Brahmanand v. Board of Revenue,U.P. Lucknow Thru. Chairman and 19 Others

Court No. - 13 Case :- CIVIL MISC REVIEW APPLICATION No. - 44 of 2024 Applicant :- Brahmanand Opposite Party :- Board Of Revenue,U.P. Lucknow Thru. Chairman And 19 Others Counsel for Applicant :- Gaurav Kumar Hasani,Ankit Singh Hon'ble Saurabh Lavania,J.

¶1Heard.

¶2Present review application under Chapter V Rule 12 of the Allahabad High Court Rules, 1952 has been preferred by the petitioner in relation to final judgment and order dated

29.02.2024 passed in Writ-B No. 239 of 2024 (Brahmanand Versus Board of Revenue, Lucknow through Chairman and 19 Others).

¶3The grounds for seeking review of judgment and order dated 29.02.2024 taken in the present application, are extracted hereinunder:- "A. Because, petitioner filed a Second Appeal No.- 946 of 2020 Brahamaanand V/S Krishna Kumar and Others which was admitted after hearing both the parties by order dated 2/9/2020 in which learned Board of Revenue passed a stay order against order dated 06/08/ 2020 and 22/10/ 2018. B. Because respondent no. 1 vide its order dated 11/0 1/2024 dismissed the second appeal without framing and deciding the substantial question of law. C. Because, their after petitioner filed a Writ B No. 239 of 2024 Brahamaanand V/S Board of Revenue and 19 Others which was dismissed vide order dated 29/2/2024. D. Because, in order dated 29/02/2024 the Hon'ble court observed in page no. 4 of the judgment that "It appears that the second appeal was dismissed by the opposite party no. 1 at the admission stage and to controvert this fact, no document has been brought on record in the present petition". Which is error apparent on the face of record as in order dated 11/01/2024 the second appeal was dismissed at final stage without framing the substantial question of law and also second appeal was admitted which is shown by order dated 02/09/2020. E. Because apex court in civil appeal no. 6070 of 2023 [Arising out of SLP(C) No.20183 of 2022] Suresh Lataruji Ramteke V/S Sau. Sumanbai Pandurang Petkar and ors. Held in para:

27.1 A court sitting in second appellate jurisdiction is to frame substantial question of law at the time of admission, save and except in exceptional circumstances. Post such framing of question the court shall proceed to hear the parties on such question i.e., after giving them adequate time to meet and address them. It is only after such hearing subsequent to the framing that a second appeal shall come to be decided. F. Because there were major difference in both the maps with respect to share of the petitioner's against which petitioner raised objection which was not considered by any of the court below. petitioner did not got the land in accordance with the family compromise. i.e. the two bigha land was shifted in the family compromise dated

11.08.2005 in the west side of the way from North side to land of Rakesh Kumar, in the mid of land Pravesh Kumar Aadi and Rakesh Kumar. However the lekhpal in his report has shown this two bigha land adjacent to rajwaha (nahar) and East side of the way from Abadi to south side in the land of Brahmanand. G. Because, the grounds pointed out above comes within the purview of error apparent on the face of record."

¶4After discussing a series of decisions on review jurisdiction in Kamlesh Verma v. Mayawati reported in

(2013) 8 SCC 320, the Hon'ble Supreme Court has observed that review proceedings have to be strictly confined to the scope and ambit of Order XLVII Rule 1, CPC. As long as the point sought to be raised in the review application has already been dealt with and answered, parties are not entitled to challenge the impugned judgment only because an alternative view is possible. The principles for exercising review jurisdiction were succinctly summarized in the captioned case as below: "20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason. The words "any other sufficient reason" has been interpreted in Chajju Ram v. Neki17, and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius18 to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd.25,.

20.2. When the review will not be maintainable:—

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

¶5In Ram Sahu (Dead) Through LRs v. Vinod Kumar Rawat reported in 2020 SCC OnLine SC 896, the Hon'ble Supreme Court citing previous decisions and expounding on the scope and ambit of Section 114 read with Order XLVII Rule 1, has observed that Section 114 CPC does not lay any conditions precedent for exercising the power of review; and nor does the Section prohibit the Court from exercising its power to review a decision. However, an order can be reviewed by the Court only on the grounds prescribed in Order XLVII Rule 1 CPC. The said power cannot be exercised as an inherent power and nor can appellate power be exercised in the guise of exercising the power of review.

