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Judgment
Chandrasekharan Sudha, J
This petition under Section 114 and Order XLVII Rule 1 read with Section 151 of the Code of Civil Procedure, 1908 (the CPC), has been filed by the appellants in FAO 53/2023 for reviewing the judgement dated 28.11.2025 dismissing the appeal. In the appeal, the review petitioners had challenged the order dated 30.01.2023of the learned District Judge, East District, Karkardooma Courts, in Misc. DJ No. 21/2022 in O.S. 2738/2016, whereby their application under Order IX Rule 13 CPC for setting aside the ex-parte judgment and decree dated 11.02.2020 was dismissed on the dual grounds of limitation and absence of sufficient cause.
According to the review petitioners, the impugned judgment suffers from errors apparent on the face of the record, warranting exercise of review jurisdiction. It is urged that the finding in the impugned judgment treating the application under Order IX Rule 13 CPC as barred by limitation is contrary to the binding directions issued by the Apex Court vide order dated 10.01.2022 in Suo Motu W.P.(C). 3/2020 In Re: Cognizance for Extension of Limitation, in Miscellaneous Application No. 21/2022, whereby the period from 15.03.2020 to 28.02.2022 stood excluded for the purposes of limitation. According to the review petitioners, the application having been filed on 27.01.2022 was within the prescribed period of limitation, and the question of delay or condonation did not arise.
2.1 It is further contended that the impugned judgment proceeds on an erroneous factual premise that the plaintiff’s witness had been partly cross-examined before the trial court, thereby attributing continued participation and knowledge of proceedings to the petitioners. The review petitioners assert that no such cross-examination took place before the trial court after transfer of the suit from this Court, and that any earlier proceedings occurred only prior to such transfer. It is urged that this assumption has materially influenced the findings relating to conduct and alleged non-appearance of the petitioners.
2.2 The review petitioners have also placed reliance on judicial precedents to submit that the approach towards delay, particularly in matters involving public authorities and public interest, ought to be pragmatic. Reference has been made to the decision of the Apex Court in Sheo Raj Singh (Deceased) through LRs & Ors. v. Union of India &Anr. (2023) 10 SCC 53, to contend that institutional delay and administrative lapses may constitute sufficient cause, especially where substantial public interest is involved. It is urged that the impugned judgment itself records that the consequences of the decree not being set aside would have serious implications, inasmuch as an operational police station is stated to exist on the disputed land.
2.3 The review petitioners further submit that the distinction drawn in the impugned judgment with respect to the decision in Deputy Commissioner of Police v. Neelam Rani, MANU/DE/4033/2022 is erroneous, and that the present case also involves issues relating to acquired land and public property, supported by acquisition records and official material which formed part of the defence in the original suit.
The respondents oppose the review petition. It was submitted that no error apparent on the face of the record has been demonstrated. The review petition seeks re-appreciation of facts and reconsideration of issues already examined by this Court in the impugned judgment, which is impermissible. It was also submitted that sufficient opportunities were granted to the petitioners before the trial court, and that the scope of review does not permit reopening of the matter on merits.
3.1 It was further submitted that the facts of the present case are materially different from the case of Neelam Rani (supra), and that in the present case, all steps were taken by the respondents as per law, including approaching various authorities such as the District Magistrate having powers in respect of revenue and land matters, filing applications, following which the District Magistrate assigned the Patwari for demarcating the land.
Heard both sides and perused the records.
Before going into the merits of this review petition, it would be apposite to examine the scope of review under Order XLVII CPC. As per the said provision, the power of review can be exercised on the discovery of new and important matter or 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 or it may be exercised where some mistake or error apparent on the face of the record is found or for any other sufficient reason(s). In the case on hand, the allegation is that there are errors apparent on the face of the record. Therefore, I shall examine whether there are any error(s) on the face of the record in the impugned judgement and whether the grounds urged in the review petition come under the expression “errors apparent on the face of the record”.
