S. MURALI SUNDARAMversusJOTHIBAI KANNAN & ORS

                          [2023] 3 S.C.R. 47                              47


                     S. MURALI SUNDARAM                                   A
                                  v.
                   JOTHIBAI KANNAN & ORS.
                (Civil Appeal Nos.1167-1170 of 2023)
                        FEBRUARY 24, 2023                                 B
          [M. R. SHAH AND C.T. RAVIKUMAR, JJ.]
       Code of Civil Procedure, 1908 – Or. XLVII r 1, s.114 – Review
of judgment under –Appellant filed writ petition before the High
Court against the order of the Tiruchirappalli City Municipal
                                                                          C
Corporation in respect of the pathway – High Court allowed the
writ petition of the appellant on merits after considering a survey
report – High Court discarded the survey report – Thereafter, the
respondent filed the review petition before the High Court – High
Court allowed the review petition after considering the same survey
report and set aside its judgment holding the same to be erroneous        D
– Whether in the facts and circumstances of the case the High Court
justified in allowing the review application filed u/Or.47, r.1 CPC
and setting aside the reasoned judgment and order passed in the
main writ petition – Held: It is settled that power of review can be
exercised for correction of mistake but not to substitute a view – In
                                                                          E
the instant case, the High Court exceeded in its jurisdiction and
exercised the jurisdiction not vested in it while exercising the review
jurisdiction u/Or.47, r.1 r/w. s.114 CPC – Once the survey report
fell for consideration before the High Court while deciding the main
writ petition thereafter the same could not have been considered
again while deciding review application – If a judgment sought to         F
be reviewed is erroneous, cannot be subject of review u/Or.47, r.1
but can be challenged by way of appeal.
      Allowing the appeals, the Court
       HELD: 1. In the case of Perry Kansagra this Court has
observed that while exercising the review jurisdiction in an              G
application under Order 47 Rule 1 read with Section 114 CPC,
the Review Court does not sit in appeal over its own order. It is
observed that a rehearing of the matter is impermissible in law.
It is further observed that review is not appeal in disguise. It is
observed that power of review can be exercised for correction of          H
                                  47
48            SUPREME COURT REPORTS                      [2023] 3 S.C.R.


A    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. It is further observed that it is wholly unjustified and
     exhibits a tendency to rewrite a judgment by which the
     controversy has been finally decided. [Para 5.1][52-C-E]
B          2. In the case of Shanti Conductors (P) Ltd., it is observed
     and held that scope of review under Order 47 Rule 1 CPC read
     with Section 114 CPC is limited and under the guise of review,
     the petitioner cannot be permitted to reagitate and reargue
     questions which have already been addressed and decided. It is
     further observed that an error which is not self-evident and has
C    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 under Order 47 Rule 1 CPC. [Para
     5.3][53-B-C]
           3. Applying the law laid down by this Court in the aforesaid
D    two decisions to the facts of the case on hand, the court is of the
     opinion that in the present case while allowing the review
     application and setting aside the judgment and order dated
     03.03.2017 passed in Writ Petition No.8606 of 2010 the High
     Court has exceeded in its jurisdiction and has exercised the
E    jurisdiction not vested in it while exercising the review
     jurisdiction under Order 47 Rule 1 read with Section 114 CPC.
     From the reasoning given by the High Court, it appears that
     according to the High Court the judgment and order passed in
     Writ Petition No.8606 of 2010 was erroneous. While passing the
     impugned judgment and order the High Court has observed and
F    considered the Survey Report dated 12.12.2007 which was already
     dealt with by the High Court while deciding the main writ petition
     and the High Court discarded and/or not considered the Survey
     Report dated 12.12.2007. Once the Survey Report dated
     12.12.2007 fell for consideration before the High Court while
G    deciding the main writ petition thereafter the same could not have
     been considered again by the High Court while deciding the review
     application. [Para 5.3][53-D-F]
           Perry Kansagra vs. Smriti Madan Kansagra, (2019)
           20 SCC 753; Shanti Conductors (P) Ltd. Vs. Assam
           SEB, (2020) 2 SCC 677 : 2019 (16 ) SCR 252 – relied
H          on.
   S. MURALI SUNDARAM v. JOTHIBAI KANNAN & ORS.                                49


