# Chandra Bhan Major & Ors v. Aditiya Prakash

- **Citation:** (2021) 9 ILRA 878
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-23
- **Case number:** Review Petition No. 264 of 2003
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-bhan-major-ors-v-aditiya-prakash-47411
- **Pages:** 6

## Headnote

A. Civil Law - Civil Procedure Code, 1908 -
Section 100 - The Court find that the
admission
of
second
appeal
without
framing any substantial question of law,
neither at the time or admission o at any
time thereafter, is an error apparent on
the face of the record of the judgment
dated 14.08.2003 which the High Court is
bound to correct it. (Para 10)

Review Petition Allowed. (E-10)

List of Cases cited:

## Text

878 INDIAN LAW REPORTS ALLAHABAD SERIES
only for patent error (vide Thungabhadra
Industries Ltd. Vs. The Government of
Andhra Pradesh AIR 1964 SC 1372).

9. In Parsion Devi and others Vs.
Sumitri Devi and others 1997 (8) SCC 715
the Apex court held that an error, which is not
self evident and has to be detected by process
of reasoning, can hardly be said to be error
apparent on the face of the record justifying
the court to exercise powers of review in
exercise of review jurisdiction.

10. Thus, Review is not an appeal in
disguise.
Rehearing
of
the
matter
is
impermissible in the garb of review. It is an
exception to the general rule that once a
judgment is signed or pronounced, it should not
be altered. In Lily Thomas Vs. Union of India
AIR 2000 SC 1650, the Court said that power
of review can be exercised for correction of a
mistake and not to substitute a new. Such
powers can be exercised within limits of the
statute dealing with the exercise of power. The
aforesaid view is reiterated in Inderchand Jain
Vs. Motilal (2009) 4 SCC 665.

11. In view of the above, we do not
find any error in the judgment under
challenge, hence, dismissed.
----------
(2021)09ILR A878
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.09.2021

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

 Review Petition No. 264 of 2003

Chandra Bhan Major & Ors. ....Petitioners
Versus
Aditiya Prakash ...Respondent

Counsel for the Petitioners:
Mohd. Abid Ali, Avadhesh Kumar, Om
Prakash Pandey, Onkar Nath Tiwari, R.N.
Gupta

Counsel for the Respondent:
R.S. Pandey, Chandra Bhooshan, R.S.
Pandey

A. Civil Law - Civil Procedure Code, 1908 -
Section 100 - The Court find that the
admission
of
second
appeal
without
framing any substantial question of law,
neither at the time or admission o at any
time thereafter, is an error apparent on
the face of the record of the judgment
dated 14.08.2003 which the High Court is
bound to correct it. (Para 10)

Review Petition Allowed. (E-10)

List of Cases cited:

1. Nazir Mohammad Vs J. Kamala & ors. 2020
(38) LCD 1969 (SC) (followed)

2. Kondiba Dagadu Kadam Vs Savitribai Sopan
Gujar (1999) 3 SCC 722 (followed)

3. Kamlesh Verma Vs Mayawati (2013) 8 SCC
320 (followed)

4. Perry Kansagra Vs Smriti Madan Kansagra
(2019) 20 SCC 753 (followed)

5. S. Nagraj Vs St.of Karn. (1993) Supp. 4 SCC
595 (followed)

6. M.M. Thomas Vs St. of Kerala & anr. (2000) 1
SCC 666 (followed)

7. F.C.I. & anr.. Vs M/s Seil Ltd. & ors. (2008) 3
SCC 440 (followed)

(Delivered by Hon'ble Ravi Nath Tilhari,
J.)

1. Heard Sri Avadhesh Kumar,
learned counsel for the review petitioner
and Sri Chandra Bhooshan, learned counsel
for opposite parties/respondents.
9 All Chandra Bhan Major & Ors. Vs. Aditiya Prakash
879

2. This review petition has been filed
by the defendant appellants for review of
the judgment and decree dated 14.08.2003
passed by this Court in Second Appeal no.
224 of 1986 in Re: Chandra Bhan and
others versus Aditya Prakash and others, by
which the defendant-appellants' appeal was
dismissed.

3. The review was admitted and the
execution of the decree was stayed till the
next date of listing, vide order dated
02.11.2006.

4. Sri Avadhesh Kumar, learned
counsel for the review- applicant submits
that the second appeal was an admitted
second appeal, which could not be decided
without framing any substantial question of
law which is a mandatory requirement for
decision of second appeal under Section
100 of the Code of Civil Procedure. He has
placed reliance on the judgment of Hon'ble
Supreme Court in the case of Nazir
Mohammad vs. J. Kamala and Ors. [2020
(38) LCD 1969 (SC)].

5. The second appeal was admitted by
order dated 02.04.1986, however, any
substantial question of law was not framed,
neither at the time of admission nor at any
time thereafter. Judgment dated 14.08.2003
also does not frame any substantial
question of law. In Nazir Mohammad
(supra), the Hon'ble Supreme Court has
held that a condition precedent for
entertaining and deciding of second appeal
is the existence of a substantial question of
law. In Kondiba Dagadu Kadam vs.
Savitribai Sopan Gujar [(1999) 3 SCC
722], the Hon'ble Supreme Court has held
that the High Court is oblized to satisfy
itself
regarding
the
existence
of
a
substantial question of law. If satisfied, the
High Court has to formulate the substantial
question of law involved in the case. The
appeal is required to be heard on the
question, so formulated.

