SHRI RAM SAHU (DEAD) THROUGH LRS. versus VINOD KUMAR RAWAT & ORS. on 3 November 2020

[2020] 11 S.C.R. 865

SHRI RAM SAHU (DEAD) THROUGH LRS.

v.

VINOD KUMAR RAWAT & ORS.

(Civil Appeal No. 3601 of 2020)

NOVEMBER 03, 2020

[ASHOK BHUSHAN AND M. R. SHAH, JJ.]

Code of Civil Procedure, 1908 – s.114 and Or. 47, r. 1 –Review of Judgment by the High Court – Predecessor of theappellants filed a civil suit against the respondents-originaldefendants for declaration of registered sale deed dated 25.03.1995executed by original defendant no.3 in favour of original defendantnos. 1 & 2 regarding a house as null and void and for permanentinjunction against defendant nos. 1 & 2 restraining them fromtransferring the disputed property to any other person – The suitwas dismissed by the Trial Court – Aggrieved, the plaintiff filed theFirst Appeal – During the pendency of the First Appeal, thedefendant no.1-respondent no.1 filed an application to dismissappeal and for direction to the appellant-plaintiff to vacate theproperty – Appellant-plaintiff sought amendment in relief as regardsthe issuance of permanent injunction and restraining defendantnos.1 and 2 from dispossessing the plaintiffs forcibly from thedisputed house – High Court dismissed the said application on theground of delay and laches, however, granted permission to theappellants to file a separate suit – Thereafter, the High Courtdismissed the suit – However, while dismissing the appeal the HighCourt also made observations as regards the possession of thedisputed house and on analysis of the deposition of PW1 and PW2and considering the material on record and considering the factthat during the pendency of the appeal the original defendant no.1himself filed an application for getting the possession from theplaintiff of the disputed house, which was withdrawn, the High Courtmade observations in regards the possession of the plaintiffs of thedisputed house – Almost 2 years after the judgment of the HighCourt in First Appeal, the respondent nos.1 & 2-defendant nos.1 &2 sought review of the said observation made by the High Courtregarding the possession in para 20 of the judgment – The High ACourt allowed the review application and ordered to delete para 20of the Judgment and order dated 10.12.2013 passed in First Appeal– Aggrieved, the original plaintiff preferred appeal before theSupreme Court – Held: The High Court has clearly overstepped thejurisdiction vested in the Court u/Or. 47 Rule 1 CPC – No groundas envisaged u/Or. 47 Rule 1 CPC was made out to review theBobservations made in para 20 – It is required to be noted and asevident from para 20, the High Court made observations in para20 with respect to possession of the plaintiffs on appreciation ofevidence on record more particularly the deposition of the plaintiff(PW1) and his witness (PW2) and on appreciation of the evidence,Cthe High Court found that the plaintiff is in actual possession of thesaid house – Therefore, when the observation with respect to thepossession of the plaintiff were made on appreciation of evidence/material on record, it cannot be said that there was an error apparenton the face of proceedings which were required to be reviewed inexercise of powers u/Or. 47 Rule 1 CPC – Thus, the High Court inDexercise of review jurisdiction could not have without sufficient andjust reasons reviewed its own judgment.

Code of Civil Procedure, 1908 – s.114 and Or.47, r.1 – Powerof Review – Held: From the bare reading of s.114 CPC, it appearsthat the said substantive power of review u/s.114 CPC has not laidEdown any condition as the condition precedent in exercise of powerof review nor the said Section imposed any prohibition on the Courtfor exercising its power to review its decision – However, an ordercan be reviewed by a Court only on the prescribed groundsmentioned in Or. 47 r.1 CPC – The powers of review cannot be Fexercised as an inherent power nor can an appellate power can beexercised in the guise of power of review.

Allowing the appeal, the Court

Conclusion

HELD : 1. To appreciate the scope of review, it would beproper for this Court to discuss the object and ambit of SectionG114 CPC as the same is a substantive provision for review whena person considering himself aggrieved either by a decree or byan order of Court from which appeal is allowed but no appeal ispreferred or where there is no provision for appeal against anorder and decree, may apply for review of the decree or order as H

the case may be in the Court, which may order or pass the decree.From the bare reading of Section 114 CPC, it appears that thesaid substantive power of review under Section 114 CPC has notlaid down any condition as the condition precedent in exercise ofpower of review nor the said Section imposed any prohibition onthe Court for exercising its power to review its decision. However,an order can be reviewed by a Court only on the prescribedgrounds mentioned in Order 47 Rule 1 CPC, which has beenelaborately discussed hereinabove. An application for review ismore restricted than that of an appeal and the Court of reviewhas limited jurisdiction as to the definite limit mentioned in Order47 Rule 1 CPC itself. The powers of review cannot be exercisedas an inherent power nor can an appellate power can be exercisedin the guise of power of review. [Para 9][891-D-G]

2. Considered in the light of the aforesaid settled position,this Court finds that the High Court has clearly overstepped thejurisdiction vested in the Court under Order 47 Rule 1 CPC. Noground as envisaged under Order 47 Rule 1 CPC has been madeout for the purpose of reviewing the observations made in para20. It is required to be noted and as evident from para 20, theHigh Court made observations in para 20 with respect topossession of the plaintiffs on appreciation of evidence on recordmore particularly the deposition of the plaintiff (PW1) and hiswitness PW2 and on appreciation of the evidence, the High Courtfound that the plaintiff is in actual possession of the said house.Therefore, when the observation with respect to the possessionof the plaintiff were made on appreciation of evidence/materialon record, it cannot be said that there was an error apparent onthe face of proceedings which were required to be reviewed inexercise of powers under Order 47 Rule 1 CPC. At this stage, itis required to be noted that even High Court while makingobservations in para 20 with respect to plaintiff in possessionalso took note of the fact that the defendant nos. 1 and 2 –respondents herein themselves filed an application being I.A.No.1267 of 2012 which was filed under Section 151 CPC for AB

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Agetting the possession of the disputed house from the appellantsand the said application was dismissed as withdrawn. Therefore,the High Court took note of the fact that even according to thedefendant nos. 1 & 2 the appellants were in possession of thedisputed house. Therefore, in light of the fact situation, the HighBCourt has clearly erred in deleting para 20 in exercise of powersunder Order 47 Rule 1 CPC more particularly in the light of thesettled preposition of law laid down by this Court in the aforesaiddecisions. [Para 10][891-G-H; 892-A-E]

C3. Even otherwise non-framing of the issue with respect topossession would have no bearing and/or it fades intoinsignificance. It is required to be noted that there were necessarypleadings with respect to possession in the plaint as well as inthe written statement. Even the parties also led the evidence onthe possession. The original plaintiff – appellant herein led theDevidence with supporting documents to show his possession andto that, there was no cross-examination by the defendants –respondents. The defendants - respondents did not lead anyevidence to show their possession. Therefore, the parties wereaware of the rival cases. On a holistic and comprehensive readingEof the pleadings and the deposition of PW1 and PW2, it isunescapable that the plaintiff had intendedly, directly andunequivocally raised in its pleadings the question of possession.As observed hereinabove even in the written statement, thedefendants also made an averment with respect to possession.Thus neither prejudice was caused nor the proceedings can beFsaid to have been vitiated for want of framing the issue. Asobserved and held by this Court in the case of Sri GangaiVinayagar Temple vs. Meenakshi Ammal and Others, if the partiesare aware of the rival cases, the failure to formally formulate theissue fades into insignificance when an extensive evidence hasGbeen recorded without any demur. Even the observations madeby the High Court that there was no issue with respect topossession before the Trial Court and/or even before the HighCourt is not correct. As observed hereinabove in the pleadings H

in the plaint and even in the written statement filed by thedefendants, there were necessary averments with respect topossession. Even the parties also led the evidence on possession.[Para 11.1][892-H; 893-A-E]