                         Case Law Reference                                    A
(2019) 20 SCC 753                  relied on                 Para 5.1
[2019] 16     SCR 252              relied on                 Para 5.3
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.1167-
1170 of 2023.                                                                  B
      From the Judgment and Order dated 29.06.2021 of the High Court
of Judicature at Madras at Madurai in RAMD No.21 of 2017, WPMD
Nos.14847, 16256 of 2017 and CPMD No.1109 of 2017.
      V. Prabhakar, Ms. Jyoti Parashar, N.J. Ramchandar, S. Rajappa,
Advs. for the Appellant.                                                       C
      Ms. Haripriya Padmanabhan, T. Mahendhran, Raghunatha
Sethupathy B, Ms. Tanya Srivastava, S. Sabari Bala Pandian, Ms.
Pariksha, Ms. Priya R, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      M. R. SHAH, J.                                                           D
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 29.06.2021 passed by the High Court of judicature at
Madras at Madurai Bench passed in Review Application (MD) No.21
of 2017 as well as the orders passed in Writ Petition (MD) No.14847 of
2017, Writ Petition (MD) No.16256 of 2017 as well as the order in              E
Contempt Petition (MD) No.1109 of 2017 by which the High Court in
exercise of review jurisdiction has allowed the Review Application No.21
of 2017 and has set aside the order dated 03.03.2017 passed in Writ
Petition (MD) No.8606 of 2010, the original writ petitioner of Writ Petition
(MD) No.8606 of 2010 has preferred the present appeals.
                                                                               F
      2. The issue involved in the present appeals as such is in a very
narrow Compass.
       2.1 Feeling aggrieved and dissatisfied with the order passed by
the Tiruchirappalli City Municipal Corporation dated 17.07.2008 in respect
of the pathway comprised in New TS No.43 of ward 42, Block AG 15,              G
Indian Bank Colony, Simco Meter Road, Tiruchirappalli Taluk and District,
the appellant herein preferred the Writ Petition (MD) No.8606 of 2010
before the High Court. Before the High Court the respondents herein –
review petitioners heavily relied upon the report of the Survey Department
and the measurements given in the survey report. However, the High
Court discarded the survey report and chosen to rely upon other two            H
50             SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A    reports and consequently allowed the writ petitions by detailed judgment
     and order dated 03.03.2017.
            2.2 That thereafter the contesting respondents herein – the review
     applicants filed the present Review Application (MD) No.21 of 2017 in
     Writ Petition (MD) No.8606 of 2010 under Order 47 Rule 1 of Code of
B    Civil Procedure, 1908 (hereinafter referred to as ‘CPC’). One Mr. S.M.
     Gajendran filed the Writ Petition (MD) No.14847 of 2017 as well as
     Writ Petition (MD) No.16256 of 2017 inter alia challenging the order
     dated 03.07.2017 in enquiry in Na. Ka. No.5293/A4/2017 as well as the
     order dated 09.06.2017 in Na. Ka. No.10048/2016/F1 and direct the
     respondents to accept the registered gift settlement made in favour of
C    the Corporation in settling seven public roads by registration Corporation.
     By the impugned judgment and order the High Court has allowed the
     Review Petition (MD) No.21 of 2017 and has set aside the judgment
     and order dated 03.03.2017 passed in Writ Petition No.8606 of 2010.
     Consequently, the High Court has dismissed the Writ Petition Nos. 14847
D    of 2017 & 16256 of 2017 filed by S.M. Gajendran. Consequently, the
     High Court has also dismissed the Contempt Petition No.1109 of 2017.
     The impugned common judgment and order passed by the High Court
     and mainly allowing the review application is the subject matter of present
     appeals.

