# Brij Kumar Singh v. State of U.P. & Ors

- **Citation:** (2023) 12 ILRA 746
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-04
- **Case number:** Writ-C No. 39872 of 2018
- **Bench:** Pritinker Diwaker, C.J. Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brij-kumar-singh-v-state-of-u-p-ors-49522
- **Pages:** 11

## Headnote

A. Civil Law - Civil Procedure Code -
Section 114 - O XLVII - Review - Scope
and ambit - Error apparent on the face of
record - Explained - Court's jurisdiction of
review, is not the same as that of an
appeal. A judgment can be open to review
if there is a mistake or an error apparent
on the face of the record, but an error that
has to be detected by a process of
reasoning, cannot be described as an error
apparent on the face of the record for the
Court to exercise its powers of review
under Order XLVII Rule1 CPC - This court
in the guise of exercising powers of
review, though can correct a mistake but
not substitute the view taken earlier
merely because there is a possibility of
taking two views in a matter. (Para 21 and
24)

Review application dismissed. (E-1)

List of Cases cited:

## Text

746 INDIAN LAW REPORTS ALLAHABAD SERIES
1947, conduct proper enquiry and pass
appropriate orders, in accordance with the
aforesaid Rules.

16. The writ petition stands allowed,
accordingly. No order as to costs.
----------
(2023) 12 ILRA 746
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2023

BEFORE

THE HON'BLE PRITINKER DIWAKER, C.J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-C No. 39872 of 2018

Brij Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bidhan Chandra Rai

Counsel for the Respondents:
C.S.C.,Sri Krishna Mohan Asthana, Mrs. S.
Rathi, Sri Satish Chaturvedi

A. Civil Law - Civil Procedure Code -
Section 114 - O XLVII - Review - Scope
and ambit - Error apparent on the face of
record - Explained - Court's jurisdiction of
review, is not the same as that of an
appeal. A judgment can be open to review
if there is a mistake or an error apparent
on the face of the record, but an error that
has to be detected by a process of
reasoning, cannot be described as an error
apparent on the face of the record for the
Court to exercise its powers of review
under Order XLVII Rule1 CPC - This court
in the guise of exercising powers of
review, though can correct a mistake but
not substitute the view taken earlier
merely because there is a possibility of
taking two views in a matter. (Para 21 and
24)

Review application dismissed. (E-1)

List of Cases cited:

1. Banda Development Authority Vs Motilal
Agarwal; (2011) 5 SCC 394

2. St. of Assam Vs Bhasker Jyoti Sharma; (2015)
5 SCC 321

3. Col. Avatar Singh Sekhon Vs U.O.I. & ors.;
1980 Supp SCC 562

4. Parsion Devi & ors. Vs Sumitri Devi and
Others; 1997 (8) SCC 715

5. Kerala State Electricity Board Vs Hitech
Electrothermics & Hydropower Ltd. and Others;
2005 (6) SCC 651

6. Jain Studios Ltd. Vs Shin Satellite Public Co.
Ltd.; 2006 (5) SCC 501

7. Kamlesh Verma Vs Mayawati & ors.; 2013 (8)
SCC 320

8. Aribam Tuleshwar Sharma Vs Aribam Pishak
Sharma; 2013 (8) SCC 337

9. West Bengal & ors.Vs Kamal Sengupta &
anr.; 2008 (8) SCC 612

10. S. Nagaraj & ors.Vs St. of Karn. & anr.;
1993 Supp (4) SCC 595

11. Patel Narshi Thakershi & ors. Vs Shri
Pradyuman Singhji Arjunsinghji; 1971 (3) SCC
844

12. Ram Sahu (Dead) through LRs & ors. Vs
Vinod Kumar Rawat and Others; 2020 SCC
Online SC 896

(Delivered by Hon'ble Printiker Diwaker,
C.J.
&
Hon'ble Ashutosh Srivastava, J.)