In Satyanarayan Laxminarayan Hegde v. Mallikarjun BhavanappaTirumale, AIR 1960 SC 137, it has been held that:
“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.”
6.1. In Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC 1372,it has been held that 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 characterised 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.” Under Order XLVII Rule 1 CPC, a judgment may be open to review,interalia, 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 1CPC. In exercise of the jurisdiction under Order XLVII Rule 1, 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".
6.2. In Meera Bhanja v. Nirmala Kumari Choudhury, 1995 KHC 737 : 1995 (1) SCC 170 : AIR 1995 SC 455, it has been heldthat the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule1CPC. The power of review may be exercised on the discovery of new and important matter or 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. An error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably the two opinions.
6.3. In Parsion Devi v. Sumitri Devi, 1997 KHC 1435 : 1997 (8) SCC 715, it has been held that review proceedings have to be strictly confined to the ambit and scope of Order XLVII Rule 1 CPC.
Having thus reminded myself of the law on the point, I shall now consider whether there are “any error(s) apparent on the face of the record” in the impugned judgment as vehemently and strenuously argued by the learned Additional Solicitor General (ASG). The first ground urged reads-
“(i) a manifest error of law in treating the application under Order IX Rule 13 CPC as time-barred despite the binding directions of the Hon'ble Supreme Court on exclusion of limitation during the COVID-19 period; (Pls See Para 13 of the Judgment)”
7.1. Admittedly, the decree in the case is dated 11.02.2020. The allegation of the review petitioners in paragraph 6 of their application under Order IX Rule 13 CPC seen filed before the trial court on 27.01.2022 is that they came to know about the ex-parte judgment and decree upon receiving summons in Execution Petition No. 113/2020 on 15.12.2021. The said application was accompanied by an application under Section 5 of the Limitation Act, 1963 seeking condonation of delay, wherein it was stated that there was delay of only fifteen days. The trial court, vide order dated 30.01.2023,held that the application under Order IX Rule 13 CPC was grossly time-barred and that no valid or complete application for condonation of delay had been filed, and that even otherwise, the petitioners had failed to show sufficient cause for non-appearance. Thereafter, the review petitioners preferred the appeal, viz. FAO53/2023before this Court.
7.2. A perusal of the memorandum of appeal does not reveal any ground relating to exclusion of limitation during the COVID-19 period pursuant to the orders of the Apex Court. In the appeal memorandum the grounds raised reads-
“A. BECAUSE the Ld. Trial Court has erred in law and facts by concluding in paragraph 7 of the impugned order that the Application under order IX Rule 13, of the Code of Civil Procedure, l908 filed by the Appellants were barred by limitation as no application for condonation of delay under Section 5 of the Limitation Act, 1963 had been filed by the Appellants. It is pertinent to mention that the application for condonation of delay was duly filed by the Appellants along with the Application under order IX Rule 13 of the Code of Civil-Procedure, 1908. The same has been annexed as Annexure I with the present appeal.
B. BECAUSE the Ld. Trial Court has erred in law and facts by dismissing the application under Order 9 Rule 13 on the ground that no reason for delay is mentioned in the application. It is submitted that the Appellants have mentioned cogent reasons in the application filed under Section 5 of the Limitation Act, 1963 therefore, no reason for delay was required to be mentioned in the application under Order 9 Rule 13 of the Code of Civil Procedure, 1908.
C. BECAUSE the Ld. Trial court failed to appreciate the principle of law that the words "was prevented by any sufficient cause from appearing" in Order IX Rule 13 of the Code of Civil Procedure, 1908 must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party.
D. BECAUSE the Ld. Trial Court has, erred in law by failing to appreciate the doctrine of audi alterem partem. It is submitted that the Appellants should not be reprimanded for such an inadvertence of fate which was not and could not be caused by them. It is further submitted that law of natural justice exists in the sense that a party must be heard in a Court of law, or at any rate be afforded an opportunity to appear and defend himself
E. BECAUSE the Ld. Trial Court has erred in not appreciating_ that procedure is the handmaid of justice and a procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice.
