Ramkishore vs Rammilan And Others

By the instant review petition, the petitioner is seeking recall of the order dated 07.07.2020 passed by this Court in M.P. No.1774/2020.

The said M.P. No.1774/2020 was preferred against the order dated 25.02.2020 passed by the appellate Court i.e. District Judge, Sidhi, dismissing the appeal filed under Order 43 Rule 1 of the Code of Civil Procedure, affirming the order dated 24.12.2019 passed by the First Civil Judge Class-I, Sidhi, which had rejected the application filed by the present petitioner/plaintiff under Order 39 Rule 1 and 2 of the Code of Civil Procedure.

The injunction claimed by the petitioner was rejected by both the Courts below and therefore, the miscellaneous petition was filed, but this Court was also of the view that the orders passed by both the Courts below observing that no prima facie case is made-out in favour of the present petitioner/plaintiff, rightly declined to grant injunction in his favour.

As submitted by learned counsel for the petitioner, this Court in its order, which is sought to be reviewed by this petition, has observed that the order of the Commissioner passed in review has not been placed before the Court, in which the Commissioner has observed about the possession of the petitioner over the land in question and the said order was also not placed before the Courts below and Digitally signed by PRACHI PANDEYadverseinference  was  drawn  not giving benefit  of the said  observation made by the Additional Commissioner in its order dated 19.09.2019. Thus, the petitioner is seeking that the order passed by this Court in the miscellaneous petition be recalled and the order of review be taken note of, therefore, along with the present review  petition,  he  has  filed  the  order  passed  by  the  Additional Commissioner on 19.09.2019.

I have considered the submission made by learned counsel for  the petitioner and undisputedly the order passed by the Additional  Commissioner in review, was not placed before this Court while  passing the order dated 07.07.2020. This Court has also observed that  the petitioner has not filed the said material document before the  Courts below though he was placing reliance on the said document.

As per the petitioner, that order was very much placed before the  Courts below, but the observation of the Additional Commissioner  was not given any weightage by the Courts below.

Although the mistake is apparent on the face of record, but it is  to be seen by this Court if such document has not been taken note of,  that would lead to failure of justice and has an impact if the same had  been considered, the view of this Court would have been different. It  is also apparent from the order that not producing the order of the  Additional Commissioner passed in review proceedings, was not the  sole basis for dismissing the petition, but that has been dismissed  considering the other aspects too. Even otherwise, if the order of the  Additional Commissioner is seen, then in my opinion, the same  would have no such impact which could reverse the view taken by this Court earlier. The observation given by the Additional Commissioner regarding possession is an "obiter" because there was  no occasion for the Additional Commissioner to make such an  observation as he was entertaining the review against the order dated  10.05.2019 whereby he had dismissed the appeal relating to a dispute  of correction of revenue entries arising out of the application filed  under Section 115/116 of the Madhya Pradesh Land Revenue Code,  1959.

The Additional Commissioner dismissed the review petition  holding that the order dated 10.05.2019 was proper, therefore, he had  to consider whether the ground of review raised before him seeking  recall of the order dated 10.05.2019 was proper or not and therefore,  no such observation contrary to the observation made in original  order dated 10.05.2019 was required to be mentioned.

The Courts below although referred to the order of review as  the petitioner has placed reliance upon the said order, but considering  the other aspects of the matter, given specific finding of possession  holding that the petitioner was not found in possession and no prima  facie case is made-out in his favour.

It is settled that the scope of review is very limited. The  Supreme Court in the case of Inderchand Jain (Dead) Through LRs  Vs. Motilal (Dead) Through LRs reported in (2009) 14 SCC 663  has laid-down the scope saying as to when an application for review  would lie and observed as under:-

"8.  An application for review would lie inter alia  when the order suffers from an error apparent on the face of  the record and permitting the same to continue would lead to failure of justice. In Rajendra Kumar v. Rambai [AIR 2003 SC 2095], this Court held :

"The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed."

The power of review can also be exercised by the court in the event discovery of new and important matter or evidence takes place which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was made. An application for review would also lie if the order has been passed on account of some mistake. Furthermore, an application for review shall also lie for any other sufficient reason.

It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A re-hearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.

Review is not appeal in disguise. In Lily Thomas v. Union of India [AIR 2000 SC 1650], this Court held :

"56. It follows, therefore, that the 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. The review cannot be treated like an appeal in disguise."

Thus, merely because the order of the Additional Commissioner is now placed before this Court relying upon the observation regarding possession which has no binding effect, as the same, in my opinion, was "obiter", therefore, no case of review is made-out.

Accordingly, this review petition being without any substance, is hereby dismissed.