Patna High Court
Mahendra Kumar Sinha @ Mahendra KumarversusKameshwar Prasad Singh
- Decided
- Disposal
- DISMISSED
- Bench
- SUNIL DUTTA MISHRA
Holding
The review petition is dismissed as there is no error apparent on the face of the record nor any new evidence, and the petition amounts to an impermissible rehearing on merits.
Summary
The petitioner sought a review of the High Court’s order dismissing his civil miscellaneous petition, which had upheld a trial court’s decision to close the defence evidence in a title suit pending since 1987 because a defence witness failed to appear on 15 September 2022. The petitioner argued that the witness’s absence was due to sudden illness, that the trial court should have allowed further adjournment or expunged the witness’s testimony, and that the review court failed to consider these facts. The respondents contended that the scope of review under Section 114 of the CPC and Order XLVII Rule 1 is limited and that no error apparent on the face of the record existed. The Court examined the statutory limits on review, the absence of any new or important evidence, and the lack of a manifest error, concluding that the petitioner was essentially seeking a rehearing on merits, which is impermissible. Consequently, the review application was dismissed with no order as to costs.
Issues considered
- Whether a review petition under Section 114 CPC and Order XLVII Rule 1 is maintainable in the present circumstances
- Whether the order of the trial court closing the defence evidence contains an error apparent on the face of the record
- Whether the petitioner has discovered new and important evidence justifying a review
- Whether the trial court erred in refusing an adjournment despite the alleged illness of the defence witness
- The distinction between the scope of review and an appeal
Legislation cited
- Code of Civil Procedure, 1908 — s. 114
Subjects
- civil review
- Section 114 CPC
- Order XLVII Rule 1
- error apparent on record
- new evidence
- adjournment
- evidence closure
- title suit
- judicial delay
- review jurisdiction
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVIEW No.220 of 2023
In
CIVIL MISCELLANEOUS JURISDICTION No.884 of 2022
======================================================
Mahendra Kumar Sinha @ Mahendra Kumar Son of Late Babu Kailashpati
Sinha, Permanent resident of Village- Bahadurpur, P.O. and P.S.- Chandi,
District- Nalanda at Biharsharif- 803108, presently residing at Kailashpati
Bhawan, Mohalla- Kamruddinganj, P.O.- Biharsharif, P.S.- Laheri, District-
Nalanda at Biharsharif- 803101.
... ... Petitioner/s
Versus
1. Kameshwar Prasad Singh Son of Late Munshi Mahto, Resident of Village-
Bahadurpur, P.O. and P.S.- Chandi, District- Nalanda at Biharsharif- 803108.
2. Nagmani Prasad, son of Kameshwar Prasad Singh, Resident of Village-
Bahadurpur, P.O. and P.S.- Chandi, District- Nalanda at Biharsharif- 803108.
3. Indrajeet Kumar, Son of Kameshwar Prasad Singh, Resident of Village-
Bahadurpur, P.O. and P.S.- Chandi, District- Nalanda at Biharsharif- 803108.
4. Munna, Son of Kameshwar Prasad Singh, Resident of Village- Bahadurpur,
P.O. and P.S.- Chandi, District- Nalanda at Biharsharif- 803108.
5. Parmeshwari Devi @ Chandraprabha Devi, wife of Late Sheonandan Prasad
Singh, Resident of Village- Bahadurpur, P.O. and P.S.- Chandi, District-
Nalanda at Biharsharif- 803108. Presently residing at Kailashpati Bhawan,
Mohalla- Kamruddinganj, P.O.- Biharsharif, P.S.- Laheri, District- Nalanda
at Biharsharif- 803101.
6. Ambuj Kumari, D/o Late Sheonandan Prasad Singh, Wife of Sri Mahesh
Prasad, Resident of Village- Bahadurpur, P.O. and P.S.- Chandi, District-
Nalanda at Biharsharif- 803108. Presently residing at Kailashpati Bhawan,
Mohalla- Kamruddinganj, P.O.- Biharsharif, P.S.- Laheri, District- Nalanda
at Biharsharif- 803101.
7. Kumari Pushpanjali, wife of Late Ashutosh Kumar, Resident of Village-
Bahadurpur, P.O. and P.S.- Chandi, District- Nalanda at Biharsharif- 803108.
Presently residing at Kailashpati Bhawan, Mohalla- Kamruddinganj, P.O.-
Biharsharif, P.S.- Laheri, District- Nalanda at Biharsharif- 803101.
