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Judgment
Lok Pal Singh, J
Review Application No.1116 of 2019 has been filed under Chapter 5 Rule 12 of the Allahabad High Court Rules, 1952, as applicable in this High Court. The review applicant is seeking the review of the judgment and order dated 20.08.2019 passed by this Court in Appeal from Order No.1241 of 2001 (Old No.879 of 1994), allowing the appeal of the review appellants/applicants. Chapter 5 Rule 12 of the Allahabad High Court Rules, 1952, is extracted hereunder:-
"12. Application for review.- An application for the review of a Judgement shall be presented to the Registrar General, who shall endorse thereon the date when it is presented and lay the same as early as possible before the Judge or Judges by whom such judgment was delivered along with an office report as to limitation and sufficiency of court-fees. If such Judge or Judges or any one or more of such Judges be no longer attached to the court, the application shall laid before the Chief Justice who shall having regard to the provisions of Rule 5 of Order XLVII of the Code, nominate a Bench for the hearing of such applications :
[Provided that an application for the review of a judgment of one Judge who is precluded by absence or other cause for a period of six months next after the presentation of the application from considering the decree or order to which the application refers, shall be heard or disposed of by a single Judge, and that an application for the review of a judgment of two or more Judges, any one or more of whom is or are precluded by absence or other cause for a period of six months next after the presentation of the application from considering the decree or order to which the application refers, shall be heard or disposed of by a Bench consisting of the same or a greater number of Judges.]
[Explanation :- For the purposes of this rule the expression 'no longer attached to the Court' shall be deemed to include absence from the permanent place of sitting on account of the directions given under rule 17 of this Chapter, illness or any other cause.]"
The present review application has been filed seeking review of the judgment and order dated 20.08.2019, on the ground that after the decision of this Court, the review applicants have discovered a judicial precedent set up by the Hon'ble Supreme Court of India, in the case of Chameli Devi and others vs. Jivrail Mian and others, passed in Civil Appeal No.7004 of 2019 decided on 04.09.2019 vide its judgment and order dated 04.09.2019.
It is contended that in the interest of justice and fair play, the judgment and order dated 20.08.2019 be recalled and reviewed. Further reliance has been placed on the statement of PW2-Mahender Singh, who had deposed that the deceased used to earn Rs.4,000/-p.m. from his truck and transport business. Besides this, he was also running the business of dairy farming and agriculture and the total monthly income of the deceased was Rs.8,000/-p.m., but the Court has fixed a notional income of the deceased @ Rs.15,000/- per annum. It is also stated that this Court has wrongly applied the notional income of the deceased. It is further stated that this Court should have considered the evidence of PW2-Mahender Singh on the tuch stone of preponderance of possibility as held by the Hon'ble Apex Court in the case of Chameli Devi and others vs. Jivrail Mian and others, passed in Civil Appeal No.7004 of 2019 decided on 04.09.2019, the relevant paragraph of the judgment (supra) is extracted hereunder:-
"This appeal has been filed for enhancement of compensation. Tribunal assessed the income of the deceased at Rs.1,250/- per month but since no positive proof of income was led, the income of Rs.15,000/- per annum was taken as notional income. This obviously is not a correct position of law. The High Court accepted the income at Rs.3,000/- per month. According to us, the income assessed by the High Court is on the lower side. The accident happened on 02.01.2001. The Tribunal and the High Court held that no proof of income has been produced to show that the deceased was alleged to be a carpenter. We fail to understand what proof a carpenter can lead except to lead oral evidence."
On the strength of judgment (supra), it is contended that since a Carpenter cannot adduce the evidence of income, therefore, the oral evidence ought to be considered. On these grounds, the review of the judgment dated 20.08.2019 has been sought.
No doubt the provisions of Motor Vehicles Act, 1988, are in regard to the payment of compensation to the dependents of the deceased and injured person and are meant as benevolent legislature. The strict provisions of the Evidence Act does not apply to prove the facts senso stricto on burden of proof, rather the evidence should be considered on preponderance of possibility.
This Court having considered the judgment that though PW2-Mahender Singh has made a statement that the deceased was the owner of a truck and deposed that the deceased was earning Rs.4,000/-p.m. from his truck and Rs.4,000/-p.m. from a business of dairy farming and agriculture the claimants should have adduced the proof of the existence of the land by producing the revenue entries before the learned Tribunal. Similarly, if the deceased was having a truck, the documents could have been placed by the claimants showing the ownership of the deceased over the alleged truck. Mere a statement, that the deceased was earning Rs.4,000/-p.m. from the truck and Rs.4,000/-p.m. by doing agriculture and dairy farming business cannot be considered by this Court as just and proper proof of income of the deceased. Nowhere, PW2-Mahender Singh has stated whether the deceased was having a truck or was he the driver of the truck, as such, his statement does not seem to be trustworthy to this Court.
