# Hon'ble Apex Court in Union of India v. Ibrahim Uddin and another, 2012 (30)

- **Citation:** (2012) 3 ILRA 1656
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-12-14
- **Bench:** Saeed-Uz-Zaman Siddiqi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hon-ble-apex-court-in-union-of-india-v-ibrahim-uddin-and-another-2012-30-42394
- **Pages:** 3

## Headnote

Code of Civil Procedure, Section 114
readwith Order 37 Rule 1-review against
judgment
passed
in
Second
Appeal
without disclosing any error on point of
Law or facts-rehearing of appeal in garb
of review treating to be a revision or
appeal-held-not permissible-even where
two opinions can be found can not be
basis for review.

Held: Para-10

In view of the law as discussed above, a
review petition cannot be treated to be a
revision
or
an
appeal
in
disguise.
Rehearing at all is not permissible under
Order 47 Rule 1 of Code of Civil
Procedure. By the petition, the petitioner
has attempted to postulate rehearing of
the dispute between the parties and has
highlighted all the aspects of the case
and attempted to impress upon the Court
that the judgment passed by this Court
earlier,
on
merits,
with
detailed
discussions was an erroneous decision
and
deserves
to
be
reheard
and
corrected. Even if it is presumed that two
opinions can be found the Court cannot
review a judgment or order even on this
ground. Crux of the matter is that an
error patent on the record and can be
established by lengthy and complicated
argument cannot be cured under Order
47 Rule 1 of the Code of Civil Procedure.
Case Law discussed:
2012 (30) LCD 1635; 2006(3) Supreme 125;
[AIR 1964 1372]; [AIR 1995 SC 455]

## Text

1656 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
restoring the case on its original number will
not fall in the ambit of final order and it will
remain interlocutory order, therefore in view
of Sub-section (1) of Section 48 of the Act,
the revision itself was not maintainable.
There is no merit in this case.

10. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.12.2012

BEFORE
THE HON'BLE SAEED-UZ-ZAMAN SIDDIQI, J.

Review Petition No. - 564 of 2012

Laxmi Kant Yadav (Inre 307 Sapl 2012)

 ...Petitioner
Versus
Hitai @ Hit Lal

 ...Respondents

Counsel for the Petitioner:
Sri D.C. Mukerjee
Sri R.S. Pandey

Counsel for the Respondents:
........................................

Code of Civil Procedure, Section 114
readwith Order 37 Rule 1-review against
judgment
passed
in
Second
Appeal
without disclosing any error on point of
Law or facts-rehearing of appeal in garb
of review treating to be a revision or
appeal-held-not permissible-even where
two opinions can be found can not be
basis for review.

Held: Para-10

In view of the law as discussed above, a
review petition cannot be treated to be a
revision
or
an
appeal
in
disguise.
Rehearing at all is not permissible under
Order 47 Rule 1 of Code of Civil
Procedure. By the petition, the petitioner
has attempted to postulate rehearing of
the dispute between the parties and has
highlighted all the aspects of the case
and attempted to impress upon the Court
that the judgment passed by this Court
earlier,
on
merits,
with
detailed
discussions was an erroneous decision
and
deserves
to
be
reheard
and
corrected. Even if it is presumed that two
opinions can be found the Court cannot
review a judgment or order even on this
ground. Crux of the matter is that an
error patent on the record and can be
established by lengthy and complicated
argument cannot be cured under Order
47 Rule 1 of the Code of Civil Procedure.
Case Law discussed:
2012 (30) LCD 1635; 2006(3) Supreme 125;
[AIR 1964 1372]; [AIR 1995 SC 455]

(Delivered by Hon'ble Saeed-Uz-Zaman
Siddiqi, J.)

1. Heard learned counsel for the
applicant and gone through the records.

2. By means of instant review petition,
petitioner has sought for review of the order
dated 07.11.2012, passed by this Court in
Second Appeal No.307 of 2012, by which
the second appeal was dismissed on the
ground that no substantial question of law is
involved in this case.

3. The applicant has sought for review
of the order on the ground that this court
was legally not justified in dismissing the
second appeal on the ground that no
substantial question of law was involved in
the case; without considering and critically
examine the grounds and substantial
question of law formulated in the memo of
second appeal; that the law laid down by the
Hon'ble Apex Court in Union of India v.
Ibrahim Uddin and another, 2012 (30)
LCD 1635 has wrongly been interpreted.

4. The order passed by this Court is
very exhaustive. The suit for permanent
3 All] Laxmi Kant Yadav (Inre 307 Sapl 2012) V. Hitai @ Hit Lal
1657
injunction by demolition and for possession
has been decreed and first appeal against
which has been dismissed.

5. Neither there is any error on point
of law or on point of facts nor any grounds
for review as enumerated in Section 114 of
the Code of Civil Procedure and under
Order 47 Rule 1 of the Code of Civil
Procedure are made out. A review is
distinguishable with appeal. Under the
disguise of review even an erroneous
decision cannot be reheard or corrected.