Order
on
Civil
Misc.
Delay
Condonation Application No. 9 of 2020:
12 All. Brij Kumar Singh Vs. State of U.P. & Ors.
747

The Review Application is reported
beyond time by 60 days. Learned counsel
appearing for the petitioner-respondent
does not oppose the Delay Condonation
Application. Consequently, the delay is
condoned. The Review Application shall be
treated to have been filed within the period
of limitation.

Order
on
Civil
Misc.
Review
Application No. 10 of 2020:

1. The present review petition has
been filed by the Moradabad Development
Authority, respondent No. 4 in the writ
petition seeking the review of the judgment
and order dated 11.06.2020 passed by this
Court in Writ Petition No. 39872 of 2018
whereby and whereunder the writ petition
was allowed and the impugned order dated
6.8.2018 was quashed and at the same time,
a direction was issued to the respondents to
expunge the name of the respondent-State
from the revenue records and to restore that
of the petitioner who was stated to be the
owner of the land in question.

2.

Learned
counsel
for
the
Development Authority submitted that
there is error apparent on the face of the
record in as much as the Court erred in law
to resort to Section 10(6) of the Act to
prove possession though it is not the case of
forceful possession since the possession had
already been taken on 13.11.1992. It has been
further contended that notice under Section
10(5) of the Act was issued on 24.08.1992
which was duly served on the tenure holder
and the writ petitioner raised no objection to
the said notice under Section 10(5) of the Act
and on 13.11.1992 peaceful possession of the
land was delivered to the State Government
and hence, the possession been taken much
before the Repeal Act and thus benefit of the
Repeal act could not be given to the
petitioner. It has been further contended that
the District Judge, Moradabad in his report
had stated that the land in question is a vacant
land and there is no crops standing over it and
the vacant land be construed as vacant land as
per the provision of Urban Land (Ceiling and
Regulation) Act 1976, however, this Court
erred
in
law
in
misconstruing
and
misinterpreting the same and as such, the
judgment and order is liable to be reviewed.

3. Heard counsel for the parties and
perused the record.

4. The core argument advanced by the
learned Counsel for the Applicant is that this
court erred in law in recording a finding that
possession memo dated 13.11.1992 is merely
a paper possession and is not actual
possession which finding, is against the law
propounded by the Apex court in the case of
Banda Development Authority Vs. Motilal
Agarwal reported in (2011) 5 SCC 394 and
this court also did not take into consideration
the law propounded by the Apex court in the
case of State of Assam Vs. Bhasker Jyoti
Sharma reported in (2015) 5 SCC 321, in
which it has been held that non challenge to
the notice under section 10 (5) of the Act by
the owner of the land for a long time acquire
legitimacy to the possession taken by the
State Government by sheer lapse of time.

5.

Before
dealing
with
the
submissions of the learned Counsel it
would be trite to discuss the relevant
provisions of law that govern review
jurisdiction.

6. Section 114 of the CPC which is
the substantive provision, deals with the
scope of review and states as follows:

"Review:- Subject as aforesaid,
any person considering himself aggrieved:-
748 INDIAN LAW REPORTS ALLAHABAD SERIES

(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 appeal 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."

7. The grounds available for filing a
review application against a judgment have
been set out in Order XLVII of the CPC in
the following words:

"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 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 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.] "

8. A glance at the aforesaid provisions
makes it clear that a review application
would be maintainable on (i) discovery of
new and important matters or evidence
which, after exercise of due diligence, were
not within the knowledge of the applicant
or could not be produced by him when the
decree was passed or the order made; (ii)
on account of some mistake or error
apparent on the face of the record; or (iii)
for any other sufficient reason.

