Shri Ram Sahu (Dead) through Lrs. vs Vinod Kumar Rawat & Ors.

2 sought review of the said observation made by the High Court regarding the possession in para 20 of the judgment – The High Court allowed the review application and ordered to delete para 20 of the Judgment and order dated 10.12.2013 passed in First Appeal – Aggrieved, the original plaintiff preferred appeal before the Supreme Court – Held: The High Court has clearly overstepped the jurisdiction vested in the Court u/Or. 47 Rule 1 CPC – No ground as envisaged u/Or. 47 Rule 1 CPC was made out to review the observations made in para 20 – It is required to be noted and as evident from para 20, the High Court made observations in para

20 with respect to possession of the plaintiffs on appreciation of evidence on record more particularly the deposition of the plaintiff (PW1) and his witness (PW2) and on appreciation of the evidence, the High Court found that the plaintiff is in actual possession of the said house – Therefore, when the observation with respect to the possession of the plaintiff were made on appreciation of evidence/material on record, it cannot be said that there was an error apparent on the face of proceedings which were required to be reviewed in exercise of powers u/Or. 47 Rule 1 CPC – Thus, the High Court in exercise of review jurisdiction could not have without sufficient and just reasons reviewed its own judgment.

Code of Civil Procedure, 1908 – s.114 and Or.47, r.1 – Power of Review – Held: From the bare reading of s.114 CPC, it appears that the said substantive power of review u/s.114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision – However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Or. 47 r.1 CPC – The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review.

Allowing the appeal, the Court

HELD : 1. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section

114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order

47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review. [Para 9][891-D-G]

2. Considered in the light of the aforesaid settled position, this Court finds that the High Court has clearly overstepped the jurisdiction vested in the Court under Order 47 Rule 1 CPC. No ground as envisaged under Order 47 Rule 1 CPC has been made out for the purpose of reviewing the observations made in para

20. It is required to be noted and as evident from para 20, the High Court made observations in para 20 with respect to possession of the plaintiffs on appreciation of evidence on record more particularly the deposition of the plaintiff (PW1) and his witness PW2 and on appreciation of the evidence, the High Court found that the plaintiff is in actual possession of the said house. Therefore, when the observation with respect to the possession of the plaintiff were made on appreciation of evidence/material on record, it cannot be said that there was an error apparent on the face of proceedings which were required to be reviewed in exercise of powers under Order 47 Rule 1 CPC. At this stage, it is required to be noted that even High Court while making observations in para 20 with respect to plaintiff in possession also took note of the fact that the defendant nos. 1 and 2 – respondents herein themselves filed an application being I.A. No.1267 of 2012 which was filed under Section 151 CPC for getting the possession of the disputed house from the appellants and the said application was dismissed as withdrawn. Therefore, the High Court took note of the fact that even according to the defendant nos. 1 & 2 the appellants were in possession of the disputed house. Therefore, in light of the fact situation, the High Court has clearly erred in deleting para 20 in exercise of powers under Order 47 Rule 1 CPC more particularly in the light of the settled preposition of law laid down by this Court in the aforesaid decisions. [Para 10][891-G-H; 892-A-E]

3. Even otherwise non-framing of the issue with respect to possession would have no bearing and/or it fades into insignificance. It is required to be noted that there were necessary pleadings with respect to possession in the plaint as well as in the written statement. Even the parties also led the evidence on the possession. The original plaintiff – appellant herein led the evidence with supporting documents to show his possession and to that, there was no cross-examination by the defendants – respondents. The defendants - respondents did not lead any evidence to show their possession. Therefore, the parties were aware of the rival cases. On a holistic and comprehensive reading of the pleadings and the deposition of PW1 and PW2, it is unescapable that the plaintiff had intendedly, directly and unequivocally raised in its pleadings the question of possession. As observed hereinabove even in the written statement, the defendants also made an averment with respect to possession. Thus neither prejudice was caused nor the proceedings can be said to have been vitiated for want of framing the issue. As observed and held by this Court in the case of Sri Gangai Vinayagar Temple vs. Meenakshi Ammal and Others, if the parties are aware of the rival cases, the failure to formally formulate the issue fades into insignificance when an extensive evidence has been recorded without any demur. Even the observations made by the High Court that there was no issue with respect to possession before the Trial Court and/or even before the High Court is not correct. As observed hereinabove in the pleadings in the plaint and even in the written statement filed by the defendants, there were necessary averments with respect to possession. Even the parties also led the evidence on possession. [Para 11.1][892-H; 893-A-E]

4. Hence, on the grounds stated in the impugned order, the High Court in exercise of review jurisdiction could not have without sufficient and just reasons reviewed its own judgment and order and deleted the observations made in para 20 with respect to possession. [Para 12][893-E-F]

Haridas Das vs. Usha Rani Banik (Smt.) and Others (2006) 4 SCC 78 : [2006] 3 SCR 87 ; Inderchand Jain vs. Motilal, (2009) 14 SCC 663 : [2009] 11 SCR 252 ; Hari Vishnu Kamath vs. Ahmad Ishaque AIR 1955 SC 233:[1955] SCR 1104 ; Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715 ; State of West Bengal and Others vs. Kamal Sengupta and Anr. (2008) 8 SCC 612: [2008]

10 SCR 4 – relied on.

Sri Gangai Vinayagar Temple v. Meenakshi Ammal (2015) 3 SCC 624 : [2014] 12 SCR 845 ; Bhuwan Singh v. Oriental Insurance Company Ltd. (2009) 5 SCC 136: [2009] 4 SCR 195 ; Sayeda Akhtar v. Abdul Ahad (2003) 7 SCC 52 : [2003] 1 Suppl. SCR 612 ; Lily Thomas vs. Union of India (2000) 6 SC 224 : [2000] 3 SCR 1081 ; Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius AIR 1954 SC 526 : [1955] SCR 520 ; Patel Narshi Thakershi vs.

Pradyumansinghji Arjunsinghji (1971) 3 SCC 844 ; T.C. Basappa vs. T.Nagappa AIR 1954 SC 440:[1955] SCR 250 – referred to.

Chhajju Ram vs. Neki AIR 1922 PC 112 – referred to.