6. In Haridas Das v. Smt. Usha Rani
Banik & ors. reported in 2006 (3) Supreme
125, the Hon'ble Apex Court has held as
under:-

"Neither of them postulate a rehearing
of the dispute because a party had not
highlighted all the aspects of the case or
could perhaps have argued them more
forcefully and/or cited binding precedents
to the Court and thereby enjoyed a
favourable verdict. This is amply evident
from the explanation in Rule 1 of the Order
XLVII which states that the fact that the
decision on a question of law on which the
judgment of the Court is based has been
reversed or modified by the subsequent
decision of a superior Court in any other
case, shall not be a ground for the review of
such judgment. Where the order in question
is appealable the aggrieved party has
adequate and efficacious remedy and the
Court should exercise the power to review
its order with the greatest circumspection."

7. In this case, the Hon'ble Supreme
Court has relied upon its earlier law laid
down in M/s. Thungabhadra Industries
Ltd.
(in
all
the
Appeals)
v.
The
Government
of
Andhra
Pradesh
represented by the Deputy Commissioner
of Commercial Taxes, Anantapur, [AIR
1964 1372] in which the Hon'ble Apex
Court has held as follows:

"There is a distinction which is real,
though it might not always be capable of
exposition, between a mere erroneous
decision and a decision which could be
characterized
as
vitiated
by
"error
apparent". A review is by no means an
appeal in disguise whereby an erroneous
decision is reheard and corrected, but lies
only for patent error. Where without any
elaborate argument one could point to the
error and say here is a substantial point of
law which states one in the face and there
could reasonably be no two opinions
entertained about it, a clear case of error
apparent on the face of the record would be
made out."

8. In Meera Bhanja v. Smt. Nirmala
Kumari Choudhary [AIR 1995 SC 455] it
was held that :-

"It is well settled law that the review
proceedings are not by way of an appeal
and have to be strictly confined to the scope
and ambit of Order XLVII, Rule 1, CPC. In
connection with the limitation of the powers
of the Court under Order XLVII, Rule 1,
while dealing with similar jurisdiction
available to the High Court while seeking to
review the orders under Article 226 of the
Constitution of India, this Court, in the case
of Aribam Tuleshwar Sharma v. Aribam
Pishak
Sharma
speaking
through
Chinnappa Reddy, J. has made the
following pertinent observations:

It is true there is nothing in Article 226
of the Constitution to preclude the High
Court from exercising the power of review
which inheres in every Court of plenary
jurisdiction to prevent miscarriage of
1658 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
justice or to correct grave and palpable
errors committed by it. But, there are
definitive limits to be exercise of the power
of review. The power of review may be
exercised on the discovery of new and
important matter of evidence which, after
the exercise of due diligence was not within
the knowledge of the person seeking the
review or could not be produced by him at
the time when the order was made; it may
be exercised where some mistake or error
apparent on the face of the record is found,
it may also be exercised on any analogous
ground. But, it may not be exercised on the
ground that the decision was erroneous on
merit. That would be in the province of a
court of appeal. A power of review is not to
be confused with appellate power which
may enable an appellate Court to correct
all manner of error committed by the
Subordinate Court."

"The
following
observations
in
connection with an error apparent on the
face of the record in the case of
Satyanarayan Laxminarayan Hegde v.
Mallikarjun Bhavanappa Tiruyamale [ AIR
1960 SC 137] were also noted:

"An error which has to be established
by a long drawn process of reasoning on
points where there may conceivably be two
opinions can hardly be said to be an error
apparent on the face of the record. Where
an alleged error is far from self-evident and
if it can be established, it has to be
established, by lengthy and complicated
arguments, such an error cannot be cured
by a writ of certiorari according to the rule
governing the powers of the superior Court
to issue such a writ."

9. Relying upon the judgments in the
cases of Aribam's (supra) and Smt. Meera
Bhanja (supra) it was observed as under:-

"Under Order XLVII, Rule 1, CPC a
judgment may be open to review inter alia,
if there is a mistake or an error apparent on
the face of the record. An error which is not
self evident and has to be detected by a
process of reasoning, can hardly be said to
be an error apparent on the face of the
record justifying the Court to exercise its
power of review under Order XLVII, Rule 1,
CPC. In exercise of the jurisdiction under
Order XLVII, Rule 1, CPC it is not
permissible for an erroneous decision to be
reheard and corrected. A review petition, it
must be remembered has a limited purpose
and cannot be allowed to be an appeal in
disguise."

10. In view of the law as discussed
above, a review petition cannot be treated to
be a revision or an appeal in disguise.
Rehearing at all is not permissible under
Order 47 Rule 1 of Code of Civil
Procedure. By the petition, the petitioner
has attempted to postulate rehearing of the
dispute between the parties and has
highlighted all the aspects of the case and
attempted to impress upon the Court that the
judgment passed by this Court earlier, on
merits, with detailed discussions was an
erroneous decision and deserves to be
reheard and corrected. Even if it is
presumed that two opinions can be found
the Court cannot review a judgment or order
even on this ground. Crux of the matter is
that an error patent on the record and can be
established by lengthy and complicated
argument cannot be cured under Order 47
Rule 1 of the Code of Civil Procedure.

11. With these observations, review
petition is dismissed.
---------