Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.11671170 OF 2023
S. Murali Sundaram ..Appellant
Versus
Jothibai Kannan & Ors. ..Respondents
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 29.06.2021 passed by the High
Court of judicature at Madras at Madurai Bench passed in
Review Application (MD) No.21 of 2017 as well as the orders
Signature Not Verified
passed in Writ Petition (MD) No.14847 of 2017, Writ Petition
Digitally signed by R
Natarajan
Date: 2023.02.24
16:49:49 IST
Reason:
(MD) No.16256 of 2017 as well as the order in Contempt
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Petition (MD) No.1109 of 2017 by which the High Court in
exercise of review jurisdiction has allowed the Review
Application No.21 of 2017 and has set aside the order dated
03.03.2017 passed in Writ Petition (MD) No.8606 of 2010,
the original writ petitioner of Writ Petition (MD) No.8606 of
2010 has preferred the present appeals.
2. The issue involved in the present appeals as such is in
a very narrow compass.
2.1 Feeling aggrieved and dissatisfied with the order
passed by the Tiruchirappalli City Municipal Corporation
dated 17.07.2008 in respect of the pathway comprised in
New TS No.43 of ward 42, Block AG 15, Indian Bank
Colony, Simco Meter Road, Tiruchirappalli Taluk and
District, the appellant herein preferred the Writ Petition
(MD) No.8606 of 2010 before the High Court. Before the
High Court the respondents herein – review petitioners
heavily relied upon the report of the Survey Department and
the measurements given in the survey report. However, the
High Court discarded the survey report and chosen to rely
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upon other two reports and consequently allowed the writ
petitions by detailed judgment and order dated 03.03.2017.
2.2 That thereafter the contesting respondents herein – the
review applicants filed the present Review Application (MD)
No.21 of 2017 in Writ Petition (MD) No.8606 of 2010 under
Order 47 Rule 1 of Code of Civil Procedure, 1908
(hereinafter referred to as ‘CPC’). One Mr. S.M. Gajendran
filed the Writ Petition (MD) No.14847 of 2017 as well as Writ
Petition (MD) No.16256 of 2017 inter alia challenging the
order dated 03.07.2017 in enquiry in Na. Ka.
No.5293/A4/2017 as well as the order dated 09.06.2017 in
Na. Ka. No.10048/2016/F1 and direct the respondents to
accept the registered gift settlement made in favour of the
Corporation in settling seven public roads by registration
Corporation. By the impugned judgment and order the
High Court has allowed the Review Petition (MD) No.21 of
2017 and has set aside the judgment and order dated
03.03.2017 passed in Writ Petition No.8606 of 2010.
Consequently, the High Court has dismissed the Writ
Petition Nos. 14847 of 2017 & 16256 of 2017 filed by S.M.
Gajendran. Consequently, the High Court has also
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dismissed the Contempt Petition No.1109 of 2017. The
impugned common judgment and order passed by the High
Court and mainly allowing the review application is the
subject matter of present appeals.
2.3 Mr. V. Prabhakar, learned counsel appearing on behalf
of the appellant – original writ petitioner has vehemently
submitted that in the facts and circumstances of the case
the High Court has erred in allowing the Review Application
and has materially erred in quashing and setting aside the
judgment and order dated 03.03.2017 passed in Writ
Petition No.8606 of 2010.
2.4 It is further submitted by learned counsel appearing
on behalf of the appellant that while allowing the review
application and quashing and setting aside the order passed
in the main writ petition, the High Court has exceeded in its
jurisdiction while deciding the review application.
2.5 It is further submitted by learned counsel appearing
on behalf of the appellant that while allowing the review
application the High Court has exceeded in its jurisdiction
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while deciding the review application and has exercised the
jurisdiction not vested in it.
2.6 It is further submitted by learned counsel appearing
on behalf of the appellant that the High Court has exercised
the review jurisdiction as if the High Court was exercising
the appellate jurisdiction against the judgment and order
dated 03.03.2017 in Writ Petition No.8606 of 2010 which is
wholly impermissible. Reliance is placed on the decisions of
this Court in the case of
Perry Kansagra vs. Smriti Madan
Kansagra, (2019) 20 SCC 753 as well as in Shanti
Conductors (P) Ltd. Vs. Assam SEB, (2020) 2 SCC 677.
2.7 It is further submitted by learned counsel appearing
on behalf of the appellant that according to the High Court
and so observed in the impugned judgment and order, the
judgment and order dated 03.03.2017 passed in Writ
Petition No.8606 of 2010 was erroneous. It is submitted
that however an erroneous order cannot be a subject matter
of review and an erroneous order however it may be cannot
be set aside in exercise of the review jurisdiction. It is
submitted in the present case all the grounds on which the
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review application was filed and the grounds on which the
review application is allowed were as such dealt with and
considered by the High Court while deciding the writ
petition. It is submitted that therefore there was no error
apparent on the face of the record and/or there was no
mistake on the face of the record which could have been
corrected in exercise of the review jurisdiction.