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4. Hence, on the grounds stated in the impugned order,the High Court in exercise of review jurisdiction could not havewithout sufficient and just reasons reviewed its own judgmentand order and deleted the observations made in para 20 withrespect to possession. [Para 12][893-E-F]

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Haridas Das vs. Usha Rani Banik (Smt.) and Others(2006) 4 SCC 78 : [2006] 3 SCR 87 ; Inderchand Jainvs. Motilal, (2009) 14 SCC 663 : [2009] 11 SCR 252 ;Hari Vishnu Kamath vs. Ahmad Ishaque AIR 1955 SC233:[1955] SCR 1104 ; Parsion Devi v. Sumitri Devi,(1997) 8 SCC 715 ; State of West Bengal and Othersvs. Kamal Sengupta and Anr. (2008) 8 SCC 612: [2008]10 SCR 4 – relied on.

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Sri Gangai Vinayagar Temple v. Meenakshi Ammal(2015) 3 SCC 624 : [2014] 12 SCR 845 ; Bhuwan Singhv. Oriental Insurance Company Ltd. (2009) 5 SCC 136:[2009] 4 SCR 195 ; Sayeda Akhtar v. Abdul Ahad(2003) 7 SCC 52 : [2003] 1 Suppl. SCR 612 ; LilyThomas vs. Union of India (2000) 6 SC 224 : [2000] 3SCR 1081 ; Moran Mar Basselios Catholicos v. MostRev. Mar Poulose Athanasius AIR 1954 SC 526 : [1955]SCR 520 ; Patel Narshi Thakershi vs.Pradyumansinghji Arjunsinghji (1971) 3 SCC 844 ;T.C. Basappa vs. T.Nagappa AIR 1954 SC 440:[1955]SCR 250 – referred to.

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Chhajju Ram vs. Neki AIR 1922 PC 112 – referred to.

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CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3601Cof 2020.

From the Judgment and Order dated 14.07.2017 of the High Courtof Madhya Pradesh Bench at Gwalior in Review Petition No. 465 of2015.

A.K. Shrivastava, Sr. Adv., Arjun Garg, Ms. Shrutika Garg, PuneetDJain, Ms. Pratibha Jain, Advs. for the appearing parties.

The Judgment of the Court was delivered by

M. R. SHAH, J. 1. Leave granted.

Feeling aggrieved and dissatisfied with the impugned order datedE14.07.2017 passed by the High Court of Madhya Pradesh at Gwalior inReview Petition No.465 of 2015 in First Appeal No.241 of 2005, by whichthe High Court has allowed the said review petition filed by the respondentnos. 1 and 2 herein- original defendants nos. 1 and 2, and has reviewedthe judgment and order dated 10.12.2013 passed in First Appeal No.241Fof 2005 and has deleted the observations made in para 20 of the saidjudgment and order more particularly with respect to the observationsmade in para 20 as regards the possession of the disputed house, whichwere in favour of the appellants - the original plaintiffs, the appellantshave preferred the present appeal.

2. The relevant facts leading to the present appeal in nutshell areGas under:

That one Shri Ram Sahu, the predecessor of the appellants hereininstituted Civil Suit No.04A of 2005 before the Learned Trial Court againstthe respondents herein - original defendants for declaration of registeredSale Deed dated 25.03.1995 executed by original defendant no.3 in favourH

of original defendant nos. 1 & 2 regarding House No.28/955 (previousHouse No.3/1582), situated in Sube Ki Payga, Jiwajiganj, Lashkar, asnull and void and for permanent injunction against defendant nos. 1 & 2restraining defendant nos. 1 & 2 from transferring the disputed propertyto any other person.

2.1. That the original plaintiff Shri Ram Sahu claimed the ownershipof the disputed property on the basis of the will executed by oneChhimmabai executed in his favour on 19.10.1993. The original plaintiffalso claimed that he became the sole owner on the death of theChhimmabai and possession holder of the entire house and in the samecapacity; he is in continuous possession over the same. It was the caseon behalf of the defendants that the said Chhimmabai adopted defendantNo.3 and later on, she got registered the Adoption Deed on 13.05.1992and that the original defendant no.3 sold the disputed property in favourof the respondent nos. 1 & 2. The original plaintiff denied the adoption ofdefendant no.3 by the said Chhimmabai. The written statement was filedon behalf of the respondents. They denied that the disputed propertywas the Joint Hindu Family property. Defendant nos. 1 and 2 also claimedto be the bona fide purchasers and in possession of the suit property.

2.2. The Learned Trial Court framed the following issues:

“1. Whether, the Disputed House No.28/95 situated in Sube KiPayga, Jiwajiganj, Lashkar, Gwalior was purchased from theincome of Joint Hindu Family of Ghasilal and Mangaliya?

2. Whether, the wife of Ghasilal namely Chhimmabai had executedWill of aforesaid House in favour of the Plaintiff on 19.10.1993?

3. Whether, Defendant No.3 was adopted by Ghasilal on28.01.1985, which was got registered by Chhimmabai on13.05.1992.

4. Whether, Sale Deed dated 25.03.1995 regarding the disputedhouse was executed by Defendant No.3 in favour of DefendantNos. 1 & 2 without having any right?

5. Whether, the Plaintiff is entitled to get the Registered SaleDeed Dated 25.03.1995 as null and void?

6. Whether, Plaintiff is entitled to receive Permanent Injunctionagainst the Defendant Nos. 1 & 2 for not to sell the disputedhouse?

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A7. Whether, the Defendant Nos. 1 & 2 are entitled to receivespecial compensation from the Plaintiff? If Yes, then how much?

8. Relief & Costs.”

2.3. Both the parties led the evidence, oral as well as documentary,in support of their respective claims.B

2.4. Original Plaintiff Shri Ram Sahu – appellant herein wasexamined as PW1. He was also cross-examined (his deposition shall bediscussed herein below). He also led the evidence in support of his claimthat he is in possession of the said property. On behalf of the defendants,defendant no.1 stepped into the witness box and through him; theCdefendants also produced on record the documentary evidences.

2.5. On appreciation of the evidence, the Learned Trial Courtdismissed the suit. The Learned Trial Court disbelieved the case on behalfof plaintiff – appellant herein that Chhimmabai executed the will in favourof the plaintiff - appellant. The Learned Trial Court held that the defenceDhad proved that defendant No.3 was adopted by Ghasilal on 26.01.1985which was got registered later on by Chhimmabai vide Adoption Deeddated 13.05.1992.