E           2.3 Mr. V. Prabhakar, learned counsel appearing on behalf of the
     appellant – original writ petitioner has vehemently submitted that in the
     facts and circumstances of the case the High Court has erred in allowing
     the Review Application and has materially erred in quashing and setting
     aside the judgment and order dated 03.03.2017 passed in Writ Petition
     No.8606 of 2010.
F           2.4 It is further submitted by learned counsel appearing on behalf
     of the appellant that while allowing the review application and quashing
     and setting aside the order passed in the main writ petition, the High
     Court has exceeded in its jurisdiction while deciding the review application.
            2.5 It is further submitted by learned counsel appearing on behalf
G    of the appellant that while allowing the review application the High Court
     has exceeded in its jurisdiction while deciding the review application and
     has exercised the jurisdiction not vested in it.
             2.6 It is further submitted by learned counsel appearing on behalf
     of the appellant that the High Court has exercised the review jurisdiction
H    as if the High Court was exercising the appellate jurisdiction against the
   S. MURALI SUNDARAM v. JOTHIBAI KANNAN & ORS.                                   51
                  [M. R. SHAH, J.]

judgment and order dated 03.03.2017 in Writ Petition No.8606 of 2010              A
which is wholly impermissible. Reliance is placed on the decisions of
this Court in the case of Perry Kansagra vs. Smriti Madan Kansagra,
(2019) 20 SCC 753 as well as in Shanti Conductors (P) Ltd. Vs.
Assam SEB, (2020) 2 SCC 677.
        2.7 It is further submitted by learned counsel appearing on behalf        B
of the appellant that according to the High Court and so observed in the
impugned judgment and order, the judgment and order dated 03.03.2017
passed in Writ Petition No.8606 of 2010 was erroneous. It is submitted
that however an erroneous order cannot be a subject matter of review
and an erroneous order however it may be cannot be set aside in exercise
of the review jurisdiction. It is submitted in the present case all the grounds   C
on which the review application was filed and the grounds on which the
review application is allowed were as such dealt with and considered by
the High Court while deciding the writ petition. It is submitted that therefore
there was no error apparent on the face of the record and/or there was
no mistake on the face of the record which could have been corrected in           D
exercise of the review jurisdiction.
        Making above submissions and relying upon the above decisions,
it is prayed to allow the present appeals.
       3. Present appeals are vehemently opposed by Ms.Haripriya
Padmanabhan, learned counsel appearing on behalf of the contesting                E
respondents – original review applicants. It is vehemently submitted by
learned counsel appearing on behalf of the review applicants that while
deciding the Writ Petition No.8606 of 2010 the High Court erroneously
discarded the survey report and relied upon the private reports. It is
submitted that as such a fraud was committed by the original writ
petitioner as well as S.M. Gajendran as they relied upon the forged               F
reports/documents. It is submitted that therefore, this Court may not
exercise the powers under Article 136 of the Constitution of India. It is
submitted that the High Court found that the earlier order dated 03.03.2017
passed in Writ Petition No.8606 of 2010 was erroneous and therefore,
the High Court is justified in setting aside the judgment and order dated         G
03.03.2017 passed in Writ Petition No.8606 of 2010.
      Making above submissions, it is prayed to dismiss the present
appeals.
      4. We have heard learned counsel appearing on behalf of the
respective parties at length.                                                     H
52             SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A           5. At the outset, it is required to be noted that by the impugned
     judgment and order the High Court has allowed the review application
     filed under Order 47 Rule 1 CPC and has set aside the judgment and
     order dated 03.03.2017 passed in Writ Petition No.8606 of 2010. While
     allowing the review application the High Court has observed and held
     that the earlier judgment and order dated 03.03.2017 in Writ Petition
B    No.8606 of 2010 was erroneous. Therefore, question which is posed
     before this Court for consideration is whether in the facts and
     circumstances of the case the High Court is justified in allowing the
     review application filed under Order 47 Rule 1 CPC and setting aside
     the reasoned judgment and order passed in main writ petition?
C           5.1 While considering the aforesaid issue two decisions of this
     Court on Order 47 Rule 1 read with Section 114 CPC are required to be
     referred to? In the case of Perry Kansagra (supra) this Court has
     observed that while exercising the review jurisdiction in an application
     under Order 47 Rule 1 read with Section 114 CPC, the Review Court
     does not sit in appeal over its own order. It is observed that a rehearing
D
     of the matter is impermissible in law. It is further observed that review is
     not appeal in disguise. It is observed that 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. It is further observed that it is wholly unjustified and exhibits a
E    tendency to rewrite a judgment by which the controversy has been finally
     decided. After considering catena of decisions on exercise of review
     powers and principles relating to exercise of review jurisdiction under
     Order 47 Rule 1 CPC this Court had summed upon as under:
            “(i) Review proceedings are not by way of appeal and have to be
            strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
F
            (ii) Power of review may be exercised when some mistake or
            error apparent on the fact of record is found. But error on the
            face of record must be such an error which must strike one on
            mere looking at the record and would not require any long-drawn
            process of reasoning on the points where there may conceivably
G           by two opinions.
            (iii) Power of review may not be exercised on the ground that the
            decision was erroneous on merits.
            (iv) Power of review can also be exercised for any sufficient
            reason which is wide enough to include a misconception of fact
H           or law by a court or even an advocate.
   S. MURALI SUNDARAM v. JOTHIBAI KANNAN & ORS.                              53
                  [M. R. SHAH, J.]

