindrances to free ingress and egress of the opposite party to the suit properties as mentioned in Schedule ''A'' and ''B'' of the application for injunction and also from evicting the opposite party therefrom, without due process of law for a limited period. The petitioner contested the said application for injunction by filing the written objection denying the allegation contained therein. It is categorically stated that the Room No. 3 which is described in Schedule ''B'' to the plaint and the injunction application was in possession of the petitioner since last 20 years. It is further averred that the property is not demarcated by metes and bounds and the parties are occupying the respective portions since the lifetime of the mother. Subsequently, an application u/s 151 of the Code is filed by the opposite party complaining of the dispossession from the ''B'' Schedule property by the petitioner in spite of the subsistence of an order of injunction and prayed for the restoration of the possession through police help. In the written objection, it has again reiterated that the petitioner is, in fact, in possession and occupation of the ''B'' Schedule property being Room No. 3 since several years and the opposite party was never in possession thereof. The Trial Court rejected the said application on the ground that the prayer for restoration cannot be entertained in an application u/s 151 of the Code in summary manner but such subsequent fact should be incorporated in the plaint by suitable amendment. The said order was assailed by the opposite party in CO. No. 377 of 2010 before this Court. The said revisional application was admitted and directed the service upon the petitioner. Since the matter was not in the list at that relevant point of time. The learned Advocate so engaged by the petitioner wrote a letter dated 27.07.2010 informing the learned Advocate appearing for the opposite party that in the event, the said revisional application is mentioned for listing a prior notice should be given, The matter, thereafter, appeared before Syamal Kanti Chakrabarti, J., his lordship the then was and an affidavit of service was filed. Evidencing the service of the copy of the revisional application upon the petitioner and, thereafter, proceeded to determine the said revisional application and ultimately, set aside the order of the Trial Court as a consequence whereof, the application u/s 151 was allowed and the officer-in-charge, Naihati police station, was directed to render all necessary police help to the opposite party for restoration of his possession in respect of Room No. 3 i.e. the ''B'' Schedule property. It is tried to mention that the said revisional application was disposed of ex-parte on February 17, 2011 which is sought to be reviewed in this review application.

Mr. Sourav Sen, the learned Advocate appearing for the petitioner, however, submits that he intimated the learned Advocate appearing for the opposite party about his engagement in the matter on 27.07.2010 and the said fact should have been tried to the notice of the Court when the said revisional application was disposed of exparte. He further submits that procedural review is permissible if there is a lapses in the procedures striking at the root and placed reliance upon a judgment of the Supreme Court in case of Kapra Mazdoor Ekta Union Vs. Management of Birla Cotton Spinning and Weaving Mills Ltd. and Another, . He further submits that there is a patent error apparent on the record in not recording the reasons relating to the possession of the opposite party in respect of ''B'' Schedule property. When a serious dispute was raised before the Trial Court relating to the possession and, therefore, the order is required to be reviewed and placed reliance upon a judgment of the Apex Court in case of Green View Tea and Industries Vs. Collector, Golaghat, Assam and Another, Lastly, he submits that the order under review is unreasoned order which can be termed as an error apparent on the record and relies upon a judgment of the Co-ordinate Bench in case of Rabindranath De Vs. Manick Chandra Sasmal and Others,

Mr. Nirmalya Dasgupta, the learned Advocate appearing for the opposite party, however, submits that the review under order 47 Rule 1 of the Code cannot be resorted for rehearing of the matter and is confined to an error apparent on the face of the record. He further submits that even the judgment under review may be erroneous, but the same is not capable to be reviewed under 47 Rule 1 of the Code and placed reliance upon a judgment of the Apex Court in case of Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, . He further submits that the review jurisdiction cannot be invoked to face out and search out the error and placed reliance upon a judgment of the Supreme Court in case of Lily Thomas, Vs. Union of India and Others, . By contending that unless, there is a patent error in the impugned order, the same cannot be reviewed. He placed reliance upon a judgment of the Apex Court in case of Surjit Singh and others Vs. Union of India and others, . Lastly, he submits that an unjustifiable absent in participating the proceeding cannot be a ground of a review and placed reliance upon a judgment of the Andhra Pradesh High Court in case of K. Anjaneyulu and Others Vs. The Collector, Excise, R.R. District at Hyderabad and Others, . Lastly, he contends that the Court is not powerless to pass a temporary mandatory injunction to restore the possession of a party who is forcibly dispossessed on the teeth of an injunction and placed reliance upon a judgment of this Court in case of Sujit Pal Vs. Prabir Kumar Sun and Others, .

