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Patna High Court

Hemati Kumari @ Hemanti Kumari @ Aarti DeviversusHemlata Devi

Decided
Disposal
DISMISSED

Holding

The review petition is dismissed because the petitioner failed to demonstrate any material error apparent on the face of the order and the ground of previous counsel's conduct does not meet the criteria for a review under Order 47 Rule 1 CPC.

Summary

The petitioner filed a civil review seeking to set aside the order dated 28.08.2024 that dismissed their civil miscellaneous petition as withdrawn. The ground relied upon was that the previous counsel had failed to present the facts correctly, leading to the withdrawal. The court first condoned an 84‑day delay in filing the review. It then examined whether a review can be entertained on the basis of alleged misconduct of a former lawyer and a change of counsel, citing the Usha International Ltd. and Rotary Club decisions. The court held that such a ground does not satisfy the stringent requirements for review under Order 47 Rule 1 of the CPC and that no material error apparent on the face of the order was shown. Consequently, the review petition was dismissed.

Issues considered

  • Can a review petition be entertained when the sole ground is the alleged improper conduct of a previous counsel and there is a change of lawyer?
  • Has the petitioner demonstrated a material error apparent on the face of the order to justify review under Order 47 Rule 1 of the CPC and Section 114 CPC?
  • Whether the 84‑day delay in filing the review application can be condoned?

Legislation cited

Subjects

  • review petition
  • Civil Procedure
  • Order 47 Rule 1
  • change of counsel
  • material error
  • condonation of delay

Judgment

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                            CIVIL REVIEW No.369 of 2024
                                            In
            CIVIL MISCELLANEOUS JURISDICTION No.953 of 2023
     ======================================================
     Hemati Kumari @ Hemanti Kumari @ Aarti Devi W/o- Taniklal
     Vishwakarma and D/o- Ghanshyam Vishwakarma, R/o At- Khalasi Mohalla-
     Jhajha, P.S.- Jhajha, District- Jamui, Present Address- Village- Rampur, P.O.-
     Manghgain, P.S.- Sangrampur, District- Munger.

                                                                 ... ... Petitioner/s
                                        Versus

1.   Hemlata Devi W/o- Late Radheshyam Prasad Vishwakarma, R/o At- Khalasi
     Mohalla, P.O.- Jhajha, P.S.- Jhajha, Dist.- Jamui.
2.   Mohan Vishwakarma S/o- Late Radheshyam Prasad Vishwakarma, R/o At-
     Khalasi Mohalla, P.O.- Jhajha, P.S.- Jhajha, Dist.- Jamui.
3.   Ravi Vishwakarma S/o- Late Radheshyam Prasad Vishwakarma, R/o At-
     Khalasi Mohalla, P.O.- Jhajha, P.S.- Jhajha, Dist.- Jamui.
4.   Santosh Vishwakarma S/o- Late Radheshyam Prasad Vishwakarma, R/o At-
     Khalasi Mohalla, P.O.- Jhajha, P.S.- Jhajha, Dist.- Jamui.
5.   Shankar Vishwakarma S/o- Late Radheshyam Prasad Vishwakarma, R/o At-
     Khalasi Mohalla, P.O.- Jhajha, P.S.- Jhajha, Dist.- Jamui.
6.   Sulekha Kumari D/o- Late Radheshyam Vishwakarma, W/o- Shri Kishor
     Vishwakarma, R/o Village- Jinhara, P.O.- Laxmipur, P.S.- Laxmipur, Dist.-
     Jamui.
7.   Rekha Kumari D/o- Late Radheshyam Vishwakarma, W/o- Ishwar
     Vishwakarma, R/o Village- Dalhatta Munger, P.O. and P.S.- Munger, Dist.-
     Munger.
8.   Chandrama Kumari D/o- Late Radheshyam Vishwakarma, W/o- Sushil
     Vishwakarma, R/o At- Maksuspur Munger, P.S.- Munger, Dist.- Munger.
9.   Manorma Kumari D/o- Late Radheshyam Vishwakarma, W/o- Shri Tuntun
     Vishwakarma, R/o Mohalla- Dhobi Tola, Maksuspur, Munger, P.S.- Munger,
     Dist.- Munger.
10. Kokila Devi W/o- Late Ghanshyam Prasad Vishwakarma, present W/o-
    Dhaneshwar Mistry, Village- Haria, P.O.- Laxmipur, P.S.- Laxmipur, Dist.-
    Jamui.
11. Banshidhar Vishwakarma S/o Late Vishwanath Vishwakarma, R/o At- Bari
    Kali Ashtan Tiptop Road, Jamalpur, P.S.- Jamalpur, Dist.- Munger.
12. Giridhar Vishwakarma S/o- Late Vishwanath Vishwakarma, R/o At- Bari
    Kali Ashtan Tiptop Road, Jamalpur, P.S.- Jamalpur, Dist.- Munger.
13. Dwarika Vishwakarma S/o- Late Vishwanath Vishwakarma, R/o At- Bari
    Kali Ashtan Tiptop Road, Jamalpur, P.S.- Jamalpur, Dist.- Munger.
14. Raghubir Vishwakarma S/o- Purnamasi Vishwakarma, R/o At- Bari Kali
    Ashtan Tiptop Road, Jamalpur, P.S.- Jamalpur, Dist.- Munger.
15. Dinesh Vishwakarma S/o- Raghubir Vishwakarma, R/o At- Bari Kali Ashtan
Patna High Court C. REV. No.369 of 2024 dt.17-04-2026
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        Tiptop Road, Jamalpur, P.S.- Jamalpur, Dist.- Munger.
  16. Munna Vishwakarma S/o- Raghubir Vishwakarma, R/o At- Bari Kali Ashtan
      Tiptop Road, Jamalpur, P.S.- Jamalpur, Dist.- Munger.
  17. Hari Om Vishwakarma S/o- Raghubir Vishwakarma, R/o At- Bari Kali
      Ashtan Tiptop Road, Jamalpur, P.S.- Jamalpur, Dist.- Munger.
  18. Chhotu Vishwakarma S/o- Raghubir Vishwakarma, R/o At- Bari Kali Ashtan
      Tiptop Road, Jamalpur, P.S.- Jamalpur, Dist.- Munger.
  19. Janak Nandini Devi W/o- Kailash Vishwakarma, R/o At- Damodar Colony,
      Near Balu Lori Andal, P.S.- Andal, District- Bardman.

