Does a review under Order 47 Rule 1 CPC lie only for an error apparent on the face of the record?

This Review Application is filed under Order 47 Rule 1 of CPC, to review the Judgment and Decree, dated 30-01-2019, passed in CMA.No.2149 of 2018, by this Court.

This Court heard Mr.B.Kumarasamy, the learned counsel for the Applicant and Mr.S.Kumaresan for Mr.K.Sasindran, the learned counsel for the Respondents.

The facts of the case are that Respondents/ Plaintiffs had filed the suit in OS.No.200 of 2014, before the District Munsif Court, against the Applicant herein/Defendant, for declaration and permanent injunction. By the judgement and decree, dated 19.01.2017, the said suit was dismissed by the trial Court. Aggrieved by the same, the plaintiffs had filed A.S.No.11 of 2017 before the Sub-Court, Sathyamangalam. Along with the appeal, the plaintiffs have also filed I.A.No.144 of 2017 seeking to receive additional documents. By the judgement and decree dated 30.01.2018, the lower appellate Court, allowed the appeal, setting aside the judgement and decree passed in the suit and remanded the suit to the file of the trial Court for fresh disposal. In the same judgement, the lower appellate Court, allowed I.A.No.144 of 2017 and received the additional documents and also directed to send the same to the trial Court. Challenging the same, the defendant has preferred the above Civil Miscellaneous Appeal in CMA.No.2149 of 2018, before this Court. This Court had dismissed the said Civil Miscellaneous Appeal, by a detailed judgement, dated 30.01.2019, which reads as under:- “This Civil Miscellaneous Appeal is filed by the appellant against the judgement and decree dated 30.1.2018 passed in A.S.No.11 of 2017 on the file of the learned Sub-Court, Sathyamangalam, remanding the suit in O.S.No.200 of 2014 to the trial Court viz., learned District Munsif, Sathyamangalam, dated 19.01.2017 for fresh disposal. 2. The appellant is the defendant and the respondents are plaintiffs in the suit. The plaintiffs have filed the suit to declare their title for the suit property and for permanent injunction restraining the defendant, his men and agents not to disturb the plaintiffs' peaceful possession and enjoyment of the suit property and for costs. 3. For the sake of convenience, the parties are referred to as per their array in the suit. 4. By the judgement and decree dated 19.01.2017, the suit was dismissed by the trial Court. Aggrieved by the same, the plaintiffs have filed A.S.No.11 of 2017 before the learned Sub-Court, Sathyamangalam. Along with the appeal, the plaintiffs have also filed I.A.No.144 of 2017 seeking to receive additional documents. By the judgement and decree dated 30.01.2018, the lower appellate Court, allowed the appeal setting aside the judgement and decree passed in the suit and remanded the suit to the file of the trial Court for fresh disposal. In the same judgement, the lower appellate Court, allowed I.A.No.144 of 2017 and received the additional documents and also directed to send the same to the trial Court. Challenging the same, the defendant has preferred the present Civil Miscellaneous Appeal. 5. The case of the plaintiffs before the Courts below is that the suit property originally belonged to one Syed Kadar and the legal heirs of Syed Kadar had executed a general power of attorney in favour of one S.Azgar. The plaintiffs have purchased the suit property from S.Azgar and from the date of purchase, they were in peaceful possession and enjoyment of the same by cultivating Horse gram, Maize at the time of rainy reason. Before getting the sale deed executed, they had surveyed the suit property and confirmed the extent and verified encumbrance of the suit property and after satisfaction, they got the execution of sale deed for the suit property. 6. Further case of the plaintiffs is that the defendant, who is having land adjacent to east of the suit property disputed the title of the suit property as well as boundary of eastern portion which was mentioned as AB. On 13.4.2014, the defendant interfered with the peaceful possession and enjoyment of the suit property by the plaintiffs. The plaintiffs have made a police complaint on 24.5.2014 before Thalavadi Police Station and the police enquired the complaint and warned the defendant not to disturb the plaintiffs' peaceful possession and enjoyment of the suit property. On 20.11.2014, when the first plaintiff went to the suit property with tractor and ploughed the land for cultivation of the season crops, the defendant unlawfully entered into the suit property and disputed the title of AB portion mentioned in the plaint plan and the defendant's attempt was thwarted by the plaintiffs with the help of tractor driver as well as the neighbours. Further, the defendant proclaimed that he will come again with more men and material in order to disturb the peaceful possession and enjoyment of the suit property by the plaintiffs. Hence, the plaintiffs have filed the suit for declaration and permanent injunction. 