Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3601 OF 2020
(@ Special Leave Petition (Civil) No. 28150 OF 2017)
SHRI RAM SAHU (DEAD) THROUGH LRS .. Appellants
Versus
VINOD KUMAR RAWAT & ORS. ..Respondents
J U D G M E N T
M. R. Shah, J.
1. Leave granted.
Feeling aggrieved and dissatisfied with the impugned order
dated 14.07.2017 passed by the High Court of Madhya Pradesh at
Gwalior in Review Petition No.465 of 2015 in First Appeal No.241 of
2005, by which the High Court has allowed the said review petition
Signature Not Verified
Digitally signed by
ARJUN BISHT
Date: 2021.01.07
16:13:23 IST
Reason:
filed by the respondent nos. 1 and 2 herein original defendants
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nos. 1 and 2, and has reviewed the judgment and order dated
10.12.2013 passed in First Appeal No.241 of 2005 and has deleted
the observations made in para 20 of the said judgment and order
more particularly with respect to the observations made in para 20
as regards the possession of the disputed house, which were in
favour of the appellants the original plaintiffs, the appellants have
preferred the present appeal.
2. The relevant facts leading to the present appeal in nutshell are
as under:
That one Shri Ram Sahu, the predecessor of the appellants
herein instituted Civil Suit No.04A of 2005 before the Learned Trial
Court against the respondents herein original defendants for
declaration of registered Sale Deed dated 25.03.1995 executed by
original defendant no.3 in favour of original defendant nos. 1 & 2
regarding House No.28/955 (previous House No.3/1582), situated
in Sube Ki Payga, Jiwajiganj, Lashkar, as null and void and for
permanent injunction against defendant nos. 1 & 2 restraining
defendant nos. 1 & 2 from transferring the disputed property to any
other person.
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2.1. That the original plaintiff Shri Ram Sahu claimed the
ownership of the disputed property on the basis of the will executed
by one Chhimmabai executed in his favour on 19.10.1993. The
original plaintiff also claimed that he became the sole owner on the
death of the Chhimmabai and possession holder of the entire house
and in the same capacity; he is in continuous possession over the
same. It was the case on behalf of the defendants that the said
Chhimmabai adopted defendant No.3 and later on, she got
registered the Adoption Deed on 13.05.1992 and that the original
defendant no.3 sold the disputed property in favour of the
respondent nos. 1 & 2. The original plaintiff denied the adoption of
defendant no.3 by the said Chhimmabai. The written statement
was filed on behalf of the respondents. They denied that the
disputed property was the Joint Hindu Family property. Defendant
nos. 1 and 2 also claimed to be the bona fide purchasers and in
possession of the suit property.
2.2. The Learned Trial Court framed the following issues:
“1. Whether, the Disputed House No.28/95 situated in Sube
Ki Payga, Jiwajiganj, Lashkar, Gwalior was purchased from
the income of Joint Hindu Family of Ghasilal and Mangaliya?
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2. Whether, the wife of Ghasilal namely Chhimmabai had
executed Will of aforesaid House in favour of the Plaintiff on
19.10.1993?
3. Whether, Defendant No.3 was adopted by Ghasilal on
28.01.1985, which was got registered by Chhimmabai on
13.05.1992.
4. Whether, Sale Deed dated 25.03.1995 regarding the
disputed house was executed by Defendant No.3 in favour of
Defendant Nos. 1 & 2 without having any right?
5. Whether, the Plaintiff is entitled to get the Registered Sale
Deed Dated 25.03.1995 as null and void?
6. Whether, Plaintiff is entitled to receive Permanent
Injunction against the Defendant Nos. 1 & 2 for not to sell the
disputed house?
7. Whether, the Defendant Nos. 1 & 2 are entitled to receive
special compensation from the Plaintiff? If Yes, then how
much?
8. Relief & Costs.”
2.3. Both the parties led the evidence, oral as well as documentary,
in support of their respective claims.
2.4. Original Plaintiff Shri Ram Sahu – appellant herein was
examined as PW1. He was also crossexamined (his deposition
shall be discussed herein below). He also led the evidence in
support of his claim that he is in possession of the said property.
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On behalf of the defendants, defendant no.1 stepped into the
witness box and through him; the defendants also produced on
record the documentary evidences.
2.5. On appreciation of the evidence, the Learned Trial Court
dismissed the suit. The Learned Trial Court disbelieved the case on
behalf of plaintiff – appellant herein that Chhimmabai executed the
will in favour of the plaintiff appellant. The Learned Trial Court
held that the defence had proved that defendant No.3 was adopted
by Ghasilal on 26.01.19 85 which was got registered later on by
Chhimmabai vide Adoption Deed dated 13.05.1992.
