This is a First Appeal From Order under Order XLIII Rule 1(w) of the Code of Civil Procedure.
Heard Sri Yogesh Agarwal, learned counsel for the appellants and Sri Vinod Swaroop, learned senior counsel for the sole respondent.
This appeal arises against the order dated 14.12.2010 passed in Review Application No.01-A/2006 (Devbrat Mishra vs. Satya Prakash Pandey and others) arising out of Civil Appeal No.311 of 1999 (Keshavanand & others vs. Devbrat Mishra and others) by the Additional District Judge, Court No.13, Allahabad whereby the review application has been partly allowed.
According to Sri Yogesh Agarwal, learned counsel for the appellant the impugned order passed on the review application is patently illegal for the reason that none of the ingredients under Order XLVII Rule 1 Code of Civil Procedure had been made out. According to him under Order XLVII Rule 1 a review application can be maintainable only if it is established that there has been discovery of new and important matter or evidence which even after exercise of due diligence was not within the knowledge of the applicant and hence could not be produced at the time when the decree was passed. The second ingredient is that there has been some mistake or error apparent on the face of record. The third reason, according to him, is for any other sufficient reason. Sri Agarwal while referring to the impugned order has pointed out that the review application has been entertained for two reasons. The first reason is that the court reviewing the judgment was of the view that the earlier Presiding Officer while passing the judgment under review had not read the compromise application 64 Ka in a correct manner and the second reason was that the earlier Presiding Officer had erred in accepting the signature of Devbrat Mishra on the compromise application 64 Ka.
According to Sri Agarwal the first reason cited in the impugned order is clearly not a reason for review as contemplated under Order XLVII, but at the most such illegal finding on a mis-reading of a document could be the subject matter of appeal.
According to him in the absence of a report of a handwriting and fingerprint expert the court is competent to compare the signature by a bare perusal and record its findings. For the second submission Sri Agarwal has relied upon a decision of the Supreme Court in Murari Lal v. State of M.P. AIR 1980 SC 531.
Sri Vinod Swaroop, learned counsel for the respondent has supported the impugned order and has submitted that a review application is maintainable if there is a finding on account of mis-conception of law or of fact by the court and such a mistake can be made a ground under review. For this purpose he has relied on a decision of the Supreme Court in the Board of Control for Cricket, India and another v. Netaji Circket Club and others AIR 2005 SC 592. He has also placed reliance on a decision of the Supreme Court in O. Bharathan vs. K.Sudhakaran and another (1996) 2 Supreme Court Cases 704 to state that on casting of votes twice by several voters and acceptance of such votes as valid, the court itself compared the signature in the counter foils alleged to be related to those votes without aid of any expert and it was held that ascertaining on that basis was an erroneous approach of the court which was not in conformity with the spirit of Section 73 of the Evidence Act. Sri Vinod Swaroop has also relied upon a decision of a learned single Judge of this court in Ram Shakal and another vs. State of U.P. and others 1987 (13) ALR 543 and submits that the help of handwriting and fingerprint expert should be obtained and it was wrong for the Joint Director of Consolidation to himself compare the disputed signatures and hold it genuine when there was a dispute in the writing and the signature.
Sri Vinod Swaroop has submitted that the finding recorded in the impugned order that the comparison made in the judgment under review by the earlier Presiding Officer was erroneous is in accordance with law and it was incumbent upon him to take the help of a handwriting and fingerprint expert. Having not done so the order was rightly reviewed under the impugned order.
Having considered the submissions and perused the record, the provision of Order XLVII Rule 1 Code of Civil Procedure is quite clear. Order XLVII Rule 1 CPC prescribes the limitations for entertaining a review application. Before entertaining a review application a finding has to be recorded that the applicant has acted with due diligence. An error apparent on the face of record could be failure to apply or consider a statutory provision or that the judgment was delivered without notice to the parties. It may also be that the court has not dealt with an important issue in the case argued by the parties or that non-existent fact has been made the basis of the conclusion. There is a very minute difference in an error simplicitor from an error apparent on the face of record. A review application cannot be entertained lightly. It is a serious subject. Therefore, resort to it is proper only where a glaring omission or patent mistake or grave error has crept in. It would be totally exceeding jurisdiction if a review is allowed merely because a different view in construction of a document was possible. Review is not an appeal in disguise and the procedural law cannot be circumvented or bye-passed. An erroneous assumption of the court on a fact which did not exist, which erroneous assumption of such non-existent fact has lead to the judgment, can be a ground to correct the mistake under its statutory power of review. But where the court has committed an error in mis-reading or mis-construing a document it is the view taken by the court that may be illegal or erroneous and can be corrected by the appellate court by setting aside such erroneous or illegal view. Such an error of mis reading or mis-construing a document must involve the consideration of a non-existent fact in the judgment if it is to be reviewed. This is the ratio of the judgment of the Supreme Court in the case of Board of Control for Cricket India (supra) and in Lily Thomas vs. Union of India reported in (2000) 6 SCC 224.
