S. Murali Sundaram vs Jothibai Kannan

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1167­1170 OF 2023

S. Murali Sundaram ..Appellant

Versus

Jothibai Kannan & Ors. ..Respondents

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 29.06.2021 passed by the High

Court of judicature at Madras at Madurai Bench passed in

Review Application (MD) No.21 of 2017 as well as the orders

passed in Writ Petition (MD) No.14847 of 2017, Writ Petition Signature Not Verified Digitally signed by R Natarajan Date: 2023.02.24 16:49:49 IST Reason:

(MD) No.16256 of 2017 as well as the order in Contempt

1 Petition (MD) No.1109 of 2017 by which the High Court in

exercise of review jurisdiction has allowed the Review

Application No.21 of 2017 and has set aside the order dated

03.03.2017 passed in Writ Petition (MD) No.8606 of 2010,

the original writ petitioner of Writ Petition (MD) No.8606 of

2010 has preferred the present appeals.

2. The issue involved in the present appeals as such is in

a very narrow compass.

2.1 Feeling aggrieved and dissatisfied with the order

passed by the Tiruchirappalli City Municipal Corporation

dated 17.07.2008 in respect of the pathway comprised in

New TS No.43 of ward 42, Block AG 15, Indian Bank

Colony, Simco Meter Road, Tiruchirappalli Taluk and

District, the appellant herein preferred the Writ Petition

(MD) No.8606 of 2010 before the High Court. Before the

High Court the respondents herein – review petitioners

heavily relied upon the report of the Survey Department and

the measurements given in the survey report. However, the

High Court discarded the survey report and chosen to rely

2 upon other two reports and consequently allowed the writ

petitions by detailed judgment and order dated 03.03.2017.

2.2 That thereafter the contesting respondents herein – the

review applicants filed the present Review Application (MD)

No.21 of 2017 in Writ Petition (MD) No.8606 of 2010 under

Order 47 Rule 1 of Code of Civil Procedure, 1908

(hereinafter referred to as ‘CPC’). One Mr. S.M. Gajendran

filed the Writ Petition (MD) No.14847 of 2017 as well as Writ

Petition (MD) No.16256 of 2017 inter alia challenging the

order dated 03.07.2017 in enquiry in Na. Ka.

No.5293/A4/2017 as well as the order dated 09.06.2017 in

Na. Ka. No.10048/2016/F1 and direct the respondents to

accept the registered gift settlement made in favour of the

Corporation in settling seven public roads by registration

Corporation. By the impugned judgment and order the

High Court has allowed the Review Petition (MD) No.21 of

2017 and has set aside the judgment and order dated

03.03.2017 passed in Writ Petition No.8606 of 2010.

Consequently, the High Court has dismissed the Writ

Petition Nos. 14847 of 2017 & 16256 of 2017 filed by S.M.

Gajendran. Consequently, the High Court has also

3 dismissed the Contempt Petition No.1109 of 2017. The

impugned common judgment and order passed by the High

Court and mainly allowing the review application is the

subject matter of present appeals.

2.3 Mr. V. Prabhakar, learned counsel appearing on behalf

of the appellant – original writ petitioner has vehemently

submitted that in the facts and circumstances of the case

the High Court has erred in allowing the Review Application

and has materially erred in quashing and setting aside the

judgment and order dated 03.03.2017 passed in Writ

Petition No.8606 of 2010.

2.4 It is further submitted by learned counsel appearing

on behalf of the appellant that while allowing the review

application and quashing and setting aside the order passed

in the main writ petition, the High Court has exceeded in its

jurisdiction while deciding the review application.

2.5 It is further submitted by learned counsel appearing

on behalf of the appellant that while allowing the review

application the High Court has exceeded in its jurisdiction

4 while deciding the review application and has exercised the

jurisdiction not vested in it.

2.6 It is further submitted by learned counsel appearing

on behalf of the appellant that the High Court has exercised

the review jurisdiction as if the High Court was exercising

the appellate jurisdiction against the judgment and order

dated 03.03.2017 in Writ Petition No.8606 of 2010 which is

wholly impermissible. Reliance is placed on the decisions of

this Court in the case of Perry Kansagra vs. Smriti Madan

Kansagra, (2019) 20 SCC 753 as well as in Shanti

Conductors (P) Ltd. Vs. Assam SEB, (2020) 2 SCC 677.

