Haridas Das v Smt Usha Rani Banik (2006)

Review is the narrowest of the three post-decree remedies, and the reason candidates lose marks on it is that they treat it as a second appeal to the same judge. This case states the boundary in the sharpest available form: a review is by no means an appeal in disguise, and an error which has to be established by a long-drawn process of reasoning is not an error apparent on the face of the record.

It is also useful because it separates s. 114 from Order XLVII Rule 1. Section 114 says who may apply and to which court, but does not itself state the grounds; the parameters are prescribed in Order XLVII.

Kalipada Das, the original owner of the suit property, entered into an oral agreement with the appellant on 19 August 1982, receiving Rs 14,000 the same day towards an agreed consideration of Rs 46,000 for his portion of the property with the dwelling house on it. Possession was handed over, with a promise that a sale deed would be executed within three years. On 23 August 1982 a further Rs 31,000 was paid, so that Rs 45,000 had been paid and only a nominal Rs 1,000 remained due at the time of execution.

As the time for execution approached, the appellant learnt that Kalipada Das was trying to sell part of the property to a third person and to mortgage part of it to the Housing Board, and was threatening to dispossess him. The appellant paid the balance of Rs 1,000 and demanded a registered sale deed.

The four suits.

1. Title Suit No. 201 of 1985 — filed by the appellant to protect his possession, seeking confirmation of possession and a permanent injunction restraining sale or dispossession. In that plaint the appellant expressly reserved his right to file another suit to get the sale deed executed. An interim order directed status quo. The suit was dismissed for default and restored. 2. Title Suit No. 1 of 1986 — for specific performance of the agreement. 3. During those proceedings Kalipada Das executed and registered a sale deed in favour of Usha Rani Banik, possession remaining with the appellant. The appellant then filed Title Suit No. 2 of 1987 to cancel that sale deed as illegal, fraudulent and void. 4. Usha Rani Banik filed Title Suit No. 22 of 1987 for a declaration of her title on the sale deed.

Title Suit No. 2 of 1987 was decreed and the sale deed cancelled. The District Judge, Karimganj, allowed the appeal and set that decree aside. The appellant's Second Appeal No. 12 of 1993 was allowed by the Gauhati High Court on 21 August 2002, restoring the decree in Title Suit No. 2 of 1987.

The review. Usha Rani Banik applied for review of that second-appeal judgment. A single judge of the High Court allowed the review, holding that no leave under Order II Rule 2 had been obtained in Title Suit No. 201 of 1985, so that the suit for specific performance was hit by Order II, and that this was a case of a mistake or error apparent on the face of the record.

Was there an error apparent on the face of the record such as to attract the review jurisdiction under Order XLVII Rule 1?

No. The High Court had clearly fallen into error in accepting the prayer for review. Its order was set aside and the judgment in the second appeal restored.

Section 114 does not state the grounds. It merely says that the court may make such order as it thinks fit; it does not even adumbrate the ambit of interference. The parameters are in Order XLVII.

The three grounds on which review may be sought under Order XLVII Rule 1 are: the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge; that such matter or evidence could not be produced when the decree was passed or order made; and some mistake or error apparent on the face of the record, or any other sufficient reason.

The two limbs of the third ground. The former part of the rule deals with a situation attributable to the applicant; the latter with a judicial act which is manifestly incorrect, or on which two conclusions are not possible. Neither postulates a rehearing because a party did not highlight all aspects of the case, or could have argued them more forcefully, or could have cited binding precedents and so obtained a favourable verdict.

The Explanation confirms this. The fact that the decision on a question of law on which the judgment is based has been reversed or modified by a later decision of a superior court in another case is not a ground for review.

Error apparent, defined. From Thungabhadra Industries Ltd. v Government of Andhra Pradesh (1964): there is a real distinction between a merely erroneous decision and one vitiated by an 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. Where without any elaborate argument one could point to the error and say that here is a substantial point of law which stares one in the face, and about which there could reasonably be no two opinions, a clear case of error apparent is made out.

From Satyanarayan Laxminarayan Hegde v Mallikarjun Bhavanappa Tirumale: an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.

From Aribam Tuleshwar Sharma v Aribam Pishak Sharma (1979), followed in Meera Bhanja v Nirmala Kumari Choudhary: the power of review may be exercised on the discovery of new and important matter or evidence, or where a mistake or error apparent on the face of the record is found, or on any analogous ground; but it may not be exercised on the ground that the decision was erroneous on the merits. That is the province of a court of appeal, and the power of review is not to be confused with appellate power.

From Parsion Devi v Sumitri Devi: an error which is not self-evident and has to be detected by a process of reasoning can hardly be an error apparent on the face of the record; a review petition has a limited purpose and cannot be allowed to be an appeal in disguise.

Circumspection where an appeal lies. Where the order in question is appealable, the aggrieved party has an adequate and efficacious remedy, and the court should exercise the power of review with the greatest circumspection.

Two independent reasons. First, the question whether Title Suit No. 201 of 1985 was barred by Order II Rule 2 arose in Title Suit No. 1 of 1986 and was irrelevant to Title Suit No. 2 of 1987, which was the suit before the court. Secondly, the High Court was wrong to say that no leave under Order II Rule 2 had been sought: the oral agreement of 19 August 1982 was pleaded in the plaint, and at the end of the plaint it was recorded that the right to institute a suit for specific performance was reserved. Order II Rule 2 had no application at all.

Relying on the Constitution Bench decision in Pandurang Dhondi Chougule v Maruti Hari Jadhav, the court records that res judicata is an issue of law and may therefore be tried as a preliminary issue; and that issues of limitation, maintainability and court-fee may likewise be treated as preliminary issues under Order XIV Rule 2(2), since no detailed evidence is needed, though evidence of a formal nature may still have to be led because such issues either create a bar under the law in force or are jurisdictional.

For a review question, state s. 114 and Order XLVII Rule 1 separately, and say which supplies the grounds. Then give the three grounds, the Explanation, and the definition of error apparent from Thungabhadra and Satyanarayan Hegde. Close with the comparison table that examiners reward: appeal to a superior court on fact and law; review by the same court on the limited grounds; revision by the High Court confined to jurisdiction under s. 115.

Any other sufficient reason is not a residual discretion. Read with the authorities collected here, it means a reason analogous to the specified grounds. A candidate who treats those words as an open door has given the answer that Order XLVII Rule 1 has been construed for a century to exclude.