7. The defendant resisted the suit by filing written statement contending that he is in possession and enjoyment of the suit property and the plaintiffs were never in possession and enjoyment of the same. Earlier, the defendant's father was in possession of the suit property and thereafter, the defendant was in possession with the knowledge of the plaintiffs and therefore, the defendant acquired title by adverse possession. Adjacent to the suit property, the defendant owned property in S.No.101/1 and 101/2 and on 29.4.2010 and when the defendant was ploughing, the son of power agent of the plaintiffs viz., Azgar and others came to the property and was trying to interfere with the ploughing and the same was prevented by the defendant. In this regard, the defendant lodged a police complaint and had also filed suit in O.S.No.145 of 2010 for declaration and permanent injunction wherein Azgar was arrayed as sixth defendant. By the judgement dated 27.11.2013, the suit came to be decreed. It is stated that no document has been filed in O.S.No.145 of 2010 to show that the property was sold to the plaintiffs. After filing of the suit in O.S.No.145 of 2010, a sale deed dated 19.1.2011 was created and filed the suit. 8. According to the defendant, it is false to state that the defendant interfered with the peaceful possession and enjoyment of the suit property by the plaintiffs. Knowing that in respect of suit property already suit is pending, the plaintiffs have purchased the property on 19.1.2011 and the same cannot be entertained. There was no cause of action for the suit and thus, prayed for dismissal of the suit. 9. Before the trial Court, the first plaintiff examined himself as P.W.1 and Exs.A1 to A11 were marked. On the side of the defendants, D.W.1 to D.W.3 were examined and Exs.B1 and B2 were marked. Court exhibits C1 to C3 were marked. 10. The trial Court dismissed the suit, against which, the plaintiffs have preferred an appeal being A.S.No.11 of 2017. By the judgement dated 30.01.2018, the lower appellate Court remanded the matter to the trial Court by directing the parties to adduce oral and documentary evidence. Further, the lower appellate Court was directed to find out whether the defendant acquired title by adverse possession and whether the suit is hit by the principles of res judicata and also find out whether the suit property in the present suit includes the suit property in O.S.No.145 of 2010. 11. Assailing the remand of the suit by the lower appellate Court, the learned counsel for the appellant contended that the lower appellate Court failed to note that the plaintiffs have introduced a new case in the first appeal and after a lapse of four years of filing of the suit, they have filed petition to receive additional evidence introducing a new case at the appellate stage. He would submit that the lower appellate Court failed to note that already the defendant got decree in his favour in respect of the suit property in O.S.No.145 of 2010 on the file of the learned District Munsif Court, Sathyamangalam. 12. The learned counsel further submitted that the lower appellate Court under Order 41, Rule 23 of CPC cannot remand the matter to enable parties to make good their lapse, which causes unnecessary delay and prejudice to the defendant. According to the learned counsel order of remand should not be passed as a matter of course. Further, the defendant is an aged person and the first appeal was pending for 5 years and after 5 years, the matter was remanded to the trial Court without any valid reason whatsoever. In fact, the judgement in the appeal will act as res judicata to the appeal filed by the plaintiffs and thus, prayed for setting aside the judgement of the lower appellate Court. In support, the learned counsel relied upon the decisions in Sundarajan @ Pichaikaran v. Aanji, reported in 2010 (6) CTC 612 and M.Mani and another v. Cuddalore Municipality, rep. by its Commissioner, reported in 2011 (1) CTC 239. 13. Per contra, the learned counsel for the plaintiffs submitted that during the course of trial, the defendant had marked only the judgement and decree passed in O.S.No.145 of 2010 as exhibits in the present suit, but failed to produce the plaint, written statement, exhibits A1 and X1 and depositions of P.W.1 to 3 and D.W.1 to 3, which are all entirely against the defendant's case in respect of the present Civil Miscellaneous Appeal. Therefore, pendency of the appeal in A.S.No.11 of 2017, the plaintiffs have filed the petition to receive additional documents, which the lower appellate Court has rightly allowed. According to the learned counsel, the subject matter of property in both the suits are entirely different. The subject matter of O.S.No.145 of 2010 is S.F.No.101/1 and 101/2, whereas the subject matter of the present appeal is S.F.No.99/2. 14. Stating that the appellant did not produce any document to show that the suit property in S.No.99/2 is within S.No.101/1, 2, the learned counsel for the plaintiffs submitted that the defendant had conveniently mislead the trial Court by marking the copy of judgement as Ex.B1 and B2 by using principles of res judicata. However, the learned counsel prayed for setting aside the judgement and decree of the Courts below and also praying to decree the suit in O.S.No.200 of 2014 in entirety. 15. This Court need not go to into the claims made by the defendant and the plaintiffs and the merits of the case. Suffice it to decide whether the lower appellate Court is justified in remanding the matter to the trial Court for further trial. 16. For better appreciation, it is relevant to extract the provision of Order 41, Rule 23 of CPC: “23. Remand of case by Appellate Court — Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgement and order to the Court from whose decree the appeal is preferred, with directions to readmit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. 23A. Remand in other cases — Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.” Thus, it is clear that if the appellate Court is of the view that the trial Court decided the case otherwise and the decree is reversed in appeal, a re-trial is inevitable. 