2.6. Feeling aggrieved and dissatisfied with the Judgment and
decree passed by the Learned Trial Court dismissing the suit, the
original plaintiff – appellant herein preferred First Appeal No.241 of
2005 before the High Court. That during the pendency of the said
appeal, respondent no.1 herein filed an application under section
151 C.P.C. on 19.03.2012 for dismissing the appeal and for
directing the appellant herein to vacate the suit property. That
during the pendency of the appeal the original plaintiff – appellant
herein filed an application under Order 6 Rule 17 of the CPC by
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which the plaintiff sought amendment in the relief clause as regards
the issuance of permanent injunction and restraining defendant
nos.1 and 2 from dispossessing the plaintiffs forcibly from the
disputed house. However, the said application came to be
dismissed by the High Court on the ground of delay and latches
(I.A. No.2244 of 2012). However, while dismissing the said
application the High Court granted permission to the appellants to
file a separate suit for the said relief against the defendants.
Thereafter on appreciation of the evidence on record, the High Court
dismissed the said appeal preferred by the original plaintiff.
However, while dismissing the appeal the High Court also made
observations as regards the possession of the disputed house and
on analysis of the deposition of PW1 and PW2 and considering the
material on record and considering the fact that during the
pendency of the appeal the original defendant no.1 himself filed an
application under Section 151 CPC on 02.12.2013 for getting the
possession from the plaintiff of the disputed house, which was
withdrawn, the High Court made observations in regards the
possession of the plaintiffs of the disputed house.
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2.7 Thereafter almost 2 years after the judgment of the High Court
in the First Appeal, the Respondent Nos.1 & 2 herein Original
Defendant Nos. 1 & 2 filed an application before the High Court
seeking review of observations in para 20 of the judgment as
regards the possession of the disputed house. The said application
was opposed by the appellants herein. However, by the impugned
order, the High Court has allowed the review application and has
ordered to delete para 20 of the Judgment and order dated
10.12.2013 passed in First Appeal No.241 of 2005, by observing
that as regards the possession of the disputed property the issue of
possession was neither raised before the Learned Trial Court nor
before the First Appellate Court and even no issue with respect to
possession was framed by the Learned Trial Court.
2.8. Feeling aggrieved and dissatisfied with the impugned order
passed by the High Court in allowing the review application and
deleting para 20 of the judgment and order dated 10.12.2013
passed in First Appeal No.241 of 2005, the original plaintiffs have
preferred the present appeal.
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3. Shri A.K. Srivastava, learned Senior Advocate appearing on
behalf of the appellants has made the following submissions, while
assailing the impugned order passed by the High Court passed in
the review application.
(i) while passing the impugned order, the High Court has exceeded
in its jurisdiction, while exercising the review jurisdiction and has
acted beyond the scope and ambit of the review jurisdiction under
Order 47 Rule 1 CPC;
(ii) while exercising the review jurisdiction, the High Court ought
not to have set aside the specific finding given with respect to
possession, which finding was based on appreciation of evidence
before the learned trial Court;
(iii) the High Court has committed a grave error in deleting para 20
of the final judgment and order dated 10.12.2013 passed in First
Appeal No. 241/2005, in exercise of its review jurisdiction
inasmuch as, as such, there was no error apparent on the face of
the record, which was required to be corrected;
(iv) merely because the specific issue with respect to possession was
not framed by the learned trial Court, cannot be a ground to set
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aside the finding by the High Court, when such finding with respect
to possession was on merits and on appreciation of the evidence
before the learned trial Court;
(v) as such, the High Court has committed a grave error in
considering the issues framed in another case being Civil Suit No.
3A/2005, which was related to House No. 28/956 and in which the
parties were also different. It is submitted that the High Court has
misdirected itself, while considering the issues framed in Civil Suit
No. 3A/2005, related to House No. 28/956 and not considering the
issues framed in Civil Suit No. 4A/2005;
(vi) the High Court ought to have appreciated that the issue of
possession was at large before the learned trial Court and, in fact,
the parties also led evidence with respect to possession. It is
submitted that the High Court ought to have appreciated that there
was a specific averment in the plaint as well as in the testimony of
the plaintiff that he is in possession of the suit property, i.e., House
No. 28/955;
(vii) the defendants did not led any evidence with respect to
possession. It is submitted therefore that when there were specific
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averments and pleadings in the plaint in regard to possession, and
even the plaintiff led the evidence specifically on the possession,
nonframing of the specific issue with respect to possession would
not vitiate the finding recorded by the High Court, which was on
appreciation of the material on record. In support of his
submission, learned Senior Advocate appearing on behalf of the
appellants has relied upon the following decisions of this Court, Sri
Gangai Vinayagar Temple v. Meenakshi Ammal (2015) 3 SCC 624;
Bhuwan Singh v. Oriental Insurance Company Ltd. (2009) 5 SCC
136; and Sayeda Akhtar v. Abdul Ahad (2003) 7 SCC 52 . It is
submitted that all the parties were aware of the rival cases and the
issue with respect to possession was present and even the plaintiffs
also led evidence on possession, nonframing of the specific issue
with respect to possession would be nonsignificant. It is submitted
that therefore the High Court has committed a grave error in
deleting para 20 of the final judgment and order dated 10.12.2013
passed in First Appeal No. 241/2005 with respect to possession
mainly on the ground that no issue was framed by the learned trial
Court with respect to possession;
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3.1 Learned Senior Advocate appearing on behalf of the appellants
has also taken us to the relevant averments in the plaint as well as
the written statement in regard to possession. Learned Counsel
appearing on behalf of the appellants has also taken us to the
testimony of the plaintiff – Shri Ram Sahu, as well as, the
deposition of one J.K. Sharma examined on behalf of the plaintiff.
