IN THE HIGH COURT OF KERALA AT ERNAKULAM

Thottathil B. Radhakrishnan and P. Bhavadasan, JJ.

F.A.O. No. 72 of 2008

Decided On: 05.01.2011

Smt. Kamala Raphael

Vs.

Earnest

Head Note:-

Indian Evidence Act, 1872 - Section 41 - Limitation Act, 1963 - Article 137 - Probate Proceedings - Judgment in rem - Judgment, decree or order passed overlooking the provisions of the Limitation Act does not make the order ab initio void. It has as much force as a decree passed within the period of limitation. If any person is aggrieved by the decree, it is for him to challenge the same. Unless it is done, it is binding on all the parties in law. 

Held:- The above fact does not mean that the probate proceedings can be ignored. As per Section 41 of the Indian Evidence Act, it is the judgment in rem. Apart from the above aspect, the Appellant herein was a party to the probate proceedings and she had hotly contested the matter. The decree of the probate court was challenged before this Court by the Appellant herein and this Court confirmed the judgment of the probate court. That means, the probate proceedings had become final. There is no merit in the contention that the probate proceedings were barred by limitation and has to be ignored. As rightly pointed out by the learned Counsel for the Respondent in this appeal, it could not be said that in law, even assuming that the probate proceedings were barred by limitation, decree passed in the proceedings could be ignored and treated as non-est in law. Nor could it be treated as one with jurisdiction. It is well settled by now that the judgment, decree or order passed overlooking the provisions of the Limitation Act does not make the order ab initio void. It has as much force as a decree passed within the period of limitation. If any person is aggrieved by the decree, it is for him to challenge the same. Unless it is done, it is binding on all the parties in law. Therefore, there cannot be a collateral attack on these proceedings. 

Code of Civil Procedure, 1908 - Sections 35A, 91, 92, 95, 104 and 114 - Order 40, Rules 1 and 5 - Order 47, Rule 1 - Probate Proceedings - Review - Limitation -Section 114 of the Code, which confers substantive power of review does not prescribe any limitation on the power of the court except those provided in the provision itself. It is not as if apart from the grounds made mention of in Order 47 Rule 1, under no other circumstance a review can be considered. It is permissible for the court to take note of the subsequent events and modulate reliefs. 

Held:- It is not in dispute that the probate proceedings had terminated long after the preliminary decree had been passed. It was under such circumstances that the review Petitioner had taken part in the final decree proceedings also. In the decision referred to above, it has been noticed that Section 114 of the Code, which confers substantive power of review does not prescribe any limitation on the power of the court except those provided in the provision itself. The Apex Court had made it clear that it is not as if apart from the grounds made mention of in Order 47 Rule 1, under no other circumstance a review can be considered. It is permissible for the court to take note of the subsequent events and modulate reliefs. It cannot be disputed that in the case on hand the issuance of probate with copy of the Will, will have considerable impact on the preliminary decree already passed. It cannot be said that there was want of diligence on the part of the review Petitioner. The power of the court to mould the reliefs on the basis of the existing circumstances is well recognized. The lower court has noticed that even the Plaintiff in the suit was aware of the existence of the Will and that was concealed from the court. Of course, the Defendants could have pointed it out. But whatever that be, the court below found that there was some mischief played by the Plaintiff. The court below has exercised its jurisdiction after taking note of the various aspects involved in the case and it could not be said that there is any error of jurisdiction or that the order is perverse. 

Limitation Act, 1963 - Section 5 - Indian Succession Act, 1925 - Section 213 - Delay Condonation Petition - It is not necessary that the court should independently consider the delay condonation petition and thereafter consider the merits of the review petition. 

Held:- What is to be seen is whether the court has arrived at a conclusion that there was sufficient cause to condone the delay and in ascertaining that aspect the court is well within its powers to see whether there is any substance in the review petition at all. If the court is of the opinion that there is no substance in the review petition, then allowing the delay petition will be an idle exercise. In order to avoid such contingency, if the court below considered the merits of the review petition, it could not be found fault with. This contention too has to fail.