      (v) An application for review may be necessitated by way of            A
      invoking the doctrine actus curiae neminem gravabit.”
       5.2 It is further observed in the said decision that an error which
is required to be detected by a process of reasoning can hardly be said
to be an error on the face of the record.
       5.3 In the case of Shanti Conductors (P) Ltd. (supra), it is          B
observed and held that scope of review under Order 47 Rule 1 CPC
read with Section 114 CPC is limited and under the guise of review, the
petitioner cannot be permitted to reagitate and reargue questions which
have already been addressed and decided. It is further observed that an
error which is not self-evident and has to be detected by a process of       C
reasoning, can hardly be said to be an error apparent on the face of
record justifying the court to exercise its power of review under Order
47 Rule 1 CPC.
       Applying the law laid down by this Court in the aforesaid two
decisions to the facts of the case on hand, we are of the opinion that in
                                                                             D
the present case while allowing the review application and setting aside
the judgment and order dated 03.03.2017 passed in Writ Petition No.8606
of 2010 the High Court has exceeded in its jurisdiction and has exercised
the jurisdiction not vested in it while exercising the review jurisdiction
under Order 47 Rule 1 read with Section 114 CPC. From the reasoning
given by the High Court, it appears that according to the High Court the     E
judgment and order passed in Writ Petition No.8606 of 2010 was
erroneous. While passing the impugned judgment and order the High
Court has observed and considered the Survey Report dated 12.12.2007
which was already dealt with by the High Court while deciding the main
writ petition and the High Court discarded and/or not considered the
Survey Report dated 12.12.2007. Once the Survey Report dated                 F
12.12.2007 fell for consideration before the High Court while deciding
the main writ petition thereafter the same could not have been considered
again by the High Court while deciding the review application.
        5.4 From the impugned judgment and order passed by the High
Court it appears that the High Court has decided the review application      G
as if the High Court was exercising the appellate jurisdiction against the
judgment and order dated 03.03.2017 passed in Writ Petition (MD)
No.8606 of 2010 which is wholly impermissible while considering the
review application under Order 47 Rule 1 read with Section 114 CPC.
                                                                             H
54             SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A           5.5 From the impugned judgment and order passed by the High
     Court allowing the review application it is observed in paragraph 33 as
     under:
           “33. The above legal principals were born in mind by this Court
           while considering the review application. Brushing aside a survey
B          report, which was available on record and which brought out
           tampering of official records, ought to have been taken note of by
           the Learned Writ Court, while considering the prayer sought for
           in the Writ Petition. This has led to an error, which is manifest on
           the face of the order. Furthermore, the Court proceeded on the
           basis that S.M. Gajendran had executed a gift deed without nothing
C          the fact that the gift deed was a document, which was unilaterally
           executed by him, not accepted by the respondent Corporation
           and could not have been treated to be a valid gift. These facts
           have emerged on the fact of the order passed in the Writ Petition
           without any requirement for a long-drawn reasoning. Therefore,
D          we are fully satisfied that we are justified in exercising our review
           jurisdiction. For the above reasons, we are of the clear view that
           the order passed in the Writ petition suffers from error apparent
           on the fact of the records warranting exercise of review
           jurisdiction.”