2.6. Feeling aggrieved and dissatisfied with the Judgment anddecree passed by the Learned Trial Court dismissing the suit, the originalEplaintiff – appellant herein preferred First Appeal No.241 of 2005 beforethe High Court. That during the pendency of the said appeal, respondentno.1 herein filed an application under section 151 C.P.C. on 19.03.2012for dismissing the appeal and for directing the appellant herein to vacatethe suit property. That during the pendency of the appeal the originalFplaintiff – appellant herein filed an application under Order 6 Rule 17 ofthe CPC by which the plaintiff sought amendment in the relief clause asregards the issuance of permanent injunction and restraining defendantnos.1 and 2 from dispossessing the plaintiffs forcibly from the disputedhouse. However, the said application came to be dismissed by the HighCourt on the ground of delay and latches (I.A. No.2244 of 2012).GHowever, while dismissing the said application the High Court grantedpermission to the appellants to file a separate suit for the said reliefagainst the defendants. Thereafter on appreciation of the evidence onrecord, the High Court dismissed the said appeal preferred by the originalplaintiff. However, while dismissing the appeal the High Court also madeobservations as regards the possession of the disputed house and onH

analysis of the deposition of PW1 and PW2 and considering the materialon record and considering the fact that during the pendency of the appealthe original defendant no.1 himself filed an application under Section151 CPC on 02.12.2013 for getting the possession from the plaintiff ofthe disputed house, which was withdrawn, the High Court madeobservations in regards the possession of the plaintiffs of the disputedhouse.

2.7. Thereafter almost 2 years after the judgment of the HighCourt in the First Appeal, the Respondent Nos.1 & 2 herein - OriginalDefendant Nos. 1 & 2 filed an application before the High Court seekingreview of observations in para 20 of the judgment as regards thepossession of the disputed house. The said application was opposed bythe appellants herein. However, by the impugned order, the High Courthas allowed the review application and has ordered to delete para 20 ofthe Judgment and order dated 10.12.2013 passed in First Appeal No.241of 2005, by observing that as regards the possession of the disputedproperty the issue of possession was neither raised before the LearnedTrial Court nor before the First Appellate Court and even no issue withrespect to possession was framed by the Learned Trial Court.

2.8. Feeling aggrieved and dissatisfied with the impugned orderpassed by the High Court in allowing the review application and deletingpara 20 of the judgment and order dated 10.12.2013 passed in FirstAppeal No.241 of 2005, the original plaintiffs have preferred the presentappeal.

3. Shri A.K. Srivastava, learned Senior Advocate appearing onbehalf of the appellants has made the following submissions, whileassailing the impugned order passed by the High Court passed in thereview application.

(i) while passing the impugned order, the High Court has exceededin its jurisdiction, while exercising the review jurisdiction and has actedbeyond the scope and ambit of the review jurisdiction under Order 47Rule 1 CPC;

(ii) while exercising the review jurisdiction, the High Court oughtnot to have set aside the specific finding given with respect to possession,which finding was based on appreciation of evidence before the learnedtrial Court; A

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(iii) the High Court has committed a grave error in deleting para20 of the final judgment and order dated 10.12.2013 passed in First AppealNo. 241/2005, in exercise of its review jurisdiction inasmuch as, as such,there was no error apparent on the face of the record, which was requiredto be corrected;

(iv) merely because the specific issue with respect to possessionwas not framed by the learned trial Court, cannot be a ground to setaside the finding by the High Court, when such finding with respect topossession was on merits and on appreciation of the evidence beforethe learned trial Court; B

C(v) as such, the High Court has committed a grave error inconsidering the issues framed in another case being Civil Suit No. 3-A/2005, which was related to House No. 28/956 and in which the partieswere also different. It is submitted that the High Court has mis-directeditself, while considering the issues framed in Civil Suit No. 3-A/2005,related to House No. 28/956 and not considering the issues framed inDCivil Suit No. 4-A/2005;

(vi) the High Court ought to have appreciated that the issue ofpossession was at large before the learned trial Court and, in fact, theparties also led evidence with respect to possession. It is submitted thatthe High Court ought to have appreciated that there was a specificEaverment in the plaint as well as in the testimony of the plaintiff that heis in possession of the suit property, i.e., House No. 28/955;

(vii) the defendants did not led any evidence with respect topossession. It is submitted therefore that when there were specificaverments and pleadings in the plaint in regard to possession, and evenFthe plaintiff led the evidence specifically on the possession, non-framingof the specific issue with respect to possession would not vitiate thefinding recorded by the High Court, which was on appreciation of thematerial on record. In support of his submission, learned Senior Advocateappearing on behalf of the appellants has relied upon the followingGdecisions of this Court, Sri Gangai Vinayagar Temple v. MeenakshiAmmal (2015) 3 SCC 624 ; Bhuwan Singh v. Oriental InsuranceCompany Ltd. (2009) 5 SCC 136; and Sayeda Akhtar v. Abdul Ahad(2003) 7 SCC 52. It is submitted that all the parties were aware of therival cases and the issue with respect to possession was present andeven the plaintiffs also led evidence on possession, non-framing of the H

specific issue with respect to possession would be non-significant. It issubmitted that therefore the High Court has committed a grave error indeleting para 20 of the final judgment and order dated 10.12.2013 passedin First Appeal No. 241/2005 with respect to possession mainly on theground that no issue was framed by the learned trial Court with respectto possession;

3.1. Learned Senior Advocate appearing on behalf of the appellantshas also taken us to the relevant averments in the plaint as well as thewritten statement in regard to possession. Learned Counsel appearingon behalf of the appellants has also taken us to the testimony of theplaintiff – Shri Ram Sahu, as well as, the deposition of one J.K. Sharmaexamined on behalf of the plaintiff. Learned Senior Advocate has furthersubmitted that there was no cross-examination by the defendants on thepoint of the plaintiff’s possession. Learned Senior Advocate has alsoheavily relied upon the application and affidavit dated 19.03.2012 in whichthe respondents in an application filed under Section 151 of the CPCspecifically prayed to direct the appellants to vacate the suit property. Itis submitted that therefore, in fact, the respondents admitted thepossession of the appellants. It is submitted that not only that, butsubsequently in the month of September, 2017, the respondents filed asuit against the appellants for decree of possession, compensation andmesne profits. It is submitted that therefore, as such, the respondentsherein specifically admitted the possession of the appellants in the suitproperty; 3.2. It is further submitted that the High Court ought to haveappreciated that the review application was filed with a malafide intentionfaced with the proceedings under Section 340 read with Section 195Cr.P.C and faced with the order passed by the learned Magistrate directingto register the case against respondent nos. 1 and 2 herein and othersunder Sections 193, 465, 471 and 120-B of the IPC, dated 06.02.2016; 3.3. It is further submitted that, in fact, the appellants filed anapplication before the High Court under Order 6 Rule 17 CPC (IA No.2244/2012) to amend the plaint by adding relief for the grant of decreeof permanent injunction restraining the respondents-defendants not todispossess them forcibly. It is submitted that the said application wasopposed by the respondents herein by submitting that they are notthreatening to dispossess the appellants during the pendency of the suit.Therefore, the High Court dismissed the said application under Order 6