Chronological List of Cases Referred:

For Petitioner:

For Respondents:

1. R.D. Shenoy (Sr.)
2. S. Vinod Bhat
3. George Cherian
4. K.P. Aravindakshan
5. Rendeep Prem

J U D G M E N T

P. Bhavadasan, J.

1. A couple, namely, Varghese and Brjitha had four children. They are Kamala Raphel, Earnest, Vijayan and Thampi. Varghese died in 1977 and Brijitha on 3.9.1995.

2. It appears that the Appellant herein laid a suit as O.S. 286 of 1988 before the II Additional Sub Court, Ernakulam seeking partition of the estate left behind by Varghese. That was uncontested by the other sharers and an ex-parte decree was passed on 30.11.1990. Even though summons was served on the Defendants in the suit, they remained ex-parte. The Defendants seem to have filed I.A. 429 of 1991 to set aside the ex-part preliminary decree in the partition suit. That happened to be dismissed for default. An application thereafter to review and set aside the judgment was filed as I.A. 1367 of 1991 dated 25.2.1991 along with I.A.1366 of 1991, an application to condone the delay in filing I.A. 1367 of 1991. The trial court dismissed both the applications and that was confirmed in appeal.

3. The Plaintiff seems to have filed I.A. 6617 of 1993 for passing of the final decree on 8.11.1993. Notice was served on all the Respondents. The first Respondent herein had filed objections on 9.2.1996 to the final decree application and it is claimed by the Appellant herein that he had requested the court to pass a final decree in terms of the preliminary decree taking into consideration a few suggestions made by him. He also filed I.A. 544 of 1999 on 29.1.1999 to issue a direction to the Receiver to take possession of cents of land comprised in Sy. No. 289/1, which was included in the preliminary decree. It is pointed out that during the final decree proceedings, a receiver was also appointed. Proceedings for final decree are still going on and the final decree is yet to be passed.

4. Meanwhile, it appears that the first Respondent herein had moved the probate court seeking to have probate with copy of the Will annexed to the same. The Will is said to have been executed by Varghese, the father of the parties in the partition suit. Probate seems to have been granted and it is not in dispute that the Appellant was one of the parties to the proceedings. Order of the probate court was carried in appeal as A.S. 93 of 1995 before this Court and this Court confirmed the order of the probate court. It is stated that the third Respondent herein filed I.A.2191 of 2004 in the final decree proceedings to have the receiver discharged in the light of the probate granted in respect of the Will said to have been executed by late Varghese. According to him, the proceedings cannot go on and the preliminary decree became non-est in law. It is stated that I.A. 2191 of 2000 was allowed and the final decree proceedings were dropped and consequential orders were passed by the said court. The Appellant has filed I.A. 3834 of 2005 for reviewing the said order dated 12.7.2005 and the review petition was allowed.

5. While things stood thus, it appears that the first Respondent herein moved I.A. 5895 of 2005 dated 24.11.2005 for review of the ex-decree passed in the suit with a petition as I.A.5894 of 2005 filed under Section 5 of the Limitation Act to have the delay condoned in filing the review application of the preliminary decree. The review was sought on the basis that the review Petitioner had been wrongly advised regarding his participation in the partition suit. According to him, he was given to understand that unless the Will was probated, there was no point in him contesting the suit and he stayed away from court.

6. That application was resisted by the Appellant herein. She pointed out that the review petition is devoid of merits and it is highly belated. It was also pointed out by her that all along she has been recognised as an heir of the estate of her father and the Will was never put forward as a defence in any of the previous proceedings. It was also contended that even assuming that a probate is granted, it could not affect the title to the suit property, which was declared by virtue of the preliminary decree passed in the partition suit. Therefore, it was contended that there was no justification in filing the review petition.

7. In the review petition, it appears that the Petitioner was examined as P.W.1 and Exts.A1 and A2 were marked. The Respondent in the petition, who is the Appellant herein did not adduce any evidence. By order dated 21.1.2008 the trial court allowed both the applications and thus the preliminary decree passed by the court below stood reviewed and the suit was restored to file. It is the said order that is assailed in this appeal.

