Manoj Kumar Das & Ors. vs State Of Odisha & Ors.

“The review petitioners therefore, pray before this Hon‟ble Court that in view of the grounds indicated above, the same may be re-considered and this Hon‟ble Court may graciously be pleased to:

(a)

allow this review petition after hearing both the parties and admit the same on the grounds as indicated above;

(b)

the judgment dated 07.03.2024 passed by this Hon‟ble Court in W.P.(C) No.23521/2013 be reviewed to the effect indicated above, the writ petition vide W.P.(C) No.23521 of 2013 be restored to its file and heard afresh by giving an opportunity of hearing to the parties;

And may pass any other order(s), direction(s), as this Hon‟ble Court may deem fit and proper;

And for this act of kindness the review petitioners shall as in duty bound ever pray;

“Learned counsel for the petitioner wants to withdraw the present writ application with liberty to file a fresh application.

Accordingly, the writ petition stands dismissed as withdrawn with the liberty sought for.”

“In the context of the Emergency arising out of external aggression the State Government had decided under the above Resolution to extent certain facilities to the personnel of the Indian Army, Navy, Air Force as also other allied personnel as specified in the Resolutions and orders issued thereunder, serving in the forward areas, on a review of the progress of implementation of the above Resolutions it had been found as necessary to lay down specific principles for extending such facilities with a view to avoid misconception in this regard and to ensure that such facilities are provided to personnel for whom these are intended. On a careful consideration of all the relative aspect having a bearing on this matter, the State Government have, therefore, been pleased to decide as follows:

(A)

The concessions by way of assignment of land, medical facilities and educational facilities contemplated under the above Resolutions will be available only such personnel who have served in the forward areas during the period from the 26^th October, 1962 to the 31^st January, 1964. For this purpose, the personnel seeking such concessions will be required to produce a certificate from the Unit Command that he actually served during the above period in a forward area.

(B)

Dependent families of the personnel killed in action with the above period will also be eligible to similar concessions.

(C)

It is provided in the above resolutions that the facilities will be made available only to those who are unable to manage without some form of assistance from the Government. This conditions will no longer be in force.

(D)

The facility of assignment of land will be available only to such personnel who are „Landless‟. A person shall be deemed to be landless if the total extent of his land along with the land hold as a tenant or raiyat by all members of his family living with him in one mess is less than 5 acres.

The principles regulating the grant of facilities as also the relative procedure laid down in the above Resolutions will be modified in terms this Resolution.

Orders

Ordered that this Resolution be published in the Orissa Gazettee for the information of the general public and copies be forward to all Departments of Government/all Heads of Departments/All Revenue Divisional Commissioners/All District Magistrates/All District and Sessions Judges/Secretary to Orissa Public Service Commission/Secretary to Government.”

“Government of Orissa Revenue and Excise Department, Orissa, Bhubaneswar. No. (GL)-S-123/86— 48798, the 2^nd August, 1986. Bhubaneswar From:

Shri R.K. Rout, O.A.S., Joint Secretary to Government.

To The Secretary, Board of Revenue, Orissa, Cuttack.

Sub: Clarification on allotment of Land to Ex-serviceman.

Sir, I am directed to say that as per Home Deptt. Resolution No.11323 dated 14.05.1963 and PO 20827 dated 07.07.1969 Jawan‟s who have served in the forward areas during the period from 26.10.62 to 31.01.1964 are eligible for settlement of Govt. Waste land up to 5 acres free of premium.

According to the provisions in the OGLS Act and Rules Jawan‟s as such do not qualify for settlement of Govt. Land. Besides settlement of Govt. Waste Land for agricultural purposes with any one cannot exceed one standard acre. So according to the Odisha Government Land Settlement Act and rules made thereunder a Jawan as such is not eligible for Settlement of Agricultural Land. Some collectors have rightly expressed doubts regarding Settlement of Land with Jawans. Since it is not possible for settlement of Govt. Waste Land upto 5 acres with the Jawans in terms of the aforesaid resolution of the Home Deptt. Within the existing provisions of OGLS Act and Rules thereunder. Government after careful consideration have been pleased to decide that such settlement shall be made within the ambit of Govt. Grants Act, 1895 keeping in view the nature of concession as a reward.

Under Government Grants Act, 1895 sanction of Govt. Land is to be done by the Government There would be considerable delay if all such cares are referred to the Government for sanction. In consideration of this difficulty it has further been decided that Tahasildars will be competent to settle land with aforesaid category of Jawans under provisions of the Government Grants Act, 1895 conferring the status of a raiyat as defined under the OLR Act, 1960^{11.The Odisha Land Reforms (General) Rules, 1965.}.”