E          5.6 From the aforesaid it appears that the High Court has
     considered the review application as if it was an appeal against the order
     passed by the High Court in Writ Petition No.8606 of 2010. As observed
     hereinabove the same is wholly impermissible while deciding the review
     application. Even if the judgment sought to be reviewed is erroneous the
     same cannot be a ground to review the same in exercise of powers
F    under Order 47 Rule 1 CPC. An erroneous order may be subjected to
     appeal before the higher forum but cannot be a subject matter of review
     under Order 47 Rule 1 CPC.
            6. In view of the above and for the reasons stated above and
     applying the law laid down by this Court on Order 47 Rule 1 read with
G    Section 114 CPC, we are of the opinion that in the present case while
     allowing the review application the High Court has exceeded in its
     jurisdiction and has exercised the jurisdiction not vested in it under Order
     47 Rule 1 read with Section 114 CPC and therefore the impugned
     judgment and order passed by the High Court allowing the review
     application and setting aside the order dated 03.03.2007 passed in Writ
H
    S. MURALI SUNDARAM v. JOTHIBAI KANNAN & ORS.                                     55
                   [M. R. SHAH, J.]

Petition No.8606 of 2010 is unsustainable and the same deserves to be                A
quashed and set aside.
       6.1 As the Contempt Petition has been dismissed by the High
Court on setting aside the order dated 03.03.2017 passed in Writ Petition
No.8606 of 2010, on setting aside the order passed in Review Petition
and consequently restoring the order dated 03.03.2017 passed in Writ                 B
Petition No.8606 of 2010 the dismissal of the contempt petition is to be
set aside and the matter is to be remitted to the High Court to decide the
same afresh in accordance with law and on its own merits.
      6.2 Similarly the order dismissing the Writ Petition (MD) No.14847
of 2017 and Writ Petition (MD) No.16256 of 2017 is also to be quashed                C
and set aside and the said writ petitions are to be remanded to the High
Court to decide the same afresh in accordance with law and on its own
merits.
       7. In view of the above and for the reason stated above, civil
appeal arising out of the impugned judgment and order dated 29.06.2021
                                                                                     D
in Review Petition (MD) No.21 of 2017 is allowed and the same order is
hereby quashed and set aside and the judgment and order dated
03.03.2017 passed in Writ Petition (MD) No.8606 of 2010 is hereby
restored.
       Consequently the remaining appeals arising out of the dismissal
of the Writ Petition (MD) No.14847 of 2017 and Writ Petition (MD)                    E
No.16256 of 2017 and the dismissal of the Contempt Petition (MD)
No.1109 of 2017 are also allowed and the said orders are hereby quashed
and set aside and the Writ Petition (MD) No.14847 of 2017 and Writ
Petition (MD) No.16256 of 2017 and the Contempt Petition No.1109 of
2017 are remitted back to the High Court to decide the same afresh in                F
accordance with law and on its own merits for which this Court has not
expressed anything in favour of the either parties.
       Present appeals are accordingly allowed to the aforesaid extent.
In the facts and circumstances of the case there shall be no orders as to
costs.
                                                                                     G

Ankit Gyan                                                        Appeals allowed.
(Assisted by : Abhishek Pratap Singh and Mahendra Yadav, LCRAs)



                                                                                     H