# M/S Promotional Club v. C.E.O. NOIDA & Anr

- **Citation:** (2021) 8 ILRA 931
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-30
- **Case number:** Writ C No. 56046 of 2013
- **Bench:** Naheed Ara Moonis, Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-promotional-club-v-c-e-o-noida-anr-47333
- **Pages:** 27

## Headnote

Civil Law - Constitution of India - Art.226 -
Civil Procedure Code,1908 - O.47 - R.1 -
Review - limits to the exercise of the
power of review - In review it is not
permissible for an erroneous decision to
be
"reheard
and
corrected
-
while
exercising power of review, Court not act
as an appellate court and cannot rehear
the matter - party seeking review has to
establish that despite the exercise of due
diligence, it could not bring on record the
facts which it wants to bring on record
932 INDIAN LAW REPORTS ALLAHABAD SERIES
through
review
application
- Due
Diligence - meaning - law imposes a duty
upon a person to act with due diligence
which means that his action should
exhibit candour which a prudent man
would exercise in accomplishing his own
affairs. (Para 24,36, 72)
Review application for review of judgement
whereby the Court directed NOIDA to
consider
applications
of
petitioner
for
allotment of plots - Review by NOIDA on
the ground that despite the exercise of due
diligence, it could not bring on record the
correct fact that no plot is available with
the NOIDA under the old scheme, therefore,
the claim of the petitioner cannot be
considered in the year 2019-2020 under the
old scheme - Held - Review application
lacks necessary pleadings as regards the
exercise of due diligence adopted by the
NOIDA
in
bringing
the
fact
of
nonavailability of plots under the old scheme -
NOIDA was granted opportunity twice to
place correct facts before the Court, but
NOIDA chooses to remain dormant - Facts
which NOIDA wants to bring on record by
review application if allowed to be brought
on record through review application would
reopen
the
rehearing,
which
is
not
permissible (Para 45, 58, 66)
Dismissed. (E-4)
List of Cases cited :

## Text

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8 All. M/S Promotional Club Vs. C.E.O. NOIDA & Anr.
931
to in detail, the petitioner is found to have
largely observed all norms under the Act
and the Rules. The observation to the
contrary
made
in
the
impugned
communication is plainly unfounded and
perverse.
As
to
the
other
matters,
appropriate directions should have been
issued for compliance.

29. For the above reasons, the
impugned
communication
dated
30.09.2020 cannot stand and is accordingly
set aside. The District Magistrate is
directed to consider the petitioner's claim
for renewal of approval, in light of the
observations
made
above
and
pass
appropriate orders within a period of two
weeks therefrom. In that regard, the
petitioners may file a proper application to
establish the fact of their continuing to
comply with the Act, the Rules and the
Scheme. That application may be filed
within one month from today along with a
copy of this order. The District Magistrate
shall take a decision thereon. As for the
Respondent no.5, no relief is granted
against that respondent. We allow both
facilities to exist. However, as to the forty
seven inmates originally housed at the old
age home set up by the petitioner, their
views may govern their admission at either
of the facilities.

30. Let a copy of this order be
communicated to the Chief Secretary,
Government of Uttar Pradeseh, by the
Registrar General of this Court for his
knowledge and issuance of necessary
directions to all concerned in the State of
Uttar Pradesh for necessary action and
compliance.

31. We may make it clear that the
present order has not been passed to
prohibit the respondents from cancelling
any approval granted to any old age home
but to confine those proceedings to the
extreme cases where such action becomes
necessary and unavoidable for any reason
as discussed in this order, or otherwise.

32. Accordingly, the present petition
is allowed.

33. No order as to costs.
----------
(2021)08ILR A931
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.04.2021

BEFORE

THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE SARAL SRIVASTAVA, J.

Writ C No. 56046 of 2013

M/S Promotional Club ...Petitioner
Versus
C.E.O. NOIDA & Anr. ...Respondents

Counsel for the Petitioner:
Sri Rakesh Kumar, Sri Chandra Kumar Rai,
Deba Siddiqui, Sri Kshitij Shailendra, Sri
Munesh K. Sharma, Sri Ravi Kiran Jain

Counsel for the Respondents:
C.S.C., Sri Kaushalendra Nath Singh, Sri
Shivam Yadav, Sri Neeraj Tripathi, Sri
Manish Goyal

