AI Structured Summary
Not yet generated for this judgment
Judgment
V.B. Gupta, J.—Respondent/applicant has filed the present application u/s 114 read with Order XLII CPC (for short as ''Code'') seeking recall and review of the order dated 8th September, 2008 passed in the appeal. It is also prayed that this Court refer the matter and place it before Hon''ble the Chief Justice on the question of conflicting decisions/judgment of Mr. Justice C.M. Nayar(Retd.) rendered earlier in time in the matter of Naraini Devi Vs. State, in which it was held that the provision of Section 13B(2) of Hindu Marriage Act (for short as ''Act'') is mandatory and not directory, and that of Kailash Gambhir, J. in the matter of Parshotam Lal Vs. Surjeet Kaur, rendered later in time wherein it has been held that the provision of Section 13B(2) of the Act is directory and not mandatory.
Reply to this application has been filed on behalf of the appellant/non-applicant, opposing it stating that the grounds stated in the review application do not at all fall within the ambit and scope of Order 47 Rule 1 of the Code and right of review is not a right of appeal where all questions decided are open to challenge. A review cannot be sought merely for fresh hearing or arguments or even for correction of an erroneous view taken earlier.
Respondent/applicant filed rejoinder controverting the allegations of appellant/non-applicant.
It has been contended by learned Counsel for the respondent/applicant, that Respondent/applicant preferred Cross-Objections under Order 41 Rule 22 of the Code in the appeal but the same have not been decided.
Second contention is that important grounds available to the party applying for review under Order 47 Rule 1 of the Code are,
(a) On account of some mistake apparent on the face of the record
(b) for any other sufficient reason
On this point learned Counsel cited Rajender Singh Vs. Lt. Governor, Andaman and Nicobar Islands and Others, , where it has been held:
The power in our opinion extends to correct all errors to prevent miscarriage of justice. The court should not hesitate to review their own earlier order when there exist an error apparent on the face of the record and the interest of justice so demands in appropriate cases. The grievance of the appellant is that though several vital issues were raised and documents placed, the High Court has not considered the same in its review jurisdiction. In our opinion, High Court''s order in the review petition is not correct which really necessitates our interference.
Again in Board of Control for Cricket, India and Another Vs. Netaji Cricket Club and Others, , it was held;
Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
Thus, a mistake on the part of the court which would include mistake in the nature of undertaking may also call for a review of the order. An application for review would also be maintainable if there exist sufficient reason thereof. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by ways of invoking the doctrine "actus curiae neminem gravabit"
Yet again in Lily Thomas this court has laid down in the following terms:
The dictionary meaning of the word ''review'' is ''the act of looking, offer something again with a view to correction or improvement''. It cannot be denied that the review is the creation of a statute. This court in Patel Narshi Thakershi v. Pradyumanisnghji Arjunsinghji, held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise, it cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error.
It is further contended by learned Counsel that when one Judge hold Section 13B(2) of the Act as "mandatory" while another Judge hold it as "directory", it is a "sufficient reason" or "mistake apparent on the face of the record" or "misconception of law" for the maintainability of the review application.
It is also contended that in the ibid judgments, the Supreme Court has held even misconception of law would include within its purview the power of review under Order 47 Rule 1 of the Code.
Further, while interpreting Section 13B(2) of the Act, in Smt. Sureshta Devi Vs. Om Prakash, , it has been held by the Supreme Court that;
Under Sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the court to proceed with the case in order to satisfy about the genuineness of the averments in the petition and also to find out whether the consent was obtained by force, fraud or undue influence....
Again in Paragraph 13, the Supreme Court held;
From the analysis of the Section, it will be apparent that the filing of the petition by mutual consent does not authorize the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period, one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse many not be a party to the joint motion under Sub-section (2). There is nothing in the Section which prevents such course. The Section does not provide that if there is change of mind it should not be by one party but by both. The High Court of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be unreasonable. At the time of petition by mutual consent, the parties are not unaware that their petition does not by itself snap martial ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13B is clear on this point. It provides that "on the motion of both the parties...if the petition is not withdrawn in the meantime, the court shall...pass a decree of divorce." What is significant in this provision is that there should also be mutual consent when they move the court with the request to pass a decree of divorce. Secondly, the court shall be satisfied about the bonafide and the consent of the parties. If there is no mutual consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.
