The Present Review Petition Has Been Filed For Reviewingthe Order Dated 13.11.2017 Passed By This Court In Wpno.16010/2017 (Madhya Pradesh Audyogik Kendra Vikas v. Deputy Commissioner Of Income Tax)And Wp

HIGH COURT OF MADHYA PRADESHBENCH AT INDORERP No.1376/2017 -Indore: Dated:16.02.2018 Petitioner through counsel. The present review petition has been filed for reviewingthe order dated 13.11.2017 passed by this court in WPNo.16010/2017 (Madhya Pradesh Audyogik Kendra VikasNigam Limited Vs. Deputy Commissioner of Income Tax)and WP No.16009/2017 (SEZ Indore Vs. DeputyCommissioner of Income Tax). The present review petition has been field by ICICIBank and the bank is very much aggrieved by liberty grantedto the Income Tax Department to take appropriate stepsagainst ICICI bank in accordance with law. This court hascategorically observed that the Income Tax Department isfree to initiate action against the bank in accordance withlaw. This court has not stated that Income Tax Departmentwill follow the law or will take any action against law. It has also been pointed out that till date no notice hasbeen received by ICICI bank from the Income TaxDepartment. In the considered opinion of this court, the observationthat the Income Tax Department is free to take action inaccordance with law does not warrant any interference. TheIncome Tax Department is always free to take action against any individual or against any assessee in accordance withlaw, keeping in view the statue provisions as contain in underthe Income Tax Act, 1961. There is no error apparent on theface of record warranting interference. The Apex Court in the case of Haridas Das Vs.Usha Rani Bank (Smt) and Ors., reported in (2006) 4SCC 78 in paragraph 13 and 20 has held as under :- “13.In order to appreciate the scope of areview, Section 114 CPC has to be read, butthis section does not even adumbrate theambit of interference expected of the courtsince it merely states that it “may make suchorder thereon as it thinks fit”. Theparameters are prescribed in Order 47 CPCand for the purposes of this lis, permit thedefendant to press for a rehearing “onaccount of some mistake or error apparenton the face of the records or for any othersufficient reason”. The former part of therule deals with a situation attributable to theapplicant, and the latter to a jural actionwhich is manifestly incorrect or on which twoconclusions are not possible. Neither ofthem postulate a rehearing of the disputebecause a party had not highlighted all theaspects of the case or could perhaps haveargued them more forcefully and/or citedbinding precedents to the court and therebyenjoyed a favourable verdict. This is amplyevident from the Explanation to Rule 1 ofOrder 47 which states that the fact that thedecision on a question of law on which thejudgment of the court is based has beenreversed or modified by the subsequentdecision of a superior court in any other case, shall not be a ground for the review ofsuch judgment. Where the order in questionis appealable the aggrieved party hasadequate and efficacious remedy and thecourt should exercise the power to review itsorder with the greatest circumspection. ThisCourt in Thungabhadra Industries Ltd. v.Govt. of A.P.1held as follows: (SCR p. 186)“[T]here is a distinction which is real, thoughit might not always be capable of exposition,between a mere erroneous decision and adecision which could be characterised asvitiated by ‘error apparent’. A review is by nomeans an appeal in disguise whereby anerroneous decision is reheard andcorrected, but lies only for patent error. …where without any elaborate argument onecould point to the error and say here is asubstantial point of law which stares one inthe face, and there could reasonably be notwo opinions entertained about it, a clearcase of error apparent on the face of therecord would be made out.” 20.When the aforesaid principles areapplied to the background facts of thepresent case, the position is clear that theHigh Court had clearly fallen in error inaccepting the prayer for review. First, thecrucial question which according to the HighCourt was necessary to be adjudicated wasthe question whether Title Suit No. 201 of1985 (sic 1 of 1986) was barred by theprovisions of Order 2 Rule 2 CPC. Thisquestion arose in Title Suit No. 1 of 1986and was irrelevant so far as Title Suit No. 2of 1987 is concerned. Additionally, the HighCourt erred in holding that no prayer forleave under Order 2 Rule 2 CPC was made in the plaint in Title Suit No. 201 of 1985.The claim of oral agreement dated 19-8-1982 is mentioned in para 7 of the plaint,and at the end of the plaint it has beennoted that the right to institute the suit forspecific performance was reserved. Thatbeing so, the High Court has