¶6Recently the Hon'ble Apex Court in the case of Sanjay Kumar Agarwal vs. State Tax Officer (1) and Another 2023 SCC OnLine SC 1406, observed as under:-

¶9In the words of Krishna Iyer J., (as His Lordship then was) "a plea of review, unless the first judicial view is manifestly distorted, is like asking for the Moon. A forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result……… A review in the Counsel's mentation cannot repair the verdict once given. So, the law laid down must rest in peace."

¶10It is also well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.

¶11In Parsion Devi v. Sumitri Devi, this Court made very pivotal observations:— "9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC

it is not

permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise."

¶12Again, in Shanti Conductors Private Limited v. Assam State Electricity Board, a three Judge Bench of this Court following Parsion Devi v. Sumitri Devi (supra) dismissed the review petitions holding that the scope of review is limited and under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.

¶13Recently, in Shri Ram Sahu (Dead) Through Legal Representatives v. Vinod Kumar Rawat, this Court restated the law with regard to the scope of review under Section 114 read with Order XLVII of CPC.

¶14In R.P. (C) Nos. 1273-1274 of 2021 in Civil Appeal Nos. 8345-8346 of 2018 (Arun Dev Upadhyaya v. Integrated Sales Service Limited), this Court reiterated the law and held that:— "15. From the above, it is evident that a power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order XLVII Rule 1 CPC. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions."

¶15It is very pertinent to note that recently the Constitution Bench in Beghar Foundation v. Justice K.S. Puttaswamy (Retired), held that even the change in law or subsequent decision/judgment of co-ordinate Bench or larger Bench by itself cannot be regarded as a ground for review.

¶16The gist of the afore-stated decisions is that:—

(i) A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record.

(ii) A judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.

(iii) An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review.

(iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be "reheard and corrected."

(v) A Review Petition has a limited purpose and cannot be allowed to be "an appeal in disguise."

(vi) Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.

(vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.

(viii) Even the change in law or subsequent decision/judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review.

¶7In the case of S.Madhusudhan Reddy Vs. V.Narayana Reddy and Others; reported in 2022 SCC OnLine SC 1034, the Hon'ble Apex Court observed as under:- "As can be seen from the above exposition of law, it has been consistently held by this Court in several judicial pronouncements that the Court's jurisdiction of review, is not the same as that of an appeal. A judgment can be open to review if there is a mistake or an error apparent on the face of the record, but an error that has to be detected by a process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise its powers of review under Order XLVII Rule 1 CPC. In the guise of exercising powers of review, the Court can correct a mistake but not substitute the view taken earlier merely because there is a possibility of taking two views in a matter. A judgment may also be open to review when any new or important matter of evidence has emerged after passing of the judgment, subject to the condition that such evidence was not within the knowledge of the party seeking review or could not be produced by it when the order was made despite undertaking an exercise of due diligence. There is a clear distinction between an erroneous decision as against an error apparent on the face of the record. An erroneous decision can be corrected by the Superior Court, however an error apparent on the face of the record can only be corrected by exercising review jurisdiction. Yet another circumstance referred to in Order XLVII Rule 1 for reviewing a judgment has been described as "for any other sufficient reason". The said phrase has been explained to mean "a reason sufficient on grounds, at least analogous to those specified in the rule" (Refer : Chajju Ram v. Neki Ram and Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius)."

¶8Considered the grounds as also the law related to review petition, according to which the review is by no means an appeal in disguise and the scope of review is limited as also the order dated 02.09.2020, which in fact is the main basis of instant application and based upon the same it has been stated that the second appeal was admitted and accordingly, ought to have been decided on substantial questions of law, and from a bare perusal of order dated

02.09.2020, it is apparent that no substantial question of law was framed by the second appellate authority and as per law second appeal can only be admitted after framing substantial question of law and upon due consideration, this Court finds no force in the present review petition. Accordingly, the review application is dismissed. No order as to costs. Order Date :- 04.04.2024 Jyoti/- High Court of Judicature at Allahabad, Lucknow Bench