Ajit Kumar Samantaray vs Soubhagya Kumar Dash and Others

Raghubir Dash, J.—This review petition under Order-47 Rule-1, C.P.C. is in respect of the judgment dated 20.02.2014 passed by this Court in F.A.O. No. 373 of 2013. In an appeal against order passed by learned Civil Judge (Senior Division), 1st Court, Cuttack in I.A. No. 327 of 2013, order of temporary injunction passed by the learned Civil Judge was set aside and the appellant in the F.A.O., who is the opposite party No. 1 in this review petition was permitted to proceed with further construction over a portion of the suit land that he has purchased from one of the brothers of present review petitioner.

The review is sought for on the grounds that some new materials have been discovered by the petitioner which could not be placed before this Court when appeal was being heard and that on account of some mistake or error apparent on the face of the record the judgment dated 20.02.2014 is liable to be reviewed.

It is submitted on behalf of the petitioner that the observation made by this Court in the judgment dated 20.02.2014 that the present petitioner, who was the applicant in the I.A. before the learned Civil Judge, had not made any prayer for interim injunction restraining opposite party Nos. 3 and 4 in the I.A. from entering into the property in dispute is a mistake which is apparent on the face of the record. But a copy of the I.A. has not been placed before this Court to show that actually the petitioner had made any prayer for interim injunction to restrain opposite party Nos. 3 and 4 in the I.A. from entering into the suit land. The final order passed by the learned Civil Judge in the I.A. reflects that the I.A. under Order-39 Rule-1 and 2, C.P.C. was with a prayer to restrain the opposite parties from alienating any portion of the suit schedule ''B'' property or changing the nature and character of the suit property or demolishing the standing building till disposal of the suit. It is not reflected that there was any prayer to restrain the opposite parties from entering into the suit land. No material has been placed by the review-petitioner showing that in the I.A. there was any prayer to restrain the opposite parties from entering into the suit land. Operating portion passed in I.A. had directed the opposite parties not to raise any construction over the suit land or alienating any suit property till disposal of the suit. Therefore, it is not a case where the impugned judgment passed by this Court suffers from any mistake or error apparent on the face of the record.

The other ground that some new materials which were allegedly discovered by the petitioner which could not be produced at the time of hearing is not a valid ground to maintain an application for review. It is not shown as to what are the new materials that the petitioner discovered after the impugned judgment was passed. It is argued on behalf of the petitioner that the observation made in paragraph-10 of the impugned judgment is not based on any materials/documents. In paragraph-10 of the impugned judgment it is observed that since the petitioner in the I.A. claimed that his signatures in an unregistered ''Bantana Patra'' of the year 1995 and one affidavit basing on which one compromise decree was passed in C.S. No. 508 of 2009 have been obtained by fraud, so that the petitioner is presumed to have admitted that he signed on the Bantana Patra as well as the affidavit. Now, it is submitted by the learned counsel for the review petitioner that after the impugned judgment was passed the petitioner examined the unregistered ''Bantana Patra'' and found that his signature has been forged by his brother, Dillip Samantaray. This cannot be equated with discovery of any new matter which despite of exercise of due diligence was not within the knowledge of petitioner on account of which the application for review can be maintained.

On the aforestated observation made by this Court, the petitioner contends that the same is erroneous on merit due to wrong appreciation of the pleadings of the parties with regard to the ''Bantana Patra'' as also the affidavit which cannot be a ground for review. This Court cannot play the role of an appellate Court in order to find out whether the contention raised by the review petitioner is sustainable and whether there is actually any error while appreciating the materials which were placed before this Court at the time of hearing of the F.A.O. The review is not an appeal in disguise whereby an erroneous decision can be reheard and corrected. The decision taken in the impugned judgment may be incorrect or erroneous. But, merely on such applications a review of the judgment cannot be undertaken. Learned counsel for the opposite party No. 1 has cited a decision of this Court in Governing Body of Ispat College Vs. State of Orissa and Others, wherein it is held that if a counsel has not raised a point or taken a plea in the original proceeding, review is not maintainable for simple reason that such a mistake would not be apparent on the face of the record. It is also observed that "discovery of new and important matter of evidence" contained in Order-47 Rule-1, C.P.C. cannot be expanded to take within its ambit an argument which could have been advanced by the counsel at the time of hearing of the original proceeding. In view of the observation made above, the review petition is found to be without merit and accordingly dismissed.