The Apex Court In The Case Of Haridas Das v. Usharani Bank (Smt) And Ors., Reported In (2006) 4 Scc 78 Inparagraph 13 And 20 Has Held As Under

THE HIGH COURT OF MADHYA PRADESHR.P. No. 1827/2018 1 Pr. Commissioner of Income Tax V/s. Shri Omprakash DDhanwani Indore, dated : 04.01.2019 Ms. Veena Mandlik, learned counsel for thepetitioner. Heard on the question of admission. O R D E R This Court by passing a detailed and exhaustive orderhas held categorically that no substantial question of law arisesin the Income Tax Appeal. The matter has been decided onmerits and if the petitioner feels that it is an erroneous judgment,the petitioner does have the remedy of approaching the apexCourt. 2.The Apex Court in the case of Haridas Das Vs. UshaRani Bank (Smt) and Ors., reported in (2006) 4 SCC 78 inparagraph 13 and 20 has held as under :- 13. In order to appreciate the scope of a review, Section 114 CPChas to be read, but this section does not even adumbrate the ambitof interference expected of the court since it merely states that it“may make such order thereon as it thinks fit”. The parameters areprescribed in Order 47 CPC and for the purposes of this lis, permitthe defendant to press for a rehearing “on account of somemistake or error apparent on the face of the records or for anyother sufficient reason”. The former part of the rule deals with asituation attributable to the applicant, and the latter to a juralaction which is manifestly incorrect or on which two conclusionsare not possible. Neither of them postulate a rehearing of thedispute because a party had not highlighted all the aspects of thecase or could perhaps have argued them more forcefully and/orcited binding precedents to the court and thereby enjoyed afavourable verdict. This is amply evident from the Explanation toRule 1 of Order 47 which states that the fact that the decision on aquestion of law on which the judgment of the court is based hasbeen reversed or modified by the subsequent decision of a superiorcourt in any other case, shall not be a ground for the review ofsuch judgment. Where the order in question is appealable theaggrieved party has adequate and efficacious remedy and the courtshould exercise the power to review its order with the greatestcircumspection. This Court in Thungabhadra Industries Ltd. v.Govt. of A.P. held as follows: “There is a distinction which is real, though it might not always becapable of exposition, between a mere erroneous decision and a THE HIGH COURT OF MADHYA PRADESHR.P. No. 1827/2018 2 Pr. Commissioner of Income Tax V/s. Shri Omprakash DDhanwani decision which could be characterised as vitiated by ‘errorapparent’. A review is by no means an appeal in disguise wherebyan erroneous decision is reheard and corrected, but lies only forpatent error. … where without any elaborate argument one couldpoint to the error and say here is a substantial point of law whichstares one in the face, and there could reasonably be no twoopinions entertained about it, a clear case of error apparent on theface of the record would be made out.” 20. When the aforesaid principles are applied to the backgroundfacts of the present case, the position is clear that the High Courthad clearly fallen in error in accepting the prayer for review. First,the crucial question which according to the High Court wasnecessary to be adjudicated was the question whether Title SuitNo. 201 of 1985 (sic 1 of 1986) was barred by the provisions ofOrder 2 Rule 2 CPC. This question arose in Title Suit No. 1 of1986 and was irrelevant so far as Title Suit No. 2 of 1987 isconcerned. Additionally, the High Court erred in holding that noprayer for leave under Order 2 Rule 2 CPC was made in the plaintin Title Suit No. 201 of 1985. The claim of oral agreement dated19-8-1982 is mentioned in para 7 of the plaint, and at the end ofthe plaint it has been noted that the right to institute the suit forspecific performance was reserved. That being so, the High Courthas erroneously held about infraction of Order 2 Rule 2 CPC. Thiswas not a case where Order 2 Rule 2 CPC has any application. 3.In the aforesaid case, the Apex Court has held thatrehearing of a case can be done on account of some mistake oran error apparent on the face of the record or for any othersufficient reason. In the present case, there is no error apparenton the face of the record and the petitioner infact under the guiseof review is challenging the order passed by this Court, which isunder review. Similarly the Apex Court in the case of State ofWest Bengal and Ors. Vs. Kamal Sengupta and Anr., reportedin (2008) 8 SCC 612 in paragraphs 21, 22 and 35 has held asunder :- “21. At this stage it is apposite to observe that where a review issought on the ground of discovery of new matter or evidence, suchmatter or evidence must be relevant and must be of such acharacter that if the same had been produced, it might have alteredthe judgment. In other words, mere discovery of new or importantmatter or evidence is not sufficient ground for review ex debitojustitiae. Not only this, the party seeking review has also to showthat such additional matter or evidence was not within itsknowledge and even after the exercise of due