erroneouslyheld about infraction of Order 2 Rule 2 CPC.This was not a case where Order 2 Rule 2CPC has any application.” In the aforesaid case, the Apex Court has heldthat rehearing of a case can be done on account ofsome mistake or an error apparent on the face of therecord or for any other sufficient reason. In the presentcase, there is no error apparent on the face of therecord and the petitioner in fact under the guise ofreview is challenging the order passed by this Court,which is under review. Similarly the Apex Court in thecase of State of West Bengal and Ors. Vs. KamalSengupta and Anr., reported in (2008) 8 SCC 612 inparagraphs 21, 22 and 35 has held as under:- “21.At this stage it is apposite to observethat where a review is sought on the groundof discovery of new matter or evidence,such matter or evidence must be relevantand must be of such a character that if thesame had been produced, it might havealtered the judgment. In other words, merediscovery of new or important matter orevidence is not sufficient ground for reviewex debito justitiae. Not only this, the party seeking review has also to show that suchadditional matter or evidence was not withinits knowledge and even after the exercise ofdue diligence, the same could not beproduced before the court earlier. 22.The term “mistake or error apparent” byits very connotation signifies an error whichis evident per se from the record of the caseand does not require detailed examination,scrutiny and elucidation either of the factsor the legal position. If an error is not self-evident and detection thereof requires longdebate and process of reasoning, it cannotbe treated as an error apparent on the faceof the record for the purpose of Order 47Rule 1 CPC or Section 22(3)(f) of the Act.To put it differently an order or decision orjudgment cannot be corrected merelybecause it is erroneous in law or on theground that a different view could havebeen taken by the court/tribunal on a pointof fact or law. In any case, while exercisingthe power of review, the court/tribunalconcerned cannot sit in appeal over itsjudgment/decision. 35.The principles which can be culled outfrom the abovenoted judgments are: (i) The power of the Tribunal to review itsorder/decision under Section 22(3)(f) of theAct is akin/analogous to the power of a civilcourt under Section 114 read with Order 47Rule 1 CPC. (ii) The Tribunal can review its decision oneither of the grounds enumerated in Order47 Rule 1 and not otherwise. (iii) The expression “any other sufficientreason” appearing in Order 47 Rule 1 hasto be interpreted in the light of other specified grounds. (iv) An error which is not self-evident andwhich can be discovered by a long processof reasoning, cannot be treated as an errorapparent on the face of record justifyingexercise of power under Section 22(3)(f).v() An erroneous order/decision cannot becorrected in the guise of exercise of powerof review. (vi) A decision/order cannot be reviewed (ii) The Tribunal can review its decision oneither of the grounds enumerated in Order47 Rule 1 and not otherwise. (iii) The expression “any other sufficientreason” appearing in Order 47 Rule 1 hasto be interpreted in the light of other specified grounds. (iv) An error which is not self-evident andwhich can be discovered by a long processof reasoning, cannot be treated as an errorapparent on the face of record justifyingexercise of power under Section 22(3)(f).v() An erroneous order/decision cannot becorrected in the guise of exercise of powerof review. (vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis ofsubsequent decision/judgment of acoordinate or larger Bench of the tribunal orof a superior court. (vii) While considering an application forreview, the tribunal must confine itsadjudication with reference to materialwhich was available at the time of initialdecision. The happening of somesubsequent event or development cannotbe taken note of for declaring the initialorder/decision as vitiated by an errorapparent. (viii) Mere discovery of new or importantmatter or evidence is not sufficient groundfor review. The party seeking review hasalso to show that such matter or evidencewas not within its knowledge and even afterthe exercise of due diligence, the samecould not be produced before thecourt/tribunal earlier.” In the aforesaid case the Apex Court has held thata mistake or an error apparent on the face of the recordmeans a mistake or an error which is prima-facie visibleand does not require any detail examination. In the present case the petitioner has not been able to pointout 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 ofinterference and limitation of review in the case ofInderchand Jain (dead) Through LRs Vs. Motilal(dead) Through LRs, reported in (2009) 