                                                                 ... ... Opposite Party/s

       ======================================================
       Appearance :
       For the Petitioner/s      :       Mr. Brajesh Sahay, Advocate
                                         Mrs. Rupa Sinha, Advocate
                                         Ms. Harshita, Advocate
       For the Opposite Party/s :        Mr.
       ======================================================
          CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
                           ORAL JUDGMENT
         Date : 17-04-2026

                      I.A.No.01 of 2025

                      Heard learned counsel for the petitioner.

                      2. This interlocutory application has been filed for

         condoning the delay of 84 days in preferring this review

         application.

                      3. For the reasons mentioned in this interlocutory

         application, I am satisfied that the petitioner was prevented from

         sufficient cause in preferring this application within time.

                      4. Accordingly, this interlocutory application is

         allowed and the delay in filing this application is hereby

         condoned.

                      Civil Review No. 369 of 2024
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                      5. The present civil review petition has been filed for

         recalling/reviewing the order/judgment dated 28.08.2024 passed

         in Civil Misc.No. 953 of 2023 by this Court whereby and

         whereunder the petition filed by the review petitioner has been

         dismissed as withdrawn.

                      6. The learned counsel for the petitioner submits that

         when the said civil miscellaneous petition was taken up for

         hearing, some other counsel had been appearing in the matter

         and he failed to place the facts before the Court in proper

         manner and withdrew the petition. For this reason, the

         order/judgment dated 28.08.2024 needs to be reviewed and the

         matter may be heard on merits.

                      7. Perused the records.

                      8. It appears that the sole ground for reviewing the

         order dated 28.08.2024, which has been taken by the learned

         counsel for the review petitioner, is that when the said civil

         miscellaneous petition was taken up for hearing, some other

         counsel was appearing in the matter and he failed to place the

         facts before the Court in proper manner and withdrew the

         petition.

                      9. Now the question arises for consideration before

         this Court as to whether the review application should be
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         entertained in the present circumstance when previous counsel

         himself had sought permission to withdraw and the permission

         was accorded to him and now the subsequent counsel taking a

         ground in the present review petition that the previous counsel

         failed to place the facts before the Court in proper manner and

         withdrew the petition.