F. BECAUSE the Ld. Trial Court has further erred in appreciating the settled principle of law that as a general rule, evidence should never be shut out and fullest opportunity should always be given to the parties to give evidence if the justice of the case requires it, regardless the fact that the original omission to give evidence arises from negligence or carelessness.
G. BECAUSE the Ld. Trial Court has erred in law and fact by not appreciating that the government counsel appearing before the Hon'ble Delhi High Court on behalf of the Appellants failed to intimate the stage of proceeding of the said matter to the Appellants. It is further submitted that the Appellants were under the impression that they were not required to do any other task in the said matter once the written statement is filed before the Hon'ble Court.
H. BECAUSE the Ld. Trial Court has erred in law in appreciating the fact that the Appellants were present on several dates before the ex -parte order was passed against them .. It is submitted that the12. That the Appellants have a good case on merits and great prejudice will be suffered by the Appellants, in case the present appeal is not allowed.”
7.3. Though the trial court had held that the application under Order IX Rule 13 CPC was grossly time barred, in the appeal memorandum also no ground was taken that they are entitled to benefit of the directions in Suo Motu Writ Petition (supra). Further, this point was also not urged at the time of hearing the appeal. It is only in the present review petition that the ground relating to exclusion of limitation during COVID-19 has been raised for the first time. In short, this ground was never raised at any stage prior to the filing of the present review petition.
7.4. Admittedly, thedecree in the case is dated 11.02.2020. The application for setting aside the ex-parte decree was filed only on27.01.2022.Further, the materials on record showed that the petitioners had knowledge about the decree much before the receipt of the notice in the execution petition. Therefore, even if the period from 15.03.2020 to 28.02.2022 is excluded in the light of the binding directions of the Apex Court in Suo Motu Writ Petition (supra), the same would not help the petitioners in any way because it was not only on the ground of delay but also on the ground that the reason furnished for non-appearance was found to be false, the appeal came to be dismissed.
The second ground for review urged reads-
“(ii) an erroneous recording and appreciation of material facts relating to alleged participation before the Trial Court, including supposed part-cross-examination and "repeated appearances", which has led to the Petitioners' explanation being branded as "false";”
8.1.The relevant portion in the order of the trial court dismissing the Order IX Rule 13 CPC application reads thus-
“…..It is contended by the applicant/defendant that initially the present suit was filed before the High Court of Delhi in CS (OS) No. 158/2012 and the defendant had filed the written statement before the Hon’ble High Court of Delhi, thereafter, present case was transferred from Hon’ble Delhi High Court to Karkardooma Court, Delhi and police officers who were appearing were under the impression the reply has already been filed and they did not do any other task in the matter. Perusal of record shows that even after the case filed being transferred to KKD Courts, Delhi two police officials namely, ASI Rajinder Singh and SI Nishant appeared before the Court on behalf of defendant no. 1& 2. On 22.08.2018 court notice was issued to defendant no. 2 SHO PS Gandhi Nagar and on the next date of hearing one SI Manish Tyagi had appeared on behalf of SHO Gandhi Nagar and thereafter none appeared. The defendants were proceeded ex-parte on 19.08.2017 and thereafter, on 11.10.2018 one SI Manish Tyagi on behalf of defendant no. 2 SHO PS Gandhi Nagar appeared before the Court. Hence, defendants despite being aware of the fact that defendant no. 1 to 3 are ex-parte further stopped appearing before the court. No counsel was appearing on behalf of defendants. Defendant no. 1 to 3 since the very beginning did not care to appear before the court nor any counsel on their behalf was appearing before the court. This shows that defendants during the pendency of the suit were aware of the fact that the defendant had already been proceeded ex-parte but neither defendants nor anyone on their behalf appeared. During pendency of the suit no application was filed on behalf of defendant no. 1 to 3 for recalling the order dated 19.08.2017 thereby, defendant no. 1 to 3 were proceeded ex-parte despite being aware of the fact that they had been proceeded ex-parte. The applicants/defendant no. 1 and 2 had every opportunity to participate