Pr.commissioner v. Aakash Vijayvargiya

HIGH COURT OF MADHYA PRADESH BENCH AT INDORE RP No.954/2018 Pr.Commissioner Vs. Aakash Vijayvargiya Indore, dated : 16.08.2019 Parties through their counsel. The present review petition has been filed for review of orderdated 06.09.2017 passed by this Court in Income Tax AppealNo.58/2017. Learned counsel has argued before this Court that there is anerror apparent on the face of record. This court vide a detailed order has held that no substantialquestion of law is to be answered in the appeal and in thosecircumstances, the appeal was dismissed. Not only this, paragraphno.5 of the memo of review petition reveals that the matter wasreferred to Assistant Solicitor General of India and he has alsoobserved that it is not a fit case for filing an appeal before the ApexCourt. This court has carefully gone through the judgment. The Apex Court in the case of Haridas Das Vs. Usha RaniBank (Smt) and Ors., reported in (2006) 4 SCC 78 in paragraph13 and 20 has held as under :- “13. In order to appreciate the scope of a review,Section 114 CPC has to be read, but this section doesnot even adumbrate the ambit of interference expectedof the court since it merely states that it “may makesuch order thereon as it thinks fit”. The parameters areprescribed in Order 47 CPC and for the purposes ofthis lis, permit the defendant to press for a rehearing“on account of some mistake or error apparent on theface of the records or for any other sufficient reason”.The former part of the rule deals with a situationattributable to the applicant, and the latter to a juralaction which is manifestly incorrect or on which twoconclusions are not possible. Neither of them postulatea rehearing of the dispute because a party had nothighlighted all the aspects of the case or could perhaps HIGH COURT OF MADHYA PRADESH BENCH AT INDORE RP No.954/2018 Pr.Commissioner Vs. Aakash Vijayvargiya have argued them more forcefully and/or cited bindingprecedents to the court and thereby enjoyed afavourable verdict. This is amply evident from theExplanation to Rule 1 of Order 47 which states that thefact that the decision on a question of law on which thejudgment of the court is based has been reversed ormodified by the subsequent decision of a superiorcourt in any other case, shall not be a ground for thereview of such judgment. Where the order in questionis appealable the aggrieved party has adequate andefficacious remedy and the court should exercise thepower to review its order with the greatestcircumspection. This Court in Thungabhadra IndustriesLtd. v. Govt. of A.P.[1]held as follows: (SCR p. 186)“[T]here is a distinction which is real, though it mightnot always be capable of exposition, between a mereerroneous decision and a decision which could becharacterised as vitiated by ‘error apparent’. A reviewis by no means an appeal in disguise whereby anerroneous decision is reheard and corrected, but liesonly for patent error. … where without any elaborateargument one could point to the error and say here is asubstantial point of law which stares one in the face,and there could reasonably be no two opinionsentertained about it, a clear case of error apparent onthe face of the record would be made out.” 20. When the aforesaid principles are applied to thebackground facts of the present case, the position isclear that the High Court had clearly fallen in error inaccepting the prayer for review. First, the crucialquestion which according to the High Court wasnecessary to be adjudicated was the question whetherTitle Suit No. 201 of 1985 (sic 1 of 1986) was barredby the provisions of Order 2 Rule 2 CPC. Thisquestion arose in Title Suit No. 1 of 1986 and wasirrelevant so far as Title Suit No. 2 of 1987 isconcerned. Additionally, the High Court erred inholding that no prayer for leave under Order 2 Rule 2CPC was made in the plaint in Title Suit No. 201 of1985. The claim of oral agreement dated 19-8-1982 ismentioned in para 7 of the plaint, and at the end of theplaint it has been noted that the right to institute thesuit for specific performance was reserved. That beingso, the High Court has erroneously held about HIGH COURT OF MADHYA PRADESH BENCH AT INDORE RP No.954/2018 Pr.Commissioner Vs. Aakash Vijayvargiya infraction of Order 2 Rule 2 CPC. This was not a casewhere Order 2 Rule 2 CPC has any application.” In the aforesaid case, the Apex Court has held that rehearing of a case can be done on account of some mistake or an errorapparent on the face of the record or for any other sufficient reason.In the present case, there is no error apparent on the face of therecord and the petitioner in fact under the guise of review ischallenging the order passed by this Court, which is under review. 