Case: ASHARAFI DEVI (D) THR. LRS Vs. STATE OF U.P. THROUGH COLLECTOR/DISTRICT MAGISTRATE

M.P. Raju, learned counsel for the respondents. 9. It is clear from the record that the original appellant (writ petitioner) never challenged the legality and correctness of the main order dated 14.03.2008 passed in the writ petition (10557/2002) but confined her challenge only to the order dated 16.12.2008 passed in the review application. 10. Though, learned counsel for the appellant contended that reading of the list of dates in this appeal shows that the original appellant has challenged the main order dated 14.03.2008 also along with the review order dated 16.12.2008, but we do not find it to be so. 11. In our opinion, the original appellant not having challenged the legality of the main order dated 14.03.2008 in a separate SLP or in this appeal, this Court is not called upon to examine the legality and correctness of the main order dated 14.03.2008 in the present appeal. 12. Mr. Jayant Bhushan, learned senior counsel for the appellants, however, argued that this Court should invoke the powers under Article 142 of the Constitution and permit the appellants to challenge the main order. We find no merit in this submission for three reasons. 13. First, the original appellant did not assign any reason as to what prevented her in the last almost 11 years in not filing the SLP against the main order; 14. Second, there was no legal impediment on the appellants? right to file the SLP in this Court as soon as the main order dated 14.03.2008 was passed and lastly, when the present SLP was filed in the year 2010 against the review order, the original appellant again did not challenge the main order dated 14.03.2008. 15. In the light of these three reasons, we find no good ground to invoke extraordinary powers under Article 142 of the Constitution and permit the appellants(legal representatives of original appellant) to question the legality of main order dated 14.03.2008 in this appeal. 16. Now coming to the merits of the case, we have to only examine the question as to whether the High Court was right in dismissing the review application filed by the original appellant holding that there was no error apparent on the face of the main order dated 14.03.2008 within the meaning of Order 47 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as ?the Code?). 17. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal 18. While examining the legality of the review order, we cannot examine the legality of main order dated 14.03.2008 on its merits because, as mentioned above, this appeal does not arise out of the main order. Therefore, we have to confine our inquiry with a view to find out whether the review order is legally sustainable or not. 19. On perusal of the main order dated 14.03.2008, we find that the High Court dismissed the writ petition holding that the writ petitioner (original appellant herein) failed to prove her possession over the land in question on the date of repeal. It was held that the State had taken possession of the land in the year 1982 as per the panchnama prepared by the State. 20. In review, the High Court held that while recording the aforementioned finding in the main order, no apparent error, whether on facts or law within the meaning of Order 47 Rule 1 of the Code, was committed attracting the rigor of Order 47 Rule 1 of the Code. 21 It is a settled law that every error whether factual or legal cannot be made subject matter of review under Order 47 Rule 1 of the Code though it can be made subject matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 47 Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case. 22 Learned counsel for the appellants then argued the appeal as if this appeal arises out of the main order dated 14.03.2008. He extensively referred to the pleadings and several documents as if we are called upon to examine the legality of the main order itself 23. We find no merit in any of his submissions for more than one reason. First, as mentioned above, this appeal does not arise out of the main order but arises out of review order only and, therefore, we cannot examine the legality and correctness of the main order in this appeal like an Appellate Court. 24. Second, we examined the matter only with a view to find out as to whether the High Court was right in dismissing the review application and thereby justified in upholding the main order dated 14.03.2008 holding that it did not contain any error/mistake apparent on the face of the record. 25. In other words, we examined the issue only with a view to find out as to whether the review order, which is subject matter of this appeal, was passed in conformity with the requirements of Order 47 Rule 1 of the Code or not. 26. Third, having examined, we are of the view that the review order was passed in conformity with the requirements of Order 47 Rule 1 of the Code and, therefore, the High Court rightly concluded that the main order impugned in the review application did not contain any factual or/and legal error(s) within the meaning of Order 47 of the Code so as to entitle the review Court to recall the same in its review jurisdiction. 27. And lastly, once the finding was recorded by the High Court in the writ petition that the writ petitioner (original appellant) failed to prove her actual possession on the land in question on the date of repeal, such finding could not have been examined de novo in review jurisdiction by the same Court like an Appellate Court on the facts and evidence.

