Back
IN THE HIGH COURT OF ALLAHABAD
KSHITIJ SHAILENDRA, J.
M/S. M.M.I. Tobacco Pvt. Ltd. And Another – Appellants
Versus
Iftikhar Alam – Respondent
Civil Misc Review Application No.417 of 2023
Decided on : 26-04-2024
REVIEW - CIVIL PROCEDURE - CPC Section 114, Order XLVII, Order XLI Rules 23, 23-A, 25 - The court discussed the maintainability of a review application under Section 114 of the CPC, emphasizing that a review can be sought even after a remand order has been given effect to. The court interpreted that the right to challenge a remand order remains intact despite subsequent proceedings, and that the review process is distinct from an appeal, focusing on errors apparent on the face of the record rather than re-evaluating merits. The court ultimately found no error in the remand order itself, leading to the dismissal of the review application on its merits.
Fact of the Case:
The plaintiffs sought a review of a remand order allowing a fresh consideration of an injunction application after the trial court had already decided the matter. The review application raised issues regarding the maintainability of the review in light of the trial court's subsequent decision.
Finding of the Court:
The court found the review application maintainable despite the trial court's decision on the injunction application, affirming that the right to challenge a remand order persists even after subsequent proceedings.
Issues: 1. Whether the review application is maintainable given the trial court's subsequent decision on the injunction application. 2. Whether there are merits in the grounds for review, particularly concerning alleged errors and concealment of material facts.
Ratio Decidendi: The court held that a review application can be maintained even after a remand order has been acted upon, as there is no statutory prohibition against such a challenge. The court reiterated that review is not an appeal and is limited to errors apparent on the face of the record.
Final Decision: The review application was dismissed on its merits, but the court left all contentions open for argument in the pending appeal against the trial court's decision on the injunction application.
JUDGMENT :
Hon'ble Kshitij Shailendra, J.
REVIEW AGAINST ORDER OF REMAND
1. This application under Section 114 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’) has been filed by the plaintiffs of Original Suit No. 20 of 2022 (M/s. M.M.I. Tobacco Pvt. Ltd. and another vs. Iftikhar Alam) seeking review of my final judgment and order dated 07.08.2023 passed in First Appeal From Order No.77 of 2023 (Iftikhar Alam vs. M/s. M.M.I. Tobacco Pvt. Ltd. & Another). By the said order, I had allowed the appeal and remanded the matter to the trial court for fresh consideration of the injunction application with certain directions.
REMAND ORDER ALREADY GIVEN EFFECT TO
2. It is not disputed that pursuant to the order of remand, the trial court has already decided the injunction application afresh by order dated 30.01.2024, against which, First Appeal From Order No.411 of 2024 (M/s M.M.I. Tobacco Pvt. Ltd. and another vs. Iftikhar Alam) has been filed by the plaintiff-applicants before this Court that has been connected with this review application.
TWO ASPECTS INVOLVED
3. There are following two aspects associated with the present review application:-
(ii) Merits of grounds, on which review has been sought.
COUNSEL HEARD
4. Heard Sri T.P. Singh, learned Senior Counsel, assisted by Sri Arvind Srivastava as well as Sri Arvind Srivastava separately, learned counsel for the applicants in review and Sri Shashi Nandan, learned Senior Counsel, assisted by Sri Santosh Kumar Tripathi, for the respondent.
MAINTAINABILITY/ ENTERTAINABILITY OF THE REVIEW APPLICATION
PRELIMINARY OBJECTION:
5. A preliminary objection has been raised by Shri Shashi Nandan, learned Senior Counsel for the respondent and, to some extent, by the Court itself, that since the order of remand sought to be reviewed has already been given effect to and the trial court has decided the injunction application afresh by order dated 30.01.2024, against which, an appeal has been preferred by the applicants, the review application has become infructuous and it would be an exercise in futility to entertain the same on merits at this stage.
CONTENTION OF APPLICANTS:
6. Shri T.P. Singh, learned Senior Counsel as well as Shri Arvind Srivastava, responding to the preliminary objection, argued with vehemence that review application would not lose its efficacy merely for the reason that pursuant to the order of remand, injunction application has again been decided by the trial court. Shri Srivastava submits that review application was filed prior to disposal of the injunction application but it remained pending in this Court and the court below, in the meantime, decided the injunction application. He, otherwise, submits that application for review has to be heard on merits as there is no concept like “infructuous” in civil law, particularly, when multiple remedies available to a litigant under the Code do not prohibit consideration of one or the other on merits despite advancement of stage of proceedings. Shri Srivastava, by placing reliance on a recent judgment of this Court in the case of Smt. Yasmeen Zia vs. Smt. Haneefa Khursheed and others, 2024 (2) ADJ 709, submitted that even in a case where an order of remand is under challenge and, during pendency of the challenge, proceedings finally culminate and even in a case where a decree is also drawn, the challenge made to the order of remand would still survive and there is no prohibition under the law which can restrict consideration of the challenge made to the remand order. He has also placed reliance on the judgment of Supreme Court in the case of Nagesh Datta Shetti & others vs. The State of Karnataka and others, (2005) 10 SCC 383, on the same lines.
CONTENTION OF RESPONDENT:
7. Per contra, Shri Shashi Nandan, learned Senior Counsel submits that the judgments cited on behalf of the applicants are clearly d
Review jurisdiction is not an appeal; it addresses only material errors apparent on record, not new arguments or hearsay.
The power of review under Order 47 of the CPC is limited to specific grounds, and a modification of an interim order is permissible when the underlying suit has been dismissed, provided that the righ....
Point of law: The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeki....
The judgment emphasizes the limited scope of review, the distinction between an erroneous decision and an error apparent on the face of the record, and the need to correct wrongs committed to prevent....
Review Petition – Jurisdiction of High Court while exercising review cannot be exercised as an inherit power nor as Appellate Court be exercised in guise of power of review – Power of review may be e....
The central legal point established in the judgment is the requirement for errors to be apparent on the face of the record or for any other sufficient reason to justify review jurisdiction.
The primary prayer in both recall applications was substantially the recall of the order dated December 6, 2018, and the Court rejected the second recall application on the ground of constructive res....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