8. Sri. N. Subramanian, learned Counsel appearing for the Appellant raised three points for consideration. They are, (i) the probate proceedings were barred by limitation and an order passed in the said proceedings can have no legal effect, (ii) none of the grounds justifying review is available in the case on hand and the court below was wrong in allowing the review and (iii) the delay petition has not been independently considered and no sufficient grounds had infact been shown to condone the delay.

9. Elaborating on the above points, learned Counsel went on to point out that it is by now well settled that the probate proceedings are governed by Article 137 of the Limitation Act, which prescribes three years period for seeking probate or the letter of administration of the Will as the case may be. In the case on hand, the Will was executed in 1961 and the testator died in 1977. Nobody has a case that either Brijitha, wife of Varghese or his siblings were unaware of the Will. Probate of the Will was sought for only in 1991. According to learned Counsel, the period of three years begins to run either from the date of death of the testator concerned or from the date of knowledge of the Will. Going by any of the above criteria, the proceeding for probate was hopelessly barred by limitation. The probate court had no jurisdiction therefore to pass an order granting probate. It is therefore contended that the probate proceedings are not binding on the Appellant. In support, the learned Counsel relied on the decisions reported in Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur 2008 (2) KLT 296, Krishna Kumar Sharma Vs. Rajesh Kumar Sharma 2009 (2) KLT 149, Francis Vs. Cherupushpam, 2009 (3) KLT 479. Learned Counsel went on to point out that the law laid down by the Supreme Court will be deemed to have always been the law and the doctrine of prospective overruling is available only to the Apex Court. In support of the said contention, learned Counsel relied on the decisions reported in Dr. Suresh Chandra Verma Vs. The Chancellor, Nagpur University, (1990) 4 SCC 55, State Bank of India Vs. Kuttappan, 2000 (99) Comp Cas 309 and Kerala Agro-Industries Corporation Ltd. Vs. Amminikutty Amma 1997 (3) KLT 931.

10. Learned Counsel went on to point out that the grounds for review are provided in Section 104 of the Code of Civil Procedure read with Order 47 Rule 1 of CPC. None of the grounds mentioned therein were present in the facts of this case and the court below was not justified in reviewing its order of preliminary decree. It is not as if the propounders of the Will were unaware of the existence of the Will at the time of earlier proceedings and no justifiable reasons were given for not putting forward the Will. Having not done so, it comes too late in the day to say that since probate had been obtained, the earlier judgment is to be re-considered. Learned Counsel referred to Order 47 Rule 1 Code of Civil Procedure and contended that none of the grounds are available to the review Petitioner for seeking a review. In support of his contention, learned Counsel relied on the decisions reported in Raja Shatrunjit (Dead) by His Legal Representatives Vs. Mohammad Azmat Azim Khan, (1971) 2 SCC 200, Sunil Puri Vs. Modi Spinning and Weaving Mills Ltd., AIR 1995 Delhi 203, Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, (1995) 1 SCC 170, Md. Ashraf Ali Vs. Debraj Wadhera, 1995 Supp (2) SCC 654, Parison Devi Vs. Sumitri Devi, (1997) 8 SCC 715, Niranjan Sarkar Vs. Swapna Dam AIR 2001 Gauhati 92, Delhi Administration Vs. Gurdip Singh Uban, (2000) 7 SCC 296, Nandi Verdhan Jain Vs. Chander Kanta Jain, (2002) 9 SCC 471, Delta Foundations and Constructions Vs. Kerala State Construction Corporation Ltd., 2003 (1) KLT 626 and State of Nagaland Vs. Toulvi Kibami, (2003) 8 SCC 671.

11. It was also contended that the court below has not independently considered the delay condonation petition and therefore has erred in law. According to the learned Counsel, the court went on to consider the merits of the review petition and then decided to condone the delay. That, according to learned Counsel, is illegal and improper. The court below ought to have considered the delay petition first and should have ascertained whether the Petitioner therein had shown sufficient cause for condonation of delay. That has not been done and that has resulted in miscarriage of justice. On the basis of the above contention, it is pointed out that the order passed by the court below cannot be sustained.