diligence, the samecould not be produced before the court earlier.sought on the ground of discovery of new matter or evidence, suchmatter or evidence must be relevant and must be of such acharacter that if the same had been produced, it might have alteredthe judgment. In other words, mere discovery of new or importantmatter or evidence is not sufficient ground for review ex debitojustitiae. Not only this, the party seeking review has also to showthat such additional matter or evidence was not within itsknowledge and even after the exercise of due diligence, the samecould not be produced before the court earlier. THE HIGH COURT OF MADHYA PRADESHR.P. No. 1827/2018 3 Pr. Commissioner of Income Tax V/s. Shri Omprakash DDhanwani 22. The term “mistake or error apparent” by its very connotationsignifies an error which is evident per se from the record of thecase and does not require detailed examination, scrutiny andelucidation either of the facts or the legal position. If an error is notself-evident and detection thereof requires long debate and processof reasoning, it cannot be treated as an error apparent on the face ofthe record for the purpose of Order 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 law or on theground that a different view could have been taken by thecourt/tribunal on a point of fact or law. In any case, whileexercising the power of review, the court/tribunal concerned cannotsit in appeal over its judgment/decision. 35. The principles which can be culled out from the abovenotedjudgments are: (i) The power of the Tribunal to review its order/decision underSection 22(3)(f) of the Act is akin/analogous to the power of a civilcourt under Section 114 read with Order 47 Rule 1 CPC. (ii) The Tribunal can review its decision on either of the groundsenumerated in Order 47 Rule 1 and not otherwise. (iii) The expression “any other sufficient reason” appearing inOrder 47 Rule 1 has to be interpreted in the light of other specifiedgrounds. (iv) An error which is not self-evident and which can be discoveredby a long process of reasoning, cannot be treated as an errorapparent on the face of record justifying exercise of power underSection 22(3)(f). (v) An erroneous order/decision cannot be corrected in the guise ofexercise of power of review. (vi) A decision/order cannot be reviewed under Section 22(3)(f) onthe basis of subsequent decision/judgment of a coordinate or largerBench of the tribunal or of a superior court. (ii) The Tribunal can review its decision on either of the groundsenumerated in Order 47 Rule 1 and not otherwise. (iii) The expression “any other sufficient reason” appearing inOrder 47 Rule 1 has to be interpreted in the light of other specifiedgrounds. (iv) An error which is not self-evident and which can be discoveredby a long process of reasoning, cannot be treated as an errorapparent on the face of record justifying exercise of power underSection 22(3)(f). (v) An erroneous order/decision cannot be corrected in the guise ofexercise of power of review. (vi) A decision/order cannot be reviewed under Section 22(3)(f) onthe basis of subsequent decision/judgment of a coordinate or largerBench of the tribunal or of a superior court. (vii) While considering an application for review, the tribunal mustconfine its adjudication with reference to material which wasavailable at the time of initial decision. The happening of somesubsequent event or development cannot be taken note of fordeclaring the initial order/decision as vitiated by an error apparent. (viii) Mere discovery of new or important matter or evidence is notsufficient ground for review. The party seeking review has also toshow that such matter or evidence was not within its knowledgeand even after the exercise of due diligence, the same could not beproduced before the court/tribunal earlier.” 4.In the aforesaid case the Apex Court has held that amistake or an error apparent on the face of the record means amistake or an error which is prima-facie visible and does not THE HIGH COURT OF MADHYA PRADESHR.P. No. 1827/2018 4 Pr. Commissioner of Income Tax V/s. Shri Omprakash DDhanwani require any detail examination. In the present case the petitionerhas not been able to point out any error apparent on the face ofthe record, on the contrary this Court has decided the case onmerits. 5.The Apex Court again dealing with the scope ofinterference and limitation of review in the case of InderchandJain (dead) Through LRs Vs. Motilal (dead) Through LRs,reported in (2009) 14 SCC 663 in paragraphs 7, 22, 24, 29, 31and 33 has held as under :- “7. Section 114 of the Code of Civil Procedure (for short “theCode”) provides for a substantive power of review by a civil courtand consequently by the appellate courts. The words “subject asaforesaid” occurring in Section 114 of the Code mean subject tosuch conditions and limitations as may be prescribed as appearingin Section 113 thereof and for the said purpose, the proceduralconditions contained in Order 47 of the Code must be taken intoconsideration. Section 114 of the Code although does not prescribeany limitation on the power of the court but such limitations havebeen provided for in Order 47 of the Code; Rule 1 whereof readsas under: “17. The power of a civil court to review its judgment/decision istraceable in Section 114 CPC. The grounds on which review canbe sought are enumerated in Order 47 Rule 1 CPC, which reads asunder: ‘1. Application for review of judgment.