Civil Law - Constitution of India - Art.226 -
Civil Procedure Code,1908 - O.47 - R.1 -
Review - limits to the exercise of the
power of review - In review it is not
permissible for an erroneous decision to
be
"reheard
and
corrected
-
while
exercising power of review, Court not act
as an appellate court and cannot rehear
the matter - party seeking review has to
establish that despite the exercise of due
diligence, it could not bring on record the
facts which it wants to bring on record
932 INDIAN LAW REPORTS ALLAHABAD SERIES
through
review
application
- Due
Diligence - meaning - law imposes a duty
upon a person to act with due diligence
which means that his action should
exhibit candour which a prudent man
would exercise in accomplishing his own
affairs. (Para 24,36, 72)
Review application for review of judgement
whereby the Court directed NOIDA to
consider
applications
of
petitioner
for
allotment of plots - Review by NOIDA on
the ground that despite the exercise of due
diligence, it could not bring on record the
correct fact that no plot is available with
the NOIDA under the old scheme, therefore,
the claim of the petitioner cannot be
considered in the year 2019-2020 under the
old scheme - Held - Review application
lacks necessary pleadings as regards the
exercise of due diligence adopted by the
NOIDA
in
bringing
the
fact
of
nonavailability of plots under the old scheme -
NOIDA was granted opportunity twice to
place correct facts before the Court, but
NOIDA chooses to remain dormant - Facts
which NOIDA wants to bring on record by
review application if allowed to be brought
on record through review application would
reopen
the
rehearing,
which
is
not
permissible (Para 45, 58, 66)
Dismissed. (E-4)
List of Cases cited :
1. S.Nagaraj Vs St. of Karn. 1993 (Suppl.) (4)
595
2. Sunil Vasudeva & ors. Vs Sundar Gupta & ors.
2019 (17) SCC 385
3.
Mohammad
Azizul
Rahman
Khan
Vs
Mohammad Ibrahim AIR 1958 Alld. 19 (DB)
4. Sureshkumar Kanhaiyalal Jethlia Vs St. of
Mah. & ors. AIR 2001 (Bombay) 438 (DB)
5. Ram Sarup Gupta (dead) by L.Rs. Vs Bishun
Narain Inter College & ors. AIR 1987 SC 1242
6. Bhagwati Prasad Vs Chandramaul AIR 1966
SC 735
7. Brij Behari Lal Budholiya Vs IVth A.D.J.,
Jalaun at Orai & ors. 2000 (2) ARC 456
8. State of Haryana & ors. Vs Mohinder Singh &
ors. 2003 (1) AWC 567 SC
9. Rajendra Kumar & ors. Vs Rambhai & ors.
 AIR 2003 SC 2095
10. Lily Thomas etc. Vs U.O.I. & ors. AIR 2000
SC 1650
11. Smt. Meera Bhanja Vs Smt. Nirmala Kumari
Choudhury AIR 1995 SC 455
12. St. of Har. Vs M.P. Mohla (2007) 1 SCC 457
(Paragraphs 27 & 28)
13. M/s Banaras Electric Light & Power Co. Ltd.
Vs The Collector, Varanasi & ors. AIR 1982 Alld.
355 (DB)
14. Satya Prakash Pandey Vs Dev Brat Mishra
2011 (3) AWC 2512
15. Divisional Superintendent Northern Railway
Allahabad Vs Second A.D.J., Allahabad & Anr
1997 AWC (Supp.) 298
16. Aribam Tuleshwar Sharma Vs Aribam Pishak
Sharma, AIR 1979 SC 1047
17. Bhagwati Prasad Vs Shri Chandramaul,
(1966) 2 SCR 286 : (AIR 1966 SC 735
18. Chander Kanta Bansal Vs Rajinder Singh
Anand (2008) 5 SCC 117
19. M/s Banaras Electric Light & Power Co. Ltd.
Vs The Collector, Varanasi & ors. AIR 1982 Alld.
355 (DB)

(Delivered by Hon'ble Saral Srivastava, J.)

Order on Civil Misc. Review Application
No.19 of 2020.

1. Heard Sri Manish Goyal, learned
Senior Counsel assisted by Sri Shivam
Yadav and Sri Kaushalendra Nath Singh,
learned counsel for the NOIDA and Sri
8 All. M/S Promotional Club Vs. C.E.O. NOIDA & Anr.
933
Kshitij Shailendra, learned counsel for the
petitioner.

2. Learned counsel for the petitioner
has filed counter affidavit to the review
petition of NOIDA (respondent in writ
petition). When learned counsel for the
NOIDA was asked as to why no rejoinder
affidavit has been filed to the counter
affidavit, he submitted that since notices
have not been issued and counter affidavit
has not been invited, therefore, this is not
the appropriate stage to file rejoinder
affidavit.