In so far as the acceptance of the signature on a document on comparison by the court is concerned, the law laid down by the Supreme Court in paragraphs 11 and 12 of the decision in Murari Lal (supra) is quoted hereunder:-
"11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated . But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reason for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reason for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this court are often flaunted.
12. The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and two voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh (supra) were cases where the Court itself compared the writings."
In the case of O.Bharathan (supra) the Supreme Court was considering an appeal under section 116-A of the Representation of the People Act, 1951. It cautioned the court deciding an Election Petition and the desirability to obtain the opinion and assistance of an expert. In paragraph 11 of this judgment it has been clearly recorded that the Judge trying the Election Petition did not in effect permit the comparison of the disputed signatures with the admitted signatures by an expert. Hence it was found to be improper when the Judge himself took the task upon himself.
In the present case, the first ingredient regarding discovery of new and important matter is not involved. The second ingredient with respect to a mistake or error apparent on the face of record is argued by Sri Vinod Swaroop and he states that there was no error when the court in review held so.
The reasons for review have been given by the court below in the following manner:-
"mijksDr foospuk ds vk/kkj ij eS bl fu"d"kZ ij igqWpk gwW fd iwoZ ihBklhu vf/kdkjh us dkxt la[;k 64d tks dfFkr lqygukek o le>kSrk ds :i esa gS] es vafdr 'kCnkoyh dks lgh Taking the aforesaid view the reviewing court found that the earlier Presiding Officer in the judgment under review has not read the compromise paper 64 Ka in its correct perspective. He has recorded as quoted hereunder:-
" vr% eSa iqufoZpkj drkZ ds mijksDr rdZ ls lger gwW fd iwoZ ihBklhu vf/kdkjh us dkxt la[;k 64d tks dfFkr lqygukek ;k le>kSrs ds :i esa gS] esa vafdr 'kCnkoyh dks lgh Clearly that is not a reason for review nor it comes within the ambit of a mistake or error apparent on the face of record. The view expressed by the earlier Presiding Officer in the judgment under review might be illegal or erroneous and, therefore, it could be challenged before a higher forum, but it was not a ground for review under Order XLVII Rule 1 Code of Civil Procedure. Mis reading of documents can lead to a perverse finding. Such perverse finding can be set aside in an appeal. Consequently, the consideration in the impugned review order for such reason is clearly without jurisdiction and bad and cannot be upheld.
The second reason given in the impugned order for entertaining and deciding a review application is that the view expressed by the earlier Presiding Officer on the genuineness of the signatures appearing on the compromise 64 Ka was erroneous. Admittedly in the present case neither of the parties have applied or furnished any report of an expert on the disputed signatures. The court in the absence of any such report has the jurisdiction to peruse the signatures and come to a prima facie finding with respect to its genuineness on comparison. Moreover the opinion of the expert is merely an opinion which generally requires corroboration. The court can decide whether the expert opinion requires corroboration at all. The expert report can be accepted only if the court is satisfied by comparing the admitted signature with the disputed signature and then come to its own conclusion. Hence when an expert report is available on record of a case it is still the conclusion of the court that either accepts it or rejects it. The court in any event has to take the final decision . Therefore, in a case where there is no expert report on record the court has to even then give its conclusion on the dispute and that can be done by the court upon bare perusal of the two signatures.
The Supreme Court in Murari Lal (supra) held that by comparing the writing itself the court could not assume the rule of an expert. Section 73 of the Evidence Act enables the court to compare the disputed writing with admitted or proved writing to ascertain whether the writing is of that person. The opinion of the expert is an aid to the court, but where there is no such report the court will have to seek guidance from the authoritative text book and the court's own experience and knowledge. It was held that duty is to be discharged by the court with or without expert and with or without other evidence.
Admittedly in the present case neither of the parties have produced or applied for report of a handwriting and fingerprint expert. The Court never refused to admit an expert opinion. In such circumstances the court was within its jurisdiction to form an opinion by comparison of the disputed and admitted signatures. That is what has been done by the court in the judgment under review. The impugned order is an order passed on a review application and such was not a ground under Order XLVII Rule 1 Code of Civil Procedure to hold that an error apparent on the face of record has been committed in comparison of the signature by the earlier Presiding Officer, and hence it can be reviewed.
Even the sufficient reason under Order XLVII Rule 1 of the Code of Civil Procedure has to be co-related with the ingredient of error apparent on the face of record or discovery of new evidence.
Consequently both the reasons given by the court below in the impugned order are not the grounds for review and, therefore, there is no further reason for this court in this appeal under Order XLIII Rule 1 (w) Code of Civil Procedure to delve into the finding recorded in the impugned order primarily because such finding has been recorded on the points determined which could not have been the subject matter of jurisdiction under Order XLVII Rule 1 Code of Civil Procedure.
The appeal, therefore, succeeds and is allowed. The impugned order dated 14.12.2010 passed in Review Application No.01-A/2006 (Devbrat Mishra vs. Satya Prakash Pandey and others) arising out of Civil Appeal No.311 of 1999 (Keshavanand & others vs. Devbrat Mishra and others) by the Additional District Judge, Court No.13, Allahabad is quashed.
There is no order as to costs.
Order Date :- 2.2.2011 PK