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REVIEW PETITION-Scope of Error Apparent-Civil Procedure Code-Section 114, Order XLVII Rule 1 and Order II Rule 2-Review of the decision rendered by High Court in Second Appeal-Parameters required for review-Owner of suit property orally agreeing to sell suit property to appellant-Possession of property delivered to appellant on his making part payment-Appellant filing Suit No. 201/85 for protection of his possession of suit property-Appellant filing another Suit No. 1 of 1986 for specific performance of agreement for sale-During pendency of this suit, Owner executing a sale deed in favour of respondent-Appellant filing Title Suit No. 2 of 1987 for cancellation of said sale deed-Trial Court decreeing this suit and High Court upholding the decree-Subsequently, High Court entertaining and allowing a review application-Held, High Court erred in accepting the prayer for review as the question whether 1985 suit was hit by O II R 2 is not relevant to the 1987 suit-High Court has erroneously held about infraction of O II R 2-No mistake or error apparent on record found to justify entertaining review petition. The owner of the suit property entered into an oral agreement in 1982 with appellant for sale of suit property. Appellant paid part of the sale consideration. Possession of the suit property was handed over to the appellant with a promise that a sale deed would be executed in his favour within three years. Appellant paid the balance consideration and asked the owner to execute the registered sale deed in his favour. In view of threatened dispossession, the appellant with a view to protect his possession, filed Title Suit No. 201/1985. In this plaint, he exclusively reserved his right to file another suit for specific performance of sale agreement. He filed another suit No. 1 of 1986 praying for execution of sale deed in his favour. During pendency of this suit, the owner executed a sale deed in favour of respondent. Appellant filed Title Suit No. 2 of 1987 for cancellation of said sale deed. The said suit was decreed. Appeal filed against the said decree was allowed. The High Court allowed the second appeal restoring decree of lower Court. Respondent filed a review petition which was allowed. Appellant came in appeal to this Court. =Allowing the appeal, the Court HELD : 1. A perusal of Order XLVII, 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 record or 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. 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. [94-b-c; 92-f-g, h] M/s Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh, AIR (1964) SC 1372; Meera Bhanja v. Smt. Nirmala Kumari Choudhary, AIR (1995) SC 455; Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR (1979) SC 1047; Shivdeo Singh v. State of Punjab, AIR (1963) SC 1908; Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Triuymale, AIR (1960) SC 137 and Parsion Devi v. Sumiri Devi, [1997] 8 SCC 715, relied upon. Panduranga Dhondi Chougule v. Maruti Hari Jadhav, AIR (1966) SC 153, referred to. 2. 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 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 19.08.1982 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. [96-b-d] A.K. Ganguli, Ms. B. Basak and Chanchal Kumar Ganguli for the Appellant. Shib Shankar Sirkar, P.K. Chakravarty and Apu Banik In-Person (on behalf of Mrs. Usha Rani Banik) for the Respondents.

08 Uetersen Bestätigungsurkunde 1564

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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 
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 
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 
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 : (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 
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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