2.7 It is further submitted by learned counsel appearing

on behalf of the appellant that according to the High Court

and so observed in the impugned judgment and order, the

judgment and order dated 03.03.2017 passed in Writ

Petition No.8606 of 2010 was erroneous. It is submitted

that however an erroneous order cannot be a subject matter

of review and an erroneous order however it may be cannot

be set aside in exercise of the review jurisdiction. It is

submitted in the present case all the grounds on which the

5 review application was filed and the grounds on which the

review application is allowed were as such dealt with and

considered by the High Court while deciding the writ

petition. It is submitted that therefore there was no error

apparent on the face of the record and/or there was no

mistake on the face of the record which could have been

corrected in exercise of the review jurisdiction.

Making above submissions and relying upon the above

decisions, it is prayed to allow the present appeals.

3. Present appeals are vehemently opposed by Ms.

Haripriya Padmanabhan, learned counsel appearing on

behalf of the contesting respondents – original review

applicants. It is vehemently submitted by learned counsel

appearing on behalf of the review applicants that while

deciding the Writ Petition No.8606 of 2010 the High Court

erroneously discarded the survey report and relied upon the

private reports. It is submitted that as such a fraud was

committed by the original writ petitioner as well as S.M.

Gajendran as they relied upon the forged

reports/documents. It is submitted that therefore, this

6 Court may not exercise the powers under Article 136 of the

Constitution of India. It is submitted that the High Court

found that the earlier order dated 03.03.2017 passed in

Writ Petition No.8606 of 2010 was erroneous and therefore,

the High Court is justified in setting aside the judgment and

order dated 03.03.2017 passed in Writ Petition No.8606 of

2010.

Making above submissions, it is prayed to dismiss the

present appeals.

4. We have heard learned counsel appearing on behalf of

the respective parties at length.

5. At the outset, it is required to be noted that by the

impugned judgment and order the High Court has allowed

the review application filed under Order 47 Rule 1 CPC and

has set aside the judgment and order dated 03.03.2017

passed in Writ Petition No.8606 of 2010. While allowing the

review application the High Court has observed and held

that the earlier judgment and order dated 03.03.2017 in

Writ Petition No.8606 of 2010 was erroneous. Therefore,

7 question which is posed before this Court for consideration

is whether in the facts and circumstances of the case the

High Court is justified in allowing the review application

filed under Order 47 Rule 1 CPC and setting aside the

reasoned judgment and order passed in main writ petition?

5.1 While considering the aforesaid issue two decisions of

this Court on Order 47 Rule 1 read with Section 114 CPC

are required to be referred to? In the case of Perry

Kansagra (supra) this Court has observed that while

exercising the review jurisdiction in an application under

Order 47 Rule 1 read with Section 114 CPC, the Review

Court does not sit in appeal over its own order. It is

observed that a rehearing of the matter is impermissible in

law. It is further observed that review is not appeal in

disguise. It is observed that power of review 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. It is further

observed that it is wholly unjustified and exhibits a

tendency to rewrite a judgment by which the controversy

8 has been finally decided. After considering catena of

decisions on exercise of review powers and principles

relating to exercise of review jurisdiction under Order 47

Rule 1 CPC this Court had summed upon as under:

“(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.

(ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long­drawn process of reasoning on the points where there may conceivably by two opinions.

(iii) Power of review may not be exercised on the ground that the decision was erroneous on merits.

(iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate.

(v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit.”

5.2 It is further observed in the said decision that an error

which is required to be detected by a process of reasoning can

hardly be said to be an error on the face of the record.

9 5.3 In the case of Shanti Conductors (P) Ltd. (supra), it is

observed and held that scope of review under Order 47 Rule

1 CPC read with Section 114 CPC is limited and under the

guise of review, the petitioner cannot be permitted to

reagitate and reargue questions which have already been

addressed and decided. It is further observed that an error

which is not self­evident and has to be detected by a

process of reasoning, can hardly be said to be an error

apparent on the face of record justifying the court to

exercise its power of review under Order 47 Rule 1 CPC.

5.3 Applying the law laid down by this Court in the

aforesaid two decisions to the facts of the case on hand, we

are of the opinion that in the present case while allowing

the review application and setting aside the judgment and

order dated 03.03.2017 passed in Writ Petition No.8606 of

2010 the High Court has exceeded in its jurisdiction and

has exercised the jurisdiction not vested in it while

exercising the review jurisdiction under Order 47 Rule 1

read with Section 114 CPC. From the reasoning given by

the High Court, it appears that according to the High Court

10 the judgment and order passed in Writ Petition No.8606 of

2010 was erroneous. While passing the impugned judgment

and order the High Court has observed and considered the

Survey Report dated 12.12.2007 which was already dealt

with by the High Court while deciding the main writ petition

and the High Court discarded and/or not considered the

Survey Report dated 12.12.2007. Once the Survey Report

dated 12.12.2007 fell for consideration before the High

Court while deciding the main writ petition thereafter the

same could not have been considered again by the High

Court while deciding the review application.