14 SCC 663 inparagraphs 7, 22, 24, 29, 31 and 33 has held asunder :- “7.Section 114 of the Code of CivilProcedure (for short “the Code”) provides fora substantive power of review by a civil courtand consequently by the appellate courts.The words “subject as aforesaid” occurringin Section 114 of the Code mean subject tosuch conditions and limitations as may beprescribed as appearing in Section 113thereof and for the said purpose, theprocedural conditions contained in Order 47of the Code must be taken intoconsideration. Section 114 of the Codealthough does not prescribe any limitation onthe power of the court but such limitationshave 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 Section114 CPC. The grounds on which review canbe sought are enumerated in Order 47 Rule1 CPC, which reads as under: ‘1. Application for review of judgment.—(1)Any person considering himself aggrieved— a() by a decree or order from which an appeal is allowed, but from which no appealhas been preferred, (b) by a decree or order from which noappeal is allowed, orc() by a decision on a reference from a Courtof Small Causes, and who, from the discovery of new andimportant matter or evidence which, after theexercise of due diligence, was not within hisknowledge or could not be produced by himat the time when the decree was passed ororder made, or on account of some mistakeor error apparent on the face of the record,or for any other sufficient reason, desires toobtain a review of the decree passed ororder made against him, may apply for areview of judgment of the court whichpassed the decree or made the order.’ a() by a decree or order from which an appeal is allowed, but from which no appealhas been preferred, (b) by a decree or order from which noappeal is allowed, orc() by a decision on a reference from a Courtof Small Causes, and who, from the discovery of new andimportant matter or evidence which, after theexercise of due diligence, was not within hisknowledge or could not be produced by himat the time when the decree was passed ororder made, or on account of some mistakeor error apparent on the face of the record,or for any other sufficient reason, desires toobtain a review of the decree passed ororder made against him, may apply for areview of judgment of the court whichpassed the decree or made the order.’ 22.Whereas the appellant-defendant filed areview application confined to the questionthat he was entitled to the restitution of theproperty and mesne profit in respect whereofthe learned Single Judge of the High Courtdid not pass any specific order, theapplication for review filed by the respondentwas on the merit of the judgment. Therelevant grounds of review which have beenplaced before us relate to: (i) Unconditional withdrawal of some amountby one of the creditors of the defendant asalso the defendant himself. (ii) The defendant's application before theexecuting court that he was ready and willingto get the sale deed executed on receipt ofamount in cash and the said admissionallegedly was not brought to the notice of thecourt. (iii) While holding that there was no agreement to reduce the sale consideration,the High Court had ignored the fact that itwas an admitted case of the parties, asstipulated in the contract, that thedefendants would get the premises vacatedfrom the tenants within three months. (iv) The appellant had prayed for analternative relief viz. that he was ready to getthe decree for specific performance ofcontract by paying Rs 1,15,000. The courtdid not consider the evidence of DWs 1 to 6in their proper perspective. v() The court did not consider that theproperty could not be restored back to theappellant-defendant and as such the courtshould have exercised its discretionaryjurisdiction. 24.An appeal is a continuation of the suit.Any decision taken by the appellate courtwould relate back, unless a contraryintention is shown, to the date of institutionof the suit. There cannot be any doubt thatthe appellate court while exercising itsappellate jurisdiction would be entitled totake into consideration the subsequentevents for the purpose of moulding the reliefas envisaged under Order 7 Rule 7 read withOrder 41 Rule 33 of the Code of CivilProcedure. The same shall, however, notmean that the court would proceed to do soin a review application despite holding thatthe plaintiff was not entitled to grant of adecree for specific performance of contract.29.Order 41 Rule 1 of the Code stipulatesthat filing of an appeal would not amount toautomatic stay of the execution of thedecree. The law acknowledges that duringpendency of the appeal it is possible for the decree-holder to get the decree executed.The execution of the decree duringpendency of the appeal would, thus, besubject to the restitution