Meera Bhanja v Nirmala Kumari Choudhury (1994)

Review is the most misunderstood remedy in the Code. A losing party who thinks the judgment is wrong naturally wants the same court to look at it again. This case marks the boundary: review is not an appeal in disguise. A High Court Bench that re-read all the evidence and reversed an earlier Bench's findings, while calling the earlier findings "errors apparent on the face of the record", exceeded its jurisdiction — and the Supreme Court restored the original judgment.

It is also the case in which the Supreme Court adopted, for review under Order 47 Rule 1, the classic statement of the limits of review from Aribam Tuleshwar Sharma v Aribam Pishak Sharma (1979), and the classic test of "error apparent" from Satyanarayan Laxminarayan Hegde v Mallikarjun Bhavanappa Tirumale.

The appellant, the plaintiff, sued in the court of the Subordinate Judge, Midnapore (Title Suit No. 67 of 1970) for partition of two plots, C.S. Plot Nos. 73 and 74, which she said her husband and the defendant's husband, close friends, had bought jointly. The trial court decreed partition of Plot 73; for Plot 74 it gave a declaration of title to a specific 5 decimals and an injunction, but no partition. The first appellate court confirmed the refusal of partition for Plot 74.

In second appeal the Calcutta High Court, by a Division Bench judgment of 3 August 1978, exercising its power under s. 103 CPC, considered the title documents and oral evidence and held that the parties had bought without partition, so the plaintiff was entitled to partition of Plot 74 as well.

The defendant applied for review under Order 47 Rule 1. Another Division Bench, on 5 September 1984, allowed the review as to Plot 74. It re-examined the sale deeds, the settlement records and the oral evidence, concluded that the plaintiff had bought a demarcated portion and not an undivided half, and held that the earlier Bench had committed errors apparent on the face of the record. The second appeal was then re-heard and dismissed as to Plot 74 on 8 July 1986. The plaintiff appealed by special leave.

1. What are the limits of the power of review under Order 47 Rule 1 CPC?
2. Did the Review Bench stay within those limits, or did it in substance sit in appeal over the earlier Division Bench by re-appreciating the evidence?

For the appellant: though the Review Bench spoke of an apparent error, in substance it sat in appeal, re-appreciated the oral and documentary evidence, and acted beyond the jurisdiction conferred by Order 47 Rule 1; there was no apparent error at all.

For the respondent: the earlier Bench had not properly considered all the relevant aspects and "had left many loose threads to be tied", so its decision suffered from a patent error of law which the Review Bench was entitled to correct.

The appeal was allowed. The review judgment of 5 September 1984 and the consequential order of 8 July 1986, so far as they concerned Plot 74, were set aside, and the High Court's judgment of 3 August 1978 was restored. No order as to costs.

Review is not an appeal

The Court began from settled law: "It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC."

It then adopted the passage from Aribam Tuleshwar Sharma (Chinnappa Reddy J), which, though spoken of review under Article 226, states the limits exactly:

"The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal."

And: "A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court."

What an "error apparent" is

The Review Bench had said it was acting only on the ground of error apparent on the face of the record. The Court explained that such an error "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 points where there may conceivably be two opinions." It relied on Satyanarayan Laxminarayan Hegde: "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."

The Review Bench overstepped

Measured against those tests, the Review Bench had failed. It had "reconsidered the entire evidence pertaining to C.S. Plot No. 74 and almost sat in appeal against the findings and judgment recorded by the earlier Division Bench." The Court held:

"In substance, the Review Bench has re-appreciated the entire evidence, sat almost as court of appeal and has reversed the findings reached by the earlier Division Bench. Even if the earlier Division Bench's findings regarding C.S. Plot No. 74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate court."

Labelling a finding a patent error does not make it one: the Review Bench had overstepped its jurisdiction "by merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error." Counsel for the respondent could not show how the review could be supported within "the narrow and limited scope of Order 47, Rule 1 CPC". The Court concluded: "Right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned."

Review under Order 47 Rule 1 CPC is strictly confined to its grounds — discovery of new and important matter or evidence not available despite due diligence, a mistake or error apparent on the face of the record, or an analogous ground — and cannot be exercised on the ground that the decision was erroneous on the merits. An error apparent on the face of the record is one that strikes one on a mere look at the record; an error that can be shown only by a long-drawn process of reasoning, or by re-appreciating evidence on points admitting two opinions, is not such an error. A court that re-appreciates the evidence and reverses findings on review acts as a court of appeal and exceeds its jurisdiction.

• Direct question: Discuss the grounds and limits of review under Order 47 Rule 1 CPC. State the three grounds from Aribam Tuleshwar Sharma as adopted here, then the line: review "may not be exercised on the ground that the decision was erroneous on merits".
• Distinguish review and appeal: "A power of review is not to be confused with appellate power." Use this case's facts — re-reading sale deeds and settlement records — as the example of a review court sitting in appeal.
• Problem question: a party seeks review saying the court misread the evidence. Apply the "strike one on mere looking" test: if the error needs lengthy argument or re-weighing of evidence, review is not available; the remedy is appeal.
• Link: later cases on review, such as Haridas Das v Usha Rani Banik (2006), follow this statement of the law.