12. Per contra, learned Counsel appearing for the Respondents, Sri. Vinod Bhat, contended that the order of the probate court is considered to be a judgment in rem and it cannot be ignored. Attention was drawn to the fact that the Appellant was a party to the proceedings and she had also filed an appeal against the order of the probate court. That appeal was dismissed and the order of the probate court with copy of the Will annexed has become final. If the Appellant was aggrieved by the appellate order, it was for her to carry the matter in appropriate proceedings before the Apex Court. There cannot be a collateral challenge to those probate proceedings. It was also contended that even assuming that the proceedings was barred by limitation, that does not make the order non-est or without jurisdiction. It is well settled, according to learned Counsel, that the order or judgment passed overlooking the limitation aspect is enforceable and the party aggrieved cannot ignore the same and say that it is void.

13. Learned Counsel then went on to point out that it is not correct to say that no grounds for review had been made out. In the petition to set aside the preliminary decree and seeking review, the Petitioner therein had elaborately stated the circumstances under which the delay occurred and as to why in the suit Will was not put forward. The court below found the reasons to be cogent and convincing enough and had accepted the same. The court below has clearly noticed that even the Plaintiff in the suit, who is the Appellant herein, was fully aware of the existence of the Will and it was concealing the said fact that the suit was laid. The court below was therefore of the opinion that she does not deserve any sympathetic consideration at all. The mere fact that the Defendant in the partition suit did not contest the matter does not mean that review cannot be sought. Learned Counsel fairly conceded that true, contentions to that effect could have been taken. But the advise received by there view Petitioner was that unless the Will is probated, there was no point in contesting the partition suit. It was under those circumstances the Will was not put forward in the partition suit and thus a preliminary decree happened to be passed. It is contended that justice demanded interference with preliminary decree. The court was entitled to set right the wrong committed and a review is fully justifiable in law. That is precisely what has been done in the instant case and there are no grounds to interfere with the order of the court below.

14. Learned Counsel then went on to point out that equally unacceptable is the plea with regard to the delay condonation petition. It was in order to ascertain whether there would be any purpose in condoning the delay that the court had gone into the merits of the case. The court has given cogent reasons for condoning the delay and was satisfied that sufficient cause had been shown. Merely because there are no separate orders and there is only one order on the review petition as well as in the delay petition, it does not mean that the court has not applied its mind to both the petitions. In support of his contention, learned Counsel relied on the decisions reported in State of Nagaland Vs. Lipok AO, JT 2005 (4) SC 10 and Board of Control for Cricket, India Vs. Netaji Cricket Club, AIR 2005 SC 592.

15. The litigation between the parties started in the year 1988. Even after the lapse of 23 years, it still carries on with full vigour. A preliminary decree for partition was passed as early as on 30.11.1990. Final decree proceedings were initiated in 1993. It is indeed sad to note that it is still pending in the year 2010.

16. The Appellant may have a point in contending that if as a matter of fact the Defendants in the suit, that is, O.S. 286 of 1988, had a contention that a Will had been executed by Sri. Varghese, they ought to have set up that defence in the suit itself. It is difficult to accept the plea made by the review Petitioner before the court below that since he was advised that no purpose will be served by contesting the suit unless the Will is probated cannot be easily accepted. True, at that point of time it was mandatory that the probate of the Will has to be obtained as far as Indian Christians were concerned. But there was no prohibition in carrying on parallel proceedings and seeking some time to obtain probate of the Will and till that proceedings is disposed of, the suit could have been kept pending. That would have been the proper course. That has not been done in the case on hand.

17. The above fact does not mean that the probate proceedings can be ignored. As per Section 41 of the Indian Evidence Act, it is the judgment in rem. Apart from the above aspect, the Appellant herein was a party to the probate proceedings and she had hotly contested the matter. The decree of the probate court was challenged before this Court by the Appellant herein and this Court confirmed the judgment of the probate court. That means, the probate proceedings had become final.

