The judgment emphasized the limited scope of review under Order XLVII Rule 1 of the Code of Civil Procedure and the need for a manifest error on the face of the record to warrant a review.

Aditya Nath Mittal, J. -- Heard learned counsel for review petitioner, learned counsel appearing for the opposite parties and perused the record.

2. This review petition has been preferred against the judgment and order dated 04.05.2015 passed by this court in Second Appeal no.925 of 1979, whereby the appeal was allowed. The operative portion of the order, on reproduction, reads as :

"From the aforesaid discussion, it is clear that the plaintiff and the defendant stood in a fiduciary relationship and the said gift deed was got executed by exercising undue influence and fraudulent misrepresentation. Learned trial court has considered each and every aspect of the said transaction. His findings are more close to the pleadings and evidence on record while the findings of learned first appellate court are far away from the pleadings and evidence on record. Although, it has not been argued but it is also relevant to mention that the learned first appellate court has not formulated the points for determination in view of the provisions of Order XLI Rule 31 of the C.P.C.

In view of above, the judgment and order dated 4.9.1979 passed by the first appellate court is liable to be set aside and the second appeal is liable to be allowed.

The second appeal is allowed.

The judgment and decree dated 4.9.1979 passed by the District Judge, Faizabad in Civil Appeal No. 217 of 1978 is set aside and the findings recorded by learned Munsiff, Akbarpur, Faizabad, in Regular Suit No. 331 of 1975 by judgment and decree dated 3.4.1978 are upheld.

The gift deed in question dated 29.10.1969 which was registered on 12.4.1971 stands cancelled. The concerned Sub-Registrar is directed to make necessary endorsement in its records.

Office is directed to send the certified copy of this order along with lower court record to the court concerned at an early date."

3. Learned counsel for the review petitioner has stated that there is apparent error by shifting onus of burden to the lessee and the presumption under Registration Act has not been considered. It has also been submitted that the issue of limitation for instituting the suit has also not been considered properly and an erroneous finding on the part of the misrepresentation, fraud and undue influence has been made.

4. Learned counsel appearing for the opposite party no.2 has submitted that there is no apparent error on the face of record, therefore, the review petition is not maintainable. It has also been submitted that the review petition cannot be filed by a counsel who had not argued the matter. Therefore, the review petition is not maintainable on this ground also. In this regard, he has relied upon the case of Kaniz Fatima vs. ADJ Meerut; 2008 (1) ARC 386 : 2008 (70) ALR 361 in which in para 19, it has been held as under:

"Even in the order dated 20.3.2007 the Court has observed that Inspite of undertaking given by the petitioner for vacating the shop in dispute, they are not complying with the judgment and order and has also imposed cost upon them amounting to Rs. 20,000. It is pertinent to mention here that the review application was filed by the petitioners beyond the time by a subsequent counsel, which was not maintainable at his instance as it was not filed by Sri I. K. Chaturvedi the counsel who had filed and argued the case."

Learned counsel for the opposite party no.2 has further relied upon the case of Shri Prakash Mishra vs. State of U.P. and others; 2010 (79) ALR 51 in which in paragraph 3, it has been held as under:

"Though, normally, in recall/review application moved by another counsel, it is not appropriate to hear a different counsel but in the interest of justice, I give full opportunity to Sri Ashutosh Tripathi to address the Court and to show any error in my judgment dated 14.09.2009."

5. Learned counsel has further relied upon Tamil Nadu Electricity Board and another vs. Raju Reddiar and another; AIR 1997 SCC 1005 wherein it has been held that no review can be filed; that