BY:-Saurabh

Name of the Case	Shri Ram Sahu (Dead) Through LRS. v. Vinod Kumar Rawat & ORS
Citation	SLP (Civil) No. 28150 of 2017
Judgement	3rd November 2020
Appellant	Shri Ram Sahu (Dead) through LRS.
Respondent	Vinod Kumar Rawat & ORS.
Bench/ Judge	Justice M.R. Shah
Statutes / constitution involved	Civil Procedure Code
Important section / Article involved	Section 151 of CPC, Order 6 Rule 17 of CPC, section 114 of CPC

Abstract

This case had emphasised the power of the high court to review a judgement of the subordinate court. It’s a known fact that once the court pronounces a judgement it becomes functus officio (ceases to have control over the matter) and no jurisdiction to alter it. Therefore a review of a judgement is a serious step and reluctant resort which must only be taken where there is a glaring omission, patent mistake or grave error has crept. It is well settled that the power to review is not inherent. It must be conferred by law either expressly or by necessary implication. The power of review can be exercised to correct a mistake and not to substitute a view. Such a power can be exercised within the limits of the statute dealing with the exercise of the power.

Introduction

Our legislatures were far-sighted, they had contemplated various events that could unfold while dealing with the law. The civil procedure code went through many amendments and interpretations of statutes to adjust with various cases. The Civil procedure code provides for a remedy to party aggrieved the judgement of the subordinate court to approach a higher court. One such kind of legal remedy is “review”. The word review means to “re-examine or to study again”. It’s a substantive power of the court mentioned in section 114 of CPC with condition and procedure provided under Order 47 rule 1.

Background of the case

In the learned trial court, Shri Ram Sahu, the plaintiff (predecessor of Appellant) instituted a civil suit against the defendant (later respondent in the case) for declaration of the registered sale deed executed in favour of defendant 1 and 2 (purchaser of property) situated in Sube Ki Payga, Jiwanjiganj, Lashkar, as null and void and for a permanent injunction against defendant 1 and 2 restraining then from transferring the disputed property to any other person.

The plaint was instituted to claim the sole ownership and possession of the said property for its entirety based on will executed by Chhimmabai in favour of the plaintiff.

On the behalf of the defendant, Mr Vinod Kumar Rawat (defendant no. 3), it was claimed that the said property belongs to the defendant also as Chhimmabai had adopted Defendant and registered the adoption deed for the same. And that defendant is justified in selling the disputed property to defendants 1 and 2. Whereas defendants 1 and 2 claimed to be the bonafide purchaser and in possession of the suit property.

After the due procedure of the civil court, the learned trial judge dismissed the case and the plaintiff was not able to establish a case against defendant 3 (Vinod Kumar Rawat) and held that defence has proved that defendant no. 3 was adopted by Ghasilal and later the adoption deed was registered by Chhimmabai on that behalf. 

Facts of the case

Aggrieved by the judgement and decree passed by the learned trial court, the original plaintiff filed the First Appeal no. 241 of 2005 before the high court while the respondent applied for dismissal of the appeal and direction to the appellant to vacant the disputed property under section 151 of CPC (inherent power of high court).

During the pendency of the appeal, the appellant filed an application under Order 6 rule 17 of CPC to seek amendment in relief clause as regard to the issuance of permanent injunction to restrain defendants 1 and 2 from dispossessing plaintiff forcibly from disputed property. This was dismissed by the high court on the grounds of limitation. However, the high court granted permission to the appellant to file a separate suit for said relief against the defendant. The high court dismissed the appeal but also during the pendency of the case made an observation regarding the possession of the disputed property with the collaboration of witnesses’ statements and considering the material on record and facts and circumstances of the said case.

Two years later the judgement of the high court in the first appeal, respondent no. 1 & 2 filed a review petition for observation of para 20 of judgement which relates to possession of disputed property which was opposed by the appellant. But, the high court allowed review application and had ordered to delete para 20 of the judgement of the first appeal no. 241 of 2015. The reason provided by the court was that the issue of possession was neither raised nor framed before the learned trial court nor before the first appellate court.

Again aggrieved by the decision of the high court in review application in allowing the application and arbitrary striking down Para 20, the appellant further filed Sa special Leave petition in the Hon’ble Supreme Court. The Supreme Court granted leave to hear the petition.

Issue Raised

1. Whether the high court has exceeded its jurisdiction while exercising the review jurisdiction without due regard to scope and ambit of order 47 rule 1 CPC?
2. Whether the high court has set aside the specific finding related to possession which was based on the appreciation of evidence before the Learned Trail court?
3. Whether the high court has committed a grave error by deleting para 20 of the final judgement and order passed in The first appeal in the exercise of review jurisdiction?