in the proceedings or to apprise themselves of the same through their counsel, however, it seems that defendants deliberately avoided the court proceedings. Perusal of record shows that the defendants were being represented in the court through their counsels. No explanation has been given in the present application as to why the defendants took a time of almost of two years for filing the present application despite having knowledge of the fact that the defendants were proceeded ex-parte. It is also submitted on behalf of the defendants in the present application that the defendants came to know about the judgment/decree upon receipt of summons of this court in the execution petition no.113/2020. The reason given for not attending the court by the defendant/applicants looks unbelievable hence, same lacks merits. The contentionsof the applicants came to know about the ex-parte decree notice of execution petition no. 113/2020 is also not believable and lacks merits, in view of above discussion. It is evident that even after being proceeded ex-parte SI Manish Tyagi appeared on behalf of defendants/applicants and this shows applicants were aware that they had been proceeded ex-parte and eventually ex-parte decree shall be pronounced against them if they did not participate in the court proceedings.”
8.2. Holding so, the trial court dismissed the application on the ground of limitation as well as on the ground that no sufficient cause had been shown.
8.3. In the appeal memorandum, none of the aforesaid aspects referred to by the trial court in its order was challenged or disputed, which is apparent from the grounds raised to which I have specifically referred to. They were not disputed or challenged during the course of arguments also. It was in the said background, this Court passed the impugned order, the relevant portion of which reads –
“13. The averments in the application will make it obvious that the contention of the appellants/defendants that they came to know of the decree only on receipt of notice in the execution is absolutely false. They themselves admit that they were aware of the fact that the case had been transferred to the Court at Karkardooma, but they were under the impression that as a reply had been filed, they need not do anything further in the matter. The affidavit accompanying the application for condonation of delay is seen affirmed by the SHO, Gandhi Nagar Police Station. The said officer cannot be heard to advance such an argument. He is not an illiterate or rustic person. I will still assume for a moment that this contention is also true and that the appellants/defendants were under the bona fide impression that they need not do anything after the filing of the written statement. Now, the question is whether the said assertion is true or probable. I am afraid that I will have to answer the same in the negative because the trial court in the impugned order says that initially the appellants/defendants and the counsels were appearing. On completion of pleadings, necessary issues were framed in the presence of the counsel for the appellants/defendants. On05.07.2014, they had also partially cross-examined PW-1, the plaintiff. Thereafter, the matter was adjourned to 09.11.2016 and05.04.2017 to enable the appellants/defendants to complete the cross-examination of PW-1. The trial court also issued notice to the defendants vide order dated 16.02.2017. Pursuant to the notice being served, on 05.07.2017 ASI Rajinder Singh and Sub-Inspector Nishant on behalf of the first defendant appeared before the trial court. On 14.07.2017, Sub-Inspector Manish Tyagi appeared on behalf of the second defendant. However, from the next date of hearing onwards, none appeared on behalf of the appellants/defendants and they failed to cross examine the plaintiff and his witnesses. Thereafter, vide order dated 02.08.2018, the trial court again issued notice to the second defendant, i.e., the SHO Gandhi Nagar Police Station. On 11.10.2018, Sub-Inspector Manish Tyagi appeared before the trial court on behalf of the SHO Gandhi Nagar police station. After the passing of the judgment and decree in the year 2020, the respondent/plaintiff filed a caveat petition before this Court. A copy of the said petition, containing the details of the judgment was served on the appellants/defendants. These facts are not disputed by the appellants/defendants. Therefore, it is apparent that they were well aware of the proceeding or the pendency of the suit, the fact that the trial had started in the case as well as the decree that was passed on 11.02.2020. That being the position, the argument that the appellants/defendants came to know of the decree only when notice in the execution petition was served on them is apparently false……….”