Learned Senior Advocate has further submitted that there was no
crossexamination by the defendants on the point of the plaintiff’s
possession. Learned Senior Advocate has also heavily relied upon
the application and affidavit dated 19.03.2012 in which the
respondents in an application filed under Section 151 of the CPC
specifically prayed to direct the appellants to vacate the suit
property. It is submitted that therefore, in fact, the respondents
admitted the possession of the appellants. It is submitted that not
only that, but subsequently in the month of September, 2017, the
respondents filed a suit against the appellants for decree of
possession, compensation and mesne profits. It is submitted that
therefore, as such, the respondents herein specifically admitted the
possession of the appellants in the suit property;
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3.2 It is further submitted that the High Court ought to have
appreciated that the review application was filed with a malafide
intention faced with the proceedings under Section 340 read with
Section 195 Cr.P.C and faced with the order passed by the learned
Magistrate directing to register the case against respondent nos. 1
and 2 herein and others under Sections 193, 465, 471 and 120B of
the IPC, dated 06.02.2016;
3.3 It is further submitted that, in fact, the appellants filed an
application before the High Court under Order 6 Rule 17 CPC (IA
No. 2244/2012) to amend the plaint by adding relief for the grant of
decree of permanent injunction restraining the respondents
defendants not to dispossess them forcibly. It is submitted that the
said application was opposed by the respondents herein by
submitting that they are not threatening to dispossess the
appellants during the pendency of the suit. Therefore, the High
Court dismissed the said application under Order 6 Rule 17 CPC
reserving liberty in favour of the appellants to file a separate suit for
the aforesaid relief. It is submitted that therefore, as such, the
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issue with respect to possession was at large even before the High
Court;
3.4 Learned Senior Advocate appearing on behalf of the appellants
has also heavily relied upon the order passed by the learned
Magistrate on an application filed under Section 340 read with
Section 195 Cr.P.C., in which the learned Magistrate took note of
the affidavit dated 19.03.2012 filed by the respondents and also
took note of the specific observation and finding with respect to
possession made in para 20 of the judgment and order dated
10.12.2013. It is submitted that there is a specific finding given by
the learned Magistrate on the respondents’
forging/creating/concocting the documents to show their
possession. It is submitted that only thereafter the learned
Magistrate directed to register the case against the respondents
under Sections 193, 465, 471 and 120B of the IPC, under the
provisions of Section 340 Cr.P.C;
3.5 It is submitted that even subsequently the suit filed by the
defendantsrespondents herein, filed in the year 2017, has been
dismissed by the High Court on the ground of limitation and the
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plaint has been rejected in exercise of powers under Order 7 Rule
11 CPC;
3.6 Making the above submissions and relying upon the aforesaid
decisions, it is prayed to allow the present appeal.
4. Shri Punit Jain, Learned Advocate appearing on behalf of the
respondents while opposing the present appeal and supporting the
impugned order passed by the High Court has vehemently
submitted that in the facts and circumstances of the case the High
Court has not committed an error in deleting para 20 of the
judgment and order dated 10.12.2013 passed in First Appeal
No.241 of 2005 in exercise of the review jurisdiction.
4.1 It is submitted that as such the original plaintiff filed the suit
seeking cancellation of the sale deed dated 25.03.1995 and
permanent injunction to the effect that the defendant nos. 1 & 2
(respondents herein) shall not transfer the property to any other
person. It is submitted that since no injunction from dispossession
was sought and only injunction against further transfer was sought
no issue was framed in respect of possession. It is submitted that
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therefore in absence of any specific issue framed by the Learned
Trial Court in respect of possession of the property and when the
suit was dismissed and even thereafter the appeal also came to be
dismissed, there was no reason and/or occasion for the High Court
to make any observation in respect of possession and therefore the
High Court has rightly deleted the observations made in para 20 in
respect of possession. It is submitted that during the lifetime of
Shri Ghisa Lal Sahu, he was in possession of the property. After
his death, his wife Smt. Chhimmabai came into possession of the
property. She continued to be in possession and after her, the
adopted son – Dilip Kumar Sahu came into possession. The issue
of adoption of Shri Dilip Kumar Sahu was a subject matter of
litigation in Suit No.4A of 2001, where the said adoption and the
adoption deed dated 13.05.1992 was challenged. The said suit was
finally dismissed by the High Court by an order dated 07.09.2009
in SA No.315 of 2005. The will setup by the petitioner dated
19.10.1993 was also a subject matter of suit No.45A of 2003 filed
by Dilip Kumar Sahu. The said suit was decreed by a judgment
dated 07.09.2009 in SA No.946 of 2005. Some parts of the property
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was in possession of Tenants – (i) Om Babu Saxena and (ii) Kashmir
Singh Yadav. Shri Dilip Kumar Sahu got possession from the said
tenants on 30.01.1995 by entering into compromises with them.