8. Rudranjali Prabha, D/o - Late Ashutosh Kumar, Resident of Village-
Bahadurpur, P.O. and P.S.- Chandi, District- Nalanda at Biharsharif- 803108.
Presently residing at Kailashpati Bhawan, Mohalla- Kamruddinganj, P.O.-
Biharsharif, P.S.- Laheri, District- Nalanda at Biharsharif- 803101.
9. Nibha Kumari, Wife of Late Ashok Kumar @ Alok Kumar, Resident of
Village- Bahadurpur, P.O. and P.S.- Chandi, District- Nalanda at Biharsharif-
803108. Presently residing at Kailashpati Bhawan, Mohalla-
Kamruddinganj, P.O.- Biharsharif, P.S.- Laheri, District- Nalanda at
Biharsharif- 803101.
10. Lokesh Singh, Son of Late Ashok Kumar @ Alok Kumar, Resident of
Village- Bahadurpur, P.O. and P.S.- Chandi, District- Nalanda at Biharsharif-
803108. Presently residing at Kailashpati Bhawan, Mohalla-
Kamruddinganj, P.O.- Biharsharif, P.S.- Laheri, District- Nalanda at
Patna High Court C. REV. No.220 of 2023 dt.16-03-2026
2/13
Biharsharif- 803101.
11. Ajit Kumar @ Pappu Kumar, Son of late Sheonandan Prasad Singh,
Resident of Village- Bahadurpur, P.O. and P.S.- Chandi, District- Nalanda at
Biharsharif- 803108. Presently residing at Kailashpati Bhawan, Mohalla-
Kamruddinganj, P.O.- Biharsharif, P.S.- Laheri, District- Nalanda at
Biharsharif- 803101.
12. Shyam Sundar Prasad Sinha @ Shyam Sundar Prasad, Son of Late
Kailashpati Sinha, Resident of Village- Bahadurpur, P.O. and P.S.- Chandi,
District- Nalanda at Biharsharif- 803108. Presently residing at Kailashpati
Bhawan, Mohalla- Kamruddinganj, P.O.- Biharsharif, P.S.- Laheri, District-
Nalanda at Biharsharif- 803101.
13. Aashish Ranjan @ Tunni Kumar, son of Shyam Sundar Prasad Sinha,
Resident of Village- Bahadurpur, P.O. and P.S.- Chandi, District- Nalanda at
Biharsharif- 803108. Presently residing at Kailashpati Bhawan, Mohalla-
Kamruddinganj, P.O.- Biharsharif, P.S.- Laheri, District- Nalanda at
Biharsharif- 803101.
14. Jeetendra Kumar Sinha @ Shibu Kumar, son of Mahendra Kumar Sinha @
Mahendra Kumar, Resident of Village- Bahadurpur, P.O. and P.S.- Chandi,
District- Nalanda at Biharsharif- 803108. Presently residing at Kailashpati
Bhawan, Mohalla- Kamruddinganj, P.O.- Biharsharif, P.S.- Laheri, District-
Nalanda at Biharsharif- 803101.
15. Asha Devi, D/o Late Ram Sharan Mahto, Resident of Village- Bahadurpur,
P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
16. Sona Devi, D/o Late Ram Sharan Mahto, Resident of Village- Bahadurpur,
P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
17. Malti Devi, D/o Late Ram Sharan Mahto, Resident of Village- Bahadurpur,
P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
18. Kiran Devi, D/o Late Ram Sharan Mahto, Resident of Village- Bahadurpur,
P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
19. Nirmala Kumari, wife of Late Shrawan Kumar, Resident of Village-
Bahadurpur, P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
20. Guriya, D/o Late Shrawan Kumar, Resident of Village- Bahadurpur, P.O.
Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
21. Ram Kishun Prasad, son of Late Ram Sharan Mahto, Resident of Village-
Bahadurpur, P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
22. Kaushal Kumar, Son of Late Ram Sharan Mahto, Resident of Village-
Bahadurpur, P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
23. Guddu, Son of Late Ram Sharwan Kumar, Resident of Village- Bahadurpur,
P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
24. Munna, Son of Late Ram Sharwan Kumar, Resident of Village- Bahadurpur,
P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
25. Sumangali Devi, Wife of Late Shyam Narayan Prasad, Resident of Village-
Bahadurpur, P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
26. Snehlata Devi, Daughter of Late Shyam Narayan Prasad, Wife of Late
Satendra Kumar, Resident of Village- Bahadurpur, P.O. Chandi, P.S.-
Patna High Court C. REV. No.220 of 2023 dt.16-03-2026
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Chandi, District- Nalanda at Biharsharif.