Learned Counsel also cited Principal Judge, Family Court Vs. Nil, , where it has been held;
24(i) The waiting period of six months (i.e. from the institution of the first motion to the moving of the second motion) is mandatory and cannot be waived by the Court of competent jurisdiction. It is a period during which the parties are expected to ponder and seriously consider their decision to sever the matrimonial ties. Thus, the second motion should be entertained and decided in accordance with the provisions of Section 13B(2) by the Court upon due application of mind and recording the satisfaction as contemplated under that provision.
Another contention raised by learned Counsel is that right to file Cross-Objection under Order 41 Rule 22 of the Code is a creation of statute. It partakes of the right to prefer appeal in the form of Cross-Objections under the provision of the Code. Hence, it is obligatory and statutory duty is cast upon this Court that it ought to have decided the same. This Court in deciding the appeal, had exercised its powers u/s 28 of the Act in exercise of its original civil jurisdiction. It would lead to paradoxical and conflicting situation in the legal system for the court to assume that it has power to decide the appeal but not the Cross-objections for one reason or other. This Court ought to have decided the Cross-Objections particularly when it relates to the interpretation and meaning of Section 13B of Act.
On this point, learned Counsel cited Shri Krishan Gopal Vs. Haji Mohammed Muslim and Others, where it is held;
Rule 22 is indeed a part of the procedural scheme consisting of this rule and Rule 22 of Order 41 and is obviously inspired by the larger cause of justice as observed earlier. The cross objections are, therefore, expected to be disposed of along with the appeal in which they are taken and after the final disposal of that appeal, it may, as general rule be difficult to deal with the cross-objections as if they constitute an independent appeal.
Another decision of Supreme Court cited by learned Counsel is Municipal Corporation of Delhi and Others Vs. Intnl. Security and Intelligence Agency Ltd., , wherein it has been held;
Right to prefer cross-objections partakes of the right to prefer an appeal. When the impugned decree or order is partly in favour of one party and party in favour of other, one party may rest contended by his partial success with view to giving a quietus to the litigation. However, he may like to exercise his right of appeal if he finds that the other party was not interested in burying the hatchet and proposed to keep the lis alive by pursuing the same before the appellate forum. He too may in such circumstances exercise his right to file appeal by taking cross-objections. Thus taking any cross-objection to the decree or order impugned is the exercise of the right to appeal though such right is exercised in form of taking cross-objections. The substantive right is the right of appeal; the form of cross-objection is a matter of procedure.
So, it is contended that from the aforesaid judgments, it is pertinently clear that the cross-objection partakes of the right to prefer an appeal and the procedure laid down in Order 41 Rule 22 of the Code has to be followed.
It is also argued that this Court ought to have referred the matter to be placed before the Hon''ble Chief Justice for Constituting larger bench to decide the conflicting judgments rendered by Mr. Justice C.M. Nayar (Retd.) and Kailash Gambhir, J. on the question of interpretation of Section 13B(2) of the Act, the former holding it as "mandatory" and later as "directory".
It is further contended that Judicial discipline requires that if two Division Bench of the same High Court take different views, the matter should be referred to a larger Bench. One Division Bench cannot ignore or refuse to follow the decision of an earlier Division Bench of the same High Court and proceed to give its decisions contrary to the decision given by the earlier Division Bench. If it is inclined to take a different view, a request should be made to the Chief Justice to refer the same to a Full Bench." Thus, what is applicable to Division Bench is equally applicable to conflicting judgments passed by Single Judge.
In Tirupati Balaji Developers Pvt. Ltd. and Others Vs. State of Bihar and Others, , the Supreme Court has held:
In CCE v. Dunlop India Ltd. this Court reiterated a few observations from an earlier case Siliguri Municipality v. Amalendu Das which read as:
We mean no disrespect to the High Court in emphasizing the necessity for self-imposed discipline in such matters in obeisance to such weighty institutional considerations like the need to maintain decorum and comity. So also we mean no disrespect to the High Court in stressing the need for self discipline on the part of the high Court in passing interim orders without entering into the amplitude and width of the powers of the High Court to grant relief.