Making above submissions and relying upon the above
decisions, it is prayed to allow the present appeals.
3. Present appeals are vehemently opposed by Ms.
Haripriya Padmanabhan, learned counsel appearing on
behalf of the contesting respondents – original review
applicants. It is vehemently submitted by learned counsel
appearing on behalf of the review applicants that while
deciding the Writ Petition No.8606 of 2010 the High Court
erroneously discarded the survey report and relied upon the
private reports. It is submitted that as such a fraud was
committed by the original writ petitioner as well as S.M.
Gajendran as they relied upon the forged
reports/documents. It is submitted that therefore, this
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Court may not exercise the powers under Article 136 of the
Constitution of India. It is submitted that the High Court
found that the earlier order dated 03.03.2017 passed in
Writ Petition No.8606 of 2010 was erroneous and therefore,
the High Court is justified in setting aside the judgment and
order dated 03.03.2017 passed in Writ Petition No.8606 of
2010.
Making above submissions, it is prayed to dismiss the
present appeals.
4. We have heard learned counsel appearing on behalf of
the respective parties at length.
5. At the outset, it is required to be noted that by the
impugned judgment and order the High Court has allowed
the review application filed under Order 47 Rule 1 CPC and
has set aside the judgment and order dated 03.03.2017
passed in Writ Petition No.8606 of 2010. While allowing the
review application the High Court has observed and held
that the earlier judgment and order dated 03.03.2017 in
Writ Petition No.8606 of 2010 was erroneous. Therefore,
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question which is posed before this Court for consideration
is whether in the facts and circumstances of the case the
High Court is justified in allowing the review application
filed under Order 47 Rule 1 CPC and setting aside the
reasoned judgment and order passed in main writ petition?
5.1 While considering the aforesaid issue two decisions of
this Court on Order 47 Rule 1 read with Section 114 CPC
are required to be referred to? In the case of Perry
this Court has observed that while
Kansagra (supra)
exercising the review jurisdiction in an application under
Order 47 Rule 1 read with Section 114 CPC, the Review
Court does not sit in appeal over its own order. It is
observed that a rehearing of the matter is impermissible in
law. It is further observed that review is not appeal in
disguise. It is observed that 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 that it is wholly unjustified and exhibits a
tendency to rewrite a judgment by which the controversy
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has been finally decided. After considering catena of
decisions on exercise of review powers and principles
relating to exercise of review jurisdiction under Order 47
Rule 1 CPC this Court had summed upon as under:
“(i) Review proceedings are not by way of appeal
and have to be strictly confined to the scope and
ambit of Order 47 Rule 1 CPC.
(ii) Power of review may be exercised when some
mistake or error apparent on the fact of record
is found. But error on the face of record must
be such an error which must strike one on mere
looking at the record and would not require any
longdrawn process of reasoning on the points
where there may conceivably by two opinions.
(iii) Power of review may not be exercised on the
ground that the decision was erroneous on
merits.
(iv) Power of review can also be exercised for
any sufficient reason which is wide enough to
include a misconception of fact or law by a court
or even an advocate.
(v) An application for review may be
necessitated by way of invoking the doctrine
actus curiae neminem gravabit.”
5.2 It is further observed in the said decision that an error
which is required to be detected by a process of reasoning can
hardly be said to be an error on the face of the record.
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5.3 In the case of Shanti Conductors (P) Ltd. (supra), it is
observed and held that scope of review under Order 47 Rule
1 CPC read with Section 114 CPC is limited and under the
guise of review, the petitioner cannot be permitted to
reagitate and reargue questions which have already been
addressed and decided. It is further observed that 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 record justifying the court to
exercise its power of review under Order 47 Rule 1 CPC.
5.3 Applying the law laid down by this Court in the
aforesaid two decisions to the facts of the case on hand, we
are of the opinion that in the present case while allowing
the review application and setting aside the judgment and
order dated 03.03.2017 passed in Writ Petition No.8606 of
2010 the High Court has exceeded in its jurisdiction and
has exercised the jurisdiction not vested in it while
exercising the review jurisdiction under Order 47 Rule 1
read with Section 114 CPC. From the reasoning given by
the High Court, it appears that according to the High Court
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the judgment and order passed in Writ Petition No.8606 of
2010 was erroneous. While passing the impugned judgment
and order the High Court has observed and considered the
Survey Report dated 12.12.2007 which was already dealt
with by the High Court while deciding the main writ petition
and the High Court discarded and/or not considered the
Survey Report dated 12.12.2007. Once the Survey Report
dated 12.12.2007 fell for consideration before the High
Court while deciding the main writ petition thereafter the
same could not have been considered again by the High
Court while deciding the review application.
