This is an application for review of the order dated 13.02.2004 passed by this Court whereby this writ petition was allowed in part.
Brief facts of the case which are not in dispute are that one Joginder Lal filed Writ Petition No. 564 (M/S) of 2004 with the allegations that Jan Sewa Sansthan, opposite party no. 7 in the writ petition is a Society and Vishwasta Dwivedi had been its President. The aforesaid Vishwasta Dwivedi is the son of Sheo Sagar Dwivedi, opposite party no. 6 in the writ petition. It is said that the opposite party no. 6 is the owner of House No. 64, Pan Dariba, Charbagh. Lucknow which also houses the registered office of the Society, opposite party no. 7 in the writ petition. The aforesaid Society, opposite party no. 7 in the writ petition, took a loan of Rs. 19,80,000/- from U.P. Khadi Evam Gramodyog Board, Lucknow, opposite party no. 8 in the writ petition in the year 1997 for establishing industry under the security of the said House No. 64, Pan Dariba, Charbagh, Lucknow, which property belonged to Sheo Sagar Dwivedi, opposite party no. 6 in the writ petition. The loanee, opposite party no. 76 in the writ petition could not refund any part of the loan and, therefore, the U.P. Khadi Evam Gramodyog Board, Lucknow resorted to recovery proceedings and the amount sought to be recovered was Rs. 26, 86, 575/-. The said recovery of loan was intended through the sale of House No. 64 belonging to opposite party no. 6 of the writ petition, which property was offered as security against the loan. It is said that after due publicity and notification, House No. 64 was finally put to auction on 16.01.2003 by the authorities concerned in which five bidders, including the writ petitioner, participated. The petitioner, Joginder Lal was the highest bidder in the said action having offered the maximum amount of Rs. 17, 50, 000/- and the auction was thus concluded in favour of Joginder Lal and as per terms of the auction he deposited 1/4th 2 amount on the date of auction and the rest 3/4th was deposited within the scheduled time limit. Thus a sale certificate was to be issued. However, during the course of it, Sheo Sagar Dwivedi, opposite party no. 6 in the writ petition filed objections on 17.02.2003 under Section 285 (1) of U.P. Z.A. & L.R. Act before the Divisional Commissioner, Lucknow, who after hearing the parties held that the auction of the house was properly done and all rules and regulations were followed and there was no illegality of any sort in the said auction proceedings. Against the order of the Divisional Commissioner, a revision was filed before the Board of Revenue under Section 219 of Land Revenue Act, 1901 on 25.08.2003 and the Board of Revenue allowed that revision vide order dated 09.01.2004 and the auction sale was quashed and it was held that the auction proceeding is illegal and further observed that the date of auction was 03.12.2002, but on that date the auction proceedings were not held and on the same day, next date of auction was fixed as 16.01.2003 with the direction that the date for auction shall be notified in the newspaper and shall be served in accordance with law, but no such document is available on record, which could show that it was served in accordance with law and besides it 3/4th bid amount was to be deposited in the office of the Collector, but it was not deposited and, therefore, there had been violation of Section 108 of the U.P. Land Revenue act. it was further held that the auction of the house should have been made on some other date after notification, but the same has not been done. For quashing the aforesaid order passed by the Board of Revenue, the petitioner, Joginder Lal filed Writ Petition No. 564 (M/S) of 2004 and the same was allowed in part by Hon'ble I. M. Quddusi, J. The impugned order dated 09.01.2004 passed by the Board of Revenue, quashing the auction proceedings, was upheld but it was directed that it will be open to the Collector concerned to initiate fresh proceedings for auction of the house in question in accordance with law and the amount, if any in deposit with the Collector, may be refunded in accordance with law under the provisions of U.P.Z.A. & L.R. Act and rules made thereunder on the application moved by the petitioner. For review of the aforesaid order, an application was moved on 24.05.2004 by the petitioner. On this review petition Hon'ble I. M. Quddusi, J. passed the following order on 29.11.2004:
" Case called out twice. Learned counsel for the 3 review- petitioner has argued the case, but no one is present to opposite the averments made in the review petition supported by an affidavit. The service upon the opposite parties is deemed sufficient. It has been submitted that vide circulation of the newspaper, namely Amrit Vichar in which the notice of auction of sale was published and the sale consideration is also adequate which was made by the bidding, as there is refusal to accept the registered envelop.
