S. MURALI SUNDARAM versus JOTHIBAI KANNAN & ORS on 24 February 2023

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 29.06.2021 passed by the High Court of judicature atMadras at Madurai Bench passed in Review Application (MD) No.21of 2017 as well as the orders passed in Writ Petition (MD) No.14847 of2017, Writ Petition (MD) No.16256 of 2017 as well as the order inContempt Petition (MD) No.1109 of 2017 by which the High Court inexercise of review jurisdiction has allowed the Review Application No.21of 2017 and has set aside the order dated 03.03.2017 passed in WritPetition (MD) No.8606 of 2010, the original writ petitioner of Writ Petition(MD) No.8606 of 2010 has preferred the present appeals.

2. The issue involved in the present appeals as such is in a verynarrow Compass.

2.1 Feeling aggrieved and dissatisfied with the order passed bythe Tiruchirappalli City Municipal Corporation dated 17.07.2008 in respectof the pathway comprised in New TS No.43 of ward 42, Block AG 15,Indian Bank Colony, Simco Meter Road, Tiruchirappalli Taluk and District,the appellant herein preferred the Writ Petition (MD) No.8606 of 2010before the High Court. Before the High Court the respondents herein –review petitioners heavily relied upon the report of the Survey Departmentand the measurements given in the survey report. However, the HighCourt discarded the survey report and chosen to rely upon other two A

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Areports and consequently allowed the writ petitions by detailed judgmentand order dated 03.03.2017.

2.2 That thereafter the contesting respondents herein – the reviewapplicants filed the present Review Application (MD) No.21 of 2017 inWrit Petition (MD) No.8606 of 2010 under Order 47 Rule 1 of Code ofBCivil Procedure, 1908 (hereinafter referred to as ‘CPC’). One Mr. S.M.Gajendran filed the Writ Petition (MD) No.14847 of 2017 as well asWrit Petition (MD) No.16256 of 2017 inter alia challenging the orderdated 03.07.2017 in enquiry in Na. Ka. No.5293/A4/2017 as well as theorder dated 09.06.2017 in Na. Ka. No.10048/2016/F1 and direct therespondents to accept the registered gift settlement made in favour ofCthe Corporation in settling seven public roads by registration Corporation.By the impugned judgment and order the High Court has allowed theReview Petition (MD) No.21 of 2017 and has set aside the judgmentand order dated 03.03.2017 passed in Writ Petition No.8606 of 2010.Consequently, the High Court has dismissed the Writ Petition Nos. 14847Dof 2017 & 16256 of 2017 filed by S.M. Gajendran. Consequently, theHigh Court has also dismissed the Contempt Petition No.1109 of 2017.The impugned common judgment and order passed by the High Courtand mainly allowing the review application is the subject matter of presentappeals.

E2.3 Mr. V. Prabhakar, learned counsel appearing on behalf of theappellant – original writ petitioner has vehemently submitted that in thefacts and circumstances of the case the High Court has erred in allowingthe Review Application and has materially erred in quashing and settingaside the judgment and order dated 03.03.2017 passed in Writ PetitionNo.8606 of 2010.F

2.4 It is further submitted by learned counsel appearing on behalfof the appellant that while allowing the review application and quashingand setting aside the order passed in the main writ petition, the HighCourt has exceeded in its jurisdiction while deciding the review application.

2.5 It is further submitted by learned counsel appearing on behalfGof the appellant that while allowing the review application the High Courthas exceeded in its jurisdiction while deciding the review application andhas exercised the jurisdiction not vested in it.

2.6 It is further submitted by learned counsel appearing on behalfof the appellant that the High Court has exercised the review jurisdictionHas if the High Court was exercising the appellate jurisdiction against the judgment and order dated 03.03.2017 in Writ Petition No.8606 of 2010which is wholly impermissible. Reliance is placed on the decisions ofthis Court in the case of Perry Kansagra vs. Smriti Madan Kansagra,(2019) 20 SCC 753 as well as in Shanti Conductors (P) Ltd. Vs.Assam SEB, (2020) 2 SCC 677.

2.7 It is further submitted by learned counsel appearing on behalfof the appellant that according to the High Court and so observed in theimpugned judgment and order, the judgment and order dated 03.03.2017passed in Writ Petition No.8606 of 2010 was erroneous. It is submittedthat however an erroneous order cannot be a subject matter of reviewand an erroneous order however it may be cannot be set aside in exerciseof the review jurisdiction. It is submitted in the present case all the groundson which the review application was filed and the grounds on which thereview application is allowed were as such dealt with and considered bythe High Court while deciding the writ petition. It is submitted that thereforethere was no error apparent on the face of the record and/or there wasno mistake on the face of the record which could have been corrected inexercise of the review jurisdiction.