of the property inthe event the appeal is allowed and thedecree is set aside. The court only at thetime of passing a judgment and decreereversing that of the appellate court shouldtake into consideration the subsequentevents, but, by no stretch of imagination, canrefuse to do so despite arriving at thefindings that the plaintiff would not beentitled to grant of a decree. decree-holder to get the decree executed.The execution of the decree duringpendency of the appeal would, thus, besubject to the restitution of the property inthe event the appeal is allowed and thedecree is set aside. The court only at thetime of passing a judgment and decreereversing that of the appellate court shouldtake into consideration the subsequentevents, but, by no stretch of imagination, canrefuse to do so despite arriving at thefindings that the plaintiff would not beentitled to grant of a decree. 31.Contention of Mr Venugopal that thedefendant having accepted novation ofcontract but only the quantum of the amountbeing different, the court could have askedthe respondent-plaintiff to deposit a furthersum of Rs 24,000 cannot be accepted formore than one reason. Apart from the factthat such a contention had never beenraised before the appellate court, keeping inview the finding of fact arrived at that therehad in fact been no novation of contract,such a course of action was not open. In anyview of the matter, the same would amountto reappreciation of evidence which wasbeyond the review jurisdiction of the HighCourt. 33.The High Court had rightly noticed thereview jurisdiction of the court, which is asunder: “The law on the subject—exercise of powerof review, as propounded by the Apex Courtand various other High Courts may besummarised as hereunder: (i) Review proceedings are not by way ofappeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. (ii) Power of review may be exercised whensome mistake or error apparent on the factof record is found. But error on the face ofrecord must be such an error which muststrike one on mere looking at the record andwould not require any long-drawn process ofreasoning on the points where there mayconceivably be two opinions. (iii) Power of review may not be exercised onthe ground that the decision was erroneouson merits. (iv) Power of review can also be exercisedfor any sufficient reason which is wideenough to include a misconception of fact orlaw by a court or even an advocate. v() An application for review may benecessitated by way of invoking the doctrineactus curiae neminem gravabit.” In our opinion, the principles of lawenumerated by it, in the facts of this case,have wrongly been applied.” The Apex Court while dealing with the scope ofreview has held that re-appreciation of evidence andrehearing of case without there being any errorapparent on the face of the record is not permissible inlight 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 heldas under :- “12.An error contemplated under the Rulemust be such which is apparent on the face ofthe record and not an error which has to befished out and searched. In other words, itmust be an error of inadvertence. It should besomething more than a mere error and it mustbe one which must be manifest on the face ofthe record. When does an error cease to bemere error and becomes an error apparent onthe face of the record depends upon thematerials placed before the court. If the erroris so apparent that without furtherinvestigation or enquiry, only one conclusioncan be drawn in favour of the applicant, insuch circumstances, the review will lie. Underthe guise of review, the parties are not entitledto rehearing of the same issue but the issuecan be decided just by a perusal of therecords and if it is manifest can be set right byreviewing the order. With this background, letus analyse the impugned judgment of theHigh Court and find out whether it satisfiesany of the tests formulated above. 26.As held earlier, if the judgment/order isvitiated by an apparent error or it is a palpablewrong and if the error is self-evident, review ispermissible and in this case the High Courthas rightly applied the said principles asprovided under Order 47 Rule 1 CPC. In viewof the same, we are unable to accept thearguments of learned Senior Counselappearing for the appellant, on the other hand,we are in entire agreement with the viewexpressed by the High Court.” Keeping in view the aforesaid judgment, this courtdoes not find any reason to review the order dated 13.11.2017 passed in Writ Petition No.16010/2017 andWrit Petition No.16009/2017.The Review Petition isaccordingly dismissed. No order as to costs. Certified copy as per rules. (S.C Sharma) Judge Sourabh (Virender Singh)Judge Digitally signed by SOURABH YADAV Date: 2018.02.19 10:50:12 +05'30'