—(1) Any personconsidering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but fromwhich no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or(c) by a decision on a reference from a Court of Small Causes, andwho, from the discovery of new and important matter or evidencewhich, after the exercise of due diligence, was not within hisknowledge or could not be produced by him at the time when thedecree was passed or order made, or on account of some mistakeor error apparent on the face of the record, or for any othersufficient reason, desires to obtain a review of the decree passed ororder made against him, may apply for a review of judgment ofthe court which passed the decree or made the order.’ ‘1. Application for review of judgment.—(1) Any personconsidering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but fromwhich no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or(c) by a decision on a reference from a Court of Small Causes, andwho, from the discovery of new and important matter or evidencewhich, after the exercise of due diligence, was not within hisknowledge or could not be produced by him at the time when thedecree was passed or order made, or on account of some mistakeor error apparent on the face of the record, or for any othersufficient reason, desires to obtain a review of the decree passed ororder made against him, may apply for a review of judgment ofthe court which passed the decree or made the order.’ 22. Whereas the appellant-defendant filed a review applicationconfined to the question that he was entitled to the restitution ofthe property and mesne profit in respect whereof the learnedSingle Judge of the High Court did not pass any specific order, theapplication for review filed by the respondent was on the merit of THE HIGH COURT OF MADHYA PRADESHR.P. No. 1827/2018 5 Pr. Commissioner of Income Tax V/s. Shri Omprakash DDhanwani the judgment. The relevant grounds of review which have beenplaced before us relate to: (i) Unconditional withdrawal of some amount by one of thecreditors of the defendant as also the defendant himself. (ii) The defendant's application before the executing court that hewas ready and willing to get the sale deed executed on receipt ofamount in cash and the said admission allegedly was not broughtto the notice of the court. (iii) While holding that there was no agreement to reduce the saleconsideration, the High Court had ignored the fact that it was anadmitted case of the parties, as stipulated in the contract, that thedefendants would get the premises vacated from the tenants withinthree months. (iv) The appellant had prayed for an alternative relief viz. that hewas ready to get the decree for specific performance of contract bypaying Rs 1,15,000. The court did not consider the evidence ofDWs 1 to 6 in their proper perspective. (v) The court did not consider that the property could not berestored back to the appellant-defendant and as such the courtshould have exercised its discretionary jurisdiction. 24. An appeal is a continuation of the suit. Any decision taken bythe appellate court would relate back, unless a contrary intention isshown, to the date of institution of the suit. There cannot be anydoubt that the appellate court while exercising its appellatejurisdiction would be entitled to take into consideration thesubsequent events for the purpose of moulding the relief asenvisaged under Order 7 Rule 7 read with Order 41 Rule 33 of theCode of Civil Procedure. The same shall, however, not mean thatthe court would proceed to do so in a review application despiteholding that the plaintiff was not entitled to grant of a decree forspecific performance of contract. 29. Order 41 Rule 1 of the Code stipulates that filing of an appealwould not amount to automatic stay of the execution of the decree.The law acknowledges that during pendency of the appeal it ispossible for the decree-holder to get the decree executed. Theexecution of the decree during pendency of the appeal would, thus,be subject to the restitution of the property in the event the appealis allowed and the decree is set aside. The court only at the time ofpassing a judgment and decree reversing that of the appellate courtshould take into consideration the subsequent events, but, by nostretch of imagination, can refuse to do so despite arriving at thefindings that the plaintiff would not be entitled to grant of adecree. 29. Order 41 Rule 1 of the Code stipulates that filing of an appealwould not amount to automatic stay of the execution of the decree.The law acknowledges that during pendency of the appeal it ispossible for the decree-holder to get the decree executed. Theexecution of the decree during pendency of the appeal would, thus,be subject to the restitution of the property in the event the appealis allowed and the decree is set aside. The court only at the time ofpassing a judgment and decree reversing that of the appellate courtshould take into consideration the subsequent events, but, by nostretch of imagination, can refuse to do so despite arriving at thefindings that the plaintiff would not be entitled to grant of adecree. 