Malwa Cable Operator Sangh Thr vs Subhash Chandra

The present review petition has been filed for reviewing the order dated 26.04.2018 passed in Conc. No.50/2017. This court while passing an order

dated 26.04.2018 has held that no contempt case is made out in the mater.

The Apex Court in the case of Haridas Das Vs. Usha Rani Bank (Smt) and Ors., reported in (2006) 4 SCC 78 in paragraph 13 and 20 has held as

under :-

In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference

expected of the court since it merely states that it “may make such order thereon as it thinks fitâ€. The parameters are prescribed in Order 47

CPC and for the purposes of this lis, permit the defendant to press for a rehearing “on account of some  mistake   or error apparentÂ

on the face of the records or for any other sufficient reasonâ€. The former part of the rule deals with a situation attributable to the applicant, and the

latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute

because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to

the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that

the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior

court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has

adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. This Court in

Thungabhadra Industries Ltd. v. Govt. of A.P. held as follows:

“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. … where without any elaborate argument one could point to the error and say here is a substantial point

of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of

the record would be made out.â€​

When the aforesaid principles are applied to the background facts of the present case, the position is clear that the High Court had clearly fallen in

error in accepting the prayer for review. First, the crucial question which according to the High Court was necessary to be adjudicated was the

question whether Title Suit No. 201 of 1985 (sic 1 of 1986) was barred by the provisions of Order 2 Rule 2 CPC. This question arose in Title Suit No.

1 of 1986 and was irrelevant so far as Title Suit No. 2 of 1987 is concerned. Additionally, the High Court erred in holding that no prayer for leave

under Order 2 Rule 2 CPC was made in the plaint in Title Suit No. 201 of 1985. The claim of oral agreement dated 19-8-1982 is mentioned in para 7

of the plaint, and at the end of the plaint it has been noted that the right to institute the suit for specific performance was reserved. That being so, the

High Court has erroneously held about infraction of Order 2 Rule 2 CPC. This was not a case where Order 2 Rule 2 CPC has any application.

In the aforesaid case, the Apex Court has held that rehearing of a case can be done on account of some mistake or an error apparent on the

face of the record or for any other sufficient reason. In the present case, there is no error apparent on the face of the record and the petitioner infact

under the guise of review is challenging the order passed by this Court, which is under review. Similarly the Apex Court in the case of State of West

Bengal and Ors. Vs. Kamal Sengupta and Anr., reported in (2008) 8 SCC 612 in paragraphs 21, 22 and 35 has held as under :-

“21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or

evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words,

mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review

has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not

be produced before the court earlier.

The term “mistake or error apparent†by its very connotation signifies an error which is evident per se from the record of the case and does

not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof

requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1

CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or

on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of

review, the court/tribunal concerned cannot sit in appeal over its judgment/decision.

The principles which can be culled out from the abovenoted judgments are:

(i) The power of the Tribunal to review its order/decision under Section22(3)(f) of the Act is akin/analogous to the power of a civil court under Section

114 read with Order 47 Rule 1 CPC.

(ii) The Tribunal can review its decision on either of the groundsenumerated in Order 47 Rule 1 and not otherwise.

(iii) The expression “any other sufficient reasonâ€​ appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.

(iv) An error which is not self-evident and which can be discovered by along process of reasoning, cannot be treated as an error apparent on the face

of record justifying exercise of power under Section 22(3)(f).

(v) An erroneous order/decision cannot be corrected in the guise of exerciseof power of review.

(vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the

tribunal or of a superior court.

(vii) While considering an application for review, the tribunal must confineits adjudication with reference to material which was available at the time of

initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by

an error apparent.

(viii) Mere discovery of new or important matter or evidence is notsufficient ground for review. The party seeking review has also to show that such

matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the

court/tribunal earlier.â€​

In the aforesaid case the Apex Court has held that a mistake or an error apparent on the face of the record means a mistake or an error which is

primafacie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on

the face of the record, on the contrary this Court has decided the case on merits.

The Apex Court again dealing with the scope of interference and limitation of review in the case of Inderchand Jain (dead) Through LRs Vs.

Motilal (dead) Through LRs, reported in (2009) 14 SCC 663 in paragraphs 7, 22, 24, 29, 31 and 33 has held as under :-

“7. Section 114 of the Code of Civil Procedure (for short “the Codeâ€) provides for a substantive power of review by a civil court and

consequently by the appellate courts. The words “subject as aforesaid†occurring in Section 114 of the Code mean subject to such conditions and

limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in Order 47 of the

Code must be taken into consideration. Section 114 of the Code although does not prescribe any limitation on the power of the court but such

limitations have been provided for in Order 47 of the Code; Rule 1 whereof reads as under:

“17. The power of a civil court to review its judgment/decision is traceable in Section 114 CPC. The grounds on which review can be sought are

enumerated in Order 47 Rule 1 CPC, which reads as under:

‘1. Application for review of judgment.â€"(1) Any person considering himself aggrievedâ€

(a) by a decree or order from which an appeal is allowed, but from whichno 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 of the court which passed the decree or made the order.’