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ARule 17 CPC reserving liberty in favour of the appellants to file a separatesuit for the aforesaid relief. It is submitted that therefore, as such, theissue with respect to possession was at large even before the High Court; 3.4. Learned Senior Advocate appearing on behalf of the appellantshas also heavily relied upon the order passed by the learned MagistrateBon an application filed under Section 340 read with Section 195 Cr.P.C.,in which the learned Magistrate took note of the affidavit dated 19.03.2012filed by the respondents and also took note of the specific observationand finding with respect to possession made in para 20 of the judgmentand order dated 10.12.2013. It is submitted that there is a specific findinggiven by the learned Magistrate on the respondents’ forging/creating/Cconcocting the documents to show their possession. It is submitted thatonly thereafter the learned Magistrate directed to register the case againstthe respondents under Sections 193, 465, 471 and 120-B of the IPC,under the provisions of Section 340 Cr.P.C; 3.5. It is submitted that even subsequently the suit filed by theDdefendants-respondents herein, filed in the year 2017, has been dismissedby the High Court on the ground of limitation and the plaint has beenrejected in exercise of powers under Order 7 Rule 11 CPC; 3.6. Making the above submissions and relying upon the aforesaiddecisions, it is prayed to allow the present appeal.E

4. Shri Punit Jain, Learned Advocate appearing on behalf of therespondents while opposing the present appeal and supporting theimpugned order passed by the High Court has vehemently submittedthat in the facts and circumstances of the case the High Court has notcommitted an error in deleting para 20 of the judgment and order datedF10.12.2013 passed in First Appeal No.241 of 2005 in exercise of thereview jurisdiction.

4.1. It is submitted that as such the original plaintiff filed the suitseeking cancellation of the sale deed dated 25.03.1995 and permanentinjunction to the effect that the defendant nos. 1 & 2 (respondents herein)Gshall not transfer the property to any other person. It is submitted thatsince no injunction from dispossession was sought and only injunctionagainst further transfer was sought no issue was framed in respect ofpossession. It is submitted that therefore in absence of any specific issueframed by the Learned Trial Court in respect of possession of the propertyand when the suit was dismissed and even thereafter the appeal alsoH

came to be dismissed, there was no reason and/or occasion for the HighCourt to make any observation in respect of possession and thereforethe High Court has rightly deleted the observations made in para 20 inrespect of possession. It is submitted that during the lifetime of ShriGhisa Lal Sahu, he was in possession of the property. After his death,his wife Smt. Chhimmabai came into possession of the property. Shecontinued to be in possession and after her, the adopted son – DilipKumar Sahu came into possession. The issue of adoption of Shri DilipKumar Sahu was a subject matter of litigation in Suit No.4A of 2001,where the said adoption and the adoption deed dated 13.05.1992 waschallenged. The said suit was finally dismissed by the High Court by anorder dated 07.09.2009 in SA No.315 of 2005. The will setup by thepetitioner dated 19.10.1993 was also a subject matter of suit No.45A of2003 filed by Dilip Kumar Sahu. The said suit was decreed by a judgmentdated 07.09.2009 in SA No.946 of 2005. Some parts of the property wasin possession of Tenants – (i) Om Babu Saxena and (ii) Kashmir SinghYadav. Shri Dilip Kumar Sahu got possession from the said tenants on30.01.1995 by entering into compromises with them. Shri Dilip KumarSahu executed sale deed dated 25.03.1995 in favour of the Respondents.Under the said sale, possession of the property was given to therespondents. The petitioner got possession of another portion of theproperty from another tenant – Parvesh Singh Jadon pursuant to ajudgment and decree dated 18.10.2014. The petitioner has not shown asto how, under what capacity and when the petitioner came into possessionof the property, constructive or otherwise.

4.2. So far as the withdrawal of the application dated 02.12.2013in I.A. No.1267 of 2012 which was filed by the respondents is concerned,it is submitted that the said application was withdrawn since (i) no reliefcould have been claimed arising out of a suit initiated by the plaintiffsand (ii) further the portion of the property in possession of the estrangedwife of the petitioner - Smt. Sheela Sahu who was not a party to the saidproceedings.

4.3. It is submitted even the application submitted by the petitionerunder Order 6 Rule 17 CPC to amend the prayer clause of permanentinjunction restraining the defendants from dispossessing the appellantsforcibly from the disputed house, came to be dismissed by the HighCourt, though with a permission to file a separate suit but the petitionershad not filed any instant suit for the aforesaid reliefs.

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A4.4. It is submitted that therefore when the issue in respect topossession was neither before the Learned Trial Court nor before theHigh Court and despite the same observations were made in para 20 inrespect of possession, subsequently the same has been rightly deleted inexercise of the review jurisdiction. It is submitted that the Court has aninherent power to correct the error if subsequently it is bound that someBof the observations were made by error.

5. By the impugned order the High Court in exercise of powersunder Section 114 read with Order 47 Rule 1 CPC has allowed thereview petition and has reviewed the judgment and order dated 10.12.2013passed in First Appeal No.241 of 2005 insofar as deleting the observationsCmade in Para 20 as regards the possession of the disputed property,which were in favour of the appellants – original plaintiffs. From theimpugned order passed by the High Court, it appears that the High Courthas deleted the observations made in para 20 as regards possession ofthe plaintiffs mainly/solely on the ground that the issue of possessionDwas neither before the Learned Trial Court nor was it before the First Appellate Court and no such issue with respect to possession was framedby the Learned Trial Court. Therefore, the short question falls forconsideration before this Court is, whether in the facts and circumstancesof the case the High Court is justified in allowing the review applicationin exercise of powers under Section 114 read with Order 47 Rule 1 CPC

Eon the aforesaid grounds?

6. While considering the aforesaid question, the scope and ambitof the Court’s power under Section 114 read with Order 47 Rule 1 CPCis required to be considered and for that few decisions of this Court arerequired to be referred to.F

6.1. In the case of Haridas Das vs. Usha Rani Banik (Smt.)and Others, (2006) 4 SCC 78 while considering the scope and ambit ofSection 114 CPC read with Order 47 Rule 1 CPC it is observed and heldin paragraph 14 to 18 as under:

“14. In Meera Bhanja v. Nirmala Kumari Choudhury, (1995)1 SCC 170 it was held that:

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“8. It is well settled that the review proceedings are not by wayof an appeal and have to be strictly confined to the scope andambit of Order 47 Rule 1 CPC. In connection with the limitationof the powers of the court under Order 47 Rule 1, while dealing H

with similar jurisdiction available to the High Court while seekingto review the orders under Article 226 of the Constitution, thisCourt, in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma,(1979) 4 SCC 389 speaking through Chinnappa Reddy, J. hasmade the following pertinent observations:

‘It is true there is nothing in Article 226 of the Constitution topreclude the High Court from exercising the power of reviewwhich inheres in every court of plenary jurisdiction to preventmiscarriage of justice or to correct grave and palpable errorscommitted by it. But, there are definitive limits to the exercise ofthe power of review. The power of review may be exercised onthe discovery of new and important matter or evidence which,after the exercise of due diligence was not within the knowledgeof the person seeking the review or could not be produced by himat the time when the order was made; it may be exercised wheresome mistake or error apparent on the face of the record is found,it may also be exercised on any analogous ground. But, it may notbe exercised on the ground that the decision was erroneous onmerits. That would be the province of a court of appeal. A powerof review is not to be confused with appellate power which mayenable an appellate court to correct all manner of errors committedby the subordinate court.’