Arguments

Appellant

1. Appellant argued that although the specific issue with respect to possession was not framed in the learned trial court cannot be a ground to set aside the finding by the high court as such possession was claimed by one party and wasn’t denied by the other party. Therefore, possession was on merit and appreciation of evidence before the learned trial court
2. Appellant argued that the high court has committed grave injustice in considering the issue framed in the learned trial court which was related to the disputed property and where parties were also different.
3. Appellant argued that during the pendency of a civil suit in the earned trial court, issue of possession was at large, specific averments were submitted as well as the testimony of witnesses were recorded which had sufficiently proved that the possession of the disputed property was with appellant.
4. Appellant argued that the defendant-respondent did not lead any evidence regarding possession of the disputed property but also did not specifically denied the evidence led by the plaintiff-appellant. Therefore possession was proved by the appreciation of evidence
5. Appellant argued that the review petition was not exercised according to order 47 rule 1 civil procedure code. According to which, the power of review may be exercised on the discovery of new evidence or facts which, after due diligence was not within the knowledge of the person seeking the review and could not be produced by him at the time order was made, it may be exercised where some mistake or error is apparent on the face of the record, it may also be used for analogues ground. But it may not be exercised on the ground that the decision was erroneous on merit.

Respondent

1. Respondent argued that impugned order passed by the high court has not committed an error while deleting para 20 of the judgement and order passed in the first appeal in the exercise of review jurisdiction as the original civil suit filed was for cancellation of sale deed and permanent injunction against defendant no. 1 and 2 with regards to the transfer of the disputed property. And since no injunction for dispossession was sought. Therefore there was an absence of issue framed regarding the possession.
2. Respondent further argued thatduring the lifetime of Shri Ghisa Lal Sahu (the owner), he was in possession of the property after that smt. Chhimmabai came in possession of the property. She continued to be in possession and after her adopted son- Dilip Kumar Sahu came into possession. The adoption was challenged in the learned trial court which was dismissed subsequently. Dilip Kumar Sahu executed the sale deed after entering into a compromise with the tenant for possession. Whereas the petitioner has not been able to show under what capacity and when he came into possession.
3. Respondent argued that the application for a permanent injunction by the appellant against the forcible dispossession under order 6 rule 17 of CPC was duly dismissed by the high court through petitioner was permitted to file a spate suit for possession. The petitioner did not file any suit in the aforesaid matter. Therefore, deletion of para 20 in judgement and order of the First appeal was justified in review jurisdiction.
4. Respondent further submitted that the issue in respect of possession was neither before learned trial court nor before the high court. Despite the same observation were made in para 20 in the first appeal with respect to possession. Therefore the high court has been justified in deleting the same. The court has an inherent power to correct errors if subsequently it is found that some of the observations made were erroneous.

Judgement

The Supreme Court observed that the word review implies “an act of looking, offer something again with a view to correction”. The court remarked that it cannot be denied that review is a creation of statute. The court while referring to various case laws held that the power of review is not inherent. It must either be conferred by law either specifically or by necessary implication. The high court must use the power of review sparingly and in the strict sense.

The court elaborated the scope of Section 114 of CPC and held that an order can be reviewed by a court only on the prescribed mentioned in Order 47 Rule 1 CPC. 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. 

The Supreme Court held that the High Court had overstepped the jurisdiction vested in the provision and had erred in deleting para 20 in the exercise of power under Order 47 Rule 1 CPC. The court held that the High Court committed a grave error and the impugned order is unsustainable. It further held that the powers of review under Section 114 read with Order 47 Rule 1 of the Code of Civil Procedure cannot be exercised as an inherent power of appellate power.

Therefore, the court allowed the appeal and quashed the impugned order Review Petition in First Appeal No.241 of 2005. 

Related provision

Order 47 rule 1

1. Any person considering himself aggrieved-
   
   (a) by a decree or order from which an appeal is allowed, but from 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.

Section 114 CPC – Review.

Subject as aforesaid, any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Court, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgement to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

Section 151 of Civil Procedure Code

Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

Order 6 Rule 17 of CPC

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.]

Conclusion

This case has emphasized the high court’s power to entertain the Review petition under section 114 of CPC. It’s clear when a particular fact is admitted by one party and is not rejected by another party, it became a relevant fact in the case which at any stage cannot be eliminated. The deletion of Para 20 relating to possession of dispute property was expressly presented in the plaint in the learned trial court and was not contended by the defendant. Hence it is deemed to be admitted.

The power of review by the high court can be exercised on the application of an aggrieved person when there is a 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason.

A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier by the court of original jurisdiction but the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it.

The above mentioned objective of this provision was thus erroneous used even when there was not a patent error in facts or any irregularities of law that is prima facie apparent