5.4 From the impugned judgment and order passed by the
High Court it appears that the High Court has decided the
review application as if the High Court was exercising the
appellate jurisdiction against the judgment and order dated
03.03.2017 passed in Writ Petition (MD) No.8606 of 2010
which is wholly impermissible while considering the review
application under Order 47 Rule 1 read with Section 114
CPC.
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5.5 From the impugned judgment and order passed by the
High Court allowing the review application it is observed in
paragraph 33 as under:
“33. The above legal principals were born in mind
by this Court while considering the review
application. Brushing aside a survey report, which
was available on record and which brought out
tampering of official records, ought to have been
taken note of by the Learned Writ Court, while
considering the prayer sought for in the Writ
Petition. This has led to an error, which is
manifest on the face of the order. Furthermore,
the Court proceeded on the basis that S.M.
Gajendran had executed a gift deed without
nothing the fact that the gift deed was a
document, which was unilaterally executed by
him, not accepted by the respondent Corporation
and could not have been treated to be a valid gift.
These facts have emerged on the fact of the order
passed in the Writ Petition without any
requirement for a longdrawn reasoning.
Therefore, we are fully satisfied that we are
justified in exercising our review jurisdiction. For
the above reasons, we are of the clear view that
the order passed in the Writ petition suffers from
error apparent on the fact of the records
warranting exercise of review jurisdiction.”
5.6 From the aforesaid it appears that the High Court has
considered the review application as if it was an appeal
against the order passed by the High Court in Writ Petition
No.8606 of 2010. As observed hereinabove the same is
wholly impermissible while deciding the review application.
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Even if the judgment sought to be reviewed is erroneous the
same cannot be a ground to review the same in exercise of
powers under Order 47 Rule 1 CPC. An erroneous order
may be subjected to appeal before the higher forum but
cannot be a subject matter of review under Order 47 Rule 1
CPC.
6. In view of the above and for the reasons stated above
and applying the law laid down by this Court on Order 47
Rule 1 read with Section 114 CPC, we are of the opinion
that in the present case while allowing the review
application the High Court has exceeded in its jurisdiction
and has exercised the jurisdiction not vested in it under
Order 47 Rule 1 read with Section 114 CPC and therefore
the impugned judgment and order passed by the High
Court allowing the review application and setting aside the
order dated 03.03.2007 passed in Writ Petition No.8606 of
2010 is unsustainable and the same deserves to be
quashed and set aside.
6.1 As the Contempt Petition has been dismissed by the
High Court on setting aside the order dated 03.03.2017
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passed in Writ Petition No.8606 of 2010, on setting aside
the order passed in Review Petition and consequently
restoring the order dated 03.03.2017 passed in Writ Petition
No.8606 of 2010 the dismissal of the contempt petition is to
be set aside and the matter is to be remitted to the High
Court to decide the same afresh in accordance with law and
on its own merits.
6.2 Similarly the order dismissing the Writ Petition (MD)
No.14847 of 2017 and Writ Petition (MD) No.16256 of 2017
is also to be quashed and set aside and the said writ
petitions are to be remanded to the High Court to decide the
same afresh in accordance with law and on its own merits.
7. In view of the above and for the reason stated above,
civil appeal arising out of the impugned judgment and order
dated 29.06.2021 in Review Petition (MD) No.21 of 2017 is
allowed and the same order is hereby quashed and set aside
and the judgment and order dated 03.03.2017 passed in
Writ Petition (MD) No.8606 of 2010 is hereby restored.
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Consequently the remaining appeals arising out of the
dismissal of the Writ Petition (MD) No.14847 of 2017 and
Writ Petition (MD) No.16256 of 2017 and the dismissal of
the Contempt Petition (MD) No.1109 of 2017 are also
allowed and the said orders are hereby quashed and set
aside and the Writ Petition (MD) No.14847 of 2017 and Writ
Petition (MD) No.16256 of 2017 and the Contempt Petition
No.1109 of 2017 are remitted back to the High Court to
decide the same afresh in accordance with law and on its
own merits for which this Court has not expressed anything
in favour of the either parties.
Present appeals are accordingly allowed to the
aforesaid extent. In the facts and circumstances of the case
there shall be no orders as to costs.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(C.T. RAVIKUMAR)
New Delhi,
February 24, 2023
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