3. Because of the submission raised
by the learned counsel for the NOIDA, this
Court has heard the review petition on
admission stage ignoring counter affidavit.

4. The NOIDA has preferred the
present review application for review of the
judgement dated 31.07.2019 passed by this
Court in Writ-C No.56046 of 2013
whereby this Court had directed the
NOIDA to consider the two applications of
petitioner for allotment of plots by law.

5. The brief facts, as stated in the
judgement dated 31.07.2019 necessary for
the present dispute, are that petitioner had
made two applications nos.284 and 285 for
allotment of plot of larger than 2000 square
meter in Phase-II & Phase-III of the
industrial area on the lease of 90 years in
the open-ended scheme advertised by the
NOIDA.

6. The registration was opened on
05.03.2010 and was closed on 05.07.2012.
The petitioner submitted two applications
complete in all respect for allotment of
plots.
The
petitioner
deposited
the
registration amount of Rs.8 lacs for each
application.
The
applications
of
the
petitioner were registered on 09.12.2011
during the period, the scheme was open.

7.

The
NOIDA
refunded
the
registration amount of Rs.8 lacs to the
petitioner vide separate
letters dated
07.11.2012 stating that the scheme had
closed. The petitioner being aggrieved by
the action of NOIDA preferred the
aforesaid writ petition praying for direction
upon NOIDA-authorities to consider its
application nos.284 & 285 and to allot the
plots in its favour, and for quashing the
illegal allotment made by NOIDA.

8. This Court on 23.01.2019 passed
the following order in the writ petition:-

"Heard Shri Ravi Kiran Jain,
learned Senior Advocate assisted by Shri
Kshitij Shailendra & Ms. Deba Siddiqui
appearing for the petitioner and Shri
Shivam Yadav, learned counsel for the New
Okhla Industrial Development Authority.

A counter affidavit has been filed,
but in the counter affidavit it is not clear as
to when the claim for allotment of
industrial plots were closed by whose order
and what was the target of the scheme as to
how many allotment should be made and
how many applications were considered
and why the application of the petitioner
has not been considered in spite of fulfilling
all the criteria. It is further to be disclosed
to the Court that who are the allottees and
whether any plots are still available for
allotment under the aforesaid scheme of
2010 pursuant to an advertisement dated
5.3.2010.

Shri
Shivam
Yadav,
learned
counsel appearing for the New Okhla
Industrial Development Authority prays
that he may be allowed three weeks' time to
file a better affidavit by way of a
supplementary counter affidavit brining on
934 INDIAN LAW REPORTS ALLAHABAD SERIES
record the information sought by this Court
and any other material that may be
relevant for proper adjudication of the
case.

As
prayed,
three
weeks
is
allowed.

List after three weeks."

9. Pursuant to the aforesaid order, the
NOIDA filed a supplementary affidavit
titled as 'second supplementary counter
affidavit', wherein it stated in paragraph no.
8 that there were 27 plots under the scheme
and only 15 plots were allotted. In paragraph
no. 9 of the affidavit, it is stated that total 90
applications
were
received
under
the
scheme, out of which 65 applications were
rejected and industrial plots were allotted to
15 applicants only. Thus, given the
averments made in paragraph no.8 of the
Supplementary Affidavit, 12 plots were not
allotted and remained with NOIDA.

10. This Court again on 22.05.2019
directed the counsel for the NOIDA to take
instructions if the applications of the
petitioner can still be considered for allotment
of plots from amongst the remaining
unallotted plots. In response to the above
direction of the Court, Sri Shivam Yadav
learned counsel for the NOIDA submitted
that 8 plots remained unallotted, and NOIDA
shall consider the allotment of plots to the
petitioner if so directed by the Court.

11. In the light of the aforesaid fact,
this Court found that application of the
petitioner was not considered for allotment
of plots, and without the opportunity to the
petitioner to appear before the Screening
Committee, its registration money had been
refunded.

12. The Court while allowing the writ
petition, gave the following directions:-

"Accordingly, we are of the
opinion that the petitioner is entitled to
consideration of its two applications for the
purposes of allotment in accordance with
law.

In view of the aforesaid facts and
circumstances, the petitioner is directed to
re-deposit the registration amount of Rs.8
lakh each in respect of its two applications
with NOIDA within a period of one month
and on deposit of such registration amount
the applications No.284 and 285 would be
deemed to have been revived and the
NOIDA would consider them in accordance
with law for the purposes of allotment of
the un-allotted remaining plots in Phase -
II & III of the industrial area, NOIDA
within a period of two months from the
aforesaid deposit.