15. A perusal of Order 47 Rule 1 shows that review of a judgmentor an order could be sought: (a) from the discovery of new andimportant matters or evidence which after the exercise of duediligence was not within the knowledge of the applicant; (b) suchimportant matter or evidence could not be produced by the applicantat the time when the decree was passed or order made; and (c)on account of some mistake or error apparent on the face of therecord or any other sufficient reason.

16. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma,AIR 1979 SC 1047, this Court held that there are definite limitsto the exercise of power of review. In that case, an applicationunder Order 47 Rule 1 read with Section 151 of the Code wasfiled which was allowed and the order passed by the JudicialCommissioner was set aside and the writ petition was dismissed.On an appeal to this Court it was held as under: (SCC p. 390,para 3)

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“It is true as observed by this Court in Shivdeo Singh v. State ofPunjab, AIR 1963 SC 1909 there is nothing in Article 226 of theConstitution to preclude a High Court from exercising the powerof review which inheres in every court of plenary jurisdiction toprevent miscarriage of justice or to correct grave and palpableerrors committed by it. But, there are definitive limits to the exerciseof the power of review. The power of review may be exercisedon the discovery of new and important matter or evidence which,after the exercise of due diligence was not within the knowledgeof the person seeking the review or could not be produced by himat the time when the order was made; it may be exercised wheresome mistake or error apparent on the face of the record is found;it may also be exercised on any analogous ground. But, it may notbe exercised on the ground that the decision was erroneous onmerits. That would be the province of a court of appeal. A powerof review is not to be confused with appellate powers which mayenable an appellate court to correct all manner of errors committedby the subordinate court.”

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17. The judgment in Aribam case has been followed in MeeraBhanja. In that case, it has been reiterated that an error apparenton the face of the record for acquiring jurisdiction to review mustbe such an error which may strike one on a mere looking at the E

record and would not require any long-drawn process of reasoning.The following observations in connection with an error apparenton the face of the record in Satyanarayan Laxminarayan Hegdev. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 werealso noted:

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“An error which has to be established by a long-drawn process ofreasoning on points where there may conceivably be two opinionscan hardly be said to be an error apparent on the face of therecord. Where an alleged error is far from self-evident and if itcan be established, it has to be established, by lengthy andGcomplicated arguments, such an error cannot be cured by a writof certiorari according to the rule governing the powers of thesuperior court to issue such a writ.”

18. It is also pertinent to mention the observations of this Court inParsion Devi v. Sumitri Devi, (1997) 8 SCC 715. Relying upon H

the judgments in Aribam and Meera Bhanja it was observed asunder:

“9. Under Order 47 Rule 1 CPC a judgment may be open toreview inter alia if there is a mistake or an error apparent onthe face of the record. An error which is not self-evident andhas to be detected by a process of reasoning, can hardly besaid to be an error apparent on the face of the record justifyingthe court to exercise its power of review under Order 47 Rule1 CPC. In exercise of the jurisdiction under Order 47 Rule 1CPC it is not permissible for an erroneous decision to be‘reheard and corrected’. A review petition, it must beremembered has a limited purpose and cannot be allowed tobe ‘an appeal in disguise’.”

6.2. In the case of Lily Thomas vs. Union of India, (2000) 6 SC224, it is observed and held that the 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 in the said decision that the words “anyother sufficient reason” appearing in Order 47 Rule 1 CPC must mean“a reason sufficient on grounds at least analogous to those specified inthe rule” as was held in Chhajju Ram vs. Neki, AIR 1922 PC 112 andapproved by this Court in Moran Mar Basselios Catholicos vs MostRev. Mar Poulose Athanasius, AIR 1954 SC 526.

12.3 In the case of Inderchand Jain vs. Motilal, (2009) 14 SCC663 in paragraphs 7 to 11 it is observed and held as under:

7. Section 114 of the Code of Civil Procedure (for short “theCode”) provides for a substantive power of review by a civil courtand consequently by the appellate courts. The words “subject asaforesaid” occurring in Section 114 of the Code mean subject tosuch conditions and limitations as may be prescribed as appearingin Section 113 thereof and for the said purpose, the proceduralconditions contained in Order 47 of the Code must be taken intoconsideration. Section 114 of the Code although does not prescribeany limitation on the power of the court but such limitations havebeen provided for in Order 47 of the Code; Rule 1 whereof readsas under:

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“17. The power of a civil court to review its judgment/decision istraceable in Section 114 CPC. The grounds on which review canbe sought are enumerated in Order 47 Rule 1 CPC, which readsas under:

1. Application for review of judgment.—(1) Any personconsidering himself aggrieved—

(a) by a decree or order from which an appeal is allowed, butfrom 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 orevidence which, after the exercise of due diligence, was not withinhis knowledge or could not be produced by him at the time whenthe decree was passed or order made, or on account of somemistake or error apparent on the face of the record, or for anyother sufficient reason, desires to obtain a review of the decreepassed or order made against him, may apply for a review ofjudgment of the court which passed the decree or made the order.’

8. An application for review would lie inter alia when the ordersuffers from an error apparent on the face of the record andpermitting the same to continue would lead to failure of justice. InRajendra Kumar v. Rambai this Court held: (SCC p. 514, para6)

“6. The limitations on exercise of the power of review arewell settled. The first and foremost requirement of entertaining areview petition is that the order, review of which is sought, suffersfrom any error apparent on the face of the order and permittingthe order to stand will lead to failure of justice. In the absence ofany such error, finality attached to the judgment/order cannot bedisturbed.”

9. The power of review can also be exercised by the court inthe event discovery of new and important matter or evidencetakes place which despite exercise of due diligence was not withinthe knowledge of the applicant or could not be produced by him atthe time when the order was made. An application for reviewwould also lie if the order has been passed on account of some mistake. Furthermore, an application for review shall also lie forany other sufficient reason.

10. It is beyond any doubt or dispute that the review courtdoes not sit in appeal over its own order. A rehearing of the matteris impermissible in law. It constitutes an exception to the generalrule that once a judgment is signed or pronounced, it should not bealtered. It is also trite that exercise of inherent jurisdiction is notinvoked for reviewing any order.

11. Review is not appeal in disguise. In Lily Thomas v. Unionof India this Court held: (SCC p. 251, para 56)

“56. It follows, therefore, that the power of review can beexercised for correction of a mistake but not to substitute a view.Such powers can be exercised within the limits of the statutedealing with the exercise of power. The review cannot be treatedlike an appeal in disguise.”

7. The dictionary meaning of the word “review” is “the act oflooking, offer something again with a view to correction or improvement”.It cannot be denied that the review is the creation of a statute. In thecase of Patel Narshi Thakershi vs. Pradyumansinghji Arjunsinghji,(1971) 3 SCC 844, this Court has held that the power of review is not aninherent power. It must be conferred by law either specifically or bynecessary implication. The review is also not an appeal in disguise.

8. What can be said to be an error apparent on the face of theproceedings has been dealt with and considered by this Court in thecase of T.C. Basappa vs. T.Nagappa, AIR 1954 SC 440. It is held thatsuch an error is an error which is a patent error and not a mere wrongdecision. In the case of Hari Vishnu Kamath vs. Ahmad Ishaque, AIR1955 SC 233, it is observed as under:

“It is essential that it should be something more than a mereerror; it must be one which must be manifest on the face of therecord. The real difficulty with reference to this matter, however,is not so much in the statement of the principle as in its applicationto the facts of a particular case. When does an error cease to bemere error, and become an error apparent on the face of therecord? Learned counsel on either side were unable to suggestany clear-cut rule by which the boundary between the two classesof errors could be demarcated.”