6. The basic principles in which
review application can be entertained and
cannot be entertained have been eloquently
laid down by Hon'ble the Apex Court in the
case of Kamlesh Verma vs. Mayawati
[(2013) 8 SCC 320]. Paragraph 20 under
the heading "summary of principles" is
being reproduced hereunder:-

20. Thus, in view of the above, the
following
grounds
of
review
are
maintainable as stipulated by the statute:

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" have been interpreted in Chhajju
Ram v. Neki [(1921-22) 49 IA 144 : (1922)
16 LW 37 : AIR 1922 PC 112] and
approved by this Court in Moran Mar
Basselios Catholicos v. Most Rev. Mar
Poulose Athanasius [AIR 1954 SC 526 :
(1955) 1 SCR 520] 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. [(2013) 8 SCC 337 : JT (2013) 8 SC
275]
880 INDIAN LAW REPORTS ALLAHABAD SERIES

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 reheard 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.

7. In the case of Perry Kansagra v.
Smriti Madan Kansagra [(2019) 20 SCC
753], the Hon'ble Apex Court on the scope
and power of review has reiterated the
same principles. It is apt to reproduce
paragraph nos. 14 to 16, which are as
under:-

14. The issues that arise for our
consideration can broadly be put under two
heads:

14.1. (a) Whether the High Court
was
justified
in
exercising
review
jurisdiction and setting aside the earlier
judgment?

14.2. (b) Whether the High Court
was correct in holding that the reports of
the Mediator and the Counsellor in this
case were part of confidential proceedings
and no party could be permitted to use the
same in any court proceedings or could
place any reliance on such reports?

15. As regards the first issue,
relying on the decisions of this Court in
Inderchand Jain v. Motilal [Inderchand
Jain v. Motilal, (2009) 14 SCC 663 :
(2009) 5 SCC (Civ) 461] , Ajit Kumar Rath
v. State of Orissa [Ajit Kumar Rath v. State
of Orissa, (1999) 9 SCC 596 : 2000 SCC
(L&S) 192] and Parsion Devi v. Sumitri
Devi [Parsion Devi v. Sumitri Devi, (1997)
8 SCC 715], it was submitted by the
appellant that the exercise of review
jurisdiction was not warranted at all.

15.1.
In
Inderchand
Jain
[Inderchand Jain v. Motilal, (2009) 14
SCC 663 : (2009) 5 SCC (Civ) 461] it was
observed in paras 10, 11 and 33 as under:
(SCC pp. 669 & 675)

"10. It is beyond any doubt or
dispute that the review court does not sit in
appeal over its own order. A rehearing of
9 All Chandra Bhan Major & Ors. Vs. Aditiya Prakash
881
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.

11. Review is not appeal in
disguise. In Lily Thomas v. Union of India
[Lily Thomas v. Union of India, (2000) 6
SCC 224 : 2000 SCC (Cri) 1056] this
Court held: (SCC p. 251, para 56)

''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.'

33. The High Court had rightly
noticed the review jurisdiction of the court,
which is as under:

''The law on the subject--exercise
of power of review, as propounded by the
Apex Court and various other High Courts
may be summarised as hereunder:

(i) Review proceedings are not by
way of appeal and have to be strictly
confined to the scope and ambit of Order
47 Rule 1 CPC.

(ii) Power of review may be
exercised when some mistake or error
apparent on the fact of record is found. But
error 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
the points where there may conceivably be
two opinions.

(iii) Power of review may not be
exercised on the ground that the decision
was erroneous on merits.

(iv) Power of review can also be
exercised for any sufficient reason which is
wide enough to include a misconception of
fact or law by a court or even an advocate.

(v) An application for review may
be necessitated by way of invoking the
doctrine actus curiae neminem gravabit.'

In our opinion, the principles of
law enumerated by it, in the facts of this
case, have wrongly been applied."

15.2. In Ajit Kumar Rath [Ajit
Kumar Rath v. State of Orissa, (1999) 9
SCC 596 : 2000 SCC (L&S) 192] , it was
observed: (SCC p. 608, para 29)

"29. In review proceedings, the
Tribunal deviated from the principles laid
down above which, we must say, is wholly
unjustified and exhibits a tendency to
rewrite
a
judgment
by
which
the
controversy had been finally decided. This,
we are constrained to say, is not the scope
of review under Section 22(3)(f) of the
Administrative Tribunals Act, 1985...."

15.3. Similarly, in Parsion Devi
[Parsion Devi v. Sumitri Devi, (1997) 8
SCC 715] the principles were summarised
as under: (SCC p. 719, para 9)

"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
882 INDIAN LAW REPORTS ALLAHABAD SERIES
exercise its power of review under Order
47 Rule 1 CPC. In exercise of the
jurisdiction under Order 47 Rule 1 C.P.C.
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".