A writ of mandamus is issued
accordingly and the writ petition stands
allowed with no order as to costs."

13. It transpires that since NOIDA
had delayed the processes of compliance of
judgement dated 31.07.2019, therefore, the
petitioner preferred Contempt Application
(Civil) No.8214 of 2019. In Contempt
Application, NOIDA took a stand that an
order was passed after the screening of the
petitioner's claim on 20.12.2019 in which
the petitioner was found eligible for
allotment of plots. The NOIDA vide letter
dated 07.01.2020 informed the petitioner
that there are as many as 93 plots available
with
the
NOIDA
and
has
sought
information as to in which category the
petitioner would like to apply.

14. It appears that in that process
NOIDA found that incorrect facts in
respect to unallotted plots have been stated
by it in the second supplementary counter
affidavit since relying upon said facts the
Court recorded a finding that there were 27
8 All. M/S Promotional Club Vs. C.E.O. NOIDA & Anr.
935
plots available under the old scheme out of
which 15 plots had been allotted and 12
plots remain unallotted. On discovery that
incorrect fact has been stated in the second
supplementary counter-affidavit, NOIDA
took out the details of 27 plots which were
available with it at the time of introduction
of scheme 2009-10. It found that all 27
plots were allotted by the end of the year
2014.

15. In the aforesaid backdrop, the
NOIDA thought that it could not allot plots
to petitioner under the old scheme, and
accordingly,
it
filed
Civil
Misc.
Modification/Clarification
Application
No.17
of
2020
seeking
modification/clarification of the judgement
dated 31.07.2019 which was dismissed by
this Court by order dated 01.10.2020.

16. It is only after dismissal of
modification/clarification
application,
NOIDA has preferred the present review
application. The facts stated by the NOIDA
in paragraphs 5 to 13 of the affidavit filed
in support of the stay application in review
application are reproduced hereinbelow:-

"5. That on the basis of the 2nd
Supplementary
Counter
Affidavit,
this
Hon'ble Court has came to a conclusion
that since eight plots are still available with
'NOIDA' for the purposes of allotment, and
also on the ground that the petitioner's
claim was never considered by 'NOIDA',
the Hon'ble Court has considered the
aforesaid submission, which was made by
Shri Shivam Yadav, Counsel representing
'NOIDA'
on
behalf
of
the
2nd
Supplementary Counter Affidavit.

6. That the Hon'ble Court has
discussed
the
scheme
in
which
the
application was made by the petitioner and
further came to the conclusion that the
petitioner's case since has not been
considered by the screening committee, it is
at least entitled for consideration of
application by 'NOIDA'. It further directed
for revival of the applications on the
payment of Rs.08 Lacs per application and
further directed 'NOIDA' to consider them
in accordance with law for the purposes of
allotment of the un-allotted remaining plots
in Phase-II & Phase-III of industrial area
of 'NOIDA' within a period of two months
from the aforesaid deposit.

7. That in this backdrop, the
'NOIDA' has inquired into the matter and
on inquiry it was found out that the
instruction which was passed on by one of
its
officers,
who
sweared
the
2nd
Supplementary Counter Affidavit, was a
false information, in fact when such
affidavit was filed, all the plots under the
old scheme i.e. 27 in numbers were allotted
by the end of year 2014. What was
available with the 'NOIDA' were newly
carved out plots which were available for
the purposes of allotment under the new
schemes of 'NOIDA'.

8.
That
faced
with
such
circumstances, the 'NOIDA' immediately
took out the details of all the 27 plots,
which were present with 'NOIDA' at the
time of introduction of scheme of 2009-10
and it was found out that all 27 plots were
allotted by the end of year 2014. For kind
perusal of this Hon'ble Court, a copy of the
list of all 27 plots is being filed herewith
and marked as Annexure No.2 to this
affidavit.

9. That when such incorrect
affidavit was filed before the Hon'ble
Court, the matter became important for the
purposes of investigation and scrutiny at
the end of 'NOIDA' and for the aforesaid
reasons, 'NOIDA' has issued show-cause
notice to the concerned erring officer on
12.06.2020 and has also referred his
936 INDIAN LAW REPORTS ALLAHABAD SERIES
matter to the State Government. For kind
perusal of this Hon'ble Court, the copy of
the show-cause notice dated 12.06.2020,
issued by the 'NOIDA' is being filed
herewith and marked as Annexure No.3 to
this affidavit.