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8.1. In the case of Parsion Devi vs. Sumitri Devi, (Supra) inparagraph 7 to 9 it is observed and held as under:

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7. It is well settled that review proceedings have to be strictlyconfined to the ambit and scope of Order 47 Rule 1 CPC. InThungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC1372 this Court opined:

“What, however, we are now concerned with is whether thestatement in the order of September 1959 that the case did notinvolve any substantial question of law is an ‘error apparent onthe face of the record’). The fact that on the earlier occasion theCourt held on an identical state of facts that a substantial questionof law arose would not per se be conclusive, for the earlier orderitself might be erroneous. Similarly, even if the statement waswrong, it would not follow that it was an ‘error apparent on theface of the record’, for there is a distinction which is real, thoughit might not always be capable of exposition, between a mereerroneous decision and a decision which could be characterisedas vitiated by ‘error apparent’. A review is by no means an appealin disguise whereby an erroneous decision is reheard andcorrected, but lies only for patent error.”

8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury,(1995) 1 SCC 170 while quoting with approval a passage fromAribam Tuleshwar Sharma v. Aribam Pishak Sharma (supra)this Court once again held that review proceedings are not byway of an appeal and have to be strictly confined to the scopeand ambit of Order 47 Rule 1 CPC.

9. Under Order 47 Rule 1 CPC a judgment may be open to reviewinter alia if there is a mistake or an error apparent on the face ofthe record. An error which is not self-evident and has to be detectedby a process of reasoning, can hardly be said to be an errorapparent on the face of the record justifying the court to exerciseits power of review under Order 47 Rule 1 CPC. In exercise ofthe jurisdiction under Order 47 Rule 1 CPC it is not permissiblefor an erroneous decision to be “reheard and corrected”. A reviewpetition, it must be remembered has a limited purpose and cannotbe allowed to be “an appeal in disguise”.

8.2 In the case of State of West Bengal and Others vs. KamalSengupta and Anr., (2008) 8 SCC 612, this Court had an occasion toconsider what can be said to be “mistake or error apparent on the faceof record”. In para 22 to 35 it is observed and held as under:

“22. The term “mistake or error apparent” by its veryconnotation signifies an error which is evident per se from therecord of the case and does not require detailed examination,scrutiny and elucidation either of the facts or the legal position. Ifan error is not self-evident and detection thereof requires longdebate and process of reasoning, it cannot be treated as an errorapparent on the face of the record for the purpose of Order 47Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently anorder or decision or judgment cannot be corrected merely becauseit is erroneous in law or on the ground that a different view couldhave been taken by the court/tribunal on a point of fact or law. Inany case, while exercising the power of review, the court/tribunalconcerned cannot sit in appeal over its judgment/decision.

23. We may now notice some of the judicial precedents inwhich Section 114 read with Order 47 Rule 1 CPC and/or Section22(3)(f) of the Act have been interpreted and limitations on thepower of the civil court/tribunal to review its judgment/decisionhave been identified.

24. In Rajah Kotagiri Venkata Subbamma Rao v. RajahVellanki Venkatrama Rao (1899-1900) 27 IA 197 the PrivyCouncil interpreted Sections 206 and 623 of the Civil ProcedureCode and observed: (IA p.205)

“… Section 623 enables any of the parties to apply for a reviewof any decree on the discovery of new and important matter andevidence, which was not within his knowledge, or could not beproduced by him at the time the decree was passed, or on accountof some mistake or error apparent on the face of the record, orfor any other sufficient reason. It is not necessary to decide inthis case whether the latter words should be confined to reasonsstrictly ejusdem generic with those enumerated, as was held inRoy Meghraj v. Beejoy Gobind Burral,ILR (1875) 1 Cal 197.In the opinion of Their Lordships, the ground of amendmentmust at any rate be something which existed at the date of thedecree, and the section does not authorise the review of a A

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decree which was right when it was made on the ground ofthe happening of some subsequent event.”

(emphasis added)

25. In Hari Sankar Pal v. Anath Nath Mitter, 1949 FCR 36a five-Judge Bench of the Federal Court while considering thequestion whether the Calcutta High Court was justified in notgranting relief to non-appealing party, whose position was similarto that of the successful appellant, held: (FCR p. 48)

“That a decision is erroneous in law is certainly no ground forordering review. If the court has decided a point and decided iterroneously, the error could not be one apparent on the face ofthe record or even analogous to it. When, however, the courtdisposes of a case without adverting to or applying its mind to aprovision of law which gives it jurisdiction to act in a particularway, that may amount to an error analogous to one apparent onthe face of the record sufficient to bring the case within the purviewof Order 47 Rule 1, Civil Procedure Code.”

26. In Moran Mar Basselios Catholicos v. Mar PouloseAthanasius (supra) this Court interpreted the provisions containedin the Travancore Code of Civil Procedure which are analogousto Order 47 Rule 1 and observed:

“32. … Under the provisions in the Travancore Code of CivilProcedure which is similar in terms to Order 47 Rule 1 of ourCode of Civil Procedure, 1908, the court of review has only alimited jurisdiction circumscribed by the definitive limits fixed bythe language used therein.

It may allow a review on three specified grounds, namely, (i)discovery of new and important matter or evidence which, afterthe exercise of due diligence, was not within the applicant’sknowledge or could not be produced by him at the time when thedecree was passed, (ii) mistake or error apparent on the face ofthe record and (iii) for any other sufficient reason.

It has been held by the Judicial Committee that the words ‘anyother sufficient reason’ must mean ‘a reason sufficient on grounds,least analogous to those specified in the rule’.”

27. In Thungabhadra Industries Ltd. v. Govt. of A.P. (supra)it was held that a review is by no means an appeal in disguisewhereof an erroneous decision can be corrected.

28. In Parsion Devi v. Sumitri Devi (Supra) it was held asunder: (SCC p. 716)

“Under Order 47 Rule 1 CPC a judgment may be open toreview inter alia if there is a mistake or an error apparent on theface of the record. An error which is not self-evident and hasto be detected by a process of reasoning, can hardly be saidto be an error apparent on the face of the record justifyingthe court to exercise its power of review under Order 47 Rule1 CPC. In exercise of the jurisdiction under Order 47 Rule 1CPC it is not permissible for an erroneous decision to be ‘reheardand corrected’. There is a clear distinction between anerroneous decision and an error apparent on the face of therecord. While the first can be corrected by the higher forum,the latter only can be corrected by exercise of the reviewjurisdiction. A review petition has a limited purpose andcannot be allowed to be ‘an appeal in disguise’.”