                      10. The Hon’ble Division bench of this Court in the

         case of Usha International Ltd. v. The Commissioner of

         Commercial Taxes, Bihar reported in 2019 (1) PLJR 872 has

         occasion to consider this aspect. The Hon’ble Division Bench,

         in the case of Usha International Ltd. (supra), while relying

         upon the earlier judgment of the Hon’ble Division Bench of this

         Court in the case of Rotary Club, Begusarai v. State of Bihar,

         reported in AIR 2001 Patna 115, reiterated its views expressed

         in Rotary Club, Begusarai (supra) as under:

                                   “………Recourse to review by change of
                      lawyers is normally deprecated by Courts. The
                      practice becomes all the more reprehensible when
                      review is sought on grounds pertaining to the
                      previous conduct of the case or other grounds of fact
                      normally within the knowledge of the previous
                      lawyer(s). To my mind a lawyer must be very
                      reluctant to take up a brief of review unless he had
                      appeared in the case, the order passed in which is
                      the subject of review. In case for some reasons a
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                      change of lawyer is unavoidable, the newly engaged
                      lawyer would owe it to himself and to the profession
                      to have the statement of facts duly verified by the
                      lawyer earlier conducting the case. In case a review
                      is filed by a new lawyer a certificate ought to be
                      appended to the review petition, preferably by the
                      previous counsel, stating that the facts stated in the
                      petition were correct or alternatively by the newly
                      engaged lawyer testifying that he had got the facts
                      stated in the review petition verified by the previous
                      lawyer……..”

                    Clearly, the condition precedent for seeking review

         with change of lawyer is absent. Moreover, review is sought on

         the ground that the previous counsel did not place the facts

         properly before the Court. In other words, he did not follow the

         instruction. It is a serious allegation and the learned new counsel

         was required to trend cautiously in the matter to satisfy the

         required condition. Nonetheless, no such steps have been taken

         and considering the fact that the matter was dismissed as

         withdrawn at the instance of the then counsel, scope of review is

         severely circumscribed.

                    11. Further, it is also well settled that a review

         proceeding cannot be equated with the original hearing of the

         case. A party is not entitled to seek review of a judgment/order

         merely for the purpose of re-hearing and fresh decision of the

         case. Review of an earlier order cannot be done unless the Court
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         is satisfied that some material error, manifest on the face of the

         order, undermines its soundness or results in miscarriage of

         justice.

                    12. In the case of Col. Avtar Singh Sekhon v. Union of

         India, reported in 1980 Supp SCC 562, the Hon’ble Supreme

         Court in paragraph 12 held as under :-

                                    “12. A review is not a routine procedure.
                       Here we resolved to hear Shri Kapil at length to
                       remove any feeling that the party has been hurt
                       without being heard. But we cannot review our
                       earlier order unless satisfied that material error,
                       manifest on the face of the order, undermines its
                       soundness or results in miscarriage of justice. In
                       Sow Chandra Kante v. Sheikh Habib [(1975) 1
                       SCC 674, 675 : 1975 SCC (Tax) 200 : 1975 SCC
                       (L&S) 184 : (1975) 3 SCR 933, 934] this Court
                       observed : (SCC p. 675, para 1)
                                    “A review of a judgment is a serious step
                       and reluctant resort to it is proper only where a
                       glaring omission or patent mistake or like grave
                       error has crept in earlier by judicial fallibility....
                       The present stage is not a virgin ground but review
                       of an earlier order which has the normal feature of
                       finality.”


                    13. The scope of Order XLVII Rule 1 CPC, dealing

         with review of a judgment, has been succinctly stated by the

         Hon’ble Supreme Court in the case of Parsion Devi v. Sumitri
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         Devi reported in (1997) 8 SCC 715 as under:-

                                 7. It is well settled that review proceedings
                      have to be strictly confined to the ambit and scope of
                      Order 47 Rule 1 CPC. In Thungabhadra Industries
                      Ltd. v. Govt. of A.P. [AIR 1964 SC 1372 : (1964) 5
                      SCR 174] (SCR at p. 186) this Court opined:
                                 “What, however, we are now concerned
                      with is whether the statement in the order of
                      September 1959 that the case did not involve any
                      substantial question of law is an ‘error apparent on
                      the face of the record’). The fact that on the earlier
                      occasion the Court held on an identical state of facts
                      that a substantial question of law arose would not per
                      se be conclusive, for the earlier order itself might be
                      erroneous. Similarly, even if the statement was
                      wrong, it would not follow that it was an ‘error
                      apparent on the face of the record’, for there is a
                      distinction which is real, though it might not always
                      be capable of exposition, between a mere erroneous
                      decision and a decision which could be characterised
                      as vitiated by ‘error apparent’. A review is by no
                      means an appeal in disguise whereby an erroneous
                      decision is reheard and corrected, but lies only for
                      patent error.”