27. Sukhiya Devi, Wife of Late Parmanand Prasad, Resident of Village-
Bahadurpur, P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
28. Sushila Devi, Daughter of Late Parmanand Prasad, Resident of Village-
Bahadurpur, P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
29. Krishna Prasad, Son of Late Chhotu Mahto, Resident of Village-
Bahadurpur, P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
30. Ram Nandan Prasad, Son of Late Chhotu Mahto, Resident of Village-
Bahadurpur, P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
31. Chunnu Kumar, Son of Late Parmanand Prasad, Resident of Village-
Bahadurpur, P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
32. Shambhu Kumar, Son of Late Parmanand Prasad, Resident of Village-
Bahadurpur, P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
33. Tunnu Kumar, Son of Krishna Prasad, Resident of Village- Bahadurpur, P.O.
Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
34. Ashok Kumar, Son of Krishna Prasad, Resident of Village- Bahadurpur, P.O.
Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
35. Arbind Kumar, Son of Krishna Prasad, Resident of Village- Bahadurpur,
P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
36. Ajay Kumar, Son of Ram Nandan Prasad, Resident of Village- Bahadurpur,
P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
37. Vijay Kumar, son of Ram Nandan Prasad, Resident of Village- Bahadurpur,
P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
38. Dularchand, son of Late Sadhu Mahto, Resident of Village- Bahadurpur,
P.O. Chandi, P.S.- Chandi, District- Nalanda at Biharsharif.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. J.S. Arora, Sr. Advocate
: Mr. Manoj Kumar, Advocate
For the Opposite Party/s : Mr. Sameer Sawarn, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
C.A.V. JUDGMENT
Date : 16-03-2026
1. Heard learned senior counsel for the petitioner as
well as the learned counsel for the opposite parties.
2. The present civil review application has been
preferred by the petitioner seeking review of the order dated
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05.07.2023 passed by this Court in Civil Miscellaneous Case
No.884 of 2022 whereby the said miscellaneous case was
dismissed and the order dated 15.09.2022 passed by the learned
Sub-Judge-I, Nalanda at Biharsharif (hereinafter referred to as
‘Trial Court’) in Title Suit No. 123 of 1987 whereby the
evidence on behalf of the petitioner herein (defendant in Title
Suit No.123 of 1987) was closed.
3. It appears from the record that in the aforesaid
Title Suit No. 123 of 1987, when the matter was fixed for
further cross-examination of the defence witness on 15.09.2022,
the said witness did not appear before the learned Trial Court.
The learned Trial Court, taking note of the age of the suit and
the several opportunities which had already been granted to the
defendants for adducing evidence, declined the prayer for
adjournment and proceeded to close the evidence of the
defendant/petitioner by order dated 15.09.2022. The learned
Trial Court was of the view that the defendant/petitioner had
been granted sufficient opportunities earlier and further
indulgence would unnecessarily delay the disposal of the suit
which had been pending for a considerable length of time.
4. The Civil Miscellaneous No.884 of 2022 filed by
the petitioner herein has been dismissed by this Court vide order
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dated 05.07.2023. Upon perusal of impugned order of the
learned Trial Court, considering facts and circumstances of the
case and materials available on record, this Court upheld the
order dated 15.09.2022 passed the learned Trial Court and
observed that the title suit no.123 of 1987 was very old and last
opportunity was earlier given to the petitioner herein, but on
15.09.2022, the petitioner herein failed to produce the said
witness and accordingly the learned trial court closed the
evidence of the witness on behalf of the petitioner herein. This
Court further held that there was no valid reason for interference
in the impugned order under the supervisory jurisdiction of this
Court, and the same is devoid of merit and this Court further
dismissed the aforesaid Civil Miscellaneous Petition.
5. Learned senior counsel for the petitioner
submitted that the order under review suffers from errors
apparent on the face of the record and has been passed under
misconception of certain material facts. It is submitted that on
the date fixed i.e. 15.09.2022, the matter was posted only for
further cross-examination of a defence witness who had already
been partly examined on 20.07.2022, and the matter was
thereafter adjourned to 04.08.2022 for further cross-
examination. On 04.08.2022, the witness was present, but the
Patna High Court C. REV. No.220 of 2023 dt.16-03-2026
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cross-examination could not take place and the case was
adjourned to 15.09.2022 for cross-examination. It is submitted
that on 15.09.2022, the witness could not appear due to sudden
illness and a prayer for time was made on behalf of the
defendants, however, the learned Trial Court, without
considering the earlier presence of the witness and the
circumstances of his absence, rejected the prayer and abruptly
closed the evidence of the defendant/petitioner without
discharging or expunging the testimony of the said witness.
