1. Heard Sri Avadhesh Kumar, learned counsel for the review petitioner and Sri Chandra Bhooshan, learned counsel for opposite parties/respondents.
2. This review petition has been filed by the defendant appellants for review of the judgment and decree dated 14.08.2003 passed by this Court in Second Appeal no. 224 of 1986 in Re: Chandra Bhan and others versus Aditya Prakash and others, by which the defendant-appellants' appeal was dismissed.
3. The review was admitted and the execution of the decree was stayed till the next date of listing, vide order dated 02.11.2006.
4. Sri Avadhesh Kumar, learned counsel for the review- applicant submits that the second appeal was an admitted second appeal, which could not be decided without framing any substantial question of law which is a mandatory requirement for decision of second appeal under Section 100 of the Code of Civil Procedure. He has placed reliance on the judgment of Hon'ble Supreme Court in the case of Nazir Mohammad vs. J. Kamala and Ors. [2020 (38) LCD 1969 (SC)].
5. The second appeal was admitted by order dated 02.04.1986, however, any substantial question of law was not framed, neither at the time of admission nor at any time thereafter. Judgment dated 14.08.2003 also does not frame any substantial question of law. In Nazir Mohammad (supra), the Hon'ble Supreme Court has held that a condition precedent for entertaining and deciding of second appeal is the existence of a substantial question of law. In Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar [(1999) 3 SCC 722], the Hon'ble Supreme Court has held that the High Court is oblized to satisfy itself regarding the existence of a substantial question of law. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question, so formulated.
6. The basic principles in which review application can be entertained and cannot be entertained have been eloquently laid down by Hon'ble the Apex Court in the case of Kamlesh Verma vs. Mayawati [(2013) 8 SCC 320]. Paragraph 20 under the heading "summary of principles" is being reproduced hereunder:-
20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
20.1. When the review will be maintainable:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC 337 : JT (2013) 8 SC 275] 20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.
7. In the case of Perry Kansagra v. Smriti Madan Kansagra [(2019) 20 SCC 753], the Hon'ble Apex Court on the scope and power of review has reiterated the same principles. It is apt to reproduce paragraph nos. 14 to 16, which are as under:-
14. The issues that arise for our consideration can broadly be put under two heads:
14.1. (a) Whether the High Court was justified in exercising review jurisdiction and setting aside the earlier judgment?
14.2. (b) Whether the High Court was correct in holding that the reports of the Mediator and the Counsellor in this case were part of confidential proceedings and no party could be permitted to use the same in any court proceedings or could place any reliance on such reports?
15. As regards the first issue, relying on the decisions of this Court in Inderchand Jain v. Motilal [Inderchand Jain v. Motilal, (2009) 14 SCC 663 : (2009) 5 SCC (Civ) 461] , Ajit Kumar Rath v. State of Orissa [Ajit Kumar Rath v. State of Orissa, (1999) 9 SCC 596 : 2000 SCC (L&S) 192] and Parsion Devi v. Sumitri Devi [Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715], it was submitted by the appellant that the exercise of review jurisdiction was not warranted at all.
15.1. In Inderchand Jain [Inderchand Jain v. Motilal, (2009) 14 SCC 663 : (2009) 5 SCC (Civ) 461] it was observed in paras 10, 11 and 33 as under: (SCC pp. 669 & 675) "10. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.
11. Review is not appeal in disguise. In Lily Thomas v. Union of India [Lily Thomas v. Union of India, (2000) 6 SCC 224 : 2000 SCC (Cri) 1056] this Court held: (SCC p. 251, para 56) ''56. It follows, therefore, that the 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. The review cannot be treated like an appeal in disguise.'
33. The High Court had rightly noticed the review jurisdiction of the court, which is as under:
''The law on the subject--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 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.' In our opinion, the principles of law enumerated by it, in the facts of this case, have wrongly been applied."
15.2. In Ajit Kumar Rath [Ajit Kumar Rath v. State of Orissa, (1999) 9 SCC 596 : 2000 SCC (L&S) 192] , it was observed: (SCC p. 608, para 29) "29. In review proceedings, the Tribunal deviated from the principles laid down above which, we must say, is wholly unjustified and exhibits a tendency to rewrite a judgment by which the controversy had been finally decided. This, we are constrained to say, is not the scope of review under Section 22(3)(f) of the Administrative Tribunals Act, 1985...."
15.3. Similarly, in Parsion Devi [Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715] the principles were summarised as under: (SCC p. 719, para 9) "9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 C.P.C. it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".
16. On the other hand, reliance was placed by the respondent on the decision in BCCI v. Netaji Cricket Club [BCCI v. Netaji Cricket Club, (2005) 4 SCC 741] to submit that exercise in review would be justified if there be misconception of fact or law. Para 90 of the said decision was to the following effect: (SCC p. 765) "90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit."
8. It has thus been settled in law that;
(i) the power of review may be necessitated by way of invoking the doctrine ''actus curiae neminem gravabit' which means that no act of the court in the course of whole of the proceedings does an injury to the suitors in the court. It has been held in Food Corporation of India and Another vs. M/s Seil Ltd. & Ors. [(2008) 3 SCC 440] that a writ court exercises its power of review under Article 226 of the Constitution of India itself and while exercising the jurisdiction it not only acts as a court of law but also as a court of equity. A clear error or omission on the part of the court to consider a justifiable claim would be subject to review, amongst others, on the ''actus curiae neminem gravabit'.
(ii) The mistake or error must be apparent on the face of record i.e. that it must strike one on more looking at the record and would not require any long drawn process of reasoning. It should not be an error which has to be fished out and searched. Such an error must also be material which undermines the soundness of the judgment or results in miscarriage of justice. An error which may be apparent but is of inconsequential import, that would not furnish a ground for review.
9. It would also be apt to refer the judgment in the case of S. Nagraj vs. State of Karnataka [(1993) Supp. 4 SCC 595], wherein Hon'ble Apex Court has observed that it is the duty of the Court to rectify, revise and recall its orders as and when it is brought to its notice that certain of its orders were passed on a wrong or mistaken assumption of facts and that implementation of those orders would have serious consequences. Again in the case of M.M. Thomas vs. State of Kerala & Another [(2000) 1 SCC 666] the Hon'ble Apex Court has held that the High Court, as a Court of record, has a duty to itself to keep all the records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it, the High Court has not only power, but a duty to correct it.
10. In view of the aforesaid, there is an error apparent on the face of record of the judgment dated 14.08.2003.
11. The review petition is allowed. The judgment dated 14.08.2003 is recalled. The second appeal is restored to its original number for fresh decision.
12. The review applicant has also filed some supplementary affidavits along with applications as also application for permission to file additional evidence, annexing certain documents against which the respondent has raised certain objections.
13. As the review has been allowed, the Court does not enter into the controversy as to whether the application under Order 41 Rule 27 C.P.C. is maintainable in review application or not, leaving it open to the applicants, if so advised, to file appropriate application under Order 41 Rule 27 C.P.C. or such other provisions as may be open to them, in the second appeal itself.
14. List this second appeal before appropriate Bench in the next month, as the appeal pertains to the year 1986.
Order Date :- 23.09.2021 Nitesh ( Ravi Nath Tilhari, J. )