Referring to what was said in Cassell & Co. Ltd v. Broome the Court said:
We hope it will never for us to say so again that "in the hierarchical system of courts which exists in our country, it is necessary for each lower tier, including High Court, to accept loyally the decisions of the higher tiers. ''It is inevitable in hierarchical system of courts that there are decisions of the Supreme Appellate Tribunal which do not attract the unanimous approval of all the members of the judiciary.... But the judicial system only works if someone is allowed to have the last word and that last word, once spoken, is loyally accepted.'' The better wisdom of the court below must yield to the higher wisdom of the Court above. That is the strength of the hierarchical judicial system.
Thus, in the present case, without waiting for the statutory period of six months, the trial court proceeded to grant decree of divorce by mutual consent on the statements of the parties, by preponing the date, thereby curtailing the minimum statutory period of six months. As referred to above, the Court was not empowered to do so and as such, the decree for divorce by mutual consent was passed by the trial court is contrary to the mandatory provisions of Section 13B of the Act and the law laid down by Supreme Court in Smt. Sureshta Devi''s case (supra). So, there are sufficient grounds for review of the order dated 8th September, 2008 passed by this Court.
On the other hand, it has been contended on behalf of the appellant that this Court in Judgment dated 08.09.2008, by which Appeal was disposed of, has held in para 106 as under:
Since the civil suit on the similar cause of action filed by the respondent-wife was pending and during the pendency of that suit, respondent-wife has filed application u/s 151 CPC for setting aside the decree, under these circumstances, the application u/s 151 CPC does not lie at all.
In paras 125 and 126 of the said judgment, while dealing with the question whether appeal lies against the impugned order dated 25.09.2007 passed by Addl.District Judge, it has been held as under:
125.Now, the question which arises for consideration as to whether present appeal u/s 28 of the Act is maintainable or not. Even assuming for arguments sake the appeal is not maintainable, but revision does lies and this appeal can be treated as revision.
When admittedly, civil suit was pending, then there was no occasion for Addl. District Judge to have admitted application u/s 151 CPC for consideration and as such, the order of Addl. District Judge in entertaining application u/s 151 CPC, was patently without jurisdiction.
In other words, it has been held that the question whether appeal is maintainable or not is of no significance because same can be treated as revision.
In para 135 of the said judgment, it has been held as under:
However, it is made clear that respondent can agitate all those pleas as available to her under the law, in the civil suit filed earlier and any observations made hereinabove shall have no bearing on the merit of the civil suit filed by the respondent earlier.
It is contended that the main point argued by Ld. Counsel for the wife/applicant in support of the review petition is that points argued at the time of hearing of the appeal as well as taken in cross objections filed by the wife and in the written submission filed on behalf of the wife, relating to the merits in respect of petition filed u/s 151 CPC before the trial court have not been considered by this Court in the judgment dated 08.09.2008, so the said judgment deserves to be reviewed.
The Ld. Counsel for the wife particularly laid emphasis that this Court should have dealt with the question as to whether period of six months mentioned in Section 13(B) of the Act is directory or mandatory and since a Ld. Single Judge of this Court in Anita Sarwal Vs. Deepak Sarwal, , has held that the said rule in 13B(2) of the Act is mandatory and other decisions of High Court of Delhi had taken a different view, the matter should have been referred to larger bench on this issue, particularly when the decision in Naraini Devi Vs. State, .
It is contended that in view of the fact, that this Court after holding in the said judgment to the effect, that application u/s 151 of the Code did not lie and the order of the trial court in entertaining application u/s 151 of the Code was patently without jurisdiction, this Court rightly did not deal with any matter relating to the merits arising out of and in connection with the proceedings u/s 151 of the Code, as it is well settled that, "once the court holds that it has no jurisdiction in the matter, it should not consider the merits of the matter."
Thus in view of the aforesaid settled legal position, it is neither necessary nor relevant to deal with the submissions of the Ld. Counsel for the wife that period of six months mentioned in Section 13B(2) of the Act is directory or mandatory. It is also contended that although this point, being on merits of the case in the proceedings based on such a non-maintainable petition, could not have been dealt with in the judgment of this Court and has rightly not deal with, the said point was also not taken by the wife in her application filed u/s 151 CPC before Additional District Judge nor the same was argued at the time of final arguments before the Additional District Judge and nor has the Additional District Judge dealt with the same in his impugned judgment dated 25.09.2007.