18. There is no merit in the contention that the probate proceedings were barred by limitation and has to be ignored. As rightly pointed out by the learned Counsel for the Respondent in this appeal, it could not be said that in law, even assuming that the probate proceedings were barred by limitation, decree passed in the proceedings could be ignored and treated as non-est in law. Nor could it be treated as one with jurisdiction. It is well settled by now that the judgment, decree or order passed overlooking the provisions of the Limitation Act does not make the order ab initio void. It has as much force as a decree passed within the period of limitation. If any person is aggrieved by the decree, it is for him to challenge the same. Unless it is done, it is binding on all the parties in law. Therefore, there cannot be a collateral attack on these proceedings.

19. In the decisions referred to by the learned Counsel forth Appellant, it was held that the probate proceedings are governed by Article 137 of the Limitation Act. It is also true that going by the principle laid down in the said decisions, the probate proceedings, probably now taken aid of by the review Petitioner, may have been out of time. But as already noticed, no such ground was urged before the probate court or before the appellate court and order came to be passed in the probate court and confirmed by the appellate court. As already noticed, it could not be said that the order is one without jurisdiction. It is not a void order at all. In the light of this fact, it is unnecessary to refer to the decisions relied on by the Appellant in this regard. This contention has necessarily to fail.

20. There is no inherent right of review. The power of review is the creation of a statute. Section 104 of the Code of Civil Procedure provides for a right of review and Order 47 deals with the grounds and the procedures to be followed in considering the review petition. Section 104 reads as follows:

104. Orders from which appeal lies.- (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:

(ff) an order Section 35A;

(ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be,

(g) an order under Section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is expressly allowed by rules:

(Provided that no appeal shall lie against any order specified in Clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made)

(2) No appeal shall lie from any order passed in appeal under this Section.

Order 47 Rule 1 reads as follows:

1. Application for review of judgment.- (1) Any person considering himself aggrieved

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred;

(b) by a decree or order from which no appeal is allowed, or ) by a decision on a reference from a Court (exercising small cause jurisdiction. and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the Appellant, or when, being Respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation.-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.

21. It is by now well settled that review is not granted as a matter of course. Unless there are compelling circumstances, normally a court will not entertain a review application. At any rate, it has to satisfy among one of the grounds enumerted under Order 47 Rule 1. In the decision reported Raja Shatrunjit (Dead) by His Legal Representative's case (supra) the question as to the interpretation to be given to the words "any other sufficient reason" was considered. It was held as follows:

Under O.47 of the Code of Civil Procedure the principles of review are defined by the Code and the words "any other sufficient reason" in Order 47 of the Code and the words "any other sufficient reason" in Order 47 of the Code would mean a reason sufficient on grounds analogus to those specified immediately previously in that order. The grounds for review are the discovery of new matters or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or the review is asked for on account of some mistake or error apparent on the face of the record.

22. In the decision reported in Sunil Puri Vs. Modi Spinning and Weaving Mills Ltd. (supra), it was held as follows:

Strictly the way this point has been taken in the review application the objection is that the point has not been dealt with in the correct perspective. Firstly I do not agree that the point has not been dealt with in the correct perspective. Secondly, even if that were so this is no ground for review of the judgment so long as the point is dealt with and answered.

23. In the decision reported in Meera Bhanja's case (supra) it was held as follows:

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, R.1 Code of Civil Procedure in connection with the limitation of the powers of the Court under Order 47, R.1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma, AIR 1979 SC 1047, speaking through Chinnappa Reddy, J., has made the following pertinent observations (para 3):

It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of Plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. 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. A power or 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,"

Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent 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 points where there may conceivably the two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde Vs. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137 wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:

"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. Where an alleged error is far from self evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ.

In the light of this settled legal position let us try to see whether in the present case the latter Division Bench while dealing with the review petition had overstepped the limits of jurisdiction under Order 47, R.1, and whether it had resorted to reappreciation of evidence by almost sitting in appeal over the decision reached by the earlier Division Bench.