9. In Col. Avatar Singh Sekhon v.
Union of India and Others reported in
1980 Supp SCC 562, the Apex Court
observed that a review of an earlier order
cannot be done unless the court is satisfied
that the material error which is manifest on
the face of the order, would result in
miscarriage of justice or undermine its
soundness. The observations made are as
under:

"12. A review is not a routine
procedure. Here we resolved to hear Shri
Kapil at length to remove any feeling that
the party has been hurt without being
12 All. Brij Kumar Singh Vs. State of U.P. & Ors.
749
heard. But we cannot review our earlier
order unless satisfied that material error,
manifest on the face of the order,
undermines its soundness or results in
miscarriage of justice. In Sow Chandra
Kante and Another v. Sheikh Habib this
Court observed :

"A review of a judgment is a
serious step and reluctant resort to it is
proper only where a glaring omission or
patent mistake or like grave error has crept
in earlier by judicial fallibility. ? The
present stage is not a virgin ground but
review of an earlier order which has the
normal feature of finality.' "

(emphasis added)

10. In Parsion Devi and Others v.
Sumitri Devi and Others reported in 1997
(8) SCC 715, the Apex Court stated that an
error that is not self- evident and the one
that has to be detected by the process of
reasoning, cannot be described as an error
apparent on the face of the record for the
Court to exercise the powers of review, and
held as under:

"7. It is well settled that review
proceedings have to be strictly confined to
the ambit and scope of Order 47 Rule 1
CPC. In Thungabhadra Industries Ltd. v.
Govt. of A.P.13 this Court opined: ?11.
What, however, we are now concerned
with is whether the statement in the order
of September 1959 that the case did not
involve any substantial question of law is
an ?error apparent on the face of the
record?. The fact that on the earlier
occasion the Court held on an identical
state of facts that a substantial question of
law arose would not per se be conclusive,
for the earlier order itself might be
erroneous. Similarly, even if the statement
was wrong, it would not follow that it was
an ?error apparent on the face of the
record?, for 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. "

8. Again, in Meera Bhanja v.
Nirmala Kumari Choudhury while quoting
with approval a passage from Aribam
Tuleshwar Sharma v. Aribam Pishak
Sharma this Court once again held that
review proceedings are not by way of an
appeal and have to be strictly confined to
the scope and ambit of Order 47 Rule 1
CPC.

9. Under Order 47 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 47 Rule 1
CPC. In exercise of this jurisdiction under
Order 47 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??. [emphasis added]

11. The error referred to under the
Rule, must be apparent on the face of the
record and not one which has to be
searched out. While discussing the scope
and ambit to review its judgments and in
the course of discussing the contours of
750 INDIAN LAW REPORTS ALLAHABAD SERIES
review jurisdiction under Order XLVII
Rule 1 of the CPC in case of Lily Thomas,
the Apex Court held

"54. Article 137 empowers this
court to review its judgments subject to the
provisions of any law made by Parliament
or any rules made under Article 145 of the
Constitution. The Supreme Court Rules
made in exercise of the powers under
Article 145 of the Constitution prescribe
that in civil cases, review lies on any of the
grounds specified in Order 47 rule 1 of the
Code of Civil Procedure which provides:

"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 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.? Under Order XL Rule 1 of the
Supreme Court Rules no review lies except
on the ground of error apparent on the face
of the record in criminal cases. Order XL
Rule 5 of the Supreme Court Rules
provides that after an application for review
has been disposed of no further application
shall be entertained in the same matter.

XXX XXX XXX

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.