Shri Dilip Kumar Sahu executed sale deed dated 25.03.1995 in
favour of the Respondents. Under the said sale, possession of the
property was given to the respondents. The petitioner got
possession of another portion of the property from another tenant –
Parvesh Singh Jadon pursuant to a judgment and decree dated
18.10.2014. The petitioner has not shown as to how, under what
capacity and when the petitioner came into possession of the
property, constructive or otherwise.
4.2 So far as the withdrawal of the application dated 02.12.2013
in I.A. No.1267 of 2012 which was filed by the respondents is
concerned, it is submitted that the said application was withdrawn
since (i) no relief could have been claimed arising out of a suit
initiated by the plaintiffs and (ii) further the portion of the property
in possession of the estranged wife of the petitioner Smt. Sheela
Sahu who was not a party to the said proceedings.
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4.3 It is submitted even the application submitted by the
petitioner under Order 6 Rule 17 CPC to amend the prayer clause of
permanent injunction restraining the defendants from
dispossessing the appellants forcibly from the disputed house, came
to be dismissed by the High Court, though with a permission to file
a separate suit but the petitioners had not filed any instant suit for
the aforesaid reliefs.
4.4 It is submitted that therefore when the issue in respect to
possession was neither before the Learned Trial Court nor before
the High Court and despite the same observations were made in
para 20 in respect of possession, subsequently the same has been
rightly deleted in exercise of the review jurisdiction. It is submitted
that the Court has an inherent power to correct the error if
subsequently it is bound that some of the observations were made
by error.
5. By the impugned order the High Court in exercise of powers
under Section 114 read with Order 47 Rule 1 CPC has allowed the
review petition and has reviewed the judgment and order dated
10.12.2013 passed in First Appeal No.241 of 2005 insofar as
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deleting the observations made in Para 20 as regards the
possession of the disputed property, which were in favour of the
appellants – original plaintiffs. From the impugned order passed by
the High Court, it appears that the High Court has deleted the
observations made in para 20 as regards possession of the plaintiffs
mainly/solely on the ground that the issue of possession was
neither before the Learned Trial Court nor was it before the First
Appellate Court and no such issue with respect to possession was
framed by the Learned Trial Court. Therefore, the short question
falls for consideration before this Court is, whether in the facts and
circumstances of the case the High Court is justified in allowing the
review application in exercise of powers under Section 114 read
with Order 47 Rule 1 CPC on the aforesaid grounds?
6. While considering the aforesaid question, the scope and ambit
of the Court’s power under Section 114 read with Order 47 Rule 1
CPC is required to be considered and for that few decisions of this
Court are required to be referred to.
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6.1 In the case of Haridas Das vs. Usha Rani Banik (Smt.) and
Others , (2006) 4 SCC 78 while considering the scope and ambit of
Section 114 CPC read with Order 47 Rule 1 CPC it is observed and
held in paragraph 14 to 18 as under:
,
“14. In Meera Bhanja v. Nirmala Kumari Choudhury
(1995) 1 SCC 170 it was held that:
“ 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 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, this Court, in Aribam Tuleshwar Sharma
v. speaking
Aribam Pishak Sharma, (1979) 4 SCC 389
through Chinnappa Reddy, J. has made the following
pertinent observations:
‘It is true 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
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all manner of errors committed by the subordinate
court.’ ”
A perusal of Order 47 Rule 1 shows that review of
15.
a judgment or an order could be sought: ( a ) from the
discovery of new and important matters or evidence
which after the exercise of due diligence was not within
the knowledge of the applicant; ( b ) such important
matter or evidence could not be produced by the
applicant at the time when the decree was passed or
order made; and ( c ) on account of some mistake or
error apparent on the face of the record or any other
sufficient reason.
16. In Aribam Tuleshwar Sharma v. Aribam Pishak
Sharma, AIR 1979 SC 1047, this Court held that there
are definite limits to the exercise of power of review. In
that case, an application under Order 47 Rule 1 read
with Section 151 of the Code was filed which was
allowed and the order passed by the Judicial
Commissioner was set aside and the writ petition was
dismissed. On an appeal to this Court it was held as
under: (SCC p. 390, para 3)
“It is true as observed by this Court in Shivdeo Singh v.
State of Punjab, AIR 1963 SC 1909 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 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
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powers which may enable an appellate court to correct
all manner of errors committed by the subordinate
court.”