24. In the decision reported in MD. Ashraf Ali's case (supra), it was held as follows:

In a suit for eviction on the basis of the tenant having created a sub-tenancy the trial court decided in favour of the landlord. The judgment and decree of the trial court was affirmed in first appeal and then in second appeal by a learned Single Judge of the Calcutta High Court on April 6, 1992 passed in Second Appeal No. 757 of 1990. Surprisingly, the learned Judge later reviewed his own order under Order 47, Rule 1 Code of Civil Procedure and overturned the judgment he had passed on merits. This was not permissible to the learned Judge at all in view of the strict terms of Order 47, Rule 1 CPC. Arena of facts was outside the sphere of a second appeal, what to say about a review proceeding arising from that order. We, thus, have no option but to allow the appeal and set aside the impugned order restoring in law the order dated April 6, 1992, leaving it open to the Respondent to challenge the said order, if so advised, by a special leave petition in this Court. It is thus so ordered. We make it clear though that we are not even remotely opining on the correctness of the order dated April 6, 1992.

25. In the decision reported in Parsion Devi's case (supra), it was held as follows:

It is well settled that review proceedings have to be strictly confined to the ambit and scope of O.47 R.1 CPC. In Thungabhadra Industries Ltd. Vs. Govt. of A.P., this Court opined:

What, however, we are not concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record.' The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by '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.

Again, in Meera Bhanja Vs. Nirmala Kumari Choudhury, 1995 (1) SCC 170 while quoting with approval a passage from Aribam tuleshwar Sharma Vs. Aribam Pishak Sharma, 1979 (4) SCC 389 this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of O.47 R.1 CPC.

Under O.47 R.1 Code of Civil Procedure a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 the record justifying the court to exercise its power of review under O.47 R.1 CPC. In exercise of the jurisdiction under O.47 R.1 Code of Civil Procedure it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise."

Considered in the light of this settled position we find that Sharma, J. clearly overstepped the jurisdiction vested in the Court under O.47 R.1 CPC. The observations of Sharma, J. that "accordingly, the order in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunctions were provided" and as such the case was covered by Article 182 and not Article 181 cannot be said to fall within the scope of O.47 R.1 CPC. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. While passing the impugned order, Sharma, J. found the order in Civil Revision dated 25.4.1989 as an erroneous decision, though without saying so in so many words. Indeed, while passing the impugned order Sharma, J did record that there was a mistake or an error apparent on the face of the record which was not of such a nature, "which had to be detected by a long drawn process of reasons" and proceeded to set at naught the order of Gupta, J. However, mechanical use of statutorily sanctified phrases cannot detract from the real import of the order passed in exercise of the review jurisdiction. Recourse to review petition in the facts and circumstances of the case was not permissible. The aggrieved judgment debtors could have approached the higher forum through appropriate proceedings to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a "review" of the order of Gupta, J. on the grounds detailed in the review petition. In this view of the matter, we are of the opinion that the impugned order of Sharma, J. cannot be sustained and we accordingly accept this appeal and set aside the impugned order dated 6.3.1997.

26. In the decision reported in Niranjan Sarkar's case (supra), it was held as follows:

In an application for review of a judgment passed in Second Appeal, the court can only consider the errors apparent on the face of the record in its judgment on the substantial questions of law already heard and decided by the court and cannot consider fresh substantial question of law which was not heard and decided by the court at the time of disposal of the second appeal.

27. In the decision reported in Delhi Administration's case (supra), it was held as follows:

It is first necessary to refer to the well known concept that a review is not a rehearing and point out that its scope is very narrow. Order 40 Rule 1 of the Supreme Court Rules provides as follows:

1. The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order 47, Rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.

In Thungabhadra Industries Ltd. Vs. Govt. of A.P., AIR 1964 SC 1372 this Court stated that there was a real distinction between a mere erroneous decision and a decision which could be characterized as vitiated by "error apparent" and that a "review" was by no means an "appeal" in disguise. This legal position was reiterated in subsequent judgments of this Court.

What we have said above equally applies to such applications filed after rejection of review applications particularly when a second review is not permissible under the Rules. Under Order 40 Rule 5 a second review is not permitted.

5. Where an application for review of any judgment and order has been made and disposed of, no further application for review shall be entertained in the same matter.

28. In the decision reported in Nandi Verdhan Jain's case (supra), it was held that when there was no patent error in the order sought to be reviewed, the review application deserved to be dismissed.