5.4 From the impugned judgment and order passed by the

High Court it appears that the High Court has decided the

review application as if the High Court was exercising the

appellate jurisdiction against the judgment and order dated

03.03.2017 passed in Writ Petition (MD) No.8606 of 2010

which is wholly impermissible while considering the review

application under Order 47 Rule 1 read with Section 114

CPC.

11 5.5 From the impugned judgment and order passed by the

High Court allowing the review application it is observed in

paragraph 33 as under:

“33. The above legal principals were born in mind by this Court while considering the review application. Brushing aside a survey report, which was available on record and which brought out tampering of official records, ought to have been taken note of by the Learned Writ Court, while considering the prayer sought for in the Writ Petition. This has led to an error, which is manifest on the face of the order. Furthermore, the Court proceeded on the basis that S.M. Gajendran had executed a gift deed without nothing the fact that the gift deed was a document, which was unilaterally executed by him, not accepted by the respondent Corporation and could not have been treated to be a valid gift. These facts have emerged on the fact of the order passed in the Writ Petition without any requirement for a long­drawn reasoning. Therefore, we are fully satisfied that we are justified in exercising our review jurisdiction. For the above reasons, we are of the clear view that the order passed in the Writ petition suffers from error apparent on the fact of the records warranting exercise of review jurisdiction.”

5.6 From the aforesaid it appears that the High Court has

considered the review application as if it was an appeal

against the order passed by the High Court in Writ Petition

No.8606 of 2010. As observed hereinabove the same is

wholly impermissible while deciding the review application.

12 Even if the judgment sought to be reviewed is erroneous the

same cannot be a ground to review the same in exercise of

powers under Order 47 Rule 1 CPC. An erroneous order

may be subjected to appeal before the higher forum but

cannot be a subject matter of review under Order 47 Rule 1

CPC.

6. In view of the above and for the reasons stated above

and applying the law laid down by this Court on Order 47

Rule 1 read with Section 114 CPC, we are of the opinion

that in the present case while allowing the review

application the High Court has exceeded in its jurisdiction

and has exercised the jurisdiction not vested in it under

Order 47 Rule 1 read with Section 114 CPC and therefore

the impugned judgment and order passed by the High

Court allowing the review application and setting aside the

order dated 03.03.2007 passed in Writ Petition No.8606 of

2010 is unsustainable and the same deserves to be

quashed and set aside.

6.1 As the Contempt Petition has been dismissed by the

High Court on setting aside the order dated 03.03.2017

13 passed in Writ Petition No.8606 of 2010, on setting aside

the order passed in Review Petition and consequently

restoring the order dated 03.03.2017 passed in Writ Petition

No.8606 of 2010 the dismissal of the contempt petition is to

be set aside and the matter is to be remitted to the High

Court to decide the same afresh in accordance with law and

on its own merits.

6.2 Similarly the order dismissing the Writ Petition (MD)

No.14847 of 2017 and Writ Petition (MD) No.16256 of 2017

is also to be quashed and set aside and the said writ

petitions are to be remanded to the High Court to decide the

same afresh in accordance with law and on its own merits.

7. In view of the above and for the reason stated above,

civil appeal arising out of the impugned judgment and order

dated 29.06.2021 in Review Petition (MD) No.21 of 2017 is

allowed and the same order is hereby quashed and set aside

and the judgment and order dated 03.03.2017 passed in

Writ Petition (MD) No.8606 of 2010 is hereby restored.

14 Consequently the remaining appeals arising out of the

dismissal of the Writ Petition (MD) No.14847 of 2017 and

Writ Petition (MD) No.16256 of 2017 and the dismissal of

the Contempt Petition (MD) No.1109 of 2017 are also

allowed and the said orders are hereby quashed and set

aside and the Writ Petition (MD) No.14847 of 2017 and Writ

Petition (MD) No.16256 of 2017 and the Contempt Petition

No.1109 of 2017 are remitted back to the High Court to

decide the same afresh in accordance with law and on its

own merits for which this Court has not expressed anything

in favour of the either parties.

Present appeals are accordingly allowed to the

aforesaid extent. In the facts and circumstances of the case

there shall be no orders as to costs.

…………………………………J. (M. R. SHAH)

…………………………………J. (C.T. RAVIKUMAR) New Delhi, February 24, 2023

15