17. The judgment in Aribam case has been followed in
Meera Bhanja . In that case, it has been reiterated that
an error apparent on the face of the record for
acquiring jurisdiction to review must be such an error
which may strike one on a mere looking at the record
and would not require any longdrawn process of
reasoning. The following observations in connection
with an error apparent on the face of the record in
Satyanarayan Laxminarayan Hegde v. Millikarjun
were also
Bhavanappa Tirumale, AIR 1960 SC 137
noted:
“An error which has to be established by a longdrawn
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 selfevident 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.”
It is also pertinent to mention the observations of
18.
this Court in Parsion Devi v. Sumitri Devi, (1997) 8 SCC
715 . Relying upon the judgments in Aribam and Meera
Bhanja it was observed as under:
“ 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 selfevident 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 CPC 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’.”
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6.2 In the case of Lily Thomas vs. Union of India , (2000) 6 SC 224,
it is observed and held 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.
It is further observed in the said decision that the words “any
other sufficient reason” appearing in Order 47 Rule 1 CPC must
mean “a reason sufficient on grounds at least analogous to those
specified in the rule” as was held in AIR 1922
Chhajju Ram vs. Neki,
PC 112 and approved by this Court in Moran Mar Basselios
Catholicos vs Most Rev. Mar Poulose Athanasius , AIR 1954 SC 526.
12.3 In the case of Inderchand Jain vs. Motilal , (2009) 14 SCC 663
in paragraphs 7 to 11 it is observed and held as under:
7. Section 114 of the Code of Civil Procedure (for short
“the Code”) 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:
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“ 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 .—(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 of the court which passed the decree or made
the order.’ ”
8. An application for review would lie inter alia when
the order suffers from an error apparent on the face of the
record and permitting the same to continue would lead to
failure of justice. In Rajendra Kumar v. Rambai this Court
held: (SCC p. 514, para 6)
“ 6 . The limitations on exercise of the power of review
are well settled. The first and foremost requirement of
entertaining a review petition is that the order, review of
which is sought, suffers from any error apparent on the
face of the order and permitting the order to stand will
lead to failure of justice. In the absence of any such error,
finality attached to the judgment/order cannot be
disturbed.”
9. The power of review can also be exercised by the
court in the event discovery of new and important matter
or evidence takes place which despite exercise of due
diligence was not within the knowledge of the applicant or
could not be produced by him at the time when the order
was made. An application for review would also lie if the
order has been passed on account of some mistake.
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Furthermore, an application for review shall also lie for
any other sufficient reason.
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 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.”
7. The dictionary meaning of the word “review” is “the act of
looking, offer something again with a view to correction or
improvement”. It cannot be denied that the review is the creation of
a statute. In the case of Patel Narshi Thakershi vs.
Pradyumansinghji Arjunsinghji , (1971) 3 SCC 844, this Court has
held that the power of review is not an inherent power. It must be
conferred by law either specifically or by necessary implication. The
review is also not an appeal in disguise.
8. What can be said to be an error apparent on the face of the
proceedings has been dealt with and considered by this Court in the
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case of T.C. Basappa vs. T.Nagappa , AIR 1954 SC 440. It is held
that such an error is an error which is a patent error and not a
mere wrong decision. In the case of Hari Vishnu Kamath vs. Ahmad
Ishaque , AIR 1955 SC 233, it is observed as under:
“It is essential that it should be something more than
a mere error; it must be one which must be manifest on
the face of the record. The real difficulty with reference to
this matter, however, is not so much in the statement of
the principle as in its application to the facts of a
particular case. When does an error cease to be mere
error, and become an error apparent on the face of the
record? Learned counsel on either side were unable to
suggest any clearcut rule by which the boundary
between the two classes of errors could be demarcated.”
8.1 In the case of Parsion Devi vs. Sumitri Devi, (Supra) in
paragraph 7 to 9 it is observed and held as under:
7. It is well settled that review proceedings have to be
strictly confined to the ambit and scope of Order 47 Rule
1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P.,
AIR 1964 SC 1372 this Court opined:
“What, however, we are now concerned with is whether
the statement in the order of September 1959 that the
case did not involve any substantial question of law is an
‘error apparent on the face of the record’). The fact that on
the earlier occasion the Court held on an identical state of
facts that a substantial question of law arose would not
per se be conclusive, for the earlier order itself might be
erroneous. Similarly, even if the statement was wrong, it
would not follow that it was an ‘error apparent on the face
of the record’, for 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
26
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. ”
8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury,
(1995) 1 SCC 170 while quoting with approval a passage
from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma
(supra) this Court once again held that 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.
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
selfevident 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 CPC 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”.
8.2 In the case of State of West Bengal and Others vs. Kamal
, (2008) 8 SCC 612, this Court had an occasion
Sengupta and Anr.
to consider what can be said to be “mistake or error apparent on
the face of record”. In para 22 to 35 it is observed and held as
under:
“22. 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 selfevident and detection
27
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.