Making above submissions and relying upon the above decisions,it is prayed to allow the present appeals.

3. Present appeals are vehemently opposed by Ms.HaripriyaPadmanabhan, learned counsel appearing on behalf of the contestingrespondents – original review applicants. It is vehemently submitted bylearned counsel appearing on behalf of the review applicants that whiledeciding the Writ Petition No.8606 of 2010 the High Court erroneouslydiscarded the survey report and relied upon the private reports. It issubmitted that as such a fraud was committed by the original writpetitioner as well as S.M. Gajendran as they relied upon the forgedreports/documents. It is submitted that therefore, this Court may notexercise the powers under Article 136 of the Constitution of India. It issubmitted that the High Court found that the earlier order dated 03.03.2017passed in Writ Petition No.8606 of 2010 was erroneous and therefore,the High Court is justified in setting aside the judgment and order dated03.03.2017 passed in Writ Petition No.8606 of 2010.

Making above submissions, it is prayed to dismiss the presentappeals.

4. We have heard learned counsel appearing on behalf of therespective parties at length.

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A5. At the outset, it is required to be noted that by the impugnedjudgment and order the High Court has allowed the review applicationfiled under Order 47 Rule 1 CPC and has set aside the judgment andorder dated 03.03.2017 passed in Writ Petition No.8606 of 2010. Whileallowing the review application the High Court has observed and heldthat the earlier judgment and order dated 03.03.2017 in Writ PetitionBNo.8606 of 2010 was erroneous. Therefore, question which is posedbefore this Court for consideration is whether in the facts andcircumstances of the case the High Court is justified in allowing thereview application filed under Order 47 Rule 1 CPC and setting asidethe reasoned judgment and order passed in main writ petition?C5.1 While considering the aforesaid issue two decisions of thisCourt on Order 47 Rule 1 read with Section 114 CPC are required to bereferred to? In the case of Perry Kansagra (supra) this Court hasobserved that while exercising the review jurisdiction in an applicationunder Order 47 Rule 1 read with Section 114 CPC, the Review Courtdoes not sit in appeal over its own order. It is observed that a rehearingDof the matter is impermissible in law. It is further observed that review isnot appeal in disguise. It is observed that power of review can be exercisedfor correction of a mistake but not to substitute a view. Such powers canbe exercised within the limits of the statute dealing with the exercise ofpower. It is further observed that it is wholly unjustified and exhibits aEtendency to rewrite a judgment by which the controversy has been finallydecided. After considering catena of decisions on exercise of reviewpowers and principles relating to exercise of review jurisdiction underOrder 47 Rule 1 CPC this Court had summed upon as under:“(i) Review proceedings are not by way of appeal and have to bestrictly confined to the scope and ambit of Order 47 Rule 1 CPC.F(ii) Power of review may be exercised when some mistake orerror apparent on the fact of record is found. But error on theface of record must be such an error which must strike one onmere looking at the record and would not require any long-drawnprocess of reasoning on the points where there may conceivablyGby two opinions.

(iii) Power of review may not be exercised on the ground that thedecision was erroneous on merits.

(iv) Power of review can also be exercised for any sufficientreason which is wide enough to include a misconception of factHor law by a court or even an advocate.

(v) An application for review may be necessitated by way ofinvoking the doctrine actus curiae neminem gravabit.”

5.2 It is further observed in the said decision that an error whichis required to be detected by a process of reasoning can hardly be saidto be an error on the face of the record.

5.3 In the case of Shanti Conductors (P) Ltd. (supra), it isobserved and held that scope of review under Order 47 Rule 1 CPCread with Section 114 CPC is limited and under the guise of review, thepetitioner cannot be permitted to reagitate and reargue questions whichhave already been addressed and decided. It is further observed that anerror which is not self-evident and has to be detected by a process ofreasoning, can hardly be said to be an error apparent on the face ofrecord justifying the court to exercise its power of review under Order47 Rule 1 CPC.

Applying the law laid down by this Court in the aforesaid twodecisions to the facts of the case on hand, we are of the opinion that inthe present case while allowing the review application and setting asidethe judgment and order dated 03.03.2017 passed in Writ Petition No.8606of 2010 the High Court has exceeded in its jurisdiction and has exercisedthe jurisdiction not vested in it while exercising the review jurisdictionunder Order 47 Rule 1 read with Section 114 CPC. From the reasoninggiven by the High Court, it appears that according to the High Court thejudgment and order passed in Writ Petition No.8606 of 2010 waserroneous. While passing the impugned judgment and order the HighCourt has observed and considered the Survey Report dated 12.12.2007which was already dealt with by the High Court while deciding the mainwrit petition and the High Court discarded and/or not considered theSurvey Report dated 12.12.2007. Once the Survey Report dated12.12.2007 fell for consideration before the High Court while decidingthe main writ petition thereafter the same could not have been consideredagain by the High Court while deciding the review application.