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

Explanation:
0[ds]9. It is clear from the record that the original appellant (writ petitioner) never challenged the legality and correctness of the main order dated 14.03.2008 passed in the writ petition (10557/2002) but confined her challenge only to the order dated 16.12.2008 passed in the review application.Though, learned counsel for the appellant contended that reading of the list of dates in this appeal shows that the original appellant has challenged the main order dated 14.03.2008 also along with the review order dated 16.12.2008, but we do not find it to be so.In our opinion, the original appellant not having challenged the legality of the main order dated 14.03.2008 in a separate SLP or in this appeal, this Court is not called upon to examine the legality and correctness of the main order dated 14.03.2008 in the present appeal.Mr. Jayant Bhushan, learned senior counsel for the appellants, however, argued that this Court should invoke the powers under Article 142 of the Constitution and permit the appellants to challenge the main order.We find no merit in this submission for three reasons.First, the original appellant did not assign any reason as to what prevented her in the last almost 11 years in not filing the SLP against the mainSecond, there was no legal impediment on the appellants? right to file the SLP in this Court as soon as the main order dated 14.03.2008 was passed and lastly, when the present SLP was filed in the year 2010 against the review order, the original appellant again did not challenge the main order dated 14.03.2008.In the light of these three reasons, we find no good ground to invoke extraordinary powers under Article 142 of the Constitution and permit the appellants(legal representatives of original appellant) to question the legality of main order dated 14.03.2008 in this appeal.Now coming to the merits of the case, we have to only examine the question as to whether the High Court was right in dismissing the review application filed by the original appellant holding that there was no error apparent on the face of the main order dated 14.03.2008 within the meaning of Order 47 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as ?the Code?).Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in thisWhile examining the legality of the review order, we cannot examine the legality of main order dated 14.03.2008 on its merits because, as mentioned above, this appeal does not arise out of the main order. Therefore, we have to confine our inquiry with a view to find out whether the review order is legally sustainable or not.On perusal of the main order dated 14.03.2008, we find that the High Court dismissed the writ petition holding that the writ petitioner (original appellant herein) failed to prove her possession over the land in question on the date of repeal. It was held that the State had taken possession of the land in the year 1982 as per the panchnama prepared by the State.In review, the High Court held that while recording the aforementioned finding in the main order, no apparent error, whether on facts or law within the meaning of Order 47 Rule 1 of the Code, was committed attracting the rigor of Order 47 Rule 1 of theIt is a settled law that every error whether factual or legal cannot be made subject matter of review under Order 47 Rule 1 of the Code though it can be made subject matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 47 Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case.We find no merit in any of his submissions for more than one reason. First, as mentioned above, this appeal does not arise out of the main order but arises out of review order only and, therefore, we cannot examine the legality and correctness of the main order in this appeal like an Appellate Court.Second, we examined the matter only with a view to find out as to whether the High Court was right in dismissing the review application and thereby justified in upholding the main order dated 14.03.2008 holding that it did not contain any error/mistake apparent on the face of the record.In other words, we examined the issue only with a view to find out as to whether the review order, which is subject matter of this appeal, was passed in conformity with the requirements of Order 47 Rule 1 of the Code or not.Third, having examined, we are of the view that the review order was passed in conformity with the requirements of Order 47 Rule 1 of the Code and, therefore, the High Court rightly concluded that the main order impugned in the review application did not contain any factual or/and legal error(s) within the meaning of Order 47 of the Code so as to entitle the review Court to recall the same in its review jurisdiction.And lastly, once the finding was recorded by the High Court in the writ petition that the writ petitioner (original appellant) failed to prove her actual possession on the land in question on the date of repeal, such finding could not have been examined de novo in review jurisdiction by the same Court like an Appellate Court on the facts and evidence.