6. Learned senior counsel for the petitioner further
submitted that although the suit in question is of the year 1987
yet the delay in the proceeding cannot be attributed solely to the
petitioner, as for a considerable period the Court remained
vacant and at different stages the proceeding was also affected
due to transfer of Presiding Officers and the limited functioning
of courts during the COVID-19 pandemic. He submitted that the
impugned order dated 15.09.2022 was passed without
appreciating that the petitioner cannot be penalized for his
previous conduct when sufficient cause was made out for non-
appearance of the witness and the other side can be
compensated by adequate costs. He relied upon the observation
made in the judgment of the Hon’ble Supreme Court in A.
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Murugesan v. Jamuna Rani, reported in (2019) 20 SCC 803
that it is fairly well-settled that when an application is filed for
setting aside ex-parte decree under Order IX Rule 13 of the
C.P.C., the only aspect which is required to be considered is
whether any sufficient cause is shown for the absence in the
matter when the matter was called. He next submitted that at
best, the partly examined witness could have been discharged or
his testimony expunged, but the entire evidence of the defendant
could not have been closed. It is therefore submitted that this
Court, while dismissing the earlier Civil Miscellaneous Case,
could not fully appreciate these aspects of the matter, and as
such the order dated 05.07.2023 deserves to be reviewed in the
interest of justice.
7. Per contra, learned counsel for the Opposite
Party No. 1 opposed the present review application and
submitted that the same is wholly misconceived and not
maintainable in law. It is submitted that the scope of review
under Section 114 of the C.P.C. is extremely limited and a
review cannot be treated as an appeal in disguise for re-hearing
the matter on merits. Learned counsel further submitted that,
this Court, while passing the order dated 05.07.2023 in Civil
Miscellaneous Case No. 884 of 2022, had duly considered the
Patna High Court C. REV. No.220 of 2023 dt.16-03-2026
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entire factual background and found no infirmity in the order of
the learned Trial Court, and therefore the petitioner cannot be
permitted to re-agitate the very same issues in the guise of a
review petition.
8. Learned counsel for the Opposite Party No. 1
further submitted that the suit in question is pending since the
year 1987 and the learned Trial Court had granted several
opportunities to the defendant/petitioner to adduce evidence, but
the petitioner repeatedly failed to produce witnesses and sought
adjournments, thereby causing inordinate delay in the
proceeding. Learned counsel submitted that even on 15.09.2022,
when the petitioner alleged illness of the witness, no medical
certificate or supporting material was produced before the
learned Trial Court and therefore the the learned Trial Court was
justified in declining further adjournment and closing the
defence evidence. It is thus submitted that the order under
review does not suffer from any error apparent on the face of the
record, nor does it disclose any ground warranting exercise of
review jurisdiction, and as such the present review application is
liable to be dismissed.
9. I have considered the submissions advanced on
behalf of the parties and have perused the materials available on
Patna High Court C. REV. No.220 of 2023 dt.16-03-2026
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record. Before adverting to the rival contentions, it would be
apposite to reiterate the settled legal position that the scope of
review under Order XLVII Rule 1 of the C.P.C. read with
Section 114 of the C.P.C. is extremely limited, and that a review
court does not sit in appeal over its own judgment, nor can it re-
appreciate evidence or correct an alleged erroneous decision on
merits, unless the error complained of is manifest, patent, and
apparent on the face of the record. A judgment may be reviewed
only on discovery of new and important matter or evidence, or
on account of some mistake or error apparent on the face of the
record, or for any other sufficient reason analogous thereto.
10. The Hon’ble Supreme Court in Malleeswari v.
K. Suguna & Anr. reported in 2025 SCC OnLine SC 1927 has
vividly enumerated the scope of civil review under Order XLVII
Rule 1 read with Section 114 of the C.P.C. as herein under:
“15. It is axiomatic that the right of appeal
cannot be assumed unless expressly conferred
by the statute or the rules having the force of a
statute. The review jurisdiction cannot be
assumed unless it is conferred by law on the
authority or the Court. Section 114 and Order
47, Rule 1 of CPC deal with the power of review
of the courts. The power of review is different
from appellate power and is subject to the
following limitations to maintain the finality of
judicial decisions:
15.1 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 of CPC.
