Haridas Das Vs. Smt.
Usha Rani Banik & Ors [2006] Insc 133 (21
March 2006)
Arijit Pasayat & Tarun
Chatterjee Arijit Pasayat, J.
Challenge
in this appeal is to the order passed by a learned Single Judge of the Gauhati High Court on an application for review under Order
XLVII Rule 1 of the Code of Civil Procedure, 1908 (in short the 'CPC'). The
application was filed by respondent No.1 for review of the judgment and order
dated 21.8.2002 passed in Second Appeal No.12 of 1993. The Second Appeal was
allowed by the High Court by the judgment and order, reversing the judgment and
order passed in Title Appeal No.6/90 and affirming the judgment and decree
dated 19.1.1989 passed in Title Suit No. 2 of 1987.
Reference
to the factual background, as projected by the appellant in some detail would
be necessary because the High Court has referred to the factual background to
modify the judgment passed by the High Court in the Second Appeal and directing
its dismissal. As a consequence the judgment and decree passed by the First
Appellate Court was affirmed and that of the learned Munsif
in the Title Suit was reversed. One Kalipada Das, (respondent No.1 in the review petition) the original
owner of the suit property, entered into an oral agreement with the appellant
on 19.8.1982 and on the same day, the appellant paid a sum of Rs. 14,000/- towards the agreed consideration of
Rs.46,000/- to sell his portion of the suit property, with a dwelling house
standing thereon.
The
possession of the suit property was also handed over to the appellant, with a
promise that a sale deed would be executed in favour
of the appellant within three years. Again on 23.8.1982 the appellant paid a
further sum of Rs. 31,000/. In essence Rs.45,000/- was paid leaving only a nominal sum of Rs.1,000/- to
be paid at the time of execution of the sale deed. As the time for execution of
the sale deed was nearing, the appellant learnt that the said Kalipada Das with a view to
defeat the appellant's right was trying to sell part of the property to one Chunnilal Deb and to mortgage part of the suit property
with the Housing Board of Karimganj. He started
openly threatening the appellant to dis-possess him
of the suit property. The appellant paid the balance amount of Rs.1,000/- and asked Kalipada to
execute the registered sale deed in his favour in
respect of the property. In view of threatened dispossession, the appellant
with a view to protect his possession of the suit property filed Title Suit
No.201/85 along with connected Miscellaneous Case No. 65/85, inter alia, seeking confirmation of possession over the suit land
and premises, and for permanent injunction restraining Kalipada
Das from dispossessing the appellant and from selling
the suit property to any third party. In the said plaint the appellant exclusively
reserved his right to file another suit for getting the sale deed executed. By
an interim order Kalipada Das
was directed to maintain status quo in respect of the suit property. The suit
was dismissed for default, but later was restored by an order passed by learned
Munsif.
The
appellant filed another suit being Title Suit No.1 of 1986 (re-numbered as
13/90) for specific performance of the agreement for sale and for the execution
of the proper deed of sale in respect of the suit property.
During
the pendency of the said proceedings, Kalipada Das executed and
registered a sale deed in favour of one Usha Rani Banik,
defendant No.3 - Respondent No.1 herein, while the possession of the suit
property still remained with the appellant. Immediately thereafter, the
appellant filed Title Suit No. 2 of 1987 for cancellation of the said sale deed
as the same was illegal, fraudulent and void. The respondent No.1 also filed a
suit being Title Suit No.22/87 for declaration of her title to the suit
property on the basis of the sale deed.
Title
Suit No. 2 of 1987 filed by the appellant was decreed whereby the sale deed
executed in favour of the Respondent No. 1 was
cancelled. Against the said decree, the respondent No. 1 preferred an appeal
before learned District Judge, Karimganj, which was
allowed setting aside the decree passed in Title Suit No.2 of 1987. The
appellant preferred Second Appeal No.12 of 1993 before the High Court. The
Second Appeal was allowed restoring the judgment and decree passed in Title
Suit No.2 of 1987. By the impugned order as noted above the High Court held
that no leave under Order II Rule 2 CPC was obtained by the respondent in Title
Suit No.201 of 1985. Therefore, the Title Suit No.1 of 1986 filed for specific
performance of the agreement for sale of land is hit by the provisions of Order
II CPC. According to the High Court this is a case where review was permissible
on account of some mistake or error apparent on the face of the record. In
support of the appeal learned counsel for the appellant submitted that the
order of the High Court is clearly erroneous completely overlooking the scope
and ambit of Order XLVII Rule 1 CPC. The parameters required for bringing in
application of the said provision are absent in the present case.
On
behalf of the respondent No.1 one Apu Banik claiming to be the Power of Attorney Holder stated
that the High Court was justified in reviewing the order in the Second Appeal
and the order does not suffer from any infirmity. He filed written argument
signed by Usha Rani Banik stating that whatever was to be stated is contained
in written argument.
Order
XLVII Rule 1 reads as follows:
"REVIEW :
1.