16. On the other hand, reliance
was placed by the respondent on the
decision in BCCI v. Netaji Cricket Club
[BCCI v. Netaji Cricket Club, (2005) 4
SCC 741] to submit that exercise in review
would be justified if there be misconception
of fact or law. Para 90 of the said decision
was to the following effect: (SCC p. 765)

"90. Thus, a mistake on the part
of the court which would include a mistake
in the nature of the undertaking may also
call for a review of the order. An
application for review would also be
maintainable if there exists sufficient
reason therefor. 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 way of
invoking the doctrine actus curiae neminem
gravabit."

8. It has thus been settled in law that;

(i) the power of review may be
necessitated by way of invoking the
doctrine ''actus curiae neminem gravabit'
which means that no act of the court in the
course of whole of the proceedings does an
injury to the suitors in the court. It has been
held in Food Corporation of India and
Another vs. M/s Seil Ltd. & Ors. [(2008) 3
SCC 440] that a writ court exercises its
power of review under Article 226 of the
Constitution of India itself and while
exercising the jurisdiction it not only acts
as a court of law but also as a court of
equity. A clear error or omission on the part
of the court to consider a justifiable claim
would be subject to review, amongst
others, on the ''actus curiae neminem
gravabit'.

(ii) The mistake or error must be
apparent on the face of record i.e. that it
must strike one on more looking at the
record and would not require any long
drawn process of reasoning. It should not
be an error which has to be fished out and
searched. Such an error must also be
material which undermines the soundness
of the judgment or results in miscarriage of
justice. An error which may be apparent
but is of inconsequential import, that would
not furnish a ground for review.

9. It would also be apt to refer the
judgment in the case of S. Nagraj vs. State
of Karnataka [(1993) Supp. 4 SCC 595],
wherein Hon'ble Apex Court has observed
that it is the duty of the Court to rectify,
revise and recall its orders as and when it is
brought to its notice that certain of its
orders were passed on a wrong or mistaken
assumption
of
facts
and
that
implementation of those orders would have
serious consequences. Again in the case of
M.M. Thomas vs. State of Kerala &
Another [(2000) 1 SCC 666] the Hon'ble
Apex Court has held that the High Court, as
a Court of record, has a duty to itself to
keep all the records correctly and in
accordance with law. Hence, if any
apparent error is noticed by the High Court
in respect of any orders passed by it, the
High Court has not only power, but a duty
to correct it.
9 All State of U.P. Vs. Prem & Ors.
883

10 . In view of the aforesaid, there is
an error apparent on the face of record of
the judgment dated 14.08.2003.

11. The review petition is allowed.
The judgment dated 14.08.2003 is recalled.
The second appeal is restored to its original
number for fresh decision.

12. The review applicant has also
filed some supplementary affidavits along
with applications as also application for
permission to file additional evidence,
annexing certain documents against which
the
respondent
has
raised
certain
objections.

13. As the review has been allowed,
the Court does not enter into the
controversy as to whether the application
under Order 41 Rule 27 C.P.C. is
maintainable in review application or not,
leaving it open to the applicants, if so
advised, to file appropriate application
under Order 41 Rule 27 C.P.C. or such
other provisions as may be open to them, in
the second appeal itself.

14. List this second appeal before
appropriate Bench in the next month, as the
appeal pertains to the year 1986.
----------
(2021)09ILR A883
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.09.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MANISH KUMAR, J.

U/S 378 CR. P.C. No. 1 of 2021

State of U.P. ...Applicant
Versus
Prem & Ors. ...Opposite Parties

Counsel for the Applicant:
G.A.

Counsel for the Opposite Parties:

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 378 (3),313,164
- Indian Penal Code, 1860 - Section 363,
366, 376D - leave to appeal against order
of acquittal -The Protection of Children
from Sexual Offences Act, 2012 - Section
3/4 - ocular evidence - in an appeal
against the acquittal the Court has to
examine the evidence keeping in mind
that accused has been found not guilt by
the trial court which gives force to the
principle
that
accused
is
considered
innocent
until
proved
guilty,
beyond
reasonable doubt except where the law
provides otherwise - in case of acquittal,
there is a double presumption in favour of
the accused - it cannot be disputed that
there can be a conviction solely based on
the evidence of the prosecutrix - evidence
must be reliable and trustworthy.(Para-
22,23)

(B) Evidence Law - sterling witness - What
would be more relevant - consistency of
the statement right from the starting
point till the end, namely, at the time
when the witness makes the initial
statement and ultimately before the Court
- Should be natural and consistent with
the case of the prosecution qua the accuse
.(Para - 25)

First Information Report registered in Crime -
disclosing therein - daughter of the informant -
aged about 15 years - disappeared while she
was sleeping with her family - after enquiring it
has been told to the informant - one resident of
same village with the help of his brothers
enticed his daughter and took her away. (Para -
4 )

HELD:-There are material contradictions and
change of the version by the prosecutrix at
every stage, made the evidence of prosecutrix
unreliable
and
untrustworthy.
In
these