XXX XXX XXX

58. Otherwise also no ground as
envisaged under Order XL of the Supreme
Court Rules read with Order 47 of the Code
of Civil Procedure has been pleaded in the
review petition or canvassed before us
during the arguments for the purposes of
reviewing the judgment in Sarla Mudgal
case16. It is not the case of the petitioners
that they have discovered any new and
important matter which after the exercise of
due
diligence
was
not
within
their
knowledge or could not be brought to the
notice of the Court at the time of passing of
12 All. Brij Kumar Singh Vs. State of U.P. & Ors.
751
the judgment. All pleas raised before us
were in fact addressed for and on behalf of
the petitioners before the Bench which,
after considering those pleas, passed the
judgment in Sarla Mudgal16 case. We have
also not found any mistake or error
apparent on the face of the record requiring
a review. Error contemplated under the rule
must be such which is apparent on the face
of the record and not an error which has to
be fished out and searched. It must be an
error of inadvertence. No such error has
been pointed out by the learned counsel
appearing for the parties seeking review of
the
judgment.
The
only
arguments
advanced
were
that
the
judgment
interpreting Section 494 amounted to
violation of some of the fundamental rights.
No other sufficient cause has been shown
for reviewing the judgment. The words
"any-other sufficient reason appearing in
Order 47 Rule 1 CPC" must mean "a reason
sufficient on grounds at least analogous to
those specified in the rule" as was held in
Chajju Ram v. Neki Ram17 and approved
by this Court in Moran Mar Basselios
Catholicos. v. Most Rev. Mar Poulose
Athanasius18. Error apparent on the face of
the proceedings is an error which is based
on clear ignorance or disregard of the
provisions of law. in T.C. Basappa v. T.
Nagappa19 this Court held that such error
is an error which is a patent error and not a
mere wrong decision. In Hari Vishnu
Kamath v. Ahmad, it was held:

"It is essential that it should be
something more than a mere error; it must
be one which must be manifest on the face
of the record. The real difficulty with
reference to this matter, however, is not so
much in the statement of the principle as in
its application to the facts of a particular
case. When does an error, cease to be mere
error and become an error apparent on the
face of the record? Learned Counsel on
either side were unable to suggest any
clear-cut rule by which the boundary
between the two classes of errors could be
demarcated.

Mr.
Pathak
for
the
first
respondent contended on the strength of
certain observations of Chagla, CJ in ?
?Batuk
K
Vyas
v.
Surat
Borough
Municipality' 21, that no error could be said
to be apparent on the face of the record if it
was not self-evident and if it required an
examination or argument to establish it.
This test might afford a satisfactory basis
for decision in the majority of cases. But
there must be cases in which even this test
might
break
down,
because
judicial
opinions also differ, and an error that might
be considered by one Judge as self-evident
might not be so considered by another. The
fact is that what is an error apparent on the
face of the record cannot be defined
precisely or exhaustively, there being an
element of indefiniteness inherent in its
very nature, and it must be left to be
determined judicially on the facts of each
case. Therefore, it can safely be held that
the petitioners have not made out any case
within the meaning of Article 137 read with
Order XL of the Supreme Court Rules and
Order 47 Rule 1 CPC for reviewing
thejudgment in Sarla Mudgal case16. The
petition is misconceived and bereft of any
substance.? (emphasis added)

12. It is also settled law that in
exercise of review jurisdiction, the Court
cannot re-appreciate the evidence to arrive
at a different conclusion even if two views
are possible in a matter. In Kerala State
Electricity
Board
v.
Hitech
Electrothermics & Hydropower Ltd. and
Others, reported in 2005 (6) SCC 651, the
Apex Court observed as follows:
752 INDIAN LAW REPORTS ALLAHABAD SERIES

"10. ....In a review petition it is
not open to this Court to reappreciate the
evidence and reach a different conclusion,
even if that is possible. Learned counsel for
the Board at best sought to impress us that
the correspondence exchanged between the
parties did not support the conclusion
reached by this Court. We are afraid such a
submission cannot be permitted to be
advanced in a review petition. The
appreciation of evidence on record is fully
within the domain of the appellate court. If
on appreciation of the evidence produced,
the court records a finding of fact and
reaches a conclusion, that conclusion
cannot be assailed in a review petition
unless it is shown that there is an error
apparent on the face of the record or for
some reason akin thereto. It has not been
contended before us that there is any error
apparent on the face of the record. To
permit the review petitioner to argue on a
question of appreciation of evidence would
amount to converting a review petition into
an appeal in disguise." (emphasis added)