29. In the decision reported in Delta Foundations and Constructions (supra), it was held as follows:

Counsel appearing for the review Petitioner placed reliance on the decision of the Apex Court in Raja Shatrunjit Vs. Mohammed Azmat Azim Khan, AIR 1971 SC 1474 and contended that the grounds for review under O.47 of the Code of Civil Procedure includes mistakes or errors apparent on the face of the record. Error apparent on the face of the record must be an error which must strike on mere looking at the record and would not require long drawn process of reasoning on points on which there may conceivably be two opinions. An error which is not self evident and has to be detected by a process of reasoning can hardly said to be an error apparent on the face of the record justifying the court to exercise its powers under O.47 R.1 of the Code of Civil Procedure. As held by the Apex Court in Parsion Devi and Ors. Vs. Sumitri Devi and Ors., 1997 (8) SCC 715 if there is a clear distinction between an erroneous decision and an error apparent on the face of the record the first can be corrected by the higher forum while the latter can only be corrected by exercise of the review jurisdiction.

30. In the decision reported in State of Nagaland's case (supra) it was held as follows:

Having heard learned Counsel for the parties, we are of the view that in view of the subsequent events that had taken place consequent upon the judgment of the Division Bench, the review petition filed by Respondent No. 1 was not maintainable. In fact the judgment of Letters Patent Bench was acted upon and it stood exhausted and the review petition was futile. Under such circumstances, the review petition ought to have been entertained and decided on merits.

31. In Punjab National Bank Vs. V.P. Mehra, AIR 2004 Delhi 135 it was held as follows:

So far as the Review Petition is concerned, the Trial Court had rightly observed that the prayer does not satisfy the essential ingredients under Order 47, Rule 1 of the Code of Civil Procedure. It was not the case of the Defendant that new and important matters or evidence had been discovered; or that a mistake or error apparent on the face of the record was evident. Counsel for the Defendant has sought to contend before me that the phrase 'any sufficient reason' will take within its ambit any reason whatsoever but this argument is erroneous and misconceived. The phrase 'any sufficient reason' must be construed ejusdem generis with the words preceding it. the Order dated 3.1.2004 is therefore upheld as no jurisdictional error is contained therein.

32. The ground on which review is sought in the present case is that since probate had been granted with copy of the Will executed by late Varghese annexed to it, the preliminary decree passed in the partition suit cannot survive. In the petition for review and in the petition seeking condonation of delay in seeking review, the Petitioner therein had elaborately stated the reasons which dissuaded him from setting forth the Will in the partition suit. Going by the law as it then stood, it could not be said that it was a wrong impression. It is true that going by Section 213 of Indian Succession Act as it now stands, probate is not mandatory. But that was not the law then. A Christian Will, unless and until it was probated or letter of administration obtained with regard to the same, could confer no right on the legatees. As already noticed, they could have indicated the execution of the Will in the partition suit and sought for keeping in abeyance the said proceedings till orders are passed in the probate proceedings. Merely because that was not done, it does not mean that probate proceedings can be ignored. The order in probate or letters of administration proceedings is final and binding on the whole world. It is significant to notice that even the Appellant herein was fully aware of the existence of the Will and it was not as if it was being put forward for the first time in the probate proceedings. It is true that going by the Will she stands disinherited. But it was indicated by the learned Counsel appearing for the Respondents in this appeal that properties had been given to her by their late father. Whatever that be, the Will said to have been executed by late Varghese is found to be the last testamentary disposition by him. It cannot be disputed that the order in the probate proceedings will have considerable impact regarding the distribution of the property among the legal heirs. If the order in the probate proceedings is accepted, then, the partition suit may have to fail. True, in probate proceedings, the issue of title is not decided, while in the preliminary decree for partition it had to be held that the Plaintiff therein had title to the suit property. But it could not be said that the two judgments are inconsistent and contradictory. They are two independent proceedings having independent existence and consequence, though the probate proceedings may have an impact on the partition suit.

