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Judgment
B. Veerappa, J.—The above review petition is filed to review the order dated 14.08.2014 made in RSA No. 5035/2011. The present review petitioner was the appellant before this Court in regular second appeal filed against the judgment and decree dated 07.12.2000 passed in Regular Appeal No. 66/2007 on the file of the I Addl. Senior Civil Judge, Gokak, setting aside the judgment and decree of the trial court dated 26.03.2007 made in OS No. 50/2000 on the file of the learned Addl. Civil Judge (Jr.Dn.), while allowing the appeal and granted perpetual prohibitory injunction against the respondent/defendant, restraining him from obstructing the flow of water and discharging the water from the lands and wells of the appellants to the suit Naala and also granted injunction restraining the respondent, his men, agents, servants, restraining them from encroaching upon the lands of the appellants by crossing the suit Naala and prohibitory injunction against the respondent his men, agents and servants from cutting trees standing in the lands of the appellants on the northern side of the Naala. This Court, considering the regular second appeal on merits by its order dated 14.08.2014, while answering the substantial questions of law, has permitted the plaintiffs to discharge water from their lands and wells to the suit Naala with a direction to the defendant not to cut the trees abutting the Naala, but he was permitted to prune the branches of trees for the purpose of better cultivation. Accordingly, this Court, by the said judgment and decree, modified the judgment and decree of the lower appellate court.
The present review petition is filed by the review petitioner/defendant mainly on the ground that in view of the observation made by this Court, the respondents with mala fide intention to harass the petitioner, is playing a foul play by discharging the water into the petitioner''s farm/land, classifying the same as excess water with the help of technology viz., pump-sets, with an ill-motive to destroy the crops grown on the petitioner''s land. Hence, the present review petition.
I have heard the learned counsel for the parties to the lis.
Sri. Naveen R. Melinamani, learned counsel for the review petitioner, has re-iterated the grounds urged in the review petition and contended that in view of the observations made by this Court, declaring the right of the plaintiffs to discharge water into Naala, the plaintiffs are misusing the same, by discharging the excess water into the petitioner''s farm/land, by mechanical force. Therefore, he sought to set aside the order passed by this Court dated 14.08.2014.
Per contra, Smt. Rekha Patil, learned counsel for the respondents, sought to justify the impugned order passed by the Court and contended that there is no error apparent on the face of the record to review the order dated 14.08.2014. In the absence of same, this Court has no jurisdiction to review the order and the petitioner has not made out any prima facie case nor pointed out any error apparent on the face of record, as contemplated under Order XLVII Rule 1 of the Code of Civil Procedure, 1908. Therefore, she sought to dismiss the review petition.
I have given my anxious consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record.
The main dispute between the parties is with respect to discharging of the water into the Naala and no dispute is in respect of the Naala itself. The lower appellate court has granted injunction in favour of the plaintiffs, reversing the judgment and decree of the trial court, while allowing the appeal, has granted perpetual injunction restraining the defendant from obstructing the flow of water and discharging the water from the lands of the appellants and wells in the lands of the appellants into the suit Naala and restraining the defendant from encroaching upon the lands of the appellants by crossing the suit Naala and also granted prohibitory injunction against the defendant-present review petitioner, from cutting trees standing in the lands of the appellants on the northern side of the Naala.
Considering the entire material on record, this Court, exercising the powers under Section 100 of the Code of Civil Procedure, by the judgment and decree dated 14.08.2014, modified the judgment and decree of the appellate court, and has observed that, it would suffice to say that in modification of the judgment and decree passed by the lower Appellate Court, for proper raising of the trees by the defendant in his land, he would be given an opportunity to prune the branches of the trees abutting the naala. By this, the trees standing on either side of the naala could be protected. So far as right of the plaintiffs is concerned, they can discharge water into the naala from their lands and wells. The judgment and decree passed by this Court is based on the material evidence on record. The petitioner has not made out any ground, or error apparent on the face of record.
While exercising the powers of review, the review jurisdiction is very limited and unless there is error apparent on the face of record, the order/judgment does not call for call for review-mistake apparent on record means that, mistake is self evident, needs no search and stares at its face-Review jurisdiction is not an appeal in disguise-Review does not permit rehearing of matter on merits. The Hon''ble Supreme Court, while considering the provisions of Order XLVII Rule 1 of the Code of Civil Procedure, in the case of N. Anantha Reddy Vs. Anshu Kathuria and Others, has held as under:--
"9. A careful look at the impugned order would show that the High Court had a fresh look at the question whether the appellant could be impleaded in the suit filed by the respondent No. 1 and, in the light of the view which it took, it recalled its earlier order dated 08.06.2011. The course followed by the High Court is clearly flawed. The High Court exceeded its review jurisdiction by reconsidering the merits of the order dated 08.06.2011. The review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits.
The order passed by the High Court on 08.06.2011, on a careful reading, shows that the High Court instead of repeating the reasons which it had given in other revision petitions being CRP Nos. 2870 and 3882 of 2010, while it was fully conscious of the fact that those civil revisions arose from a different suit followed its order in CRP Nos. 2870 and 3882 of 2010. The High Court was fully conscious of the factual and legal position while it was considering the civil revision petitions filed by the present respondent No. 1. In the order upon which reliance was placed by the High Court while dismissing the civil revision petitions, the High Court had noted thus:--
"No doubt, no relief is sought for against the proposed party in the suit. The object of Order 1 Rule 10(2) C.P.C. to implead a third party to the suit is that the dispute in the suit would be resolved in the presence of all, in order to avoid multiplicity of proceedings. There must be some semblance of right to the proposed party. If the petitioner violates the building plan without leaving set backs, cellar etc., then certainly it would cause inconvenience to the neighbours. The proposed party is one of the neighbours. Therefore, to safeguard his interest, in view of the fact that he has got some semblance of right, though no relief is claimed against him, he would be necessary and proper party to come on record. That is why the trial Court rightly impleaded him as a party to the suit and I.A. and there are no grounds to interfere with the same. The revision is devoid of merits and is liable to be dismissed."
In our view, the High Court was not at all justified to review the order dated 08.06.2011."
The Hon''ble Supreme Court, in the case of Haridas Das Vs. Smt. Usha Rani Banik and Others, , while considering the provision of Order XLVII Rule 1 of the Code of Civil Procedure, has held that even if a new ground is made out by the appellant, it cannot be a ground to review the order passed and the review power is very limited. Paragraph Nos. 13 and 18 of the said judgment reads as follows:--
"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 XLVII of 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 in Rule 1 of the Order XLVII 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 and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection. This Court in Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, held as follows:
"[T]here 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 characterized 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......where without any elaborate argument one could point to the error and say here is a substantial point of law which states one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out."
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It is also pertinent to mention the observations of this Court in the case of Parsion Devi and Others Vs. Sumitri Devi and Others, . Relying upon the judgments in the cases of Aribam''s (supra) and Smt. Meera Bhanja (supra) it was observed 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''."
In view of the same, the petitioner has not made out any ground, or error apparent on the face of the record, so as to review the judgment and decree passed by this Court dated 14.08.2014 made in Regular Second Appeal No. 5035/2011. Accordingly, the review petition is dismissed.