13. Under the garb of filing a review
petition, a party cannot be permitted to
repeat old and overruled arguments for
reopening the conclusions arrived at in a
judgment. The power of review is not to be
confused with the appellate power which
enables the Superior Court to correct errors
committed by a subordinate Court. This
point has been elucidated in Jain Studios
Ltd. V. Shin Satellite Public Co. Ltd., 2006
(5) SCC 501 where it was held thus:

"11. So far as the grievance of the
applicant on merits is concerned, the
learned counsel for the opponent is right in
submitting that virtually the applicant seeks
the same relief which had been sought at
the time of arguing the main matter and had
been negatived. Once such a prayer had
been refused, no review petition would lie
which would convert rehearing of the
original matter. It is settled law that the
power of review cannot be confused with
appellate power which enables a superior
court to correct all errors committed by a
subordinate court. It is not rehearing of an
original matter. A repetition of old and
overruled argument is not enough to reopen
concluded adjudications. The power of
review can be exercised with extreme care,
caution and circumspection and only in
exceptional cases.

12. When a prayer to appoint an
arbitrator by the applicant herein had been
made at the time when the arbitration
petition was heard and was rejected, the
same relief cannot be sought by an indirect
method by filing a review petition. Such
petition, in my opinion, is in the nature of
'second innings' which is impermissible and
unwarranted and cannot be granted.?
(emphasis added)

14. After discussing a series of
decisions
on
review
jurisdiction
in
Kamlesh Verma v. Mayawati and Others,
2013 (8) SCC 320 the Apex Court observed
that review proceedings have to be
strictly confined to the scope and ambit
of Order XLVII Rule 1, CPC. As long as
the point sought to be raised in the
review application has already been
dealt with and answered, parties are not
entitled to challenge the impugned
judgment only because an alternative
view is possible. The principles for
exercising
review
jurisdiction
were
succinctly summarized in the captioned
case as below:

"20. Thus, in view of the above,
the following grounds of review are
maintainable as stipulated by the statute:
12 All. Brij Kumar Singh Vs. State of U.P. & Ors.
753

20.1. When the review will be
maintainable:

(i)
Discovery
of
new
and
important matter or evidence which, after
the exercise of due diligence, was not
within knowledge of the petitioner or could
not be produced by him;

(ii) Mistake or error apparent on
the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient
reason" has been interpreted in Chajju Ram
vs. Neki17, and approved by this Court in
Moran Mar Basselios Catholicos vs. Most
Rev. Mar Poulose Athanasius & Ors.18 to
mean "a reason sufficient on grounds at
least analogous to those specified in the
rule". The same principles have been
reiterated in Union of India v. Sandur
Manganese & Iron Ores Ltd. & Ors. 25 ,.

20.2. When the review will not be
maintainable: -

(i) A repetition of old and
overruled argument is not enough to reopen
concluded adjudications.

(ii)
Minor
mistakes
of
inconsequential import.

(iii) Review proceedings cannot be
equated with the original hearing of the case.

(iv) Review is not maintainable
unless the material error, manifest on the
face of the order, undermines its soundness
or results in miscarriage of justice.

(v) A review is by no means an
appeal in disguise whereby an erroneous
decision is re-heard and corrected but lies
only for patent error.

(vi) The mere possibility of two
views on the subject cannot be a ground for
review.

(vii) The error apparent on the
face of the record should not be an error
which has to be fished out and searched.

(viii)
The
appreciation
of
evidence on record is fully within the
domain of the appellate court, it cannot be
permitted to be advanced in the review
petition.

(ix) Review is not maintainable
when the same relief sought at the time of
arguing
the
main
matter
had
been
negatived.?