Patna High Court C. REV. No.220 of 2023 dt.16-03-2026
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15.2 Review is not to be confused with
appellate powers, which may enable an
appellate court to correct all manner of errors
committed by the subordinate court.
15.3 In exercise of the jurisdiction under
Order 47 Rule 1 of 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.
15.4 The power of review can be exercised
for the correction of a mistake, but not to
substitute a view. Such powers can be exercised
within the limits specified in the statute
governing the exercise of power.
15.5 The review court does not sit in appeal
over its own order. A rehearing of the matter is
impermissible. It constitutes an exception to the
general rule that once a judgment is signed or
pronounced, it should not be altered. Hence, it
is invoked only to prevent a miscarriage of
justice or to correct grave and palpable errors.
16. To wit, through a review application, an
apparent error of fact or law is intimated to the
court, but no extra reasoning is undertaken to
explain the said error. The intimation of error at
the first blush enables the court to correct
apparent errors instead of the higher court
correcting such errors. At both the above stages,
detailed reasoning is not warranted.
17. Having noticed the distinction between
the power of review and appellate power, we
restate the power and scope of review
jurisdiction. Review grounds are summed up as
follows:
17.1 The ground of discovery of new and
important matter or evidence is a ground
available if it is demonstrated that, despite the
exercise of due diligence, this evidence was not
within their knowledge or could not be produced
by the party at the time, the original decree or
order was passed.
17.2 Mistake or error apparent on the face of
the record may be invoked if there is something
more than a mere error, and it must be the one
which is manifest on the face of the record. Such
Patna High Court C. REV. No.220 of 2023 dt.16-03-2026
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an error is a patent error and not a mere wrong
decision. 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.
17.3 Lastly, the phrase ‘for any other
sufficient reason’ means a reason that is
sufficient on grounds at least analogous to those
specified in the other two categories.”
11. This Court has given anxious consideration to
the submissions advanced on behalf of the parties and has
carefully examined the supplementary affidavit, perused the
materials on record and considered the settled principles
governing the scope of review jurisdiction. Upon such
consideration, this Court finds that the petitioner has not been
able to point out any error apparent on the face of the record in
the order dated 05.07.2023 passed in Civil Miscellaneous Case
No. 884 of 2022. The grounds urged in the review petition
substantially reiterate the very same submissions which had
already been advanced and considered while deciding the said
Civil Miscellaneous Case. The review petitioner is essentially
seeking a re-appreciation of the factual aspects relating to the
opportunities granted for leading defence evidence and the
circumstances surrounding the order dated 15.09.2022 passed
by the learned Trial Court. Such an exercise would amount to
rehearing the matter on merits, which is clearly impermissible
Patna High Court C. REV. No.220 of 2023 dt.16-03-2026
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within the limited scope of review jurisdiction.
12. It further appears from the record that the
learned Trial Court had taken note of the long pendency of the
suit of the year 1987 and the repeated opportunities granted to
the defendant/petitioner for adducing evidence before passing
the order closing the defence evidence. This Court, while
dismissing the earlier Civil Miscellaneous Case by order dated
05.07.2023, had also considered these aspects and found no
infirmity in the order passed by the learned Trial Court. The
submissions now sought to be advanced by the petitioner do not
disclose discovery of any new and important matter nor do they
demonstrate any manifest error apparent on the face of the
record so as to justify exercise of the review jurisdiction of this
Court.
13. In view of the discussions made hereinabove
and considering the limited scope of review jurisdiction, this
Court is of the considered opinion that the petitioner has failed
to establish any ground as contemplated under Section 114 of
the C.P.C. for review of the order dated 05.07.2023 passed in
Civil Miscellaneous Case No. 884 of 2022. The grounds urged
in the present application do not disclose any error apparent on
the face of the record nor do they bring on record any new or
Patna High Court C. REV. No.220 of 2023 dt.16-03-2026
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important matter which could not be produced earlier despite
due diligence. What the petitioner essentially seeks is a
reconsideration of the matter on merits, which is beyond the
scope of review jurisdiction.
14. Accordingly, this Court finds no merit in the
present Civil Review Application, and the same is hereby
dismissed.
15. There shall be no order as to costs.
16. Pending Interlocutory Application(s), if any,
stand disposed of.
(Sunil Dutta Mishra, J)
Ritik/-
AFR/NAFR NAFR
CAV DATE 11.03.2026
Uploading Date 17.03.2026
Transmission Date NA
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