10.
That
it
is
under
these
circumstances, and in this backdrop, the
'NOIDA' is filing present review application,
wherein, if the aforesaid fact of 08 plots
belonging to the new scheme would have been
communicated to the Hon'ble Court, the
Hon'ble Court would have directed the
consideration
of
petitioner's
claim
in
accordance with law and as per the prevailing
schemes.

11. That there were 95 applicants
against 27 plots, who were to be allotted in the
said scheme of 2009-2010, however only 15
applicants were found eligible and they were
allotted plots accordingly. It is pertinent to
mention here that in case all the 95 applicants
would have been found eligible they then also
the authority would have to find a fair method
of allotment, thus it is clear that merely
applying for a plot does not mean that a plot
should have been allotted to the person
applying for same.

12. That it is pertinent to mention
here that the plot for which the respondent
applied were for an area of 3200 Square Meter
and 4000 Square Meter out of 27 plots there
were three plots of 4000 Square Meter and 8
plots of 3200 Square Meter, which were all
allotted in different schemes till 2014.

13. That the whole controversy
germinated because of the observation which
took note of an affidavit filed by 'NOIDA' in
which it was communicated that, at present 8
plots were available/un-allotted and it took note
of a submission that 'NOIDA' will consider the
allotment of plot if the Court so directs."

17. Learned Senior Counsel for the
NOIDA has submitted that an order or
judgement passed by the Court can be
recalled for the ends of justice. He submits
that in the instant case, the Court had
proceeded to allow the writ petition on the
basis of incorrect facts brought on record
which has resulted in grave injustice to
NOIDA, and the High Court being a Court
of record and a Court of plenary
jurisdiction inheres the power to prevent
miscarriage of justice and correct the
record of the Court. Accordingly, he
submits that the review application is
maintainable and Court can review its order
to set the record straight.

18. On the submission about the
scope of review, learned Senior Counsel for
the NOIDA has placed reliance upon the
following judgements:-

(i). S.Nagaraj Vs. State of
Karnataka
1993
(Suppl.)
(4)
595
(Paragraphs 18 & 19);

(ii). Sunil Vasudeva and Others
Vs. Sundar Gupta & Others 2019 (17)
SCC 385 (Paragraphs 19 & 28);

(iii). Mohammad Azizul Rahman
Khan Vs. Mohammad Ibrahim AIR 1958
Alld. 19 (DB);

(iv). Sureshkumar Kanhaiyalal
Jethlia Vs. State of Maharashtra and
Others AIR 2001 (Bombay) 438 (DB)
(Paragraphs 6 & 9).

19. He further contends that the
NOIDA has acted diligently without any
delay in bringing to the notice of the Court
the correct facts, thus, the present case falls
within the parameters of law laid down by
the Court for review of judgement or order.
He further submits that from the reading of
the averments made by the NOIDA in the
review application, it is evident that
NOIDA has acted diligently and efficiently
in bringing to the notice of the Court the
8 All. M/S Promotional Club Vs. C.E.O. NOIDA & Anr.
937
correct facts. He submits that necessary
pleadings in respect of the exercise of due
diligence by the Noida to bring the said
facts to the notice of the court has been
stated in the affidavit, and the Court should
take
a
liberal
view
in
constructing
pleadings. Accordingly, he submits that the
present case falls within the parameters of
O47R1 of C.P.C. and the law laid down by
the courts for review of the judgment.

20. On the submission that the Court
should adopt a liberal view instead of
pedantic approach in constructing the
pleading, Senior Counsel for the NOIDA
has placed reliance upon the following
judgements:-

(i). Ram Sarup Gupta (dead) by
L.Rs. Vs. Bishun Narain Inter College &
Others AIR 1987 SC 1242;

(ii).
Bhagwati
Prasad
Vs.
Chandramaul AIR 1966 SC 735;

(iii). Brij Behari Lal Budholiya
Vs. IVth Additional District Judge,
Jalaun at Orai and Others 2000 (2) ARC
456.

21. It is also urged that since there is
no plot under the old scheme, therefore,
the claim of the petitioner cannot be
considered in the year 2019-2020 for
allotment of plots under the old scheme.

22. Per contra, learned counsel for
the petitioner contends that the fact no
plot is available under the old scheme is
not correct as according to him the plots
are available with NOIDA under the Old
Scheme. He submits that presuming
without admitting that no plot is available
with the NOIDA under the old scheme,
this fact was in the knowledge of the
NOIDA, and as it is not a new fact which
took place after the judgement of this
Court, therefore, no ground for review is
made out and review application is
misconceived.