29. In Haridas Das v. Usha Rani Banik, (supra) this Courtmade a reference to the Explanation added to Order 47 by theCode of Civil Procedure (Amendment) Act, 1976 and held:

“13. In order to appreciate the scope of a review, Section 114CPC has to be read, but this section does not even adumbrate theambit of interference expected of the court since it merely statesthat it ‘may make such order thereon as it thinks fit’. Theparameters are prescribed in Order 47 CPC and for the purposesof this lis, permit the defendant to press for a rehearing ‘on accountof some mistake or error apparent on the face of the records orfor any other sufficient reason’. The former part of the rule dealswith a situation attributable to the applicant, and the latter to ajural action which is manifestly incorrect or on which twoconclusions are not possible. Neither of them postulate a rehearingof the dispute because a party had not highlighted all the aspectsof the case or could perhaps have argued them more forcefullyand/or cited binding precedents to the court and thereby enjoyeda favourable verdict. This is amply evident from the Explanationto Rule 1 of Order 47 which states that the fact that the decision A

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on a question of law on which the judgment of the court is basedhas been reversed or modified by the subsequent decision of asuperior court in any other case, shall not be a ground for thereview of such judgment. Where the order in question is appealablethe aggrieved party has adequate and efficacious remedy and thecourt should exercise the power to review its order with thegreatest circumspection.”

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30. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma(Supra) this Court considered the scope of the High Courts’ powerto review an order passed under Article 226 of the Constitution,referred to an earlier decision in Shivdeo Singh v. State of Punjab(Supra) and observed: (Aribam Tuleshwar case (Supra), SCCp. 390, para 3)

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“3. … It is true as observed by this Court in Shivdeo Singh v.State of Punjab (Supra), there is nothing in Article 226 of theConstitution to preclude a High Court from exercising the powerDof review which inheres in every court of plenary jurisdiction toprevent miscarriage of justice or to correct grave and palpableerrors committed by it. But, there are definitive limits to the exerciseof the power of review. The power of review may be exercisedon the discovery of new and important matter or evidence which,Eafter the exercise of due diligence was not within the knowledgeof the person seeking the review or could not be produced by himat the time when the order was made; it may be exercised wheresome mistake or error apparent on the face of the record is found;it may also be exercised on any analogous ground. But, it may notbe exercised on the ground that the decision was erroneous onFmerits. That would be the province of a court of appeal. A powerof review is not to be confused with appellate powers which mayenable an appellate court to correct all manner of errors committedby the subordinate court.”

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31. In K. Ajit Babu v. Union of India, (1997) 6 SCC 473, itwas held that even though Order 47 Rule 1 is strictly not applicableto the tribunals, the principles contained therein have to beextended to them, else there would be no limitation on the powerof review and there would be no certainty or finality of a decision.A slightly different view was expressed in Gopabandhu Biswalv. Krishna Chandra Mohanty, (1998) 4 SCC 447). In that case G

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it was held that the power of review granted to the tribunals issimilar to the power of a civil court under Order 47 Rule 1.

32. In Ajit Kumar Rath v. State of Orissa, (1999) 9 SCC596, this Court reiterated that power of review vested in theTribunal is similar to the one conferred upon a civil court and held:(SCC p. 608, paras 30-31)

“30. The provisions extracted above indicate that the power ofreview available to the Tribunal is the same as has been given toa court under Section 114 read with Order 47 CPC. The power isnot absolute and is hedged in by the restrictions indicated in Order47. The power can be exercised on the application of a person onthe discovery of new and important matter or evidence which,after the exercise of due diligence, was not within his knowledgeor could not be produced by him at the time when the order wasmade. The power can also be exercised on account of somemistake or error apparent on the face of the record or for anyother sufficient reason. A review cannot be claimed or asked formerely for a fresh hearing or arguments or correction of anerroneous view taken earlier, that is to say, the power of reviewcan be exercised only for correction of a patent error of law orfact which stares in the face without any elaborate argument beingneeded for establishing it. It may be pointed out that theexpression ‘any other sufficient reason’ used in Order 47 Rule1 means a reason sufficiently analogous to those specified inthe Rule.

31. Any other attempt, except an attempt to correct an apparenterror or an attempt not based on any ground set out in Order 47,would amount to an abuse of the liberty given to the Tribunalunder the Act to review its judgment.”

33. In State of Haryana v. M.P. Mohla, (2007) 1 SCC 457this Court held as under: (SCC pp. 465-66, para 27)

“27. A review petition filed by the appellants herein was notmaintainable. There was no error apparent on the face of therecord. The effect of a judgment may have to be considered afreshin a separate proceeding having regard to the subsequent causeof action which might have arisen but the same by itself may notbe a ground for filing an application for review.”

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34. In Gopal Singh v. State Cadre Forest Officers’ Assn.,(2007) 9 SCC 369 this Court held that after rejecting the originalapplication filed by the appellant, there was no justification for theTribunal to review its order and allow the revision of the appellant.Some of the observations made in that judgment are extractedbelow: (SCC p. 387, para 40)

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“40. The learned counsel for the State also pointed out that therewas no necessity whatsoever on the part of the Tribunal to reviewits own judgment. Even after the microscopic examination of thejudgment of the Tribunal we could not find a single reason in thewhole judgment as to how the review was justified and for whatCreasons. No apparent error on the face of the record was pointed,nor was it discussed. Thereby the Tribunal sat as an appellateauthority over its own judgment. This was completelyimpermissible and we agree with the High Court (Sinha, J.) thatthe Tribunal has travelled out of its jurisdiction to write a secondDorder in the name of reviewing its own judgment. In fact the learnedcounsel for the appellant did not address us on this very vitalaspect.”

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35. The principles which can be culled out from the abovenotedjudgments are:

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(i) The power of the Tribunal to review its order/decision underSection 22(3)(f) of the Act is akin/analogous to the power of acivil court under Section 114 read with Order 47 Rule 1 CPC.

(ii) The Tribunal can review its decision on either of the groundsenumerated in Order 47 Rule 1 and not otherwise.

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(iii) The expression “any other sufficient reason” appearing inOrder 47 Rule 1 has to be interpreted in the light of other specifiedgrounds.

(iv) An error which is not self-evident and which can bediscovered by a long process of reasoning, cannot be treated asGan error apparent on the face of record justifying exercise ofpower under Section 22(3)(f).

(v) An erroneous order/decision cannot be corrected in theguise of exercise of power of review.

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(vi) A decision/order cannot be reviewed under Section 22(3)(f)on the basis of subsequent decision/judgment of a coordinate orlarger Bench of the tribunal or of a superior court.

(vii) While considering an application for review, the tribunalmust confine its adjudication with reference to material whichwas available at the time of initial decision. The happening ofsome subsequent event or development cannot be taken note offor declaring the initial order/decision as vitiated by an errorapparent.

(viii) Mere discovery of new or important matter or evidenceis not sufficient ground for review. The party seeking review hasalso to show that such matter or evidence was not within itsknowledge and even after the exercise of due diligence, the samecould not be produced before the court/tribunal earlier.”

9. To appreciate the scope of review, it would be proper for thisCourt to discuss the object and ambit of Section 114 CPC as the same isa substantive provision for review when a person considering himselfaggrieved either by a decree or by an order of Court from which appealis allowed but no appeal is preferred or where there is no provision forappeal against an order and decree, may apply for review of the decreeor order as the case may be in the Court, which may order or pass thedecree. From the bare reading of Section 114 CPC, it appears that thesaid substantive power of review under Section 114 CPC has not laiddown any condition as the condition precedent in exercise of power ofreview nor the said Section imposed any prohibition on the Court forexercising its power to review its decision. However, an order can bereviewed by a Court only on the prescribed grounds mentioned in Order47 Rule 1 CPC, which has been elaborately discussed hereinabove. Anapplication for review is more restricted than that of an appeal and theCourt of review has limited jurisdiction as to the definite limit mentionedin Order 47 Rule 1 CPC itself. The powers of review cannot be exercisedas an inherent power nor can an appellate power can be exercised in theguise of power of review.

