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Judgment
Shri Abhishek Tugnawat, learned counsel for the respondent has drawn the attention of this Court towards an order passed in an identical review
petition i.e. Review Petition No.290/2018 (State of M. P. & Others Vs. Vijay Kumar Dukariya) on 27/02/2018. The order passed by this Court reads
as under:-
“Mr. Kamal Tiwari, learned counsel for the petitioner.
The petitioner before this Court, State of Madhya Pradesh through its functionaries, have filed this present review petition for reviewing the order
dated 10/8/2017 passed in Writ Petition No. 766/2017.
There is a delay of 164 days in filing the review petition. The respondents have stated that they have obtained the permission from the Law
Department and the matter was pending with the Law Department and, therefore, the delay be condoned.
The respondents have not explained the day-to-day delay in filing the application u/S. 5 of the Limitation Act and, therefore, the application for
condonation of delay deserves to be rejected and is accordingly hereby rejected. Even otherwise also there is no merit in the present review petition.
Facts of the case reveal that the respondent before this Court has filed a Writ Petition challenging the order dated 10/8/2016 by which he was being
superannuated at the age of 60 years.
This Court in the light of the judgment delivered in the case of Chhogalal Solanki Vs. State of M.P. (W.P.No. 2242/2013, decided on 30/10/2014), has
allowed the Writ Petition and the order dated 10/8/2017 reveals that he was transferred in the School Education Department on 30/5/1994 and since
then he was working as a Teacher. He was holding the substantive post of Teacher and in those circumstances the Writ Petition was allowed.
The State Government in the review petition has made an attempt to demonstrate that the order passed by this Court is erroneous. In the light of the
aforesaid fact that in case the judgment is erroneous, there is certainly a remedy to file a Writ Appeal.
There is no error apparent on the face of the record warranting review.
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 underSection 22(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 reason†appearing inOrder 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 bediscovered by a long 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 guiseof exercise of 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 mustconfine its 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 isnot sufficient 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
prima-facie 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, butfrom 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 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 thecreditors of the defendant as also the defendant himself.
(ii) The defendant's application before the executing court thathe was ready 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 thesale consideration, 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 hewas ready to 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 berestored back to 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 bestrictly confined to the scope and ambit of Order 47 Rule 1 CPC.
(ii) Power of review may be exercised when some mistake orerror 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 longdrawn 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 thedecision was erroneous on merits.
(iv) Power of review can also be exercised for any sufficientreason 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 ofinvoking the doctrine 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 re-appreciation 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 selfevident, 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 10/8/2017 passed in Writ Petition No. 766/2017.
There is no error apparent on the face of the record. No case for interference is made out in the matter.
Accordingly, the review petition is dismissed.â€
In light of the aforesaid order passed in an identical review petition, this Court does not find any reason to entertain the present review petition. The
review petition is accordingly dismissed.
Certified copy as per rules.