Before proceeding to deal with the scope of review enshrined under Order 47 Rule 1 of the Code, it is appropriate to quote the said provision which reads thus:

R. 1. Application for review of Judgment.--(1) Any person considering himself aggrieved--

a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case of which he applies for the review.

The review is not an appeal is (sic in) disguise. The Court does not make a hovering de novo inquiry to find out the error in exercise of the review jurisdiction. There is a sharp distinction between an erroneous decision and a decision vitiated by error apparent as has been held by the Apex Court in case of M/s. Thungabhadra Industries Ltd. (supra).

The Court of review is circumscribed by the definite limits fixed by the language given therein and may be allowed on broadly three specifies ground namely (i) discovery, new and important matters for evidence which after the exercise of due diligence, was not within the knowledge of the party applying for review or could not be produced at the time when the decree or order was passed (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. Apart there from, any important and material issue not adverted which goes to the root of the matter on which the case raised upon is not adverted, the same would certainly amount to an error apparent on the face of the record.

The erroneous assumption of material facts in a judgment may render the same upon to review as held in case of Burma Shell Oil Storage Distributing Co. Ltd. (supra) in these words:

Where a judgment proceeds on an erroneous assumption as to the material facts, that has been held to be a mistake or an error apparent on the face of the record.

In Lili Thomas (supra), the Supreme Court held that upon noticing the apparent error, it is a duty of the Court to corrected provided; such error is not to be find out or search by substituting a different view. The power of review can be exercised for correction of mistake but not to substitute a view because another view is possible, the application for review should not be entertained. The mistake which is apparent should be corrected with grace by way of review. The judgment rendered by the Apex Court in case of Surjit Singh (supra) relates to a power of the tribunal to correct its own mistake and it is held that the tribunal is due to bound to correct the same. Series of judgments which has been relied upon by the respect parties relating to the scope of review does not lay down the law that the Court in exercise of the review jurisdiction can rehear or reappreciate the matter at large but laid down the uniform principle of law that it is to be exercised with great, caution and circumspect and not beyond the parameters set under the provisions of Order 47 Rule 1 of the Code.

The learned Advocate appearing for the petitioner was very much vocal in contending that the Court did not record any reason relating to the possession of the parties. According to him, there was a dispute as to whether the plaintiff was in possession of the property described in Schedule ''B'' to the plaint because the defendant categorically asserted in the written objection that he is in possession for a considerable period of time. Factually, the aforesaid contention is not correct. The Order dated February 17, 2011 reveals that the Court recorded the possession of the plaintiff in these words:

In fact by virtue of a Deed of Gift executed by his mother the present petitioner is in possession of the "B" Schedule property of the plaint but the defendant was trying to dispossesses him from the same for which he has filed the above title suit and obtained an interim injunction order passed by the learned Court below in his favour whereby and whereunder the defendant, his men and agents were restrained from causing hindrance to the free ingress and egress of the plaintiff and his family members to the suit property as mentioned in Schedule "A" and "B" of the petition and further from ousting the plaintiff and his family members therefrom except by due process of law. Initially the said order was for a limited period upto 22nd June, 2009 which was subsequently extended but violating the said order the defendant has dispossessed the plaintiff from the "B" Schedule property which is room No. 3 on 30th June, 2009.

Therefore, the only ground on which the review is sought that the Court did not record the definite finding as to the possession in respect of ''B'' Schedule property is factually not tenable.

The review application is thus dismissed. However, there shall be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.