23. Sri Kshitij Shailendra, learned
counsel for the petitioner has placed catena of
judgements on the scope of review, but only
the following judgements relevant in the
instant case are being referred:-

(i). State of Haryana and Others
Vs. Mohinder Singh and Others 2003 (1)
AWC 567 SC (Paragraphs 3 & 5);

(ii). Rajendra Kumar and Others
Vs. Rambhai and Others AIR 2003 SC 2095
(Paragraph 5);

(iii). Lily Thomas etc. Vs. Union
of India and Others AIR 2000 SC 1650
(Paragraphs 52, 55 & 57);

(iv). Smt. Meera Bhanja Vs. Smt.
Nirmala Kumari Choudhury AIR 1995 SC
455 (Paragraph 8);

(v). State of Haryana Vs. M.P.
Mohla (2007) 1 SCC 457 (Paragraphs 27 &
28).

24. He further submits that one of the
essential condition for review of the
judgement is that the party seeking review
has to establish that despite the exercise of
due diligence, it could not bring on record the
facts which it wants to bring on record
through
review
application
which
is
necessary for the ends of justice; but in the
present case, the affidavit filed in support of
the stay application lacks necessary pleading
in respect of the fact that despite the exercise
of the due diligence by the NOIDA, it could
not bring aforesaid facts on record. He
submits that the review application is liable to
be dismissed at the threshold.

25. It is also urged that prayer made
in the review application is also vague
since the review application does not
938 INDIAN LAW REPORTS ALLAHABAD SERIES
disclose that the NOIDA is seeking review
of which part of the judgement.

26. In respect of submission that since
NOIDA has failed to demonstrate that
despite the exercise of due diligence, it
could not bring correct facts on record,
therefore,
review
application
is
not
maintainable, learned counsel for the
petitioner
has
placed
reliance
upon
following judgements:-

(i). M/s Banaras Electric Light
and Power Co. Ltd. Vs. The Collector,
Varanasi and Others AIR 1982 Alld. 355
(DB) (Paragraphs 9 & 11);

(ii). Satya Prakash Pandey Vs.
Dev Brat Mishra 2011 (3) AWC 2512
(Paragraphs 9 & 10);

(iii). Divisional Superintendent
Northern Railway Allahabad Vs. Second
Additional District Judge, Allahabad and
another
1997
AWC
(Supp.)
298
(Paragraph 10).

27. We have heard learned counsel
for the parties and perused the record.

28. Before adverting to the merits of
the case, it would be apposite to refer to the
judgement of the Apex Court relied upon
by the learned counsel for the petitioner
laying down parameters within which the
Court can review its judgement. The
judgements relied upon by the learned
Senior Counsel for NOIDA in support of
his contention regarding the scope of
review shall be dealt with at the appropriate
place.

29. In the case of State of Haryana and
Others (supra), the High Court disposed of
the writ petition as infructuous by giving
certain directions. The respondents-Mohinder
Singh
and
others
preferred
review
application, in which certain clarification had
been made by the High Court. The order
passed by the High Court on the said reviewapplication was assailed by the State of
Haryana in Special Leave Petition. The Apex
Court held that a judgement may be opened
to review inter- alia if there is a mistake or an
error apparent on the face of the record.
Paragraphs 3 & 5 of the aforesaid judgement
are being reproduced hereinbelow:-

"3. Learned additional solicitor
general appearing for the appellant-state
strongly contended that the High Court could
not have passed the order under challenge in
the purported exercise of its powers of review
and the order under challenge is liable to be
set aside on this ground alone, dehors even
the infirmities in the ultimate decision on
merits. Reliance has been placed in support
thereof on the decision in Parsion Devi and
others v. Sumitra Devi and others JT 1997 (8)
SC 480, wherein it has been observed as
follows:-

"9. Under Order XLVII, Rule 1,
C.P.C., 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,
C.P.C. In exercise of the jurisdiction under
Order XLVII, 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."