The said point has rightly not been taken by the wife at any stage of the proceedings in her application filed u/s 151 of the Code because the said point could not have been challenged in collateral proceedings u/s 151 of the Code or even in the suit filed by her for declaring the decree of divorce dated 03.06.2003 as null and void.
It is further contended that the learned Counsel for the wife, in his arguments in the review petition before this Court, admitted that Hon''ble Supreme Court is granting decrees of divorce on the ground of mutual consent without waiting for the expiry of six months period but that is being done by Hon''ble Supreme Court under Article 142 of the Constitution of India.
It is contended that the Supreme Court has itself laid down that under Article 142 of the Constitution of India, it cannot pass any order inconsistent with the express statutory provisions of substantive law. It has been so held by a constitutional bench of Supreme Court in Supreme Court Bar Association Vs. Union of India and Another, . The relevant paras of this judgment are as under;
The Supreme Court in exercise of its jurisdiction under Article 142 has the power to make such order as is necessary for doing complete justice "between the parties in any cause or matter pending before it". The very nature of the power must lead the Court to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory governing a subject, except perhaps to balance the equities between the conflicting claims of the litigating parties by "ironing out the creases" in a cause or matter before it. Indeed this Court is not a Court of restricted jurisdiction of only dispute settling. It is well recognized and established that this Court has always been a law maker and its role travels beyond merely dispute settling. It is a problem solver in the nebulous areas" see K. Veeraswami Vs. Union of India (UOI) and Others, but the substantive statutory provisions dealing with the subject-matter of a given case, cannot be altogether ignored by this Court, while making an order under Article 142. Indeed these constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject.
In Bonkya Alias Bharat Shivaji Mane and others Vs. State of Maharashtra, a bench of this Court observed (para 22 of the AIR):
The amplitude of powers available to this Court under Article 142 of the Constitution of India is normally speaking not conditioned by any statutory provisions but it cannot be lost sight of that this Court exercises jurisdiction under Article 142 of the Constitution with a view to do justice between the parties but not in disregard of the relevant statutory provisions.
So, it is contended that the Supreme Court has taken and treated the period of six months mentioned in Section 13B(2) of the Act as a mere procedural matter and not mandatory, otherwise the Supreme Court would not have granted decrees of divorce on the ground of mutual consent without waiting for the expiry of the said period of six months.
It is also contended that this Court has also taken similar view in Dhanjit Vadra Vs. Smt. Beena Vadra, . The relevant portion thereof reads as under:
It is clear that the requirement of a motion within the time specified under Sub-section (2) of Section 13B is merely a matter of formality and that a decree for divorce by mutual consent can be granted without waiting for the period of six months specified under Sub-section (2) of Section 13B if a Court is satisfied in a case that the requirement of Sub-section (1) of Section 13B is fulfilled. In other words, the time specified in Sub-section (2) can be waived if the Court is satisfied that the parties have been living separately for a period of one year or more that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved as envisaged by Sub-section (1) of Section 13B of the Act.
Another argument of learned Counsel is that, at best a wrong decision, in interpretation of Section 13B(2) of the Act, would not make decree of divorce as void or without jurisdiction because it is well settled as held by Supreme Court in Rafique Bibi (D) by LRs. v. Sayed Waliudin (D) by LRs. and Ors. JT 2003 (Supp.) S.C. 160 that;
A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing Court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the command of the decree. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings.
So, in view of the above settled legal position, the decree of divorce dated 3rd June, 2003 passed on the ground of mutual consent, could not have been challenged by way of filing an application u/s 151 of the Code on the ground that the said decree is passed in violation of Section 13B(2) of the Act.
As far as the cross objections are concerned it is contended that these are based on the merits of the case except the question of maintainability of appeal, and have not rightly dealt with, being on the merits of the case.