5.4 From the impugned judgment and order passed by the HighCourt it appears that the High Court has decided the review applicationas if the High Court was exercising the appellate jurisdiction against thejudgment and order dated 03.03.2017 passed in Writ Petition (MD)No.8606 of 2010 which is wholly impermissible while considering thereview application under Order 47 Rule 1 read with Section 114 CPC.

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A5.5 From the impugned judgment and order passed by the HighCourt allowing the review application it is observed in paragraph 33 asunder:

“33. The above legal principals were born in mind by this Courtwhile considering the review application. Brushing aside a surveyBreport, which was available on record and which brought outtampering of official records, ought to have been taken note of bythe Learned Writ Court, while considering the prayer sought forin the Writ Petition. This has led to an error, which is manifest onthe face of the order. Furthermore, the Court proceeded on thebasis that S.M. Gajendran had executed a gift deed without nothingCthe fact that the gift deed was a document, which was unilaterallyexecuted by him, not accepted by the respondent Corporationand could not have been treated to be a valid gift. These factshave emerged on the fact of the order passed in the Writ Petitionwithout any requirement for a long-drawn reasoning. Therefore,Dwe are fully satisfied that we are justified in exercising our reviewjurisdiction. For the above reasons, we are of the clear view thatthe order passed in the Writ petition suffers from error apparenton the fact of the records warranting exercise of reviewjurisdiction.”

E5.6 From the aforesaid it appears that the High Court hasconsidered the review application as if it was an appeal against the orderpassed by the High Court in Writ Petition No.8606 of 2010. As observedhereinabove the same is wholly impermissible while deciding the reviewapplication. Even if the judgment sought to be reviewed is erroneous thesame cannot be a ground to review the same in exercise of powersFunder Order 47 Rule 1 CPC. An erroneous order may be subjected toappeal before the higher forum but cannot be a subject matter of reviewunder Order 47 Rule 1 CPC.

6. In view of the above and for the reasons stated above andapplying the law laid down by this Court on Order 47 Rule 1 read withGSection 114 CPC, we are of the opinion that in the present case whileallowing the review application the High Court has exceeded in itsjurisdiction and has exercised the jurisdiction not vested in it under Order47 Rule 1 read with Section 114 CPC and therefore the impugnedjudgment and order passed by the High Court allowing the reviewapplication and setting aside the order dated 03.03.2007 passed in WritH

Petition No.8606 of 2010 is unsustainable and the same deserves to bequashed and set aside.

6.1 As the Contempt Petition has been dismissed by the HighCourt on setting aside the order dated 03.03.2017 passed in Writ PetitionNo.8606 of 2010, on setting aside the order passed in Review Petitionand consequently restoring the order dated 03.03.2017 passed in WritPetition No.8606 of 2010 the dismissal of the contempt petition is to beset aside and the matter is to be remitted to the High Court to decide thesame afresh in accordance with law and on its own merits.

6.2 Similarly the order dismissing the Writ Petition (MD) No.14847of 2017 and Writ Petition (MD) No.16256 of 2017 is also to be quashedand set aside and the said writ petitions are to be remanded to the HighCourt to decide the same afresh in accordance with law and on its ownmerits.

7. In view of the above and for the reason stated above, civilappeal arising out of the impugned judgment and order dated 29.06.2021in Review Petition (MD) No.21 of 2017 is allowed and the same order ishereby quashed and set aside and the judgment and order dated03.03.2017 passed in Writ Petition (MD) No.8606 of 2010 is herebyrestored.

Consequently the remaining appeals arising out of the dismissalof the Writ Petition (MD) No.14847 of 2017 and Writ Petition (MD)No.16256 of 2017 and the dismissal of the Contempt Petition (MD)No.1109 of 2017 are also allowed and the said orders are hereby quashedand set aside and the Writ Petition (MD) No.14847 of 2017 and WritPetition (MD) No.16256 of 2017 and the Contempt Petition No.1109 of2017 are remitted back to the High Court to decide the same afresh inaccordance with law and on its own merits for which this Court has notexpressed anything in favour of the either parties.

Present appeals are accordingly allowed to the aforesaid extent.In the facts and circumstances of the case there shall be no orders as tocosts.

Ankit Gyan

Appeals allowed.

(Assisted by : Abhishek Pratap Singh and Mahendra Yadav, LCRAs)

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