15. In Aribam Tuleshwar Sharma v.
Aribam Pishak Sharma, 2013 (8) SCC
337, the Apex Court was examining an
order passed by the Judicial Commissioner
who was reviewing an earlier judgment that
went in favour of the appellant, while
deciding a review application filed by the
respondents therein who took a ground that
the predecessor Court had overlooked two
important documents that showed that the
respondents were in possession of the sites
through which the appellant had sought
easementary rights to access his homestead.
The said appeal was allowed by Apex
Court with the following observations:

"3....It is true as observed by this
Court in Shivdeo Singh and Others v. State
of Punjab26 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
754 INDIAN LAW REPORTS ALLAHABAD SERIES
justice or to correct grave and pulpable
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 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.? (emphasis added)

16. In State of West Bengal and
Others v. Kamal Sengupta and Another,
2008 (8) SCC 612, the Apex Court
emphasized the requirement of the review
petitioner who approaches a Court on the
ground of discovery of a new matter or
evidence, to demonstrate that the same was
not within his knowledge and held thus:

"21. At this stage it is apposite to
observe that where a review is sought on
the ground of discovery of new matter or
evidence, such matter or evidence must be
relevant and must be of such a character
that if the same had been produced, it might
have altered the judgment. In other words,
mere discovery of new or important matter
or evidence is not sufficient ground for
review ex debito justitiae. Not only this, the
party seeking review has also to show that
such additional matter or evidence was not
within its knowledge and even after the
exercise of due diligence, the same could
not be produced before the court earlier.?
(emphasis added)

17. In the captioned judgment, the
term ?mistake or error apparent? has been
discussed in the following words:

"22. 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 of
review, the court/tribunal concerned cannot
sit in appeal over its judgment/decision?.
(emphasis added)

18. In S. Nagaraj and Others v. State
of Karnataka and Another, 1993 Supp (4)
SCC 595, the Apex Court explained as to
when a review jurisdiction could be treated
as statutory or inherent and held thus :

"18. Justice is a virtue which
transcends all barriers. Neither the rules of
procedure nor technicalities of law can
stand in its way. The order of the court
should not be prejudicial to anyone. Rule of
stare decisis is adhered for consistency but
it is not as inflexible in Administrative Law
as in Public Law. Even the law bends
before justice. Entire concept of writ
jurisdiction exercised by the higher courts
12 All. Brij Kumar Singh Vs. State of U.P. & Ors.
755
is founded on equity and fairness. If the
court finds that the order was passed under
a mistake and it would not have exercised
the jurisdiction but for the erroneous
assumption which in fact did not exist and
its perpetration shall result in miscarriage
of justice then it cannot on any principle be
precluded
from
rectifying
the
error.
Mistake is accepted as valid reason to recall
an order. Difference lies in the nature of
mistake
and
scope
of
rectification,
depending on if it is of fact or law. But the
root from which the power flows is the
anxiety to avoid injustice. It is either
statutory or inherent. The latter is available
where the mistake is of the Court?.
(emphasis added)

19. In Patel Narshi Thakershi and
Others
v.
Shri
Pradyuman
Singhji
Arjunsinghji, 1971 (3) SCC 844, the Apex
Court held as follows:

"4... It is well settled that the
power to review is not an inherent power. It
must be conferred by law either specifically
or by necessary implication. No provision
in the Act was brought to notice from
which it could be gathered that the
Government had power to review its own
order. If the Government had no power to
review its own order, it is obvious that its
delegate could not have reviewed its
order.??? (emphasis added)

20. In Ram Sahu (Dead) Through
LRs and Others v. Vinod Kumar Rawat
and Others, 2020 SCC Online SC 896,
citing previous decisions and expounding
on the scope and ambit of Section 114 read
with Order XLVII Rule 1, the Apex Court
has observed that Section 114 CPC does
not lay any conditions precedent for
exercising the power of review; and nor
does the Section prohibit the Court from
exercising its power to review a decision.
However, an order can be reviewed by the
Court only on the grounds prescribed in
Order XLVII Rule 1 CPC. The said power
cannot be exercised as an inherent power
and nor can appellate power be exercised in
the guise of exercising the power of review.

