ASHARFI DEVI (D) THR. LRS. versus STATE OF U.P. & ORS.

Citation: [2019] 1 S.C.R. 855 · Decided: 01-02-2019 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Dismissed

Judgment (excerpt)

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ASHARFI DEVI (D) THR. LRS.
v.
STATE OF U.P. & ORS.
(Civil Appeal No. 5217 of 2010)
FEBRUARY 01, 2019
[ABHAY MANOHAR SAPRE AND
DINESH MAHESHWARI, JJ.]
Constitution of India – Art. 142 – Powers under – Invocation
of – Ceiling proceedings challenged in a writ petition – Dismissed
by the High Court – Review application also dismissed – Appeal
only against the review order, wherein appellants seeking to
challenge the legality of main order – Held: The instant appeal
does not arise out of the main order passed in the writ petition but
arises out of review order only and, thus, the legality and correctness
of the main order cannot be examined in this appeal like an appellate
court – There was no legal impediment on the appellants’ right to
file the SLP in Supreme Court as soon as the main order was passed
– When the present SLP was filed in the year 2010 against the review
order, the original appellant again did not challenge the main order
– Thus, no ground to invoke extraordinary powers u/Art. 142 and
permit the appellants to question the legality of main order in this
appeal – Urban Land (Ceiling and Regulation) Act, 1976.
Code of Civil Procedure, 1908 – Or. XLVII, r. 1 – Review order
– Legality of – Held: Every error whether factual or legal cannot
be made subject matter of review u/Or. XLVII, r. 1 though it can be
made subject matter of appeal arising out of such order – In order
to attract the provisions of Or. XLVII, r. 1, the error/mistake must be
apparent on the face of the record of the case – On facts, review
order was passed in conformity with the requirements of Or. XLVII,
r. 1 and, thus, the High Court rightly concluded that the main order
impugned in the review application did not contain any factual or/
and legal error within the meaning of Or. XLVII, so as to entitle the
review Court to recall the same in its review jurisdiction – Once the
finding was recorded by the High Court in the Writ petition that the
writ petitioner failed to prove her case, such finding could not have
[2019] 1 S.C.R. 855
855
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SUPREME COURT REPORTS
[2019] 1 S.C.R.
been examined de novo in review jurisdiction by the same Court
like an appellate court on the facts and evidence – Reasoning and
conclusion arrived at by the High Court (Review Court) in the
impugned order is concurred with.
Dismissing the appeal, the Court
HELD: 1.1 The original appellant (writ petitioner) never
challenged the legality and correctness of the main order passed
in the writ petition but confined her challenge only to the order
passed in the review application. Though counsel for the appellant
contended that reading of the list of dates in this appeal shows
that the original appellant has challenged the main order also
along with the review order, but it is not found so. The original
appellant not having challenged the legality of the main order in
a separate SLP or in this appeal, this Court is not called upon to
examine the legality and correctness of the main order dated
14.03.2008 in the present appeal. [Paras 9, 10 and 11][859-C-E]
1.2 The original appellant did not assign any reason as to
what prevented her in the last almost 11 years in not filing the
SLP against the main order. There was no legal impediment on
the appellants’ right to file the SLP in this Court as soon as the
main order was passed and when the present SLP was filed in the
year 2010 against the review order, the original appellant again
did not challenge the main order. In view thereof, there is no
good ground to invoke extraordinary powers under Article 142
of the Constitution and permit the appellants (legal
representatives of original appellant) to question the legality of
main order in this appeal. [Paras 13-15][859-F-H; 860-A-B]
1.3 While examining the legality of the review order, the
legality of main order cannot be examined on its merits because,
this appeal does not arise out of the main order. Therefore, inquiry
is to be confined with a view to find out whether the review order
is legally sustainable or not. [Para 18][860-C-D]
1.4 It is a settled law that every error whether factual or
legal cannot be made subject matter of review under Order XLVII
Rule 1 of the Code though it can be made subject matter of appeal
arising out of such order. In other words, in order to attract the
provisions of Order XLVII Rule 1 of the Code, the error/mistake
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must be apparent on the face of the record of the case. [Para
21][860-F-G]
1.5

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