In view of the facts and circumstances, the review petition is allowed.
List on 01.12.2004 for final hearing."
Accordingly, the Writ Petition No. 564 (M/S) of 2004 was heard on merits, but in the absence of Sheo Sagar Dwivedi, opposite party no. 6 the original owner of the house in question. Hon'ble I. M. Quddusi,J. allowed the writ petition and completely reversed his earlier judgment dated 13.02.2004, under which the order dated 09.01.2004 passed by the Board of Revenue was upheld, but under the order dated 03.12.2004, the order dated 09.01.2004 passed by the Board of Revenue was set aside and the auction was held to be valid.
Since the order dated 03.12.2004 was passed by this Court without hearing Sheo Sagar Dwivedi, opposite party no. 6, on application was moved by the opposite party no. 6 for recalling the order dated 03.12.2004. The said application which was registered as Civil Misc. Application No. 1048 (W) of 2005 was heard and allowed by this Court by order dated 14.09.2005 by which the order dated 29.11.2004 allowing the review petition no. 132 of 2004 and further final order dated 03.12.2004 allowing the writ petition were recalled and set aside and it was directed that the review petition filed by the petitioner Joginder shall be heard and decided on merits after hearing the learned counsel for the parties.
It is in the background of the aforesaid facts that the present review petition has come up before this court for final hearing.
Heard Sri S. C. Maheshwari senior advocate assisted by Sri H. K. Mishra learned counsel for the applicant/petitioner and Sri D. C. Mukharjee learned counsel for respondent no. 6 and the learned Standing Counsel for the respondent nos. 1 to 5.
Learned counsel for the petitioner submitted that the Board of Revenue had set aside the auction dated 16.01.2003 inter alia on the grounds that minimum bid for the mortgaged house should have been at least Rs. 22, 57, 430/- as valued by the collector and the petitioners bid of Rs. 17, 50, 000/- should not have been accepted; that there was no evidence on record to show that any public notice of the date on which the impugned auction was held after its postponement on the scheduled date which was 03.12.2002 nor any notice of the postponed date of the auction was served upon the respondent no. 7; and that 3/4th bid amount was not deposited by the petitioner in the office of Collector which contravened requirement of Section 108 of the U.P. Land Revenue Act.
Learned counsel for the petitioner submitted that the notice of the next date fixed for auction on 16.12.2002 after the auction was postponed on the scheduled date, was published in the 12.12.2002 edition of daily news paper Amrit Vichar and a written notice dated 03.12.2002 informing the respondent no. 7 that his mortgaged house was to be put to auction on 16.01.2003 was sent to the respondent no. 7 which has been filed as Annexure No. S.A.-4 to the supplementary affidavit filed in the review petition, hence this court while affirming the finding of the Board of Revenue on the aforesaid issue committed a manifest error of law.
Learned counsel for the petitioner further submitted that setting aside of the auction sale by the Board of Revenue on the ground of inadequacy of price of property fetched at the time of sale is also unsustainable in the eye of law as the revisional or the appellate court can not examine the question regarding inadequacy of price of property fetched at the time of sale and thereby set aside the sale itself.
Learned counsel for the petitioner lastly submitted that this court while affirming the finding recorded by the Board of Revenue that the/ 3/4th amount of the sale price was not deposited by the petitioner within the prescribed period which was against the evidence on record, has acted contrary to law.
Sri D.C. Mukherjee learned counsel appearing for the respondent no. 6 submitted that although there is no specific provision providing for review of a judgement/order passed under Article 226 of the Constitution of India but the law is settled that judgement/order passed by a court in the exercise of its power under Article 226 of the Constitution of India can be reviewed on the grounds specified in Order 47 Rule 1 of the Civil Procedure Code 1908. Sri Mukherjee further elaborating his argument submitted 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 C.P.C. and a review petition can be entertained only on the ground of error apparent on the face of the record and not on any other ground.