8.4.This Court has neither stated nor was it under the impression that the partial examination of the plaintiff’s witnesses was conducted before the trial court. As per the averment contained in paragraph 6 of the appeal memorandum, the case was transferred to the District Court on 18.03.2016.The partial examination of the witnesses may have taken place before this Court. But after the transfer also sufficient opportunity is seen given to the petitioners. As noticed earlier and at the risk of repetition, it needs to be noticed that the case was posted on09.11.2016 and 05.04.2017, apparently after the transfer, to enable the appellants/defendants to complete the cross-examination of PW-1. Vide order dated 16.02.2017, notice was again issued to the defendants, pursuant to which, the officers concerned also appeared before the trial court. Thereafter, vide order dated 02.08.2018, the trial court again issued notice to the second defendant. On 11.10.2018, Sub-Inspector Manish Tyagi appeared before the trial court on behalf of the SHO Gandhi Nagar police station. After the passing of the judgment and decree, the respondent/plaintiff filed a caveat petition before this Court, a copy of which containing the details of the judgment was served on the appellants/defendants. These facts are not disputed by the appellants/defendants.
8.5. Moreover, paragraph 8 of the appeal memorandum reads-
“That on 19.08.2017, an ex-parte order was passed against the Appellants and the Defendant No. 3 in the said matter. It is pertinent to mention that even after the ex-parte order dated 19.08.2017, the Ld. Trial Court issued notice to the Appellant No .. 2 on 02.08.2018 and therefore, the Appellants appeared in the said matter on 11.10.2018. However, the Appellants werenot aware of the stage of the proceedings; therefore, they never objected to the ex-parte order…”
(Emphasis Supplied)
8.6The review petitioners themselves admit that they appeared before the trial court on 11.10.2018, pursuant to the trial court issuing notice to them, which is apparently after the transfer of the case to the District Court. In the light of such overwhelming evidence indicating that the petitioners were well aware of the proceedings much before the receipt of the notice in the execution petition, which they are supposed to have received on 15.12.2021, this Court in the impugned judgment held that the allegation regarding the date of knowledge is false and proceeded to dismiss the appeal. There is no error(s) apparent on the face of the record relating to the said finding and hence the second ground urged will have to fail.
The last ground urged reads thus-
“(iii) the reasoning in paragraph 14 of the impugned judgment, which, while correctly recognising the seriousness of the matter and the "disastrous" consequences of the decree, nevertheless proceeds to draw adverse inferences of negligence and collusion instead of applying, in favour of the Petitioners, the approach subsequently affirmed in Sheo Raj Singh(Deceased) through LR' s & Others vs Union of India & Another (2023) 10 SCC 531 on governmental delay and systemic lapses.”
9.1 This aspect has been dealt with in paragraphs 14 to 17 of the impugned judgement. In the appeal memorandum, there was
never a case of “governmental delay and systemic lapses” as is urged now. There was never a case of break down in communication between the departments concerned after the transfer of the case or a case of non-transmission of the brief or administrative delay. The only ground alleged was that the officers concerned were under impression that as a reply had been filed, they need not do anything further in the matter and that they came to know about the proceedings only on receipt of notice in the execution petition, which were found apparently false in the light of the materials before this Court. Apart from the said grounds, no other grounds were raised in the appeal. It was in such circumstances, this Court was constrained to dismiss the appeal as this Court could not make out a case for the petitioners which they themselves did not have. The conclusion arrived at by this Court on the basis of the pleadings and materials available before this Court at the time of consideration of appeal suffers from no infirmity nor are there any error(s) apparent on the face of the record calling for a review.
In the result, the review petition is dismissed.