Whereas the appellant-defendant filed a review application confined to the question that he was entitled to the restitution of the property and

mesne profit in respect whereof the learned Single Judge of the High Court did not pass any specific order, the application for review filed by the

respondent was on the merit of the judgment. The relevant grounds of review which have been placed before us relate to:

(i) Unconditional withdrawal of some amount by one of the creditors of thedefendant as also the defendant himself.

(ii) The defendant's application before the executing court that he wasready and willing to get the sale deed executed on receipt of amount in cash and

the said admission allegedly was not brought to the notice of the court.

(iii) While holding that there was no agreement to reduce the saleconsideration, the High Court had ignored the fact that it was an admitted case of the

parties, as stipulated in the contract, that the defendants would get the premises vacated from the tenants within three months.

(iv) The appellant had prayed for an alternative relief viz. that he was readyto get the decree for specific performance of contract by paying Rs

1,15,000. The court did not consider the evidence of DWs 1 to 6 in their proper perspective.

(v) The court did not consider that the property could not be restored backto the appellant-defendant and as such the court should have exercised its

discretionary jurisdiction.

An appeal is a continuation of the suit. Any decision taken by the appellate court would relate back, unless a contrary intention is shown, to the

date of institution of the suit. There cannot be any doubt that the appellate court while exercising its appellate jurisdiction would be entitled to take into

consideration the subsequent events for the purpose of moulding the relief as envisaged under Order 7 Rule 7 read with Order 41 Rule 33 of the Code

of Civil Procedure. The same shall, however, not mean that the court would proceed to do so in a review application despite holding that the plaintiff

was not entitled to grant of a decree for specific performance of contract.

Order 41 Rule 1 of the Code stipulates that filing of an appeal would not amount to automatic stay of the execution of the decree. The law

acknowledges that during pendency of the appeal it is possible for the decree-holder to get the decree executed. The execution of the decree during

pendency of the appeal would, thus, be subject to the restitution of the property in the event the appeal is allowed and the decree is set aside. The

court only at the time of passing a judgment and decree reversing that of the appellate court should take into consideration the subsequent events, but,

by no stretch of imagination, can refuse to do so despite arriving at the findings that the plaintiff would not be entitled to grant of a decree.

Contention of Mr Venugopal that the defendant having accepted novation of contract but only the quantum of the amount being different, the court

could have asked the respondent-plaintiff to deposit a further sum of Rs 24,000 cannot be accepted for more than one reason. Apart from the fact that

such a contention had never been raised before the appellate court, keeping in view the finding of fact arrived at that there had in fact been no

novation of contract, such a course of action was not open. In any view of the matter, the same would amount to reappreciation of evidence which

was beyond the review jurisdiction of the High Court.

The High Court had rightly noticed the review jurisdiction of the court, which is as under:

“The law on the subjectâ€"exercise of power of review, as propounded by the Apex Court and various other High Courts may be summarised as

hereunder:

(i) Review proceedings are not by way of appeal and have to be strictlyconfined to the scope and ambit of Order 47 Rule 1 CPC.

(ii) Power of review may be exercised when some mistake or errorapparent on the fact of record is found. But error 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 the points where

there may conceivably be two opinions.

(iii) Power of review may not be exercised on the ground that the decisionwas erroneous on merits.

(iv) Power of review can also be exercised for any sufficient reason whichis wide enough to include a misconception of fact or law by a court or even

an advocate.

(v) An application for review may be necessitated by way of invoking thedoctrine actus curiae neminem gravabit.â€​

In our opinion, the principles of law enumerated by it, in the facts of this case, have wrongly been applied.â€​

The Apex Court while dealing with the scope of review has held that reappreciation of evidence and rehearing of case without there being any

error apparent on the face of the record is not permissible in light of provisions as contained u/s 114 and Order 47 Rule 1 of Code of Civil

Procedure, 1908.

The Apex Court in the case of S. Bagirathi Ammal Vs. Palani Roman Catholic Mission, reported in (2009) 10 SCC 464Â in paragraphs 12 and 26

has held as under :-

“12. An error contemplated under the Rule must be such which is apparent on the face of the record and not an error which has to be fished out

and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be

manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends

upon the materials placed before the court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in

favour of the applicant, in such circumstances, the review will lie. Under the guise of review, the parties are not entitled to rehearing of the same issue

but the issue can be decided just by a perusal of the records and if it is manifest can be set right by reviewing the order. With this background, let us

analyse the impugned judgment of the High Court and find out whether it satisfies any of the tests formulated above.

As held earlier, if the judgment/order is vitiated by an apparent error or it is a palpable wrong and if the error is self-evident, review is permissible

and in this case the High Court has rightly applied the said principles as provided under Order 47 Rule 1 CPC. In view of the same, we are unable to

accept the arguments of learned Senior Counsel appearing for the appellant, on the other hand, we are in entire agreement with the view expressed by

the High Court.â€​

In light of the aforesaid judgments, this court does not find any reason to review the order dated 26.04.2018 passed in Conc. no. 50/2017.

There is no error apparent on the face of the record. No case for interference is made out in the matter.

Accordingly, Review petition No.782/2018 is dismissed.