                    14. To the same effect is the decision of the Hon’ble

         Supreme Court in the case of Arun Dev Upadhyaya v.

         Integrated Sales Service Ltd. reported in (2023) 8 SCC 11,

         wherein in paragraph 35 it has been held as under :

                        “35. From the above, it is evident that a power to
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                        review cannot be exercised as an appellate power
                        and has to be strictly confined to the scope and
                        ambit of Order 47 Rule 1CPC. An error on the
                        face of record must be such an error which, mere
                        looking at the record should strike and it should
                        not require any long-drawn process of reasoning
                        on the points where there may conceivably be two
                        opinions”.
                                                        (emphasis is mine)
                    15. In the case of Lily Thomas v. Union of India

         reported in (2000) 6 SCC 224, the principle was reiterated by

         the Hon’ble Supreme Court with a caution that in exercise of

         power of review, the Court may correct the mistake but not to

         substitute the view. Relevant portion of paragraph 56 of the said

         judgment is reproduced below :

                                 56. It follows, therefore, that the power of
                      review can be exercised for correction of a mistake
                      but not to substitute a view. Such powers can be
                      exercised within the limits of the statute dealing
                      with the exercise of power. The review cannot be
                      treated like an appeal in disguise...”



                    16. Further, scope of review is limited in the light of

         Order 47 Rule 1 of CPC. Hon'ble Apex Court in the case of

         S.Murali Sundaram vs. Jothibai Kannan & Ors. reported in

         2023 SCC OnLine SC 185 elaborately considered under what

         circumstances courts can review its own order. Recently in yet
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         another decision in the case of Sanjay Kumar Agarwal v. State

         Tax Officer (1) & Anr. reported in 2023 SCC OnLine SC 1406

         Supreme Court has laid down eight principles in Para 16 which

         reads as under:

                                    16. The gist of the aforestated decisions
                         is that:

                                    16.1. A judgment is open to review inter
                         alia if there is a mistake or an error apparent on
                         the face of the record.

                                    16.2. A judgment pronounced by the
                         court is final, and departure from that principle is
                         justified only when circumstances of a substantial
                         and compelling character make it necessary to do
                         so.

                                    16.3. 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 record justifying the court to exercise its
                         power of review.

                                    16.4. In exercise of the jurisdiction under
                         Order 47 Rule 1CPC, it is not permissible for an
                         erroneous decision to be “reheard and corrected”.

                                   16.5. A review petition has a limited
                         purpose and cannot be allowed to be “an appeal
                         in disguise”.
                                    16.6. Under the guise of review, the
                         petitioner cannot be permitted to reagitate and
                         reargue the questions which have already been
                         addressed and decided.
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                                    16.7. An error on the face of record must
                         be such an error which, mere looking at the record
                         should strike and it should not require any long-
                         drawn process of reasoning on the points where
                         there may conceivably be two opinions.

                                    16.8. Even the change in law or
                         subsequent decision/judgment of a coordinate or
                         larger Bench by itself cannot be regarded as a
                         ground for review”.

                    17. Having regard to the facts before me, the grounds

         taken     for     recalling/reviewing          the   order/judgment   dated

         28.08.2024 passed in Civil Misc. No.953 of 2023 are

         misconceived. Further, I am also of the considered opinion that

         this review application on the ground that previous counsel has

         not placed the facts before this Court in a proper manner and

         withdrew the petition is liable to be rejected in view of the

         Hon’ble Division Bench judgment of this Court in the case of

         Usha International (Supra).

                      18. In the light of aforesaid discussion as well as

         principles laid down by the Hon'ble Apex Court in a catena of

         decisions including the decision rendered in the case of Sanjay

         Kumar Agarwal (supra) as well as decision of the Hon’ble

         Division Bench of this Court in the case of Usha International

         (Supra), I am of the considered opinion that the petitioner has

         not been able to even remotely show this Court any material
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                      error manifest in the order/judgment and, therefore, the

                      order/judgment under review does not fall within the scope and

                      ambit of Order 47 Rule 1 read with Section 114 of the Code of

                      Civil Procedure so as to recall/review the judgment/order dated

                      28.08.2024 passed in Civil Misc. No.953 of 2023. Therefore, the

                      civil review petition stands dismissed.




                                                 (Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          18.04.2026
Transmission Date       NA


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