07-Similarly the Apex Court in the case of State of West Bengal and Ors. Vs. Kamal Sengupta and Anr., reported in (2008) 8 SCC 612 in paragraphs 21, 22 and 35 has held as under:- “21. At this stage it is apposite to observe that where areview is sought on the ground of discovery of newmatter or evidence, such matter or evidence must berelevant and must be of such a character that if thesame had been produced, it might have altered thejudgment. In other words, mere discovery of new orimportant matter or evidence is not sufficient groundfor review ex debito justitiae. Not only this, the partyseeking review has also to show that such additionalmatter or evidence was not within its knowledge andeven after the exercise of due diligence, the samecould not be produced before the court earlier. 22. The term “mistake or error apparent” by its veryconnotation signifies an error which is evident per sefrom the record of the case and does not requiredetailed examination, scrutiny and elucidation eitherof the facts or the legal position. If an error is not self-evident and detection thereof requires long debate andprocess of reasoning, it cannot be treated as an errorapparent on the face of the record for the purpose ofOrder 47 Rule 1 CPC or Section 22(3)(f) of the Act.To put it differently an order or decision or judgmentcannot be corrected merely because it is erroneous in HIGH COURT OF MADHYA PRADESH BENCH AT INDORE RP No.954/2018 Pr.Commissioner Vs. Aakash Vijayvargiya law or on the ground that a different view could havebeen taken by the court/tribunal on a point of fact orlaw. In any case, while exercising the power ofreview, the court/tribunal concerned cannot sit inappeal over its judgment/decision. 35. The principles which can be culled out from theabovenoted judgments are: (i) The power of the Tribunal to review itsorder/decision under Section 22(3)(f) of the Act isakin/analogous to the power of a civil court underSection 114 read with Order 47 Rule 1 CPC. (ii) The Tribunal can review its decision on either ofthe grounds enumerated in Order 47 Rule 1 and nototherwise. (iii) The expression “any other sufficient reason”appearing in Order 47 Rule 1 has to be interpreted inthe light of other specified grounds. law or on the ground that a different view could havebeen taken by the court/tribunal on a point of fact orlaw. In any case, while exercising the power ofreview, the court/tribunal concerned cannot sit inappeal over its judgment/decision. 35. The principles which can be culled out from theabovenoted judgments are: (i) The power of the Tribunal to review itsorder/decision under Section 22(3)(f) of the Act isakin/analogous to the power of a civil court underSection 114 read with Order 47 Rule 1 CPC. (ii) The Tribunal can review its decision on either ofthe grounds enumerated in Order 47 Rule 1 and nototherwise. (iii) The expression “any other sufficient reason”appearing in Order 47 Rule 1 has to be interpreted inthe light of other specified grounds. (iv) An error which is not self-evident and which canbe discovered by a long process of reasoning, cannotbe treated as an error apparent on the face of recordjustifying exercise of power under Section 22(3)(f). v() An erroneous order/decision cannot be corrected inthe guise of exercise of power of review. (vi) A decision/order cannot be reviewed underSection 22(3)(f) on the basis of subsequentdecision/judgment of a coordinate or larger Bench ofthe tribunal or of a superior court. (vii) While considering an application for review, thetribunal must confine its adjudication with referenceto material which was available at the time of initialdecision. The happening of some subsequent event ordevelopment cannot be taken note of for declaring theinitial order/decision as vitiated by an error apparent. (viii) Mere discovery of new or important matter orevidence is not sufficient ground for review. The partyseeking review has also to show that such matter orevidence was not within its knowledge and even afterthe exercise of due diligence, the same could not beproduced before the court/tribunal earlier.” In the aforesaid case the Apex Court has held that a mistake or an error apparent on the face of the record means a mistake or an HIGH COURT OF MADHYA PRADESH BENCH AT INDORE RP No.954/2018 Pr.Commissioner Vs. Aakash Vijayvargiya error which is prima-facie visible and does not require any detailexamination. In the present case the petitioner has not been able topoint out any error apparent on the face of the record, on thecontrary this Court has decided the case on merits. The Apex Court again dealing with the scope of interferenceand limitation of review in the case of Inderchand Jain (dead) Through LRs Vs. Motilal (dead) Through LRs, reported in (2009) 14 SCC 663 in paragraphs 7, 22, 24, 29, 31 and 33 has held as under :- “7. Section 114 of the Code of Civil Procedure (forshort “the Code”) provides for a substantive power ofreview by a civil court and consequently by theappellate courts. The words “subject as aforesaid”occurring in Section 114 of the Code mean subject tosuch conditions and limitations as may be prescribed asappearing in Section 113 thereof and for the saidpurpose, the procedural conditions contained in Order47 of the Code must be taken into consideration.Section 114 of the Code although does not prescribeany limitation on the power of the court but suchlimitations have been provided for in Order 47 of theCode; Rule 1 whereof reads as under: “17. The power of a civil court to review itsjudgment/decision is traceable in Section 114 CPC.The grounds on which review can be sought areenumerated in Order 47 Rule 1 CPC, which reads asunder: ‘1. Application for review of judgment.