Asharafi Devi (D) Thr. Lrs. vs State Of U.P. Through ...
- SCC(2019) 5 SCC 86
- Neutral2019 INSC 124
- AIRAIR 2019 SC 832
- SCR[2019] 1 SCR 855
Ratio decidendi
The rule this decision rests on
A review application under Order 47 Rule 1 of the Code of Civil Procedure, 1908 can only be entertained where an error or mistake is apparent on the face of the record; not every factual or legal error, whether capable of correction on appeal, can be made the subject matter of a review application. A review court, when examining whether an order contains an error apparent on the face of the record, cannot re-examine findings of fact recorded in the principal order de novo or proceed as if it were an appellate court; once a factual finding is recorded in the principal order, that finding cannot be reopened in review jurisdiction on the same facts and evidence. When an appeal is directed solely against a review order and the principal order itself has not been separately challenged before the appellate court, the appellate court's inquiry must be confined to determining whether the review order was legally sustainable, and cannot extend to examining the legality and correctness of the principal order on its merits as if the appeal arose from the principal order itself.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Asharfi Devi (D) THR. LRs. ….Appellant(s)
VERSUS
State of U.P. & Ors. …Respondent(s)
JUDGMENT
Abhay Manohar Sapre, J.
1. This appeal is directed against the final judgment
and order dated 16.12.2008 passed by the High Court
of Judicature at Allahabad in Civil Misc. Review
Application No.81507 of 2008 in Civil Misc. Writ
Petition No.10557 of 2002 whereby the High Court
dismissed the Civil Misc. Review Application filed by Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2019.02.01 the original appellant herein.
16:16:28 IST Reason: 1
2. In order to appreciate the short controversy
involved in this appeal, few facts need mention infra.
3. The appellants herein are the legal
representatives of the original appellant, who was the
writ petitioner and the review petitioner whereas the
respondents herein were the respondents in the writ
petition and the review application.
4. The original appellant was the owner of certain
lands. These lands were subjected to ceiling
proceedings under the Urban Land (Ceiling and
Regulation) Act, 1976. The ceiling proceedings
eventually resulted in declaring some lands in excess
of ceiling limits as surplus. The State claims to have
taken possession of the surplus land way back in the
year 1982. The Ceiling Act was repealed for the State
of UP on 22.03.1999.
5. In the year 2002, the original appellant filed a
writ petition against the respondentsState of UP and
its authorities in the Allahabad High Court claiming
2 therein that since the original appellant continued to
remain in possession of the surplus land even after the
Repeal Act came into force, all the ceiling proceedings
against her in relation to the lands in question stood
lapsed in terms of Repeal Act.
6. This writ petition was dismissed by order dated
14.03.2008. The original appellant (writ petitioner) felt
aggrieved by the dismissal of her writ petition and filed
Review Application No.81507/2008 in the High Court.
By impugned order dated 16.12.2008, the High Court
dismissed the review application.
7. The original appellant felt aggrieved and filed the
present appeal by way of special leave against the
review order dated 16.12.2008 in this Court.
8. Heard Mr. Jayant Bhushan, learned senior
counsel for the appellants and Dr. M.P. Raju, learned
counsel for the respondents.
9. It is clear from the record that the original
appellant (writ petitioner) never challenged the legality
3 and correctness of the main order dated 14.03.2008
passed in the writ petition (10557/2002) but confined
her challenge only to the order dated 16.12.2008
passed in the review application.
10. Though, learned counsel for the appellant
contended that reading of the list of dates in this
appeal shows that the original appellant has
challenged the main order dated 14.03.2008 also along
with the review order dated 16.12.2008, but we do not
find it to be so.
11. In our opinion, the original appellant not having
challenged the legality of the main order dated
14.03.2008 in a separate SLP or in this appeal, this
Court is not called upon to examine the legality and
correctness of the main order dated 14.03.2008 in the
present appeal.
12. Mr. Jayant Bhushan, learned senior counsel for
the appellants, however, argued that this Court should
invoke the powers under Article 142 of the
4 Constitution and permit the appellants to challenge
the main order. We find no merit in this submission
for three reasons.