17. It is settled that powers of the Courts are restricted to direct remand of the matters to the trial Court. Before passing the order of remand, the appellate Court has to ensure that the circumstances set out in Rules 23 and 23A of Order 41 of CPC are satisfied. If the purpose of remand outside the scope of these provisions is discerned, then the appellate Court shall avoid remand. The sections have been incorporated in Code of Civil Procedure to restrict the power of the appellate Courts to remand several matters in which the appellate Court finds doubts with regard to certain points which in fact could be decided by the appellate Court itself on the available materials. The object and introduction of these provisions is to circumvent the powers of the appellate Courts to take liberal view in remanding the matters to the trial Court, where re-trial is not warranted, which would lead to elongation of the trial proceedings indefinitely. 18. In a catena of decisions, the Hon'ble Supreme Court held that if the scope of remand is out of the parameters adumbrated under Rules 23 and 23A of Order 41 of CPC, then the remand has to be discountenanced. 19. In P.Purushottam Reddy v. M/s.Pratip Steels Limited, reported in 2002 SC 771, the Hon'ble Supreme Court held: “In cases where additional evidence is required to be taken in the event at any one of the clauses of Sub- rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any Court subordinate to the appellate court to receive such evidence and sent it to the appellate court. In 1976, Rule 23-A has been inserted in O.41 which provides for a remand by an appellate court hearing an appeal against a decree if, (i) the trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra v. Sushila, A.I.R. 1965 S.C. 365 at 399, it is well settled that inherent powers can be availed ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand dehors the Rule 23 and 23-A. To wit, the superior Court, if it finds that the judgement under appeal has not disposed of the case satisfactorily in the manner required by O.20, Rule 3 or O.11, Rule 31 of the C.P.C and hence it is no judgement in the eye of law it may set aside the same and send the matter back to re-writing the judgement so as to protect valuable rights of the parties. An appellate Court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 of the C.P.C. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.” 20. Following the decision of the Hon'ble Supreme Court in the above cited case, it has to be held that the order of remand could be justified if the purpose for which it would come within the purview of Rules 23, 23A or 25 of Order 41 of CPC. 21. Coming to the instant case, the lower appellate Court has given adequate findings in its judgement as to the rights of the parties to be adjudicated. The lower appellate Court has also remanded the matter particularly on the points whether the defendant acquired title by adverse possession and whether the instant suit is hit by the principles of res judicata and also whether the suit property in the present suit includes the suit property in O.S.No.145 of 2010 filed by the defendant. 22. It is apposite to mention that before the lower appellate Court, the respondents herein have filed I.A.No.144 of 2017 to receive additional documents. By the impugned judgement itself, the lower appellate Court held that additional evidence is required to be taken and for the said purpose, the documents listed out in I.A.No.144 of 2017 are ordered to be send to the trial Court and the trial Court was directed to afford an opportunity to both sides to let in oral and documentary evidence. Only in the interest of justice and also to resolve the controversy between the parties, the lower appellate Court remanded the suit to the trial Court. This Court finds no error in the findings of the lower appellate Court. 23. As per Order 41, Rule 23 and 23A of CPC, a clear finding has to be furnished by the appellate Court for remanding the matter. As per Order 41, Rule 23 of CPC, if the appellate Court considers it necessary in the interest of justice to remand the case, it can be done and as per Rule 23A of Order 41 of CPC, if the Court considers a re-trial is necessary, the remand could be ordered. Bearing in mind the aforesaid provision, the lower appellate Court has expressed its view unambiguously that there are sufficient grounds for re-trial and the remand could be in the interest of justice. This Court endorses the view expressed by the lower appellate Court. 24. In the facts and circumstances of the case, the decisions relied upon by the learned counsel for the defendant before this Court will not be applicable to the case on hand, as the order of remand passed by the lower appellate Court is not as a matter of course and, therefore, the said decisions are distinguishable on facts. In fact, the lower appellate Court, after appreciating the submissions made by the learned counsel appearing on either side and also upon evaluation of the oral and documentary evidence produced by the parties has passed such an order. 25. Since this Court reached a conclusion that the lower appellate Court's order of remand is justified, which has satisfied the requirement envisaged in Rules 23 and 23A of Order 41 of CPC, the judgement and decree under challenge need not be interfered and there is no legal infirmity in the same, and as such it deserves to be confirmed and is accordingly confirmed. 26. In the result, (a) the Civil Miscellaneous Appeal is dismissed, by confirming the order passed in A.S.No.11 of 2017, dated 30.01.2018 on the file of the learned Sub Court, Sathyamangalam; (b). the documents filed by the plaintiff has been marked as Court Exhibits- C1 to C3 and the suit is decreed as prayed for.” No costs. Consequently, connected miscellaneous petition is closed.”