—(1) Anyperson considering himself aggrieved— a() by a decree or order from which an appeal isallowed, but from which no appeal has been preferred,(b) by a decree or order from which no appeal isallowed, or c() by a decision on a reference from a Court of SmallCauses, HIGH COURT OF MADHYA PRADESH BENCH AT INDORE RP No.954/2018 “17. The power of a civil court to review itsjudgment/decision is traceable in Section 114 CPC.The grounds on which review can be sought areenumerated in Order 47 Rule 1 CPC, which reads asunder: ‘1. Application for review of judgment.—(1) Anyperson considering himself aggrieved— a() by a decree or order from which an appeal isallowed, but from which no appeal has been preferred,(b) by a decree or order from which no appeal isallowed, or c() by a decision on a reference from a Court of SmallCauses, HIGH COURT OF MADHYA PRADESH BENCH AT INDORE RP No.954/2018 Pr.Commissioner Vs. Aakash Vijayvargiya and who, from the discovery of new and importantmatter or evidence which, after the exercise of duediligence, was not within his knowledge or could notbe produced by him at the time when the decree waspassed or order made, or on account of some mistakeor error apparent on the face of the record, or for anyother sufficient reason, desires to obtain a review of thedecree passed or order made against him, may applyfor a review of judgment of the court which passed thedecree or made the order.’ 22. Whereas the appellant-defendant filed a reviewapplication confined to the question that he wasentitled to the restitution of the property and mesneprofit in respect whereof the learned Single Judge ofthe High Court did not pass any specific order, theapplication for review filed by the respondent was onthe merit of the judgment. The relevant grounds ofreview which have been placed before us relate to: (i) Unconditional withdrawal of some amount by oneof the creditors of the defendant as also the defendanthimself. (ii) The defendant's application before the executingcourt that he was ready and willing to get the sale deedexecuted on receipt of amount in cash and the saidadmission allegedly was not brought to the notice ofthe court. (iii) While holding that there was no agreement toreduce the sale consideration, the High Court hadignored the fact that it was an admitted case of theparties, as stipulated in the contract, that the defendantswould get the premises vacated from the tenants withinthree months. (iv) The appellant had prayed for an alternative reliefviz. that he was ready to get the decree for specificperformance of contract by paying Rs 1,15,000. Thecourt did not consider the evidence of DWs 1 to 6 intheir proper perspective. v() The court did not consider that the property couldnot be restored back to the appellant-defendant and assuch the court should have exercised its discretionaryjurisdiction. 24. An appeal is a continuation of the suit. Anydecision taken by the appellate court would relate back,unless a contrary intention is shown, to the date of BENCH AT INDORE RP No.954/2018 Pr.Commissioner Vs. Aakash Vijayvargiya institution of the suit. There cannot be any doubt thatthe appellate court while exercising its appellatejurisdiction would be entitled to take into considerationthe subsequent events for the purpose of moulding therelief as envisaged under Order 7 Rule 7 read withOrder 41 Rule 33 of the Code of Civil Procedure. Thesame shall, however, not mean that the court wouldproceed to do so in a review application despiteholding that the plaintiff was not entitled to grant of adecree for specific performance of contract. 24. An appeal is a continuation of the suit. Anydecision taken by the appellate court would relate back,unless a contrary intention is shown, to the date of BENCH AT INDORE RP No.954/2018 Pr.Commissioner Vs. Aakash Vijayvargiya institution of the suit. There cannot be any doubt thatthe appellate court while exercising its appellatejurisdiction would be entitled to take into considerationthe subsequent events for the purpose of moulding therelief as envisaged under Order 7 Rule 7 read withOrder 41 Rule 33 of the Code of Civil Procedure. Thesame shall, however, not mean that the court wouldproceed to do so in a review application despiteholding that the plaintiff was not entitled to grant of adecree for specific performance of contract. 29. Order 41 Rule 1 of the Code stipulates that filing ofan appeal would not amount to automatic stay of theexecution of the decree. The law acknowledges thatduring pendency of the appeal it is possible for thedecree-holder to get the decree executed. The executionof the decree during pendency of the appeal would,thus, be subject to the restitution of the property in theevent the appeal is allowed and the decree is set aside.The court only at the time of passing a judgment anddecree reversing that of the appellate court should takeinto consideration the subsequent events, but, by nostretch of imagination, can refuse to do so despitearriving at the findings that the plaintiff would not beentitled to grant of a decree. 