Patna High Court
Hemati Kumari @ Hemanti Kumari @ Aarti DeviversusHemlata Devi
- Decided
- Disposal
- DISMISSED
- Bench
- ARUN KUMAR JHA
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a civil review seeking to set aside the order dated 28.08.2024 that dismissed their civil miscellaneous petition as withdrawn.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
- Code of Civil Procedure, 1908 — s. Order 47 Rule 1, Section 114
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
Patna High Court C. REV. No.369 of 2024 dt.17-04-2026
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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
Patna High Court C. REV. No.369 of 2024 dt.17-04-2026
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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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