Smt. Shivraji And 2 Others vs Tara Chand

1. This is an application for condonation of delay in filing the review petition.

2. As per office report, there is delay of 76 days in filing the review petition.

3. Cause shown in the affidavit filed in support of delay condonation application is sufficient and accordingly, the delay condonation application is allowed. The delay in filing the review petition is condoned.

Order on Review Application

4. This review petition has been filed seeking review of the judgment and order dated 12.01.2026 passed in Second Appeal No.47 of 2017 by this Court. The order dated 12.01.2026 is as follows:-

"1. Heard learned counsel for parties and perused the record.

2. The present second appeal under Section 100 C.P.C. has been filed against the judgment and order dated 15.10.2016 passed by Additional District Judge/Fast Track Court-II, Bahraich in Civil Appeal No.6/2011 arising out of judgment and decree dated 13.01.2011 passed by Additional Civil Judge (Junior Division) Bahraich in Regular Suit No.360/1989.

3. Shri Anurag Singh holding brief of Shri Shiv Pal Singh, learned counsel for the appellants seeks adjournment.

4. Learned counsel for respondent opposes the request made by learned counsel for the appellants submitting that on previous dates also the matter got adjourned on request of learned counsel for the appellants.

5. On 15.07.2024, a Co-ordinate Bench of this Court court has passed the following order:-

"Shri Shiv Pal Singh, learned counsel for the appellant prays for adjournment on the ground that he could not prepare the case.

As prayed, list after four weeks."

6. Thereafter, the matter was listed on 25.09.2024 and the counsel for the appellants was reported to be ill. The matter was listed again on 18.10.2024 and on that date also adjournment was sought by learned counsel for the appellants. Though the matter was adjourned on 18.10.2024 however, Co-ordinate Bench of this Court made it clear that no more adjournment would be granted. The order dated 18.10.2024 passed by the Court is reproduced hereunder:-

"Sri Shiv Pal Singh, learned counsel for the appellants prays for adjournment to enable him to prepare and argue. The case was earlier also got adjourned on this ground in the month of July and thereafter it was adjourned on the ground of illness.

In the interest of justice, the case is adjourned.

List in the next month.

It is made clear that the case shall not be adjourned on the next date on any ground. "

7. Today, when the matter is taken up, again adjournment has been sought by learned counsel for the appellants and he does not raise any argument. It seems that the counsel for the appellants is not interested in pursuing the matter and on every date, he is asking for adjournment and hence, the the request for adjournment is denied.

8. I have perused the impugned order, the court has came to a finding.

9. The learned appellate Tribunal, on the basis of arguments and evidence framed the following issues to decide -

"1. ???? ???????? ???? ???-??? ?? ?????? ?? ??? ???????? ???? ?? ??? ??? ?????? ?? ???

2. ???? ??? ???? ???? ???? ?? ???? ? ?? ??? ? ? ?? ???? ?? ?? ?? ?????? ???"

10. While deciding Issue No. 1, the learned Tribunal came to the finding that the will mentioned all the facts and circumstances under which the said will was executed, and that the same had been fully stated by the testator. In such circumstances, there is no reason to disbelieve the legality of the will. It is further held on the basis of evidence on record that the said property was divided during the lifetime of the deceased Sukhlal.

11. On the basis of evidences and facts on record the learned tribunal came to a conclusion that the plaintiffs do not have a right to file a suit for partition of the said property/building number 394 situated on Nazul land.

12. While deciding issue no. 2, learned Tribunal below came to a finding that the plaintiff has instituted a suit seeking partition of House No. 394, situated on Nazul land. The evidence led by the plaintiff himself establishes that the building in question has been constructed on Nazul property. It is further on record that the freehold rights of the said Nazul land have been granted in favour of the appellant, and the possession is also handed over to him.

13. The plaintiff himself acknowledged the possession of the appellant over the suit property. He further admitted that, owing to a long-standing dispute with his stepmother dating back to the lifetime of his father, he had separated from the family, constructed a separate house, and has been residing therein. The appellant/defendant, in his evidence, stated that his father had given four bighas of agricultural land, purchased from his personal earnings, to the husband of plaintiff No. 1 and the father of plaintiff Nos. 2 and 3, situated at Mirpur town. He further stated that certain agricultural land had also been given to the appellant by his father.

14. Learned Tribunal also came to a conclusion that the findings of lower court below is incorrect as the lower court has decided issue no. 12 without appreciating the D.W. 4 and other evidences on record and has only stated that the plaintiff succeeded in proving his statements on a plaint and therefore the plaint is maintainable.

15. While deciding this issue learned Tribunal also considered the fact that learned court below has decreed the partition suit on the basis of municipal record wherein the House is registered on the name of Sukhlal and 1/2 share of appellant and 1/2 share of respondent is recorded. In this regard the respondents before the learned Tribunal has placed relience on the judgement passed by the coordinate bench of this court in the matter of Harilal v. Ambreek, reported in AIR 1978 ALL 292.