31. Contention of Mr Venugopal that the defendanthaving accepted novation of contract but only thequantum of the amount being different, the court couldhave asked the respondent-plaintiff to deposit a furthersum of Rs 24,000 cannot be accepted for more than onereason. Apart from the fact that such a contention hadnever been raised before the appellate court, keeping inview the finding of fact arrived at that there had in factbeen no novation of contract, such a course of actionwas not open. In any view of the matter, the samewould amount to reappreciation of evidence which wasbeyond the review jurisdiction of the High Court. 33. The High Court had rightly noticed the reviewjurisdiction of the court, which is as under: “The law on the subject—exercise of power of review,as propounded by the Apex Court and various otherHigh Courts may be summarised as hereunder: (i) Review proceedings are not by way of appeal andhave to be strictly confined to the scope and ambit ofOrder 47 Rule 1 CPC. BENCH AT INDORE RP No.954/2018 Pr.Commissioner Vs. Aakash Vijayvargiya (ii) Power of review may be exercised when somemistake or error apparent on the fact of record is found.But error on the face of record must be such an errorwhich must strike one on mere looking at the recordand would not require any long-drawn process ofreasoning on the points where there may conceivablybe two opinions. (iii) Power of review may not be exercised on theground that the decision was erroneous on merits. (iv) Power of review can also be exercised for anysufficient reason which is wide enough to include amisconception of fact or law by a court or even anadvocate. v() An application for review may be necessitated byway of invoking the doctrine actus curiae neminemgravabit.” In our opinion, the principles of law enumerated by it,in the facts of this case, have wrongly been applied.” The Apex Court while dealing with the scope of review hasheld that re-appreciation of evidence and rehearing of case without there being any error apparent on the face of the record is notpermissible in light of provisions as contained U/s 114 and Order 47Rule 1 of Code of Civil Procedure, 1908. The Apex Court in the case of S. Bagirathi Ammal Vs. Palani Roman Catholic Mission, reported in (2009) 10 SCC 464 in paragraphs 12 and 26 has held as under :- v() An application for review may be necessitated byway of invoking the doctrine actus curiae neminemgravabit.” In our opinion, the principles of law enumerated by it,in the facts of this case, have wrongly been applied.” The Apex Court while dealing with the scope of review hasheld that re-appreciation of evidence and rehearing of case without there being any error apparent on the face of the record is notpermissible in light of provisions as contained U/s 114 and Order 47Rule 1 of Code of Civil Procedure, 1908. The Apex Court in the case of S. Bagirathi Ammal Vs. Palani Roman Catholic Mission, reported in (2009) 10 SCC 464 in paragraphs 12 and 26 has held as under :- “12. An error contemplated under the Rule must be suchwhich is apparent on the face of the record and not anerror which has to be fished out and searched. In otherwords, it must be an error of inadvertence. It should besomething more than a mere error and it must be onewhich must be manifest on the face of the record. Whendoes an error cease to be mere error and becomes an errorapparent on the face of the record depends upon thematerials placed before the court. If the error is so HIGH COURT OF MADHYA PRADESH BENCH AT INDORE RP No.954/2018 Pr.Commissioner Vs. Aakash Vijayvargiya apparent that without further investigation or enquiry,only one conclusion can be drawn in favour of theapplicant, in such circumstances, the review will lie.Under the guise of review, the parties are not entitled torehearing of the same issue but the issue can be decidedjust by a perusal of the records and if it is manifest can beset right by reviewing the order. With this background, letus analyse the impugned judgment of the High Court andfind out whether it satisfies any of the tests formulatedabove. 26. As held earlier, if the judgment/order is vitiated by anapparent error or it is a palpable wrong and if the error isself-evident, review is permissible and in this case theHigh Court has rightly applied the said principles asprovided under Order 47 Rule 1 CPC. In view of thesame, we are unable to accept the arguments of learnedSenior Counsel appearing for the appellant, on the otherhand, we are in entire agreement with the view expressedby the High Court.” In case the department feels that this judgment is erroneousjudgment, the department shall be free to file appeal. Keeping in view the aforesaid judgment, this court does not findany reason to review the order dated 06.09.2017 passed in ITANo.58/2017. The Review Petition is accordingly dismissed. (S.C.Sharma) Judge Digitally signed by SOURABH YADAV Date: 2019.08.22 15:34:44 +05'30' sourabh (Shailendra Shukla) Judge