“It follows, therefore, that the powers of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of two views on the subject is not a ground for review.”

“to handover possession of Ac.5.00 decimals of land in favour of the petitioners in Puri, Tahasil which was allotted in favour of their deceased father, Prasanna Kumar Das, after identifying and demarcating the same within a period fixed by this Hon‟ble Court and get the same mutated and recorded in favour of the petitioners” found the same to be adjudicated factually. Hence this Court declined to exercise of discretionary power under Article 226 of the Constitution of India.

“8.

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, CPC. 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, this Court, in Aribam Tuleshwar Sharma Vrs. Aribam Pishak Sharma, (1979) 4 SCC 389 speaking through Chinnappa Reddy, J. has made the following pertinent observations:

„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 of 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.‟ ***”

“75.

A review can be sought under this ground by an aggrieved litigant on the discovery of a certain new and important matter or evidence, which, after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed. A review of a judgment is a drastic step, and a reluctant resort to it is proper only where a glaring omission or patent mistake or a grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import, are obviously insufficient, as was rightly held in Sow Chandra Kante Vrs. Sk. Habib Sow, (1975) 3 SCR 933. The provision is not meant to give a second chance to the aggrieved party who has lost their case due to their own negligence.

76.

*** A party cannot justify a review by producing old documents lying in its own custody, as this does not constitute “discovery” nor satisfy the “due diligence” requirement.”

“9.

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.”

“*** The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed.”

“*** 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. ***”

“*** 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. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that 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. ***”

“It is 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.”

“11.

So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.

12.

When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of „second innings‟ which is impermissible and unwarranted and cannot be granted.”

“16.

While considering the aforesaid issue two decisions of this Court on Order 47 Rule 1 read with Section 114 CPC are required to be referred to? In Perry Kansagra Vrs. Smriti Madan Kansagra, (2019) 20 SCC 753 this Court has observed that while exercising the review jurisdiction in an application under Order 47 Rule 1 read with Section 114 CPC, the Review Court does not sit in appeal over its own order. It is observed that a rehearing of the matter is impermissible in law. It is further observed that review is not appeal in disguise. It is observed that power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. It is further observed that it is wholly unjustified and exhibits a tendency to rewrite a Judgment by which the controversy has been finally decided.

17.

After considering a catena of decisions on exercise of review powers and principles relating to exercise of review jurisdiction under Order 47 Rule 1 CPC this Court had summed up as under: (Perry Kansagra case, (2019) 20 SCC 753:

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

(ii)

Power of review may be exercised when some mistake or error apparent 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 decision was erroneous on merits.

(iv)

Power of review can also be exercised for any sufficient reason which is 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 the doctrine actus curiae neminem gravabit.‟ (As observed in: Inderchand Jain Vrs. Motilal, (2009) 14 SCC 663, p. 675, para 33).‟ It is further observed in the said decision that an error which is required to be detected by a process of reasoning can hardly be said to be an error on the face of the record.

18.

In Shanti Conductors (P) Ltd. Vrs. Assam SEB, (2020) 2 SCC 677, it is observed and held that scope of review under Order 47 Rule 1 CPC read with Section 114 CPC is limited and under the guise of review, the petitioner cannot be permitted to reagitate and reargue questions which have already been addressed and decided. It is further observed that 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 record justifying the court to exercise its power of review under Order 47 Rule 1 CPC.”

“79.

Insofar as this ground is concerned, recently, this Court in the case of State (NCT of Delhi) Vrs. K.L. Rathi Steels Ltd., (2024) 7 SCC 315, held as follows:

„45. With regard to (iii) (supra), we can do no better than refer to the traditional view in Chhajju Ram^{33.Chhajju Ram Vrs. Neki, 49 I.A. 144.}, a decision of a Bench of seven Law Lords of the Judicial Committee of the Privy Council. It was held there that the words “any other sufficient reason” means “a reason sufficient on grounds at least analogous to those specified immediately previously”, meaning thereby (i) and (ii) (supra)^{44.Paragraph 62 of State of West Bengal Vrs. Jai Hind Pvt. Ltd., (2026) 2 SCR 497 reads as follows: “62. One can find the basic legal postulates of the scope of review in Section 114 read with Rule 1 of Order XLVII of the CPC, which are applied in all proceedings in which the power of review is exercised. Thus, only on the following grounds, a review would lie: i. Discovery of new and important matter or evidence; or ii. Mistake or error apparent on the face of the record; or Any other sufficient reason.”}. Notably, Chhajju Ram has been consistently followed by this Court in number of decision starting with Moran Mar Basselios Catholicos Vrs. Mar Poulose Athanasius [(1955) 1 SCR 520 = AIR 1954 SC 526]. ...