Lastly, it is contended that, it is well settled that in exercise of jurisdiction under Order 47 Rule 1 of the Code, an erroneous order/view/decision cannot be reheard and corrected. It has limited purpose and cannot be an appeal indisguise. On this point learned Counsel has cited The State of West Bengal and Others Vs. Kamal Sengupta and Another, . In this case, it has been held;
The term ''mistake or error apparent'' by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. In any case, while exercising the power or review, the concerned Court/Tribunal cannot sit in appeal over its judgment/decision.
Order XLVII Rule 1 of the Code reads as follows:
R.1. Application for review of the 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 or 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 applies for the review.
Explanation: The fact that the decision on 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.
According to above provisions, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in this order. It may allow a review on three specified grounds, namely;
(1) 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;
(2) mistake or error apparent on the face of the record; or
(3) for any other sufficient reason.
It is also well settled that scope of an application for review is much more restricted than that of an appeal. The power of review under this provision can be exercised inter alia, only if there is a ''mistake'' or "an error apparent on the face of the record". The said power cannot be exercised for an erroneous decision to be "reheard and corrected". Review application also cannot be allowed to be "an appeal in disguise."
The error apparent on the face of the record must be such an error, which must strike one on mere looking at record and power of review is not to be confused with the appellate power which may enable the appellate Court to correct all errors of subordinate Court.
Further, the contentions raised and decided in main proceedings, cannot be re-opened/re-agitated under the guise of review petition. The scope of review is for review of "error apparent" only and not to review the judgment/order, even if the parties are in a position to satisfy the court that the order under review is an erroneous order.
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. Where there are two possible views regarding the interpretation or application of law vis-�-vis the particular facts of a case, taking one view, even if it is erroneous, cannot be said to be an error apparent on the face of the record. Even if a decision or order is erroneous in law or on merits, it cannot be accepted that it is an error apparent on the face of the record.
Apex Court in Haridas Das Vs. Smt. Usha Rani Banik and Others, while interpreting Section 114 and Order 47 of the Code laid down as under;
In order to appreciate the scope of a review, Section 114 of the 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 the 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:
There 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 stares 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.
In Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, it was held that:
It is well settled law that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1, CPC. In connection with the limitation of the powers of the Court under Order XLVII, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma speaking through Chinnappa Reddy, J. has made the following pertinent observations:
It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to be exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merit. That would be in the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of error committed by the Subordinate Court.
A perusal of the Order XLVII, Rule 1 show that review of a judgment or an order could be sought: (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of record or any other sufficient reason.
In Babboo alias Kalyandas and Others Vs. State of Madhya Pradesh, this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order XLVII, Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to this Court it was held as under:
It is true as observed by this Court in Shivdeo Singh v. State of Punjab AIR 1963 SC 1908 there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made, it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.
The judgment in Aribam''s case (supra) has been followed in the case of Smt. Meera Bhanja (supra). In that case, it has been reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in the case of Satyanarayan Laxminarayan Hegde and Others Vs. Millikarjun Bhavanappa Tirumale, were also noted:
An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ.
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.
Thus, from the bare reading of the provisions of Order 47 of the Code and the interpretation given to this provision by the Apex Court in Haridas case (supra), the position emerges as under;
(i) 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;
(ii) In the absence of any such error, finality attached to the judgment/order cannot be disturbed;
(iii) Where there are two possible views regarding the interpretation or application of law vis-�-vis the particular facts of a case, taking one view, even if it is erroneous, cannot be said to be an error apparent on the face of the record.
(iv) Power of review cannot be exercised for an erroneous decision to be "reheard and corrected";
(v) Power of review is not to be confused with the appellate power which may enable the appellate Court to correct all errors of subordinate Court; and
(vi)Contentions raised and decided in main proceedings, cannot be re-opened/re-agitated under the guise of review petition.
None of the above requirements are satisfied in the present case, as there is no error apparent on the face of it, which calls for review of the judgment dated 8th September, 2008.
The main plea taken in the application for review by the respondent/applicant is that, when one Judge holds Section 13B(2) of the Act as "mandatory" while another Judge hold it as "directory", it is a "sufficient" reason, or "mistake apparent on the face of the record" or "misconception of law", the review application is maintainable, since the trial court in the present case, without waiting for the statutory period of six months proceeded to grant decree of divorce by mutual consent on the statement of the parties, by preponing the date, thereby curtailing the minimum statutory period of six months.
