R.P.718 of 2015

## **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 21[ST] DAY OF JUNE 2022 / 31ST JYAISHTA, 1944** ## **R.P.NO.718 OF 2015** **AGAINST THE JUDGMENT IN WA 1706/2013 OF HIGH COURT OF KERALA DATED 25.5.2015** ## **REVIEW PETITIONER/APPELLANT/PETITIONER:** R. SANTHOSH, AGED 40 YEARS, S/O. RAJENDRAN, SANTHOSH NIVAS, CHIRAKKARA THAZHAM P.O., KOLLAM. BY ADV SRI.P.SIVARAJ ## **RESPONDENTS/RESPONDENTS/RESPONDENTS:** - 1 SR. GEOLOGIST, DEPARTMENT OF MINING & GEOLOGY, DISTRICT OFFICE, KOLLAM – 690 001. - 2 TAHSILDAR, KOTTARAKARA TALUK, KOTTARAKARA, KOLLAM – 690 001. - 3 ADDITIONAL TAHSILDAR, KOTTARAKARA, KOLLAM – 690 001. - 4 THE VILLAGE OFFICER, VELIYAM VILLAGE, KOTTARAKARA TALUK, KOLLAM DISTRICT – 690 001. BY SRI. K.P.HARISH, SR G.P. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 21.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RP NO. 718 OF 2015 :: 2 :: ## **JUDGMENT** Dated this the 21[st] day of June 2022 ## S.MANIKUMAR, C.J. This review petition is filed seeking review of the judgment dated 25.5.2015 in W.A.No.1706/2013 confirming the judgment in W.P. (C)No.16423/2013 on the ground of delay. Writ petition was filed by the appellant/review petitioner, aggrieved by Exts.P10 and P10(a) orders passed by the authorities seeking to recover certain amounts allegedly on account of quarrying operations conducted by him in Government land without obtaining necessary permit. 2. Learned Single Judge dismissed the writ petition on the ground of long delay in challenging Exts.P10 and P10(a) impugned orders passed by the appropriate statutory authorities. 3. By judgment dated 25.5.2015, a Division Bench of this court dismissed the writ appeal, relevant portion of which reads thus: “7. In this appeal, the appellant has filed an affidavit and a petition seeking to accept certain documents in the appeal and during the course of the argument, counsel for the appellant has drawn our attention to paragraphs 3 and 4 of the affidavit to contend that he has explained the delay in filing the writ petition. We have gone through the affidavit and we do not find that any reason has been assigned by the appellant so as to explain the delay caused in filing the RP NO. 718 OF 2015 :: 3 :: writ petition. We have also gone through the writ petition, the affidavit and the appeal memorandum and we do not find that any reasonable explanation has been offered by the appellant for the delay caused in filing the writ petition. Therefore, we do not find any infirmity or illegality in the judgment passed by the learned Single Judge. In the circumstances, writ appeal fails and it is accordingly dismissed.” 4. Being aggrieved, seeking review of the abovesaid judgment, this review petition has been filed in the year 2015. Grounds raised in the review petition reveals that consequent to the dismissal of writ appeal, recovery proceedings have been initiated by the respondents, as per Ext.P10 notice, which according to the appellant is in violation of the provisions of the Kerala Land Conservancy Act, 1957. 5. Heard Sri.P.Sivaraj, learned counsel for the review petitioner and Sri.K.P.Harish, learned Senior Government Pleader. 6. Review of a judgment or order can be made subject to satisfying the parameters contained in Section 114 of Order 47 and Order 47 Rule 1 of the Code of Civil Procedure. 7. For brevity, the said provisions are extracted: Section 114 of Order 47 of Code of Civil Procedure, 1908 - **“114. Review.** – Subject as aforesaid, any person considering RP NO. 718 OF 2015 :: 4 :: 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 47 Rule 1 of 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 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.” RP NO. 718 OF 2015 :: 5 :: ## 8.Let us also consider few decisions as to scope of review petition: (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 47 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, 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 RP NO. 718 OF 2015 :: 6 :: 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.” (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 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: RP NO. 718 OF 2015 :: 7 :: "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 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.” RP NO. 718 OF 2015 :: 8 :: (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 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 RP NO. 718 OF 2015 :: 9 :: 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 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 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 RP NO. 718 OF 2015 :: 10 :: 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 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 self-evident 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 RP NO. 718 OF 2015 :: 11 :: 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 “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 on which review can be are grounds sought 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 RP NO. 718 OF 2015 :: 12 :: 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 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: (SCC p. 251, para 56) “56. It follows, therefore, that the power of review RP NO. 718 OF 2015 :: 13 :: 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. The review cannot be treated like an appeal in disguise.” 9. In the light of the statutory provisions and upon considering the grounds, we are of the view that the appellant has not made out a case to review the judgment dated 25.5.2015 in W.A.No.1706/2013. 10. Yet another fact to be considered is that though review petition is stated to have been filed in the year 2015, no steps have been taken by the review petitioner to post the review petition before the bench. In the above said circumstances, review petition is dismissed. **SD/-** **S.MANIKUMAR CHIEF JUSTICE** **SD/SHAJI P.CHALY JUDGE** jes