23. We may now notice some of the judicial precedents in
which Section 114 read with Order 47 Rule 1 CPC and/or
Section 22(3)( f ) of the Act have been interpreted and
limitations on the power of the civil court/tribunal to review
its judgment/decision have been identified.
In Rajah Kotagiri Venkata Subbamma Rao v. Rajah
24.
Vellanki Venkatrama Rao (18991900) 27 IA 197 the Privy
Council interpreted Sections 206 and 623 of the Civil
Procedure Code and observed: (IA p.205)
“… Section 623 enables any of the parties to apply for a
review of any decree on the discovery of new and important
matter and evidence, which was not within his knowledge, or
could not be produced by him at the time the decree was
passed, or on account of some mistake or error apparent on
the face of the record, or for any other sufficient reason. It is
not necessary to decide in this case whether the latter words
should be confined to reasons strictly ejusdem generic with
those enumerated, as was held in Roy Meghraj v. Beejoy
, ILR (1875) 1 Cal 197
Gobind Burral . In the opinion of Their
Lordships, the ground of amendment must at any rate be
something which existed at the date of the decree, and the
section does not authorise the review of a decree which was
right when it was made on the ground of the happening of
some subsequent event. ”
(emphasis added)
In Hari Sankar Pal v. Anath Nath Mitter, 1949 FCR 36
25.
a fiveJudge Bench of the Federal Court while considering
the question whether the Calcutta High Court was justified
in not granting relief to nonappealing party, whose position
28
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
adverting 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.”
26. In Moran Mar Basselios Catholicos v. Mar Poulose
Athanasius (supra) this Court interpreted the provisions
contained in the Travancore Code of Civil Procedure which
are analogous to Order 47 Rule 1 and observed:
“ 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 definitive
limits fixed by the language used therein.
It may allow a review on three specified grounds, namely,
( 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. v. Govt. of A.P.
27.
(supra) it was held that a review is by no means an appeal in
disguise whereof an erroneous decision can be corrected.
28. In Parsion Devi v. Sumitri Devi (Supra) it was held as
under: (SCC p. 716)
29
“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 selfevident 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 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
face 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’ .”
29. In Haridas Das v. Usha Rani Banik, (supra) this
Court made a reference to the Explanation added to Order
47 by the Code of Civil Procedure (Amendment) Act, 1976
and held:
“ 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 purposes 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
30
should exercise the power to review its order with the
greatest circumspection.”
In Aribam Tuleshwar Sharma v. Aribam Pishak
30.
Sharma (Supra) 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 v. State of Punjab (Supra) and observed: ( Aribam
Tuleshwar case (Supra) , SCC p. 390, para 3)
“ 3 . … It is true as observed by this Court in Shivdeo
Singh v. State of Punjab (Supra) , 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 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 powers which may enable an
appellate court to correct all manner of errors committed by
the subordinate court.”
31. In K. Ajit Babu v. Union of India, (1997) 6 SCC 473, it
was held that even though Order 47 Rule 1 is strictly not
applicable to the tribunals, the principles contained therein
have to be extended to them, else there would be no
limitation on the power of review and there would be no
certainty or finality of a decision. A slightly different view was
expressed in v.
Gopabandhu Biswal Krishna Chandra
Mohanty, (1998) 4 SCC 447) . In that case it was held that the
power of review granted to the tribunals is similar to the
power of a civil court under Order 47 Rule 1.
32. In Ajit Kumar Rath v. State of Orissa, (1999) 9 SCC
596, this Court reiterated that power of review vested in the
31
Tribunal is similar to the one conferred upon a civil court
and held: (SCC p. 608, paras 3031)
“ 30 . The provisions extracted above indicate that the
power of review available to the Tribunal is the same as has
been given to a court under Section 114 read with Order 47
CPC. The power is not absolute and is hedged in by the
restrictions indicated in Order 47. The power can be
exercised on the application of a person on 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 order
was made. The power can also be exercised on account of
some mistake or error apparent on the face of the record or
for any other sufficient reason. A review cannot be claimed
or asked for merely for a fresh hearing or arguments or
correction of an erroneous view taken earlier, that is to say,
the power of review can be exercised only for correction of a
patent error of law or fact which stares in the face without
any elaborate argument being needed for establishing it. It
may be pointed out that the expression ‘any other sufficient
reason’ used in Order 47 Rule 1 means a reason sufficiently
analogous to those specified in the Rule.
31 . Any other attempt, except an attempt to correct an
apparent error or an attempt not based on any ground set
out in Order 47, would amount to an abuse of the liberty
given to the Tribunal under the Act to review its judgment.”
33. In State of Haryana v. M.P. Mohla, (2007) 1 SCC 457
this Court held as under: (SCC pp. 46566, para 27)
“ 27 . A review petition filed by the appellants herein was
not maintainable. There was no error apparent on the face of
the record. The effect of a judgment may have to be
considered afresh in a separate proceeding having regard to
the subsequent cause of action which might have arisen but
the same by itself may not be a ground for filing an
application for review.”