10. Considered in the light of this
settled position we find that Sharma, J.,
clearly overstepped the jurisdiction vested
in the Court under Order XLVII, Rule 1
C.P.C. The observations of Sharma, J., that
8 All. M/S Promotional Club Vs. C.E.O. NOIDA & Anr.
939
"accordingly, the order in question is
reviewed and it is held that the decree in
question was of composite nature wherein
both
mandatory
and
prohibitory
injunctions were provided" and as such the
case was covered by Article 182 and not
Article 181 cannot be said to fall within the
scope of Order XLVII, Rule 1 C.P.C. There
is a clear distinction between an erroneous
decision and an error apparent on the face
of the record. While the first can be
corrected by the higher forum, the latter
only can be corrected by exercise of the
review jurisdiction."

5. We have carefully considered
the submissions of learned counsel
appearing on either side. The Division
Bench in the High Court, in our view,
completely overstepped the limits of its
review jurisdiction and on the face of it
appears to have proceeded as though it is
a rehearing of the whole petition which
had been earlier finally disposed of. It
has often been reiterated that the scope
available for a litigant invoking the
powers of review is not one more chance
for rehearing of the matter already
finally disposed of. The course adopted in
this case by the High Court appears to be
really what has been held by this Court to
be not permissible. On this ground alone,
without expressing any views on the
merits of the claim, the order of the High
Court dated 14.5.1999 is set aside and
the original order dated 14.5.1998 shall
stand restored. While noticing some of
the submissions made on merits by either
side, we consider it appropriate to place
on record that even the learned counsel
for the appellant could not seriously
dispute the position that the respondents
would at any rate be entitled to be placed
on the 'first higher standard pay scale'
and that to this extent atleast, the
respondents'
claim
would
deserve
consideration. The appeals are allowed
in the above terms. No order as to costs."

30. In the case of Rajendra Kumar
and Others (supra), claimants-appellants
preferred an appeal for enhancement of
compensation. The learned Single Judge
enhanced
the
compensation.
Being
dissatisfied
with
the
amount
of
compensation awarded by the learned
Single Judge, claimants preferred an appeal
before the High Court and Division Bench
of the High Court by judgement dated
09.08.1999 enhanced the compensation
amount to Rs.2,55,000/- with 12% interest.
Thereafter, on the review application
preferred
by
the
Oriental
Insurance
Company, the amount of compensation was
reduced to Rs.1,83,000/- by order dated
03.04.2001 which was assailed by the
claimants-appellants
before
the
Apex
Court. The Apex Court while setting aside
the judgement and order of the High Court
in review application held in paragraphs 5
& 6 as under:-

"5. On perusal of the order under
challenge it is clear that the High Court
without considering the question whether
the judgment/order sought to be reviewed
suffered from any error, entered upon the
exercise of reappreciating the evidence and
on
such
reappreciation
of
evidence
redetermined
the
compensation
by
reducing the amount to the extent noted
earlier. The limitations on exercise of the
power of review are well settled. The first
and foremost requirement of entertaining a
review petition is that the order, review of
which is sought, suffers from any error
apparent on the face of the order and
permitting the order to stand will lead to
failure of justice. In the absence of any
such error, finality attached to the
judgment/order cannot be disturbed.
940 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Coming to the merits of the
case, suffice it to say that on perusal of the
order, which has been reviewed by the
order under challenge did not suffer from
any serious illegality, which called for
correction
by
exercise
of
review
jurisdiction. It is relevant to note here that
the deceased was holding the post of
Supervisor in Women and Child Welfare
Department, Government of Karnataka at
the time of her death and she was aged
about 48 years at that time. The salary
drawn by the deceased, as evident from the
salary certificate produced as additional
evidence
was
Rs. 2,570/-
p.m. The
multiplier, which had been accepted by the
Division Bench in the previous order, was
10. In the circumstances of the case,
multiplier of 10 was rightly taken. Thus on
merit also no interference with the order
was called for."

31. In the case of Lily Thomas etc.
(supra) the appellants sought review of the
judgement of the Apex Court in the case of
Sarla Mudgal (Smt.) President 'Kalyani'
Vs. Union of India, the Apex Court held
that Court can review its judgement or
order if there is a mistake apparent on the
face of the record and if an error which has
to be searched and fished out is not an error
apparent on the face of the record.
Paragraphs 52, 55 & 57 of the said
judgement
are
being
reproduced
hereinbelow:-

