Code of Civil Procedure, 1908 – Or. XLVII r 1, s.114 – Review of judgment under –Appellant filed writ petition before the High Court against the order of the Tiruchirappalli City Municipal Corporation in respect of the pathway – High Court allowed the writ petition of the appellant on merits after considering a survey report – High Court discarded the survey report – Thereafter, the respondent filed the review petition before the High Court – High Court allowed the review petition after considering the same survey report and set aside its judgment holding the same to be erroneous – Whether in the facts and circumstances of the case the High Court justified in allowing the review application filed u/Or.47, r.1 CPC and setting aside the reasoned judgment and order passed in the main writ petition – Held: It is settled that power of review can be exercised for correction of mistake but not to substitute a view – In the instant case, the High Court exceeded in its jurisdiction and exercised the jurisdiction not vested in it while exercising the review jurisdiction u/Or.47, r.1 r/w. s.114 CPC – Once the survey report fell for consideration before the High Court while deciding the main writ petition thereafter the same could not have been considered again while deciding review application – If a judgment sought to be reviewed is erroneous, cannot be subject of review u/Or.47, r.1 but can be challenged by way of appeal.
Allowing the appeals, the Court
HELD: 1. In the case of Perry Kansagra this Court has observed that while exercising the review jurisdiction in an application under Order 47 Rule 1 read with Section 114 CPC, the Review Court does not sit in appeal over its own order. It is observed that a rehearing of the matter is impermissible in law. It is further observed that review is not appeal in disguise. It is observed that power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. It is further observed that it is wholly unjustified and exhibits a tendency to rewrite a judgment by which the controversy has been finally decided. [Para 5.1][52-C-E]
2. In the case of Shanti Conductors (P) Ltd., it is observed and held that scope of review under Order 47 Rule 1 CPC read with Section 114 CPC is limited and under the guise of review, the petitioner cannot be permitted to reagitate and reargue questions which have already been addressed and decided. It is further observed that an error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. [Para 5.3][53-B-C]
3. Applying the law laid down by this Court in the aforesaid two decisions to the facts of the case on hand, the court is of the opinion that in the present case while allowing the review application and setting aside the judgment and order dated 03.03.2017 passed in Writ Petition No.8606 of 2010 the High Court has exceeded in its jurisdiction and has exercised the jurisdiction not vested in it while exercising the review jurisdiction under Order 47 Rule 1 read with Section 114 CPC. From the reasoning given by the High Court, it appears that according to the High Court the judgment and order passed in Writ Petition No.8606 of 2010 was erroneous. While passing the impugned judgment and order the High Court has observed and considered the Survey Report dated 12.12.2007 which was already dealt with by the High Court while deciding the main writ petition and the High Court discarded and/or not considered the Survey Report dated 12.12.2007. Once the Survey Report dated 12.12.2007 fell for consideration before the High Court while deciding the main writ petition thereafter the same could not have been considered again by the High Court while deciding the review application. [Para 5.3][53-D-F]
Perry Kansagra vs. Smriti Madan Kansagra, (2019)
20 SCC 753; Shanti Conductors (P) Ltd. Vs. Assam SEB, (2020) 2 SCC 677 : 2019 (16 ) SCR 252 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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