13. First, the original appellant did not assign any
reason as to what prevented her in the last almost 11
years in not filing the SLP against the main order;
14. Second, there was no legal impediment on the
appellants’ right to file the SLP in this Court as soon
as the main order dated 14.03.2008 was passed and
lastly, when the present SLP was filed in the year
2010 against the review order, the original appellant
again did not challenge the main order dated
14.03.2008.
15. In the light of these three reasons, we find no
good ground to invoke extraordinary powers under
Article 142 of the Constitution and permit the
appellants(legal representatives of original appellant)
to question the legality of main order dated 14.03.2008
in this appeal.
5
16. Now coming to the merits of the case, we have to
only examine the question as to whether the High
Court was right in dismissing the review application
filed by the original appellant holding that there was
no error apparent on the face of the main order dated
14.03.2008 within the meaning of Order 47 Rule 1 of
the Code of Civil Procedure, 1908 (hereinafter referred
to as “the Code”).
17. Having heard the learned counsel for the parties
and on perusal of the record of the case, we find no
merit in this appeal.
18. While examining the legality of the review order,
we cannot examine the legality of main order dated
14.03.2008 on its merits because, as mentioned
above, this appeal does not arise out of the main
order. Therefore, we have to confine our inquiry with a
view to find out whether the review order is legally
sustainable or not.
6
19. On perusal of the main order dated 14.03.2008,
we find that the High Court dismissed the writ petition
holding that the writ petitioner (original appellant
herein) failed to prove her possession over the land in
question on the date of repeal. It was held that the
State had taken possession of the land in the year
1982 as per the panchnama prepared by the State.
20. In review, the High Court held that while
recording the aforementioned finding in the main
order, no apparent error, whether on facts or law
within the meaning of Order 47 Rule 1 of the Code,
was committed attracting the rigor of Order 47 Rule 1
of the Code.
21 It is a settled law that every error whether factual
or legal cannot be made subject matter of review under
Order 47 Rule 1 of the Code though it can be made
subject matter of appeal arising out of such order. In
other words, in order to attract the provisions of Order
7 47 Rule 1 of the Code, the error/mistake must be
apparent on the face of the record of the case.
22 Learned counsel for the appellants then argued
the appeal as if this appeal arises out of the main
order dated 14.03.2008. He extensively referred to the
pleadings and several documents as if we are called
upon to examine the legality of the main order itself.
23. We find no merit in any of his submissions for
more than one reason. First, as mentioned above, this
appeal does not arise out of the main order but arises
out of review order only and, therefore, we cannot
examine the legality and correctness of the main order
in this appeal like an Appellate Court.
24. Second, we examined the matter only with a view
to find out as to whether the High Court was right in
dismissing the review application and thereby justified
in upholding the main order dated 14.03.2008 holding
that it did not contain any error/mistake apparent on
the face of the record.
8
25. In other words, we examined the issue only with
a view to find out as to whether the review order,
which is subject matter of this appeal, was passed in
conformity with the requirements of Order 47 Rule 1 of
the Code or not.
26. Third, having examined, we are of the view that
the review order was passed in conformity with the
requirements of Order 47 Rule 1 of the Code and,
therefore, the High Court rightly concluded that the
main order impugned in the review application did not
contain any factual or/and legal error(s) within the
meaning of Order 47 of the Code so as to entitle the
review Court to recall the same in its review
jurisdiction.
27. And lastly, once the finding was recorded by the
High Court in the writ petition that the writ petitioner
(original appellant) failed to prove her actual
possession on the land in question on the date of
repeal, such finding could not have been examined de
9 novo in review jurisdiction by the same Court like an
Appellate Court on the facts and evidence.
28. In view of the foregoing discussion, we concur
with the reasoning and the conclusion arrived at by
the High Court (Review Court) in the impugned order
and find no merit in this appeal.
29. The appeal thus fails and is accordingly
dismissed.
…...…...................................J. [ABHAY MANOHAR SAPRE]
...…...……..............................J. [DINESH MAHESHWARI]
New Delhi;
February 01, 2019
10
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