16. Though the name of the parties are recorded in the Municipal Register but according to Nazul Manual the Collector did not make the above entry, thus the findings of the lower court below is unreasonable. After going through the evidence on record the Learned Tribunal rightly came to a finding that the lower court below has passed an order contrary to the evidence on record and therefore the same was quashed.

17. In views of the aforesaid, This court does not find any illegality or irregularity in the impugned judgement and order dated 15.10.2016 passed by Additional District Judge/Fast Track Court-II, Bahraich in Civil Appeal No.6/2011.

18. The instant second appeal is sans merit and is accordingly dismissed."

5. Against the aforesaid order dated 12.01.2026, the appellants have preferred this review petition wherein he submits that one more opportunity may be given to him and the matter may be heard on merit as fresh.

6. Heard learned counsel appearing on behalf of the review applicant and perused the record.

7. Before entertaining the instant Review Application, this Court would like to delve into the provisions of Order XLVII Rule 1 which is as follows :

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 applied for the review.

Explanation.?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.

8. In Parsion Devi and others v. Sumitri Devi and others, 1997 (8) J.T. SC 480, Hon'ble Supreme Court has taken the view that review proceeding has to be strictly confined to the ambit and scope of Order 47, and therein the two earlier judgments referred to above have been relied upon. Again in Smt. Meera Bhanja v. St. Nirmala Kumari Choudhary, 1985 (1) SCC 170, while quoting this approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma & Ors. 1979 (4) SCC 389, Hon'ble Supreme 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.

9. It is settled law that an application for review cannot be treated to be an opportunity to argue the case on merits afresh. The review power can be exercised for the correction of a mistake and not to substitute a view. As per the rule an error must be as such, which is apparent on the face of the record and not an error, which has to be searched. It must be an error of inadvertence.

10. A court of review has only a limited jurisdiction and it can allow a review on the grounds; (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 or order was made; (ii) mistake or error apparent on the face of the record, or (iii) for any other sufficient reason.

11. Hon'ble Supreme Court after considering the dictionary meaning of word "review", in the matter of Lily Thomas v. Union of India, reported in AIR 2000 SC 1650, has taken the view that power of review can be exercised for correction of mistake and not to substitute a view. Such powers can be exercised within the limits of the statute, dealing with exercise of power; the review cannot be treated as an appeal in disguise, and mere possibility of two views on the subject is not a ground of Review.

12. Hon'ble Supreme Court in Subhash Vs. State of Maharastra & another, reported in AIR 2002 SC 2537, has emphasized that Court should not be misguided and should not lightly entertain the review application unless there are circumstances falling within the prescribed limits. It was further held that the Courts and Tribunal should not proceed to re-examine the matter as if it was an original application before it for the reason that it cannot be a scope of review.

13. Hon'ble Supreme Court in the matter of State Haryana v. Mohinder Singh, reported in JT 2002 (1) 197, has disapproved the judgment of High Court, wherein earlier writ petition was disposed of by High Court being infructuous and giving some directions, and subsequent to the same, review was sought, which was allowed, same was clearly termed to be overstepping of jurisdiction, and amounting to giving of one more chance of hearing.

14. Hon'ble Supreme Court in the matter of Union of India v. B. Valluvar, reported in 2006 (8) SCC 686, has again considered the parameters of review jurisdiction of High Court and held that the same shall be exercised within the limitations as provided under Section 114 read with Order 47 Rule of C.P.C.,and without recording finding as to there existed error apparent on the face of the record, merit cannot be gone into.

15. Hon'ble Supreme Court in the matter of State of Haryana and others v. M.P. Mohila, reported in 2007 (1) SCC 457, has taken the view that in the garb of clarification application, recourse to achieve the result of review application, cannot be permitted, as what cannot be done directly, cannot be done indirectly.

16. Hon'ble Supreme Court in the matter of Kamlesh Verma Vs. Mayawati and others, reported in 2013 (8) SCC 320, held 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 judgment 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 judgment 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)

17. On the touchstone of the dictum noted above, the review is permissible only when there is error apparent on the face of record i. e. error should be grave and palpable, and the error must be such as would be apparent on mere looking of record, without requiring any long drawn process of reasoning, and reappraisal of entire evidence for finding the error, as same would amount to exercise of appellate jurisdiction. Further, the review lies only on the grounds mentioned in Order 47, Rule 1 read with Section 141 CPC. It is up to the applicant(s) to satisfy the Court that the matter or evidence discovered at a subsequent stage could not have been discovered or produced at the initial stage, even after exercising due diligence. A party filing a review application on the ground of any other "sufficient reason" must satisfy that the said reason is analogous to the conditions mentioned in the said provision of C.P.C.

18. Having gone through the grounds taken in the review application, There is no sufficient ground shown by the applicant to entertain the Review Application. The second appeal in question was dismissed and there appears no apparent mistake. A review court cannot examine the merits of the judgment as an appellate court does, nor can it permit a rehearing of the matter under the guise of a review application.

19. The review petition being sans merit and the same is accordingly rejected.

(Prashant Kumar,J.)

May 6, 2026

Saurabh Yadav/-