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Patna High Court

Mahendra Kumar Sinha @ Mahendra KumarversusKameshwar Prasad Singh

Decided
Disposal
DISMISSED

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

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
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        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.-
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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
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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
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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
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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.
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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
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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
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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
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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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