10. Considered in the light of the aforesaid settled position, wefind that the High Court has clearly overstepped the jurisdiction vestedin the Court under Order 47 Rule 1 CPC. No ground as envisaged underOrder 47 Rule 1 CPC has been made out for the purpose of reviewingthe observations made in para 20. It is required to be noted and as evident AB

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Afrom para 20, the High Court made observations in para 20 with respectto possession of the plaintiffs on appreciation of evidence on recordmore particularly the deposition of the plaintiff (PW1) and his witnessPW2 and on appreciation of the evidence, the High Court found that theplaintiff is in actual possession of the said house. Therefore, when theobservation with respect to the possession of the plaintiff were made onBappreciation of evidence/material on record, it cannot be said that therewas an error apparent on the face of proceedings which were requiredto be reviewed in exercise of powers under Order 47 Rule 1 CPC. Atthis stage, it is required to be noted that even High Court while makingobservations in para 20 with respect to plaintiff in possession also tookCnote of the fact that the defendant nos. 1 and 2 – respondents hereinthemselves filed an application being I.A. No.1267 of 2012 which wasfiled under Section 151 CPC for getting the possession of the disputedhouse from the appellants and the said application was dismissed aswithdrawn. Therefore, the High Court took note of the fact that evenaccording to the defendant nos. 1 & 2 the appellants were in possessionDof the disputed house. Therefore, in light of the fact situation, the HighCourt has clearly erred in deleting para 20 in exercise of powers underOrder 47 Rule 1 CPC more particularly in the light of the settledpreposition of law laid down by this Court in the aforesaid decisions.

11. Now so far as the submission on behalf of the respondents –Eoriginal defendant nos. 1 & 2 and the reasons given by the High Courtwhile allowing the review application and deleting para 20 that no issuewas framed by the learned Trial Court with respect to possession and/orthere was no issue before the Learned Trial Court with respect to thepossession and therefore the observations made in para 20 with respectFto possession of the plaintiff – appellant herein was unwarranted andtherefore, the same was rightly deleted is concerned first of all on theaforesaid ground the powers under Order 47 Rule 1 could not have beenexercised. At the most, observations made in para 20 can be said to beerroneous decision, though for the reasons stated herein below the same cannot be said to be erroneous decision and as observed hereinaboveGthe said observations were made on appreciation of evidence on record,the aforesaid cannot be a ground to exercise of powers under Order 47Rule 1 CPC.11.1. Even otherwise non-framing of the issue with respect topossession would have no bearing and/or it fades into insignificance. ItH

is required to be noted that there were necessary pleadings with respectto possession in the plaint as well as in the written statement. Even theparties also led the evidence on the possession. The original plaintiff –appellant herein led the evidence with supporting documents to show hispossession and to that, there was no cross-examination by the defendants– respondents. The defendants - respondents did not lead any evidenceto show their possession. Therefore, the parties were aware of the rivalcases. On a holistic and comprehensive reading of the pleadings and thedeposition of PW1 and PW2, it is unescapable that the plaintiff hadintendedly, directly and unequivocally raised in its pleadings the questionof possession. As observed hereinabove even in the written statement,the defendants also made an averment with respect to possession. Thusneither prejudice was caused nor the proceedings can be said to havebeen vitiated for want of framing the issue. As observed and held by thisCourt in the case of Sri Gangai Vinayagar Temple vs. MeenakshiAmmal and Others, (Supra), if the parties are aware of the rival cases,the failure to formally formulate the issue fades into insignificance whenan extensive evidence has been recorded without any demur. Even theobservations made by the High Court that there was no issue with respectto possession before the Learned Trial Court and/or even before theHigh Court is not correct. As observed hereinabove in the pleadings inthe plaint and even in the written statement filed by the defendants,there were necessary averments with respect to possession. Even theparties also led the evidence on possession.

12. Hence, on the grounds stated in the impugned order, the HighCourt in exercise of review jurisdiction could not have without sufficientand just reasons reviewed its own judgment and order and deleted theobservations made in para 20 with respect to possession.

13. Even otherwise there is ample material on record to suggest/show the possession of the appellants herein/original plaintiff. Duringthe pendency of the appeal the respondents - original defendant nos. 1and 2 filed an application under Section 151 CPC for dismissing theappeal filed by the appellant and for directing the appellant - originalplaintiff to vacate the suit property. In the said application filed on19.03.2012 the respondents - original defendant nos. 1 & 2 never statedthat they are in possession of the disputed suit house. On the contrary,they prayed for an order directing the appellants - original plaintiff tovacate the suit property. The said application for whatever reasons was AB

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Awithdrawn. During the pendency of the appeal, the appellants filed anapplication under Order 6 Rule 17 of the CPC by which the appellantssought amendment in the relief clause as regards the issue of permanentinjunction restraining the respondents - defendant nos. 1 and 2 fromdispossessing the appellants forcibly from the disputed house. The saidapplication was opposed by the respondents – original defendants. ItBwas submitted that the proposed averment is not necessary at the appellatestage as no averments have been pleaded in the application as to whysuch a prayer is sought belatedly. It was also submitted that if during thependency of the suit the plaintiffs have neither been threatened nor havebeen sought to be dispossessed of the aforesaid property such a prayerCat the appellate stage may not be entertained. The High Court dismissedthe said application, not on merits but on the ground that the same wassubmitted belatedly. However, the High Court dismissed the saidapplication with the grant of permission to file a separate suit for theaforesaid relief against the defendants.

D13.1. At this stage, it is required to be noted that after a period ofapproximately three years from the date of disposal of the First Appeal16.04.2005 by the High Court and after the impugned order dated14.07.2017 passed by the High Court in review application, the defendantnos. 1 and 2 – respondents herein in fact filed a separate suit in theCourt of Learned Civil Judge, Class I, Gwalior against the appellantsEherein for receiving possession of the disputed house and compensation,in which the possession of the appellants has been admitted. In the saidsuit, it is pleaded that the plaintiffs have sent a legal notice to the saiddefendants -appellants herein, through the Advocate on 09.08.2017 anddemanded to vacate the disputed place but have not vacated and handedover the possession of the disputed place.F

14. The sum and substance of the aforesaid discussion is that theHigh Court has committed a grave error in allowing the review applicationand deleting the observations made in para 20 of its order dated10.12.2013 passed in First Appeal No.17.04.2005 in exercise of powersunder Section 114 read with Order 47 Rule 1 CPC. Under theGcircumstances the impugned order is unsustainable and deserves to bequashed and set aside.

15. In view of the above and for the reasons stated hereinabove,the appeal is allowed. The above impugned order dated 14.07.2017 passedby the High Court of Madhya Pradesh at Gwalior in Review PetitionHNo.465 of 2015 in First Appeal No.241 of 2005 is hereby quashed and set aside and consequently para 20 of the judgment and order 10.12.2013passed in First Appeal No.241 of 2005 is hereby restored.

No costs.

Ankit Gyan

Appeal allowed.

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