Thus this Court having considered the fact that the statement made by PW2-Mahender Singh, who has no concern at all with the claimants, his statement could not be substantiated as a proof of income of the deceased. Hence, the claimants were the best persons to prove the income of the deceased being the dependents/legal heirs of the deceased. PW1- Malkeet Singh was the alleged eye-witness to the said accident. It was a case wherein out of the three claimants i.e. wife, son and daughter of the deceased, none examined himself to prove the income of the deceased. Thus the statement of P.W.2-Mahender Singh is not reliable and trustworthy. In fact, this was a case of no evidence in regard to the income of the deceased as the best evidence, could have been produced by the claimants, but they did not produce it and withheld the same. It is settled proposition of law that if the best evidence is withheld, the Court may take an adverse inference.
However, considering the benevolent provisions of the Motor Vehicles Act for the grant of compensation, this Court has taken a sympathetic view in allowing the appeal and the claim petition. Thus the ratio of the judgment (supra) does not help the petitioner in any manner whatsoever in the present case.
So far as the review is concerned, the scope of review in view of the provisions contained under Section 114 and Order 47 Rule 1 of the CPC are limited. Section 114 and Order 47 Rule 1 of CPC are extracted hereunder:-
"114. Review:- Subject as aforesaid, any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appear is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit."
"1. Application for review of judgment- (1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from 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 of 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 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.]"
Since the review applicants have not preferred an appeal against the judgment sought to be reviewed, the review application is maintainable. However, the jurisdiction of review is within the parameters of the provisions contained under Order 47 Rule 1 of CPC invoking the review jurisdiction in order to review a judgment, the error must be apparent on the face of record, which could not to be explored and the fact so discovered is considered should not amount to rehearing the case. While hearing the review application, the review court should not enter into and decide the controversy de novo as a trial or as an appellate authority. If an error in a judgment is apparent on the face of record, the court may review the judgment, but if the review court is required to discuss the pleading and the evidence de novo, it cannot be a subject matter of the review petition and in such a situation, the judgment as sought to be reviewed can only be challenged before the Appellate Court.
The Hon'ble Apex Court in the case of Inderchand Jain (Dead) through LRs Vs Motilal (Dead) through LRs, (2009) 14 SCC 663, has observed that while hearing the review petition, the Court cannot sit as an appellate court over its own judgment and order and rehearing of the matter de novo is impermissible in law. The relevant paragraph no.10 of the judgment (supra) is extracted hereunder:-
"10. 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 and 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 an appeal in disguise."
In the case of Lily Thomas & others Vs Union of India, (2000) 6 SCC 224, the Hon'ble Supreme Court has held as under:-
"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. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment."
The Hon'ble Apex Court in another judgment rendered in the case of Haryana State Steel Development Corporation Ltd. Vs Mavasi and others, (2012) 7 SCC 200, has held that having considered the judgment rendered in the case of S. Nagraj vs. State of Karnataka; Raja Prithwi Chand Lal Chaudhary vs. Sukhraj Rai, and Rajender Narain Rai vs. Bijai Govind Singh, has observed in paragraph no.19 that a review petition literally and individually means 're-examination' or 're-consideration'. The basic philosophy of the jurisdiction of review of the judgment is universal.
However, the court and even the statute suggests that strong presumption in favour of the finality of the decision as pronounced by the court. The exception to the statutory provisions to the judicial decision have been limited to correct the accidental mistake in the judgment and order in exercise of review jurisdiction and to avoid the miscarriage of justice. Similarly, it is settled principle of law that once a judgment is delivered by the court having heard the respective parties, it should be considered as a final judgment and in the guise of review, the court should not embark upon the matter as a trial or as an appellate authority of the judgment passed by the court itself.
The jurisdiction of this Court in hearing the review application is not akin to the appellate or trial jurisdiction, rather it is the limited jurisdiction to correct the accidental mistake or to avoid the miscarriage of justice. This Court should not have considered the review application as de novo hearing of the matter. However, to consider all the possibilities which could be favourable to the review applicant, this Court may enhance the compensation to the applicants.
This Court has further considered the entire matters de novo upon hearing the review application, but this Court is reluctant to allow the review application. This Court while allowing the appeal of the appellants (review applicants herein) has also considered the decision of the Hon'ble Apex Court and extended all the benefits which were possible for this Court to the applicants.
Having considered the matter from every corner of the law, this Court does not find any merit in the review application as the review applicants could not prove any error apparent on the face of record or miscarriage of justice caused to the claimants. Therefore, the Review Application is liable to be dismissed.
Accordingly, the Review Application is hereby dismissed.