34. In Gopal Singh v. State Cadre Forest Officers’ Assn.,
(2007) 9 SCC 369 this Court held that after rejecting the
original application filed by the appellant, there was no
justification for the Tribunal to review its order and allow the
revision of the appellant. Some of the observations made in
that judgment are extracted below: (SCC p. 387, para 40)
32
“ 40 . The learned counsel for the State also pointed out
that there was no necessity whatsoever on the part of the
Tribunal to review its own judgment. Even after the
microscopic examination of the judgment of the Tribunal we
could not find a single reason in the whole judgment as to
how the review was justified and for what reasons. No
apparent error on the face of the record was pointed, nor was
it discussed. Thereby the Tribunal sat as an appellate
authority over its own judgment. This was completely
impermissible and we agree with the High Court (Sinha, J.)
that the Tribunal has travelled out of its jurisdiction to write
a second order in the name of reviewing its own judgment. In
fact the learned counsel for the appellant did not address us
on this very vital aspect.”
35. The principles which can be culled out from the
abovenoted judgments are:
( i ) The power of the Tribunal to review its order/decision
under Section 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
grounds enumerated in Order 47 Rule 1 and not otherwise.
( iii ) The expression “any other sufficient reason”
appearing in Order 47 Rule 1 has to be interpreted in the
light of other specified grounds.
( iv ) An error which is not selfevident and which can be
discovered 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 guise of exercise of power of review.
( vi ) A decision/order cannot be reviewed under Section
22(3)( ) on the basis of subsequent decision/judgment of a
f
coordinate or larger Bench of the tribunal or of a superior
court.
( vii ) While considering an application for review, the
tribunal must confine 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 is not sufficient ground for review. The party
33
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.”
9. To appreciate the scope of review, it would be proper for this
Court to discuss the object and ambit of Section 114 CPC as the
same is a substantive provision for review when a person
considering himself aggrieved either by a decree or by an order of
Court from which appeal is allowed but no appeal is preferred or
where there is no provision for appeal against an order and decree,
may apply for review of the decree or order as the case may be in
the Court, which may order or pass the decree. From the bare
reading of Section 114 CPC, it appears that the said substantive
power of review under Section 114 CPC has not laid down any
condition as the condition precedent in exercise of power of review
nor the said Section imposed any prohibition on the Court for
exercising its power to review its decision. However, an order can
be reviewed by a Court only on the prescribed grounds mentioned
in Order 47 Rule 1 CPC, which has been elaborately discussed
hereinabove. An application for review is more restricted than that
of an appeal and the Court of review has limited jurisdiction as to
34
the definite limit mentioned in Order 47 Rule 1 CPC itself. The
powers of review cannot be exercised as an inherent power nor can
an appellate power can be exercised in the guise of power of review.
10. Considered in the light of the aforesaid settled position, we
find that the High Court has clearly overstepped the jurisdiction
vested in the Court under Order 47 Rule 1 CPC. No ground as
envisaged under Order 47 Rule 1 CPC has been made out for the
purpose of reviewing the observations made in para 20. It is
required to be noted and as evident from para 20, the High Court
made observations in para 20 with respect to possession of the
plaintiffs on appreciation of evidence on record more particularly
the deposition of the plaintiff (PW1) and his witness PW2 and on
appreciation of the evidence, the High Court found that the plaintiff
is in actual possession of the said house. Therefore, when the
observation with respect to the possession of the plaintiff were
made on appreciation of evidence/material on record, it cannot be
said that there was an error apparent on the face of proceedings
which were required to be reviewed in exercise of powers under
Order 47 Rule 1 CPC. At this stage, it is required to be noted that
35
even High Court while making observations in para 20 with respect
to plaintiff in possession also took note of the fact that the
defendant nos. 1 and 2 – respondents herein themselves filed an
application being I.A. No.1267 of 2012 which was filed under
Section 151 CPC for getting the possession of the disputed house
from the appellants and the said application was dismissed as
withdrawn. Therefore, the High Court took note of the fact that
even according to the defendant nos. 1 & 2 the appellants were in
possession of the disputed house. Therefore, in light of the fact
situation, the High Court has clearly erred in deleting para 20 in
exercise of powers under Order 47 Rule 1 CPC more particularly in
the light of the settled preposition of law laid down by this Court in
the aforesaid decisions.
11. Now so far as the submission on behalf of the respondents –
original defendant nos. 1 & 2 and the reasons given by the High
Court while allowing the review application and deleting para 20
that no issue was framed by the learned Trial Court with respect to
possession and/or there was no issue before the Learned Trial
Court with respect to the possession and therefore the observations
36
made in para 20 with respect to possession of the plaintiff –
appellant herein was unwarranted and therefore, the same was
rightly deleted is concerned first of all on the aforesaid ground the
powers under Order 47 Rule 1 could not have been exercised. At
the most, observations made in para 20 can be said to be erroneous
decision, though for the reasons stated herein below the same
cannot be said to be erroneous decision and as observed
hereinabove the said observations were made on appreciation of
evidence on record, the aforesaid cannot be a ground to exercise of
powers under Order 47 Rule 1 CPC.
