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CASE NO.: Appeal (civil)  7948 of 2004

PETITIONER: Haridas Das                                                      

RESPONDENT: Smt. Usha Rani Banik & Ors.                              

DATE OF JUDGMENT: 21/03/2006

BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

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

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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:

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"REVIEW : 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 to the court which passed  the decree or made the order.  (2) 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

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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."

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A perusal of the Order XLVII, Rule 1 show 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 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

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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

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order passed in the Second Appeal stand restored.  Appeal is  allowed with no order as to costs.