2014 Supreme(Bom) 104

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(NAGPUR BENCH)
S.B. SHUKRE, J.
Ramdulari w/o. Matabadalsingh (D) through LRs.
Vs.
Meerabai wd/o. Bharatsingh Baghel (D) through LRs.
Misc. Civil Application No. 56 of 2010 in Second Appeal No. 116 of 1992(D)
Decided on : 18th January, 2014

Headnote:Civil Procedure Code, 1908 - Section 114, Order XLVII, Rule 1 - Exercise of review powers under. - To review a judgment, a patent error apparent on face of record, must have caused miscarriage of justice to party. - Now, keeping in mind these well settled principles governing the exercise of review powers under Section 114 read with Order XLVII, Rule 1, CPC, it has to be seen as to whether any mistake of fact apparent on the face of the record has been committed by the Court earlier and whether or not it has resulted in miscarriage of justice. It must be noted here that to review a judgment, it is not merely detection of manifest or patent error apparent on the face of record which is sufficient, but it is also necessary that such an error must have caused miscarriage of justice to the party seeking review of the earlier decision.

       Civil Procedure Code, 1908 - Section 114, Order XLVII, Rule 1 - Review of judgment. - Since not referring to disputed statement of reasons, termed as first substantial question of law, not results in error apparent on face of record hence review cannot be allowed. - It is obvious that even though the appeal was stated to be admitted on the substantial question of law, the fact was that no substantial question of law was formulated in precise terms. This statement only reflected the reasons for admission of the second appeal, which were not further translated into a specific substantial question of law. This was a procedural defect, which appears to have been cured by this Court by framing in precise terms three more substantial questions of law, which have been reproduced in the later part of paragraph-7 of the said judgment. After having framed the additional substantial questions of law specifically and precisely, no need for making any reference to the statement recorded by this Court while admitting the second appeal remained there and, therefore, Court does not find that there is any error apparent on the face of the record in not referring to and dealing with a statement of reasons termed as the first substantial question of law.

       Civil Procedure Code, 1908 - Section 114, Order XLVII, Rule 1 - Scope of Review. - When no "miscarriage of justice" can be said to have caused by alleged error committed by Court then Review not permissible. - The admissions given by the applicants were not in paragraph-11 but in paragraphs-12 and 13 of the written statement and these admissions were not in respect of the suit property, but in respect of field bearing Kh. No. 6 having area of 58.37 acres. There is no dispute about the fact that the suit property bearing No. 6/1 is a part of the larger field bearing Kh. No. 6 having area of 58.37 acres and the area of the suit property admittedly is of about 29 acres, which is half of the larger field bearing Kh. No. 6. The admissions appearing in paragraphs-12 and 13 of the written statement un-mistakenly point out that the applicants admitted the fact that Ramnathsingh had half interest in the larger field bearing Kh. No. 6. This Court did consider the said admission, but while expressing itself on that aspect of the dispute between the parties, this Court stated that the half share of Ramnathsingh was admittedly in the "suit property". Actually, it should have been in respect of the field bearing Kh. No. 6 and not the suit property bearing Kh. No. 6/1. This is a patent mistake committed by this Court and as rightly submitted by counsel for the applicants, it is ascertainable by merely looking on the face of the record.

       No doubt, while considering the admissions of the applicants, this Court should have stated that Ramnathsingh had half share in the field bearing Kh. No. 6 and not in the "suit property". But, it appears that this mistake has occurred inadvertently and has had no bearing on the final conclusion reached by this Court, for, what has been ultimately found by this Court is the ownership and title of Ramnathsingh only in respect of the suit property Advocate Appeared :-measuring about 29 acres and not in respect of the entire field bearing Kh. No. 6. This would mean there is no miscarriage of justice in this case.

       For exercising review power, as can be seen from principles of law stated earlier, two conditions must be fulfilled namely (1) the mistake should be apparent on the face of the record, and (2) it should result in miscarriage of justice. Attainment of both of these conditions is essential, for reviewing a decision passed earlier by the same Court. If only one of these two conditions is fulfilled, the Court will not have any jurisdiction to review its own judgment.

       Civil Procedure Code, 1908 - Section 114, Order XLVII, Rule 1 - Scope of review in title suit. - In a title suit, matter of merits, cannot be considered in exercise of review jurisdiction. - The admissions before being relied upon must be unambiguous and must not be vague and if there is any ambiguity or vagueness, then, it is obligatory upon the party relying upon them to put them to a witness before they can be used. That apart, this is not something which can be considered by a Court in exercise of review jurisdiction. This is a matter of merits and therefore would have to be considered by the appropriate Court in appeal.

       Civil Procedure Code, 1908 - Order XLVII, Rule 1 - Exercise of Review jurisdiction. - Plea that reliance upon entries in Revenue record by Appellate Court, in a suit for declaration of title is not permissible, cannot be considered in exercise of Review jurisdiction. - Supreme Court in the case of State of H.P. v. Keshav Ram and others, (1996) 11 SCC 257, lays down that an entry in the revenue papers cannot form basis of declaration of title. While there is no dispute about this principle of law, there is no occasion for this Court to consider the same for it’s application or otherwise in review jurisdiction. Doing so would amount to rehearing the appeal on merits, which is not permissible under this jurisdiction.