Case: SHRI RAM SAHU (DEAD) THROUGH LRS &amp; ORS Vs. VINOD KUMAR RAWAT &amp; ORS

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 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 non-framing 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 cross-examination by the defendants – respondents. The defendants respondents did not lead any evidence to show 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. 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 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 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.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. Aribam Pishak Sharma, (1979) 4 SCC 389 speaking 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 all manner of errors committed by the subordinate court.15. A perusal of Order 47 Rule 1 shows that review of 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 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 long-drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 were also noted:An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.18. It is also pertinent to mention the observations of 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 self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise 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.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 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 clear-cut rule by which the boundary between the two classes of errors could be demarcated.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 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 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 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 non-framing 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 cross-examination by the defendants – respondents. The defendants respondents did not lead any evidence to show 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.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 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 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.