APPLICATION FOR REVIEW OF
-
Any person considering himself
aggrieved –
-
by
a decree or order from which an appeal is allowed, but from which, no appeal
has been preferred,
-
by
a decree or order from which no appeal is allowed, or
-
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 to the court which passed
the decree or made the order.
-
A party who is not appealing from a
decree or order may apply for a review or judgment notwithstanding the pendency of an appeal by some other party except where the
ground of such appeal is common to the applicant and the appellant, or when,
being respondent, he can present to the Appellate Court the case on which he
applies for the review.
Explanation : The fact that the decision on
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.
2 [Repealed by Act 66 of 1956]." In order to appreciate the scope of
a review, Section 114 of the 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 XLVII of the 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 in Rule 1 of the Order
XLVII 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 should exercise the
power to review its order with the greatest circumspection. This
Court in M/s. Thungabhadra Industries Ltd. (in all
the Appeals) v. The Government of Andhra Pradesh represented by the
Deputy Commissioner of Commercial Taxes, Anantapur,
[AIR 1964 1372] held as follows:
"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 could be characterized
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. Where without any elaborate argument one could point to the
error and say here is a substantial point of law which states one in the face
and there could reasonably be no two opinions entertained about it, a clear
case of error apparent on the face of the record would be made out." In Meera Bhanja v. Smt. Nirmala Kumari
Choudary [AIR 1995 SC 455] it was held that :
"It
is well settled law that the review proceedings are not by way of an appeal and
have to be strictly confined to the scope and ambit of Order XLVII, Rule 1, CPC. In connection with the limitation of the powers of the
Court under Order XLVII, Rule 1, while dealing with similar jurisdiction
available to the High Court while seeking to review the orders under Article
226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma 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 be exercise of the power of review. The power of
review may be exercised on the discovery of new and important matter of
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 merit. That would be in 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 error committed by the
Subordinate Court." A perusal of the Order
XLVII, Rule 1 show that review of a judgment or an order could be sought :
-
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;
-
such important matter or evidence
could not be produced by the applicant at the time when the decree was passed
or order made; and
-
on account of some mistake or error
apparent on the face of record or any other sufficient reason.
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 XLVII, 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:
"It
is true as observed by this Court in Shivdeo Singh v.
State of Punjab (AIR 1963 SC1908) there is nothing in Article 226 of the
Constitution to preclude a High Court from exercising the power of review which
inherest 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 of
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." The judgment in Aribam's case (supra) has been followed in the case of Smt. Meera Bhanja
(supra). 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 the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tiruymale [ 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." It is also pertinent to mention the observations of
this Court in the case of Parsion Devi
v. Sumiri Devi (1997(8) SCC
715). Relying upon the judgments in the cases of Aribam's
(supra) and Smt. Meera Bhanja (supra) it was observed as under :
"Under
Order XLVII, 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 XLVII, Rule 1, CPC. In exercise of the jurisdiction under Order XLVII,
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." A Constitution Bench of
this Court in the case of Pandurang Dhondi Chougule v. Maruti Hari Jadhav
(AIR 1966 SC 153) has held that the issue concerning res
judicata is an issue of law and, therefore, there is
no impediment in treating and deciding such an issue as a preliminary issue.
Relying
on the aforementioned judgment of the Constitution Bench, this Court has taken
the view in the case of Meharban v. Punjab Wakf Board (supra) and Harinder
Kumar (supra) that such like issues can be treated and decided as issues of law
under Order XIV, Rule 2(2) of the Code. Similarly, the other issues concerning
limitation, maintainability and Court fee could always be treated as
preliminary issues as no detail evidence is required to be led.
Evidence
of a formal nature even with regard to preliminary issue has to be led because
these issues would either create a bar in accordance with law in force or they
are jurisdictional issues. When the aforesaid principles are applied to the
background facts of the present case, the position is clear that the High Court
had clearly fallen in error in accepting the prayer for review. First, the
crucial question which according to the High Court was necessary to be adjudicated
was the question whether the Title Suit No. 201 of 1985 was barred by the
provisions of Order II Rule 2 CPC. This question arose in Title Suit No.1 of
1986 and was irrelevant so far as Title Suit No.2 of 1987 is concerned.
Additionally, the High Court erred in holding that no prayer for leave under
Order II Rule 2 CPC was made in the plaint in Title Suit No.201 of 1985. The
claim of oral agreement dated 19.8.1982 is mentioned in para
7 of the plaint, and at the end of the plaint it has been noted that right to
institute suit for specific performance was reserved. That being so the High
Court has erroneously held about infraction of Order II Rule 2 CPC. This was
not a case where Order II of Rule 2 CPC has any application.
The
order of the High Court is clearly contrary to law as laid down by this Court.
The judgment of the High Court in review application is set aside.
Consequently, judgment and order passed in the Second Appeal stand restored.
Appeal is allowed with no order as to costs.
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