At this juncture, it is relevant to quote the provisions of the Order 47 Rule 1 of CPC, as follows:- “1. Application for review of judgement:- (1) Any person considering himself aggrieved- (a) by a decree or Order from which an appeal is allowed, but from which 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, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or Order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or Order made against him, may apply for a review of judgement to the Court, which passed the decree or made the Order.”

At the out set, it is to be noted that this Court, while dismissing the above Civil Miscellaneous Appeal, had specifically held that the order of remand of the lower appellate court is justified, since it has satisfied the requirements envisaged in Rules 23 and 23A of Order 41 of CPC and hence, it need not be interfered with, as there is no legal infirmity in the same . Holding so, this Court had dismissed the Civil Miscellaneous Appeal, by the detailed impugned judgement, after elaborately discussing on merits and by taking note of the legal position and hence, there is no scope to entertain this review application.

The scope of review is very limited. The Applicant is not allowed to argue the case afresh and open the pandora box.

Further, on perusing the grounds, taken in this review application, by the Applicant, which, on the face of it and virtually, are constituting an attempt to re-argue the matter, which cannot be done, in the garb of review. In fact, the Applicant has not made any valid ground to attract the provisions under Order 47 Rule 1 of CPC, but made only vague averments.

A Review is not an appeal in disguise. Rehearing of the matter is impermissible in the garb of review. Power of review can be exercised for correction of a mistake or error apparent on the face of the record and not to substitute a view. It is an exception to the general rule that once a judgement is signed or pronounced, it should not be altered, as has been, time and again, held by the several judgements of the Honourable Supreme Court, which are quoted as under.

In the case of Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh; AIR 1964 SC 1372, the Honourable Supreme Court was pleased to observe, as under:- "A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."

Further, in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma; 1979 (4) SCC 389, the Honourable Supreme Court was pleased to observe, as under:- “"... there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate powers which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court."

Again, in the case of Meera Bhanja v. Nirmala Kumari Choudhury; AIR 1995 SC 455, while quoting with approval the above passage from Abhiram Taleshwar Sharma Vs. Abhiram Pishak Shartn (supra), the Honourable Supreme Court, once again, had held that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC.

Further, in the case of Parsion Devi and others Vs. Sumitri Devi and others; 1997 (8) SCC 715, the Honourable Supreme Court was pleased to observe that an error, which is not self evident and has to be detected by process of reasoning, can hardly be said to be error apparent on the face of the record, justifying the court to exercise powers of review, in exercise of review jurisdiction.

Further, in the case of Rajendra Kumar Vs. Rambai; AIR 2003 SC 2095, the Honourable Supreme Court was pleased to observe about the limited scope of judicial intervention, at the time of review of the judgement and observe, as under:- "The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgement/order cannot be disturbed."

In the case of Lily Thomas Vs. Union of India; AIR 2000 SC 1650, the Honourable Supreme Court was pleased to observe that power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within limits of the statute dealing with the exercise of power. The aforesaid view is reiterated in the case of Inderchand Jain Vs. Motilal; (2009) 4 SCC 665.

Further, in the case of Kamlesh Verma Vs. Mayawati and others; 2013 (8) SCC 320, the Honourable Supreme Court was pleased to observe, as under:- “"19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgement cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgement in the guise that an alternative view is possible under the review jurisdiction. Summary of the Principles: 20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: 20.1. When the review will be maintainable:- (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. The words "any other sufficient reason" has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., 2013 (8) SCC 337. 22.2. When the review will not be maintainable:- (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived." (emphasis supplied)

In this review application, the Applicant has come forward with the same story that was pleaded by them in the Civil Miscellaneous Appeal. A Review is not an appeal in disguise, as has been, time and again, held by several judgements of the Honourable Supreme Court, referred to above. The Court can exercise its power of review, only when there is an error apparent on the face of record and even an error, which is not apparent on the face of the record, but has to be detected by a process of reasoning, cannot be a ground for review. Any ground, which does not fall under Order 47 Rule 1 of CPC, cannot be considered in a review application. Therefore, this Court finds no ground within the scope of Order 47 Rule 1 of CPC or merit in this Review Application and accordingly, this Review Application is liable to be dismissed.

In the result, in view of the above said discussions, reasons and in the light of the decisions, referred to above, this review application is dismissed, as devoid of merits. There is no order as to costs. The file is consigned to record.