11.1 Even otherwise nonframing of the issue with respect to
possession would have no bearing and/or it fades into
insignificance. It is required to be noted that there were necessary
pleadings with respect to possession in the plaint as well as in the
written statement. Even the parties also led the evidence on the
possession. The original plaintiff – appellant herein led the evidence
with supporting documents to show his possession and to that,
there was no crossexamination by the defendants – respondents.
The defendants respondents did not lead any evidence to show
37
their possession. Therefore, the parties were aware of the rival
cases. On a holistic and comprehensive reading of the pleadings
and the deposition of PW1 and PW2, it is unescapable that the
plaintiff had intendedly, directly and unequivocally raised in its
pleadings the question of possession. As observed hereinabove
even in the written statement, the defendants also made an
averment with respect to possession. Thus neither prejudice was
caused nor the proceedings can be said to have been vitiated for
want of framing the issue. As observed and held by this Court in
the case of Sri Gangai Vinayagar Temple vs. Meenakshi Ammal and
Others , (Supra), if the parties are aware of the rival cases, the failure
to formally formulate the issue fades into insignificance when an
extensive evidence has been recorded without any demur. Even the
observations made by the High Court that there was no issue with
respect to possession before the Learned Trial Court and/or even
before the High Court is not correct. As observed hereinabove in
the pleadings in the plaint and even in the written statement filed
by the defendants, there were necessary averments with respect to
possession. Even the parties also led the evidence on possession.
38
12. Hence, on the grounds stated in the impugned order, the High
Court in exercise of review jurisdiction could not have without
sufficient and just reasons reviewed its own judgment and order
and deleted the observations made in para 20 with respect to
possession.
13. Even otherwise there is ample material on record to
suggest/show the possession of the appellants herein/original
plaintiff. During the pendency of the appeal the respondents
original defendant nos. 1 and 2 filed an application under Section
151 CPC for dismissing the appeal filed by the appellant and for
directing the appellant original plaintiff to vacate the suit property.
In the said application filed on 19.03.2012 the respondents
original defendant nos. 1 & 2 never stated that they are in
possession of the disputed suit house. On the contrary, they
prayed for an order directing the appellants original plaintiff to
vacate the suit property. The said application for whatever reasons
was withdrawn. During the pendency of the appeal, the appellants
filed an application under Order 6 Rule 17 of the CPC by which the
appellants sought amendment in the relief clause as regards the
39
issue of permanent injunction restraining the respondents
defendant nos. 1 and 2 from dispossessing the appellants forcibly
from the disputed house. The said application was opposed by the
respondents – original defendants. It was submitted that the
proposed averment is not necessary at the appellate stage as no
averments have been pleaded in the application as to why such a
prayer is sought belatedly. It was also submitted that if during the
pendency of the suit the plaintiffs have neither been threatened nor
have been sought to be dispossessed of the aforesaid property such
a prayer at the appellate stage may not be entertained. The High
Court dismissed the said application, not on merits but on the
ground that the same was submitted belatedly. However, the High
Court dismissed the said application with the grant of permission to
file a separate suit for the aforesaid relief against the defendants.
13.1 At this stage, it is required to be noted that after a period of
approximately three years from the date of disposal of the First
Appeal 16.04.2005 by the High Court and after the impugned order
dated 14.07.2017 passed by the High Court in review application,
the defendant nos. 1 and 2 – respondents herein in fact filed a
40
separate suit in the Court of Learned Civil Judge, Class I, Gwalior
against the appellants herein for receiving possession of the
disputed house and compensation, in which the possession of the
appellants has been admitted. In the said suit, it is pleaded that
the plaintiffs have sent a legal notice to the said defendants
appellants herein, through the Advocate on 09.08.2017 and
demanded to vacate the disputed place but have not vacated and
handed over the possession of the disputed place.
14. The sum and substance of the aforesaid discussion is that the
High Court has committed a grave error in allowing the review
application and deleting the observations made in para 20 of its
order dated 10.12.2013 passed in First Appeal No.17.04.2005 in
exercise of powers under Section 114 read with Order 47 Rule 1
CPC. Under the circumstances the impugned order is
unsustainable and deserves to be quashed and set aside.
15. In view of the above and for the reasons stated hereinabove,
the appeal is allowed. The above impugned order dated 14.07.2017
passed by the High Court of Madhya Pradesh at Gwalior in Review
41
Petition No.465 of 2015 in First Appeal No.241 of 2005 is hereby
quashed and set aside and consequently para 20 of the judgment
and order 10.12.2013 passed in First Appeal No.241 of 2005 is
hereby restored.
No costs.
…………………………..J.
(ASHOK BHUSHAN)
…………………………..J.
(M. R. SHAH)
New Delhi,
November 3, 2020