S. MURALI SUNDARAM versus JOTHIBAI KANNAN & ORS

Citation: [2023] 3 S.C.R. 47 · Decided: 24-02-2023 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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   [2023] 3 S.C.R. 47
47
S. MURALI SUNDARAM
v.
JOTHIBAI KANNAN & ORS.
(Civil Appeal Nos.1167-1170 of 2023)
FEBRUARY 24, 2023
[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
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
– 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
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
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
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
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SUPREME COURT REPORTS
[2023] 3 S.C.R.
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]
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
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
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
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
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
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
on.
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Case Law Reference
(2019) 20 SCC 753
relied on
Para 5.1
[2019] 16   SCR 252
relied on
P

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