Sri Mukherjee next submitted that an error apparent on the face of record must be such an error which must strike on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. In support of his submission Sri Mukharjee relied upon the cases of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma, (1979) 4 SCC 389: AIR 1979 SC 1047; Shivdeo Singh Vs. State of Punjab, AIR 1963 SC 1909: Satyanarayan Laxminarayan Hegde Vs. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137: (1960) 1 SCR
890. Sri Mukherjee also submitted that none of the grounds on which the petitioner has sought review of this court's earlier order dated 13.02.2004 are covered by the connotation of the term ' mistake or error apparent' and are not such which are evident per se from the record of the case and do not require any detailed examination, scrutiny and elucidation either of the facts or the legal position.
Sri Mukherjee lastly submitted that the order dated 13.02.2004 was passed after hearing the learned counsel for the parties and this court while dismissing the writ petition by the order sought to be reviewed had considered the grounds raised and the submissions made by the learned counsel for the petitioner which are same on which the review has been sought and repelled by giving cogent reasons and in case the petitioner felt that the judgment passed by this court was erroneous it was open to him to have preferred an appeal against the said judgment before the Supreme Court. No review of the 6 earlier order of this Court can be allowed on the grounds pleaded by the petitioner.
I have considered the submissions made by learned counsel for the parties and perused the record.
Undisputedly the judgement dated 13.02.2004 whereby this writ petition was dismissed by this court and the order dated 09.01.2004 passed by the Board of Revenue whereby the auction dated 16.01.2003 was set aside was affirmed by this Court, was passed after hearing the learned counsel for the petitioner as well as learned counsel for the respondents. The three grounds on which the petitioner has sought review of this Court's order dated 13.02.2004 are as follows:
(i) That the Board of Revenue had wrongly set aside the sale on the ground that the minimum bid for the mortgaged/auctioned house should have been at least Rs. 22, 57, 430/- as valued by the collector and the petitioner bid of Rs. 17, 50, 000/- should not have been accepted although inadequacy of price of property fetched at the time of sale can not be made a ground for setting aside the auction sale and this court manifestly erred in taking a similar view.
(ii) That the finding recorded by the Board of Revenue that there was no evidence on record to show that any public notice of the date on which the impugned auction was held after its postponement on the scheduled date which was 03.12.2002 nor any notice of the subsequent date of auction was served upon the respondent no. 7 was against the evidence on record as the notice of the subsequent date of auction after the same had been postponed on the scheduled date was published in 12.12.2002 edition of daily news paper Amrit Vichar and the respondent no. 7 was also given notice of the said date of auction vide a notice dated 03.12.2003 and this court committed an error apparent on the face of the record in affirming the aforesaid finding of the Board of Revenue.
(iii) That the Board of Revenue had erroneously set aside the auction sale also on the ground that the 3/4th of bid was not deposited by the petitioner in the office of collector which contravened the requirement of Section 108 of the U.P. Land Revenue Act was also untenable as the petitioner had deposited the 3/4th amount of the bid with the sale officer in the Saving Bank Account in 7 the official name of Deputy Collector which was sufficient compliance of the provisions of the Board of Revenue Act as the sale officer is part and parcel of the collector's office and there being no irregularity in depositing the 3/4th amount in the present case, thus the court again erred in affirming the finding recorded by the Board of Revenue on the aforesaid ground.
In order to examine that whether the grounds on which the petitioner is seeking review of this Court's order dated 13.02.2004 fall within the ambit of 'mistake or error apparent', it is necessary to notice some of the judicial precedents in which Section 114 read with Section 47 of the C.P.C. have been interpreted and limitations on the power of Court on review its judgement/decision have been identified :
In Hari Sankar Pal Vs. Anath Nath Mitter a five-judge Bench of the Federal Court while considering the question whether the Calcutta High Court was justified in not granting relief to non-appealing partly, whose position was similar to that of the successful appellant, held (FCR p. 48) " That a decision is erroneous in law is certainly no ground for ordering review. If the court has decided a point and decided it erroneously, the error could not be one apparent on the face of the record or even analogous to it. When, however, the court disposes of a case without averting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order 47 Rule 1, Civil Procedure Code."