"52. The dictionary meaning of
the word "review" is "the act of looking,
offer something again with a view to
correction or improvement. It cannot be
denied that the review is the creation of a
statute. This Court in Patel Narshi
Thakershi.
v.
Pradyumansinghji
Arjunsinghji, AIR 1970 SC 1273 held that
the power of review is not an inherent
power. It must be conferred by law either
specifically or by necessary implication.
The review is also not an appeal in
disguise. It cannot be denied that justice is
a virtue which transcends all barriers and
the rules or procedures or technicalities of
law
cannot
stand
in
the
way
of
administration of justice. Law has to bend
before justice. If the Court finds that the
error pointed out in the review petition was
under a mistake and the earlier judgment
would not have been passed but for
erroneous assumption which in fact did not
exist and its perpetration shall result in
miscarriage of justice nothing would
preclude the Court from rectifying the
error. This Court in S. Nagaraj v. State of
Karnataka 1993 Supp. (4) SCC 595 held:

"Review
literally
and
even
judicially means re-examination or reconsideration. Basic philosophy inherent in
it is the universal acceptance of human
fallibility. Yet in the realm of law the courts
and even the statutes lean strongly in
favour of finality of decision legally and
properly made. Exceptions both statutorily
and judicially have been carved out to
correct accidental mistakes or miscarriage
of justice. Even when there was no
statutory provision and no rules were
framed by the highest Court indicating the
circumstances in which it could rectify its
order the Courts culled out such power to
avoid abuse of process or miscarriage of
justice. In Prithwi Chand Lal Choudhury v.
Sukhraj Rai, AIR 1941 FC 1 the Court
observed that even though no rules had
been framed permitting the highest Court
to review its order yet it was available on
the limited and narrow ground developed
by the Privy Council and the House of
Lords. The Court approved the principle
laid down by the Privy Council in Rajunder
Narain Rae v. Bijai Govind Singh (1836) 1
Moo PC 117 that an order made by the
8 All. M/S Promotional Club Vs. C.E.O. NOIDA & Anr.
941
Court has final and could not be
altered......

55. 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. 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 Art. 136 or Art. 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.

57. Otherwise also no ground as
envisaged under O.40 of the Supreme
Court Rules read with O.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's case (1995 AIR SCW 2326: AIR
1995 SC 1531: 1995 Crl LJ 2926). 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 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 Mudgal's 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. .......

Therefore, it can safely be held
that the petitioners have not made out any
case within the meaning of Art.137 read
with O.40 of the Supreme Court Rules and
O.47, Rule 1 of the C.P.C. for reviewing the
judgment in Sarla Mudgal 's case (1995 SC
1531: 1995 Crl LJ 2926). The petition is
misconceived and bereft of any substance."

32. In the case of Smt. Meera Bhanja
(supra) the Apex Court relying upon the
judgement of Aribam Tuleshwar Sharma
Vs. Aribam Pishak Sharma, AIR 1979 SC
1047 held that there are certain limitations
to the exercise of the power of review by
the High Court and the power of review is
not to be confused with the power of
appeal. Paragraph 8 of the said judgement
is being reproduced hereinbelow:-

"8. It is well settled that the
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,
C.P.C. In connection with the limitation of
the powers of the Court under Order 47,
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, AIR
942 INDIAN LAW REPORTS ALLAHABAD SERIES
1979
SC
1047,
speaking
through
Chinnappa Reddy, J., has made the
following pertinent observations (para 3):

"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 justice or to correct grave and palpable
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."

Now it is also to be kept in view
that in the impugned judgment, the Division
Bench of the High Court has clearly
observed that they were entertaining the
review petition only on the ground of error
apparent on the face of the record and not
on any other ground. So far as that aspect
is concerned, it has to be kept in view that
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 be two opinions. We may
usefully refer to the observations of this
Court in the case of Satyanarayan
Laxminarayan
Hegde
v.
Mallikarjun
Bhavanappa Tirumale, AIR 1960 SC 137,
wherein, K.C. Das Gupta, J., speaking for
the
Court
has
made
the
following
observations in connection with an error
apparent on the face of the record:

"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."

33. In the case of M.P. Mohla
(supra), it is held that new issues cannot be
raised in the review petition. The review is
not allowed under the garb of seeking
clarification. Paragraphs 27 & 28 of the
said judgement are being extracted herein
below:-

"27. A review petition filed by
appellants herein was not maintainable.
There was no error apparent on the face of
the record. The effect of a judgment may
have to be considered afresh in a separate
proceeding
having
regard
to
the
subsequent cause of action which might
have arisen but the same by itself may not
be a ground for filing an application for
review.

28. Mr. Srivastava submitted that
an application for review in effect and
substance
was
an
application
for
clarification of the judgment of the High
Court. We do not think so. An application
for clarification cannot be taken recourse
to to achieve the result of a review
8 All. M/S Promotional Club Vs. C.E.O.