D. Vishnu Namboothiri v. Jayasree T.K and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` TUESDAY, THE 28[TH] DAY OF JUNE 2022 / 7TH ASHADHA, 1944 ``` ``` RP NO. 471 OF 2022 ``` ``` AGAINST THE JUDGMENT IN Con.Case(C) 270/2022 OF HIGH COURT OF ``` ## **`KERALA`** ## **`REVIEW PETITIONER/PETITIONER:`** ``` D. VISHNU NAMBOOTHIRI ``` ``` AGED 60 YEARS, S/O. LATE DAMODHARAN NAMBOODIRI, ASSISTANT EXECUTIVE ENGINEER RTD, ELECTRICAL SUB DIVISION, THENGANA, CHANGANASSERY, KOTTAYAM DISTRICT, RESIDING AT CHERUKUDAL ILLAM, KAVUMBAGAM P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN – 689 101. ``` ``` BY ADV P.M.UNNI NAMBOODIRI ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SMT.JAYASREE.T.K AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, KERALA STATE ELECTRICITY BOARD LIMITED, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN – 695 004. ``` ``` 2SRI.DR.ASHOKAN (IAS) AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, CHAIRMAN, KSEB LTD, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN – 695 004. ``` ``` 3SRI.SREEKUMAR.P.K AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, CHIEF ENGINEER (HRM),KSEB LTD. VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN – 695 004. ``` **2** ## **R.P.No.471 of 2022** ``` 4SRI.ISACC K.M, AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, SENIOR ACCOUNTS OFFICER KERALA STATE ELECTRICITY BOARD LIMITED, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN – 695 004. ``` ``` BY ADV ANTONY MUKKATH ``` ``` THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 28.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **R.P.No.471 of 2022** **3** ## **ORDER** Dated this the 28[th] day of June, 2022 ## **S.Manikumar, C.J.** Earlier, alleging willful disobedience of the directions issued in W.A.No.1155 of 2017 dated 19.08.2019, Contempt Case (C)No.270 of 2022 was filed. Placing on record the contents of the affidavit filed by the Secretary, Kerala State Electricity Board Limited, 1[st] respondent therein, vide judgment dated 02.03.2022, this court closed the contempt petition. Seeking review of the judgment dated 02.03.2022 made in Contempt Case (C)No.270 of 2022, instant review petition is filed. 2. Though Mr.Unni Namboodiri, learned counsel for the review petitioner made submissions on the grounds raised in the review petition, from the material on record, it could be deduced that the main ground for seeking review is that the contempt petition was closed on the basis of a false affidavit filed by the respondent therein that the entire pensionary benefits have already been paid to the writ petitioner and **R.P.No.471 of 2022** **4** that no recovery was made from the pensionary benefits. 3. Review of the judgment or order can be made subject to satisfying the parameters contained in Section 114 and Order XLVII Rule 1 of the Code of Civil Procedure. For brevity, the said provisions are extracted: Section 114 of the Code of Civil Procedure, 1908 **“114. Review.** – Subject as aforesaid, any person considering himself aggrieved,- (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.” Order XLVII Rule 1 of the Code of Civil Procedure, 1908 “ **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 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 **R.P.No.471 of 2022** **5** ## 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 judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.” ## 4. On the scope of review, reference can be made to few decisions: ## (I) In **Moran Mar Basselios Catholicos** v. **Mar Poulose Athanasius** [AIR 1954 SC 526], the Hon'ble Supreme Court interpreted the provisions contained in the Travancore Code of Civil Procedure, which are analogous to Order XLVII Rule 1, and held as under: “32. … Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, **R.P.No.471 of 2022** **6** namely, (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. It has been held by the Judicial Committee that the words ‘any other sufficient reason’ must mean ‘a reason sufficient on grounds, least analogous to those specified in the rule’.” (II) In **Shivdeo Singh v. State of Punjab** (AIR 1963 SC 1909), the Hon'ble Supreme Court held 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 **R.P.No.471 of 2022** **7** 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.” ## (III) In **Thungabhadra Industries Ltd.** v. **Govt. of A.P.** [AIR 1964 SC 1372], the Hon'ble Supreme Court held as under: "What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error." (IV) In **S. Nagaraj** v. **State of Karnataka** [1993 (3) SCALE 548], the Hon'ble Supreme Court held as under: "It is the duty of the court to rectify, revise and recall its orders as and when it is brought to its notice that certain of its orders were passed on a wrong or **R.P.No.471 of 2022** **8** mistaken assumption of facts and that implementation of those orders would have serious consequences. An act of Court should prejudice none. "Of all these things respecting which learned men dispute", said Cicero, "there is none more important than clearly to understand that we are born for justice and that right is founded not in opinion but in nature". This very idea was echoed by James Madison (The Federalist, No. 51 at p. 352). He said: "Justice is the end of the government. It is the end of the civil society. It ever has been and ever will be pursued, until it be obtained or until liberty be lost in the pursuit." ## (V) In **Meera Bhanja** v. **Nirmala Kumari Choudhury** [(1995) 1 SCC 170], the Hon'ble Supreme Court held as under: “8. It is well settled 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 CPC. In connection with the limitation of the powers of the court under Order 47 Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution, this Court, in **Aribam Tuleshwar Sharma v. Aribam Pishak Sharma** , [(1979) 4 SCC 389] speaking through Chinnappa Reddy, J. has made the following