In Moran Mar Basselios Catholicos Vs. Mar Poulose Athanasius this Court interpreted the provisions contained in the Travancore Code of Civil Procedure which are analogous to Order 47 Rule 1 and observed: (AIR p 538, para 32) "32 .... Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the court of review has only a limited jurisdiction circumscribed by the definite limits fixed by the language used therein.
It may allow a review on three specified grounds, namely, 8
(i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason.
It has been held by the Judicial Committee that the words ' any other sufficient reason' must mean ' a reason sufficient on grounds, least analogous to those specified in the rule." In Thungabhadra Industries Ltd. Vs. Government of A. P. , it was held that a review is by no means an appeal in disguise whereof an erroneous decision can be corrected.
In Parsion Devi Vs. Sumitri Devi, it was held as under (SCC p.716) " 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 the power of review under Order 47 rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be 'reheard and corrected'. There is a clear distinction between an erroneous decision and an error apparent on the fact of the record while the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be ' an appeal in disguise."
In Haridas Das Vs. Usha Rani Banik this Court made a reference to the Explanation added to Order 47 by the Code of Civil Procedure (Amendment) Act, 1976 and held: (SCC p. 82, para 13) " 13. 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 fit'. The parameters are prescribed in Order 47 CPC and for the 9 purpose of this lis, permit the defendant to press for a rehearing ' On account of some mistake or error apparent on the face of the records or for any other sufficient reason'. 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." In Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma, this Court considered the scope of the High Courts' power to review an order passed under Article 226 of the Constitution, referred to an earlier decision in Shivdeo Singh Vs. State of Punjab and observed: (Aribam Tuleshwar Case SCCp.390 para 3) " 3. .... It is true as observed by this Court in Shivdeo Singh Vs. State of Punjab, there is nothing in Article 226 of the Constitution to preclude a 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 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 10 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 powers which may enable an appellate court to correct all manner of errors committed by the subordinate court."
In Meera Bhanja (Smt.) Vs. Nirmala Kumari Choudhury reported in (1995) 1 Supreme Court Cases 170, the Apex Court while examining the scope of power of review of the High Court under Order 47 Rule 1 CPC observed as hereunder in para 8 of the said ruling:
" 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, C.P.C. 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 of India, this Court, in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma, speaking through Chinnappa Reddy, J, has made the following pertinent observations: (SCC p. 390, para 3) It is true as observed by this Court in Shivdeo Singh Vs. State of Punjab, 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 11 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."
The Apex Court in the case of Satyanarayan Laxminarayan Hegde Vs. Mallikarjun Bhavanappa Tirumale reported in AIR 1960 SC 137 has made the following observations in connection with an error apparent on the face of the record:
An error which has to be established by a long- drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ."
Thus the principles which emerge from the above noted judgements on which power of review may be exercised are:
(i) Court can review of decision either of the grounds enumerated under Order 47 Rule 1 and not otherwise;
(ii) 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;
(iii) 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.
(iv) An error which is not self evident and which can be discovered by long process of reasoning can not be treated as an error apparent on the face of record justifying the court to exercise the power of review.
After carefully examining the three specific grounds on which the review has been sought as well as the law on the subject, I am of the view that the said grounds do not fall within the ambit of mistake or error apparent. The grounds on which the review has been sought require detailed examination, scrutiny and elucidation of the facts, and legal position. The errors which have been pointed by the petitioner in the impugned order can not be treated as errors apparent on the face of the record. The grounds on which review has been sought at the most suggest that upon scrutiny of the material on record and the law sighted on behalf of the parties another view of all matter may be possible but it can be said that the jural action sought to be reviewed is manifestly in correct on which two conclusions are not possible. The petitioner has not sought review on the ground of discovery of new and important matter or evidence which despite exercise of due diligence was not within his foreknowledge. The order dated 13.02.2004, which is sought to be reviewed, was passed by this Court after hearing the learned counsel for the petitioner and the opposite parties and by which the writ petition was allowed in part and, in my opinion, the said order does not suffer from any mistake or error apparent on the face of the record. The review petition has no merit and is accordingly dismissed.
Dt.22.01.2010.
YK.