21. As can be seen from the above
exposition of law, it has been consistently
held by the Apex Court in several judicial
pronouncements
that
the
Court?s
jurisdiction of review, is not the same as
that of an appeal. A judgment can be open
to review if there is a mistake or an error
apparent on the face of the record, but an
error that has to be detected by a process of
reasoning, cannot be described as an error
apparent on the face of the record for the
Court to exercise its powers of review
under Order XLVII Rule1 CPC. In the
guise of exercising powers of review, the
Court can correct a mistake but not
substitute the view taken earlier merely
because there is a possibility of taking two
views in a matter. A judgment may also be
open to review when any new or important
matter of evidence has emerged after
passing of the judgment, subject to the
condition that such evidence was not within
the knowledge of the party seeking review
or could not be produced by it when the
order was made despite undertaking an
exercise of due diligence. There is a clear
distinction between an erroneous decision
as against an error apparent on the face of
the record. An erroneous decision can be
corrected by the Superior Court, however
an error apparent on the face of the record
can only be corrected by exercising review
jurisdiction. Yet another circumstance
referred to in Order XLVII Rule 1 for
reviewing a judgment has been described
as ?for any other sufficient reason?. The
said phrase has been explained to mean ?a
756 INDIAN LAW REPORTS ALLAHABAD SERIES
reason sufficient on grounds, at least
analogous to those specified in the rule?.

22. In the light of the legal position
crystalized above, we now proceed to
examine the grievance raised by the
applicant.
While
dealing
with
the
submissions of the Development Authority
vis a vis possession, this Court while
allowing the writ petition has clearly held
that the petitioner is in actual physical
possession of the land in question. The
Moradabad
Development
Authority
aggrieved by the order passed by this court
preferred Special Leave Petition No. 12283
of 2012. The Apex Court called for the
report on the point of possession from the
District Judge, Moradabad, who submitted
the
report.
The
Apex
Court
after
considering the said report dismissed the
SPL filed by the Development Authority
and recorded a specific finding that actual
physical possession is with the petitioner.

23. So far as the contention of the
learned Counsel for the Development
Authority to the effect that it is the case of
peaceful delivery of possession, this court
has recorded a specific finding that ? it is
also not the case of the respondents that
after publication of the notice u/s 10 (5) of
the principal Act in the official gazette, the
petitioner had delivered the physical
possession of his surplus land to the
respondent nos.1 to 3. Thus this argument
can also not be sustained as the respondent/
applicant can not be permitted to carve out
a new case in review proceedings.

24. Thus this court in the guise of
exercising powers of review, though can
correct a mistake but not substitute the
view taken earlier merely because there is a
possibility of taking two views in a matter.
A judgment can be open to review if there
is a mistake or an error apparent on the face
of the record, but an error that has to be
detected by a process of reasoning, cannot
be described as an error apparent on the
face of the record for the Court to exercise
its powers of review. As long as the point
sought to be raised in the review
application has already been dealt with and
answered, parties are not entitled to
challenge the impugned judgment only
because an alternative view is possible.

25. For the reasons stated above the
present review application lacks merit and
is hereby dismissed.
----------
(2023) 12 ILRA 756
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.11.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 3000069 of 1996

Raj Bahadur Singh ...Petitioner
Versus
Ist Addl. Commissioner Lko & Ors.
 ...Respondent

Counsel for the Petitioner:
Nirmal Tewari, Ajay Kumar Singh, D.P.S.
Chauhan, Pradeep Kumar Tiwari, Ram K.
Singh, Ram Kumar Singh, Ripu Daman
Shahi

Counsel for the Respondent:
C.S.C.

A. Ceiling Law - UP Imposition of Ceiling
on Land Holdings Act, 1960 - Section
10(2) - Re-initiation of ceiling proceeding
through IInd notice, validity thereof -
Earlier ceiling proceeding was initiated
declaring certain portion of the land
surplus - Effect - Objection to the IInd