Hon'ble Harsh Kumar, J.
This is an application filed by the appellant seeking review of the judgment dated 10.07.2014 dismissing the appeal.
We have heard the review-applicant in person assisted by her husband Sri S. N. Bhargava.
First Appeal under Section 96 of the Code of Civil Procedure was filed by the appellant-plaintiff challenging the judgment and decree daed05.02.2012 passed by the II Additional Civil Judge (Senior Division), Kanpur dismissing the civil suit no. 1560 of 2010 under Order VII Rule 11 C. P. C. as barred by limitation. After lengthy arguments from both the side, first appeal was dismissed. The judgment of this Court was challenged by the appellant by filing special leave petition before the Hon'ble Apex Court through Special Leave to Appeal (C) No. 31685 of 2014 which was dismissed vide judgment and order dated 01.12.2014. After dismissal of the special leave petition by the Hon'ble Apex Court, the appellant has again approached this Court with instant review petition.
A preliminary objection has been raised by the learned counsel for the respondents with respect to the maintainability of review petition after dismissal of special leave petition. Admittedly, the special leave petition filed by review-applicant was dismissed by the Hon'ble Apex Court without recording any reasons. The question of maintainability of an application seeking review of the judgment against which special leave petition has been dismissed by the Hon'ble Apex Court by a non-speaking order, without assigning any reasons, is no longer res-integra and stands settled by various decisions of the Hon'ble Apex Court. Reference may be made to the decision in the case of Ramnik Vallabhdas Madhvani and others Vs. Tarben Pravinlal Madhvani - 2004 (1) SCC 497, wherein it has been held that disposal of special leave petition against judgment of the High Court does not mean that the said judgment is affirmed by such dismissal. The order on a special leave petition at the admission stage also does not operate as res-judicata.
In the case of Kunhayammed & Ors. Vs. State of Kerala & Anr., JT 2009 (9) SC 110, the Supreme Court examined the doctrine of merger when a Special Leave Petition is dismissed either by a non-speaking order or a speaking order and when a Civil Appeal is dismissed with a speaking order or a non-speaking order. Considering the doctrine or merger and the right of review, it was observed by the Supreme Court in paragraph 33, 34 and 40 as under :
Doctrine of merger and review "33. This question directly arises in the case before us.
"34. The doctrine of merger and the right of review are concepts which are closely inter-linked. If the judgment of the High Court has come up to this Court by way of a special leave, and special leave is granted and the appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High Court merges with that of this Court. In that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of this Court. But where the special leave petition is dismissed - there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review court may interfere, or it may not interfere depending upon the law and principles applicable to interference in the review. But the High Court, if it exercises a power of review or deals with a review application on merits - in a case where the High Court's order had not merged with an order passed by this Court after grant of special leave - the High Court could not, in law, be said to be wrong in exercising statutory jurisdiction or power vested in it."
In Paragraph 34 of the judgment, the Hon'ble Supreme Court sum up the conclusions as follows :
"(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.
(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non-speaking order or speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the apex court of the country. But, this order does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation."
"40. A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the Court, (iv) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the apex court of the country and so on. The expression often employed by this Court while disposing of such petitions are "heard and dismissed", "dismissed", "dismissed as barred by time" and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest to the maintainability of the petition. The Court may apply its mind to the merit worthiness of the petitioners prayer seeking leave to file an appeal and having formed an opinion may say "dismissed on merits". Such an order may be passed even ex-parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order. Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule 1 of the C.P.C. or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47 Rule 1 of the C.P.C. act as guidelines) are not necessarily the same on which this court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of special leave petition does not take away the jurisdiction of the court, tribunal or forum whose order forms the subject matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist. Where the order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court. Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger. "
In view of the aforesaid law laid down by the Apex Court since special leave petition filed by the review-applicant/appellant, herein, against the judgment was dismissed by the Apex Court without assigning any reason only by saying "Heard learned Senior Counsel for the petitioner, special leave petition is dismissed", there is no bar of the review application and thus, preliminary objection raised by the learned counsel for the respondents is over ruled.
Now we proceed to consider the review application on merits.
Review of the judgment is being sought on the ground that various grounds raised in the appeal and pressed at the time of argument have escaped consideration by the Hon'ble Court. The other ground raised is there are errors of fact and law in the judgment apparent from the record and the facts and law contained in the record have escaped the attention of the Court. It is also alleged that certain case laws referred to during the course of arguments have not been taken into consideration.
It is well settled that review proceedings have to be confined to the scope and ambit of Order 47 Rule 1 CPC, which reads as under :
"1. Application for review of judgment- (1) Any person considering himself aggrieved -
(a) by a decree or order from which an appeal is allowed, but from 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 to the court which passed the decree or made the order."
A bare reading of the aforesaid provisions makes it clear that review petition can be filed from the discovery of new materials which after exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the decree passed or order made or on account of some mistake or error apparent on the face of record, or for any other sufficient reason. It is not the case of the review-applicant that review-petition has been filed on discovery of new and important matter or evidence which after exercise of due diligence was not within his knowledge or could not be produced at the time when the judgment was given. On the contrary, the case set up by the review-applicant is that on the facts and grounds, conclusion arrived at by the court is wrong. Effort by placing same evidence, same document and same averments for taking different view than the one taken at the earlier stage can never be the scope of review petition, otherwise, there may not be any end of the matter. This cannot be the spirit of the provision as contained under Order 47 Rule 1 C. P. C.
The law with respect to scope of the review petition already stands settled by the Apex Court in the case of Meera Bhanja (Smt.) Vs. Nirmala Kumar Chaudhary (Smt), (1995) 1 SCC 170. While explaining the scope of review, the Apex Court has held as under :
"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 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 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."
In respect to error apparent in the judgment of Apex Court in the case of Satyanarain Laxminarain Hegde Vs. Mallikarun Bhavanappa Tirumate, AIR 1960 SC 137, following observation was made :
"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."
None of the grounds raised in the review petition confirm to the ambit and scope of Order 47 Rule 1 C. P. C. in as much as it is not based on discovery of new important matter of evidence which even after exercise of due diligence was not within the knowledge of the applicant seeking review or could not be produced by him when the order was made nor there appears to be error apparent on the face of record which may be self evident. In so far as reliance on various case laws are concerned, it has already been noticed in the judgment under review that in order to avoid bulk only such case laws which were found relevant are being referred to.
In effect, the entire efforts of the review-applicant seems to be, after dismissal of the special leave petition by the Apex Court, to get rehearing in the matter in the light of the same set of evidence and same pleadings which is impermissible. It is not permissible even for an erroneous decision to be reheard and corrected as the review has a limited purpose and has to confined itself to the ambit and scope of Order 47 Rule 1 CPC and it cannot be allowed to be an appeal in disguise.
In view of the aforesaid facts and discussions, we are of the considered opinion that review application filed by appellant is not liable to be entertained and merits dismissal and accordingly stands dismissed.
July 8, 2016 Dcs.
Civil Misc. Delay Condonation Application No. 7877 of 2015 Hon'ble Krishna Murari, J.
Hon'ble Harsh Kumar, J Cause shown in the affidavit filed in support of application for delay in filing the review application is sufficient and the same is condoned.
Application stands allowed.
July 8, 2016 Dcs.
Civil Misc. Review Application No. 7880 of 2015 Hon'ble Krishna Murari, J.
Hon'ble Harsh Kumar, J This is a misconceived application. Another review application on the same ground has already been dismissed vide order of date.
Thus, application stands dismissed.
July 8, 2016 Dcs.