31. Contention of Mr Venugopal that the defendant havingaccepted novation of contract but only the quantum of the amountbeing different, the court could have asked the respondent-plaintiffto deposit a further sum of Rs 24,000 cannot be accepted for morethan one reason. Apart from the fact that such a contention hadnever been raised before the appellate court, keeping in view thefinding of fact arrived at that there had in fact been no novation ofcontract, such a course of action was not open. In any view of thematter, the same would amount to reappreciation of evidencewhich was beyond the review jurisdiction of the High Court.33. The High Court had rightly noticed the review jurisdiction ofthe court, which is as under: THE HIGH COURT OF MADHYA PRADESHR.P. No. 1827/2018 6 Pr. Commissioner of Income Tax V/s. Shri Omprakash DDhanwani “The law on the subject—exercise of power of review, aspropounded by the Apex Court and various other High Courts maybe summarised as hereunder: (i) Review proceedings are not by way of appeal and have to bestrictly confined to the scope and ambit of Order 47 Rule 1 CPC. (ii) Power of review may be exercised when some mistake or errorapparent on the fact of record is found. But error on the face ofrecord must be such an error which must strike one on merelooking at the record and would not require any long-drawnprocess of reasoning on the points where there may conceivably betwo opinions. (iii) Power of review may not be exercised on the ground that thedecision was erroneous on merits. (iv) Power of review can also be exercised for any sufficientreason which is wide enough to include a misconception of fact orlaw by a court or even an advocate. (v) An application for review may be necessitated by way ofinvoking the doctrine actus curiae neminem gravabit.”In our opinion, the principles of law enumerated by it, in the factsof this case, have wrongly been applied.” 6.The Apex Court while dealing with the scope ofreview has held that re-appreciation of evidence and rehearing ofcase without there being any error apparent on the face of therecord is not permissible in light of provisions as contained u/s114 and Order 47 Rule 1 of Code of Civil Procedure, 1908. 7.The Apex Court in the case of S. Bagirathi AmmalVs. Palani Roman Catholic Mission, reported in (2009) 10SCC 464 in paragraphs 12 and 26 has held as under :- (v) An application for review may be necessitated by way ofinvoking the doctrine actus curiae neminem gravabit.”In our opinion, the principles of law enumerated by it, in the factsof this case, have wrongly been applied.” 6.The Apex Court while dealing with the scope ofreview has held that re-appreciation of evidence and rehearing ofcase without there being any error apparent on the face of therecord is not permissible in light of provisions as contained u/s114 and Order 47 Rule 1 of Code of Civil Procedure, 1908. 7.The Apex Court in the case of S. Bagirathi AmmalVs. Palani Roman Catholic Mission, reported in (2009) 10SCC 464 in paragraphs 12 and 26 has held as under :- “12. An error contemplated under the Rule must be such which isapparent on the face of the record and not an error which has to befished out and searched. In other words, it must be an error ofinadvertence. It should be something more than a mere error and itmust be one which must be manifest on the face of the record.When does an error cease to be mere error and becomes an errorapparent on the face of the record depends upon the materialsplaced before the court. If the error is so apparent that withoutfurther investigation or enquiry, only one conclusion can be drawnin favour of the applicant, in such circumstances, the review willlie. Under the guise of review, the parties are not entitled torehearing of the same issue but the issue can be decided just by aperusal of the records and if it is manifest can be set right byreviewing the order. With this background, let us analyse theimpugned judgment of the High Court and find out whether itsatisfies any of the tests formulated above. Alok/- THE HIGH COURT OF MADHYA PRADESHR.P. No. 1827/2018 7 Pr. Commissioner of Income Tax V/s. Shri Omprakash DDhanwani 26. As held earlier, if the judgment/order is vitiated by an apparenterror or it is a palpable wrong and if the error is self-evident,review is permissible and in this case the High Court has rightlyapplied the said principles as provided under Order 47 Rule 1CPC. In view of the same, we are unable to accept the argumentsof learned Senior Counsel appearing for the appellant, on the otherhand, we are in entire agreement with the view expressed by theHigh Court.” 8.In light of the aforesaid judgments, this court does not find any reason to review the order dated 14.9.2018 passed in I.T.A. No.141/2016. 9.There is no error apparent on the face of the record.No case for interference is made out in the matter. Accordingly,this Review Petition is dismissed. (S.C. SHARMA) JUDGE (VIVEK RUSIA) JUDGE Digitally signed by Alok Gargav Date: 2019.01.05 17:02:10 +05'30'