106.

Moving on further, we find that the attempt of the review petitioners has been to draw inspiration from the ground “any other sufficient reason” appearing in Rule 1. There have been decisions of this Court which have construed the words “any other sufficient reason” expansively, like Netaji Cricket Club and Jagmohan Singh, whereas there are decisions, including Moran Mar Basselios Catholicos, Shatrunji, Kamlesh Verma and S. Madhusudhan Reddy, that have followed Chhajju Ram explaining that the ground “any other sufficient reason” means “a reason sufficient on grounds at least analogous to those specified immediately previously.

107.

However, with utmost respect, we do not find any of those decisions, which have taken an expansive view, looking at such ground in the manner we propose to look, for recording our concurrence with the view in Chhajju Ram that has unhesitatingly been followed over the years. If indeed “any other sufficient reason” were to take within its embrace any situation not analogous to “discovery of new matter or evidence” and “on account of some mistake or error apparent on the face of the record”, we wonder why the legislature chose to keep “any other sufficient reason” immediately after the aforesaid two grounds. If “any other sufficient reason” were to be read independent of the said two grounds, we believe the long line in Rule 1 after clauses (a) to (c) need not have been drafted in the manner it presently reads. In lieu of referring to the said two grounds as grounds on which a review could be sought, the legislature could well have kept it open-ended as in Section 5 of the Limitation Act, 1963 where it is provided, without any strings attached, that any appeal or any application may be admitted after the prescribed period of limitation if the appellant or applicant satisfies the court that he had “sufficient cause” for not preferring the appeal or the application earlier. If the intention of the legislature were to give an expanded meaning, Order 47 Rule 1 would have read somewhat like this: any person considering himself aggrieved by a decree or order or decision of the nature indicated in clauses (a), (b) and (c) for any sufficient reason desires to obtain a review of the decree or order made against him, may apply for a review. But that is not what the provision says and means. Reading Order 47 Rule 1 in juxtaposition to Section 5 of the Limitation Act drives us to accept the view in Chhajju Ram as having interpreted the law correctly and acceptance of the same by this Court and High Courts over the years, coupled with the fact that Parliament did not consider it necessary to amend Rule 1 when it inserted the Explanation in 1976. Giving a wider meaning to the ground “any other sufficient reason” in Netaji Cricket Club and Jagmohan Singh, therefore, must have been intended and necessitated by this Court because the justice of the cases so demanded but the same would have no application in a case of this nature.”

80.

Further, the Courts have time and again decided what can fall under the term “any other sufficient reason”. For instance, inter alia, where the Court omits to notice or consider relevant statutory provisions was held to be a sufficient reason in Girdhari Lal Gupta Vrs. D.H. Mehta, (1971) 3 SCC 189. Additionally, an order arising out of a lack of jurisdiction was held to be a sufficient reason in Budhia Swain Vrs. Gopinath Deb, (1999) 4 SCC 396. However, in the case at hand, there exists no such “sufficient reason” within the meaning of Rule 1 of Order XLVII of the CPC.”

“First, it is trite that the court cannot traverse beyond the pleadings and make out a case which was never pleaded, such principle having originated from the fundamental legal maxim secundum allegata et probate, i.e., the court will arrive at its decision on the basis of the claims and proof led by the parties. *** Law is, again, well-settled that when a point is not traceable in the pleas set out either in a plaint or a written statement, findings rendered on such point by the court would be unsustainable as that would amount to an altogether new case being made out for the party.”

“16.

Since the Division Bench (review) invoked the first clause, we hasten to emphasize that an applicant seeking review on the basis of discovery of new evidence has to demonstrate: first, that there has been discovery of new evidence, of which he had no prior knowledge or that it could not be produced at the time the decree was passed or the order made despite due diligence; and secondly, that the new evidence is material to the order/decree being reviewed in the sense that if the evidence were produced in court when the decree was passed or the order made, the decision of the court would have been otherwise. Ultimately, it is for the court to decide whether a review sought for by an applicant, if granted, would prevent abuse of the process of law and/or miscarriage of justice.

17.

When the ground for review sought is that of discovery of new evidence, this Court in State of West Bengal Vrs. Kamal Sengupta, (2008) 10 SCR 4 = (2008) 8 SCC 612 has clarified that the same must be evidence which should be materially important to the decision taken. The following passage is instructive:

„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.”