The trial court was not empowered to do so and as such, decree for divorce by mutual consent passed by the trial court is contrary to the mandatory provision of Section 13B of the Act and the law laid down by Supreme Court in Smt. Sureshtha Devi case (Supra).
Other plea is that, this Court ought to have referred the matter to be placed before Hon''ble the Chief Justice for Constituting the larger Bench to decide the conflicting judgments rendered by two single Judges of this Court on the question of interpretation of Section 13B(2) of the Act, as one Single Judge holding it as "mandatory" while other one, holding it as "directory".
Yet another plea for review is that this Court ought to have decided the cross-objections under Order 41 Rule 22 of the Code filed by the respondent, particularly when it relates to the interpretation and meaning of Section 13B of the Act.
This Court in its judgment dated 8th September, 2008, nowhere interpreted Section 13B(2) of the Act as to whether it is "mandatory" or "directory". This issue was left open as apparent from the findings given in para 106, 125 and 135 of the judgment, which read as follows:
"Since the civil suit on the similar cause of action filed by the respondent-wife was pending and during the pendency of that suit, respondent-wife has filed application u/s 151 CPC for setting aside the decree, under these circumstances, the application u/s 151 CPC does not lie at all.
Now, the question which arises for consideration as to whether present appeal u/s 28 of Act is maintainable or not. Even assuming for arguments sake that appeal is not maintainable, but revision does lie and this appeal can be treated as revision.
However, it is made clear that respondent can agitate all those pleas as available to her under the law, in the civil suit filed earlier and any observations made hereinabove, shall have no bearing on the merit of the civil suit filed by respondent earlier.
Thus, it is apparent from the reasons given in para 135 of the judgment, that "respondent can agitate all those pleas as available to her under the law, in the civil suit filed earlier."
Admittedly, the civil suit filed by the respondent is pending in the trial court. The respondent is at liberty to take all these pleas before that Court.
As far as cross-objections are concerned, on 22nd October, 2007, liberty was given by Kailash Gambhir,J. to the respondent to file objections to the present appeal. The relevant portion of this order reads as under;
In the meantime, respondent may file objections to the present appeal within a period of two weeks. Rejoinder, if any, be filed within a period of one week thereafter.
Accordingly, respondent filed cross objections under Order 41 Rule 22 of the Code.
Inadvertently, it appears that while hearing and disposing of the appeal, there was no mention of the cross-objections in the impugned judgment specifically. However, if the judgment is read as a whole, it is clearly apparent, that the cross-objections filed by the respondent were duly considered at the time of hearing of the appeal. In this regard paras 35 & 36 of the judgment, may be referred to which are reproduced as under;
In cross objections filed by the wife in the appeal it is pleaded, "the appellant (husband) fraudulently told the respondent (wife) that she was to accompany the husband to District Court to buy property in the name of the children as permission of the Court was necessary."
The above vital contradiction clearly demonstrate that she herself went to the Court and made a joint statement. It is admitted by the wife that all the petitions and affidavits are of her and are duly signed by her and she did appear in the Court. It is not the case of the wife that signatures on the petition u/s 13B (1) and (2) of the Act and for exemption and on affidavits, are not of her own, nor that she did not appear in court on 26.5.2003, when joint statement was recorded.
This clearly shows that while disposing of the appeal, this Court has taken into consideration the cross-objections filed by the respondent.
Moreover, all the pleas which the respondent have taken in her cross-objections, find mention in the arguments advanced by learned Counsel for the respondent, at the time of arguing the appeal as it is apparent from the paras 52 to 83 of the judgment.
Apparently, there is nothing on record to show that, all the pleas taken in the cross-objections filed by respondent have not been dealt with by this Court, while disposing the appeal.
Technically, learned Counsel for the respondent is right, that cross-objections filed by the respondent have not been disposed off, but in reality and as per substance of the judgment, all the grounds taken in cross-objections (i.e. paras 1 to 29 of cross-objections) finds mention in the judgment.
Hence, after going through the entire judgment and taking into consideration, the respective submissions made by learned Counsel for the parties, I find that there is no error apparent on the face of record which calls for review of the order dated 8th September, 2008.
The application for review is thus not maintainable and same is, hereby, dismissed.
No order as to costs.