pertinent observations: “It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct **R.P.No.471 of 2022** **9** 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 power which may enable an appellate court to correct all manner of errors committed by the subordinate court.” (VI) Again, in **Meera Bhanja v. Nirmala Kumari Choudhury** [(1995) 1 SCC 170], while quoting with approval a passage from **Aribam Tuleshwar Sharma v. Aribam Pishak Sharma** (supra) _,_ the Hon'ble Apex Court once again held that 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 CPC. ## (VII) In **Parsion Devi and Others** v. **Sumitri Devi and Others** [(1997) 8 SCC 715], the Hon'ble Supreme Court, relying upon the decisions in **Smt. Meera Bhanjia v. Smt. Nirmala Kumari Chowdhury** and **Abhiram Taleshwar Sharma** (cited supra), held as under: "Under Order XLVII, Rule 1, CPC a judgment may be open to review inter alia, if there is a mistake or an **R.P.No.471 of 2022** **10** error apparent on the face of the record. 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 the record justifying the Court to exercise its power of review under Order XLVII, Rule 1, CPC. In exercise of the jurisdiction under Order XLVII, Rule 1, CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise." (VIII) In **Lily Thomas** v. **Union of India** [(2000) 6 SC 224], the Hon'ble Supreme Court held as under: “52. The dictionary meaning of the word "review" is the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. This Court in **Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji** (AIR 1970 SC 1273), held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did **R.P.No.471 of 2022** **11** not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error" “An application for review may be necessitated by way of invoking the doctrine " _actus curiae neminem gravabit_ ". (IX) In **Haridas Das** v. **Usha Rani Banik** , (AIR 2006 SC 1634), the Hon'ble Supreme Court made a reference to explanation added to Order 47 by the Code of Civil Procedure (Amendment) Act, 1976 and held as under: "13. In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it 'may make such order thereon as it thinks fit'. The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the **R.P.No.471 of 2022** **12** Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. xx xxx xxxxxxx 15. A perusal of Order 47 Rule 1 shows that review of a judgment or an order could be sought: (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason." ## (X) In **State of West Bengal** v. **Kamal Sengupta** [(2008) 8 SCC 612], the Hon'ble Supreme Court had an occasion to consider what can be said to be mistake or error apparent on the face of record and held as under: "21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must **R.P.No.471 of 2022** **13** be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review _ex debito justitiae_ . Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier. 22. The term “mistake or error apparent” by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not selfevident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the 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 judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision.” ## (XI) In **Inderchand Jain** v. **Motilal** [(2009) 14 SCC 663], the Hon'ble Supreme Court held as under: “7. Section 114 of the Code of Civil Procedure (for short **R.P.No.471 of 2022** **14** “the Code”) provides for a substantive power of review by a civil court and consequently by the appellate courts. The words “subject as aforesaid” occurring in Section 114 of the Code mean subject to such conditions and limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in Order 47 of the Code must be taken into consideration. Section 114 of the Code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47 of the Code; Rule 1 whereof reads as under: “17. The power of a civil court to review its judgment/decision is traceable in Section 114 CPC. The grounds on which review can be sought are enumerated in Order 47 Rule 1 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 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 **R.P.No.471 of 2022** **15** judgment of the court which passed the decree or made the order.’ ” [Ed.: As observed in State of W.B. v. Kamal Sengupta, (2008) 8 SCC 612 : (2008) 2 SCC (L&S) 735, SCC at p. 631, para 17] 8. An application for review would lie inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. In **Rajendra Kumar v. Rambai** [(2007) 15 SCC 513], this Court held: (SCC p. 514, para 6) “6. 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 judgment/order cannot be disturbed.” 9. The power of review can also be exercised by the court in the event discovery of new and important matter or evidence takes place which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was made. An application for review would also lie if the order has been passed on account of some mistake. Furthermore, an application for review shall also lie for any other sufficient reason. 11. Review is not appeal in disguise. In **Lily Thomas v. Union of India** [(2000) 6 SCC 224], this Court held: “56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers **R.P.No.471 of 2022** **16** can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise.” 5. In the case on hand, the grounds, on the basis of which the decision in Contempt Case (C)No.270 of 2022 is sought to be reviewed, do not satisfy the requirements of the statutory provisions and the decisions stated supra. In the light of the above discussion and decisions, the review petition is dismissed. It is made clear that the dismissal of the review petition would not forego the right of the petitioner to seek for revival of Contempt Case (C)No.270 of 2022 dated 02.03.2022, if so advised. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** ## **vpv** //true copy// P.A. to Judge