33. It is true that the review Petitioner had participated in the final decree proceedings and had sought for passing of the final decree on certain terms and conditions. Even at that point of time, he did not put forward the case based on the Will. But there can be no estoppel against him and there can be no waiver of his rights. At that time, it is an admitted fact that probate proceedings were pending and the Appellant was contesting the proceedings. As noticed earlier, unless probate proceedings terminated in favour of the propounder, there was no purpose in putting forward the Will in the partition suit as per the law as it then stood. Though there have been laches on the part of the review Petitioner, it could not be said that he could not depend upon the order in the probate proceedings as confirmed by this Court in appeal.

34. It will not be out of place to refer to the decision relied on by the learned Counsel for the Respondent in Board of Control for Cricket Vs. Netaji Cricket Club (supra), wherein it was held as follows:

We are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law. Section 114 of the Code empowers a Court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law dos not prescribe any limitation on the power of the Court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit.

Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.

Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in O.47, R.1 of the Code is wide enough to include a misconception of fact or law by a Court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gavabit.

It is true that in Moran Mar Baselios Catholicos and Anr. Vs. Most Rev. Mar Poulose Athanasius and Ors., (1955) 1 SCR 520 this Court made observations as regard limitations in the application of review of its order stating:

Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms of Order XLVII, Rule 1 of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record, and (iii) for any other sufficient reason. It has been held by the Judicial Committee that he words "any other sufficient reason" must mean a reason sufficient on grounds, at least analogous to those specified in the rule", but the said rule is not universal.

Yet again in Lily Thomas (supra), this Court has laid down the law in the following terms:

52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement." It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi thakershi Vs. Pradyumanshinghji Arjunsinghji, AIR 1970 SC 1273 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules of procedures or technicalities of law cannot stand in the way of administration of justice Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error....

It is also not correct to contend that the Court while exercising its review jurisdiction in any situation whatsoever cannot take into consideration a subsequent event. In a case of this nature when the Court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned Senior Counsel appearing on behalf of the Board and its correlation with as to what transpired in the AGM of the Board held on 29th September, 2004, the subsequent event may be taken into consideration by the Court for the purpose of rectifying its own mistake.

In Rajesh D. Darbar and Ors. Vs. Narasingrao Krishnaji Kulkarni and Ors., (2003) 7 SCC 219, this Court noticed:

4. The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or re-shaped in the light of updated facts. Patterson Vs. State of Alabama, (1934) 294 US 600, illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive or substantive rights enforceable in that very litigation except in a narrow category (late spelt out) but may influence the equitable jurisdiction to mould reliefs. conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Vs. Keshwar Lal, AIR 1941 FC 5, falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs-cannot deny rights-to make them justly relevant in the in the updated circumstances. Where the relief is discretionary, Courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening fats with fundamental impact. This Court's judgment in Pasupuleti Venkateswarlu Vs. Motor & General Traders, AIR 1975 SC 1409 read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made u the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other wise. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the Court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine - See V.P.R. v. Chockalingam Chetty Vs. Seethai Ache, AIR 1927 PC 252.

35. It is not in dispute that the probate proceedings had terminated long after the preliminary decree had been passed. It was under such circumstances that the review Petitioner had taken part in the final decree proceedings also. In the decision referred to above, it has been noticed that Section 114 of the Code, which confers substantive power of review does not prescribe any limitation on the power of the court except those provided in the provision itself. The Apex Court had made it clear that it is not as if apart from the grounds made mention of in Order 47 Rule 1, under no other circumstance a review can be considered. It is permissible for thecourt to take note of the subsequent events and modulate reliefs. It cannot be disputed that in the case on hand the issuance of probate with copy of the Will, will have considerable impact on the preliminary decree already passed. It cannot be said that there was want of diligence on the part of the review Petitioner. The power of the court to mould the reliefs on the basis of the existing circumstances is well recognized. The lower court has noticed that even the Plaintiff in the suit was aware of the existence of the Will and that was concealed from the court. Of course, the Defendants could have pointed it out. But whatever that be, the court below found that there was some mischief played by the Plaintiff. The court below has exercised its jurisdiction after taking note of the various aspects involved in the case and it could not be said that there is any error of jurisdiction or that the order is perverse.

36. Coming to the issue regarding the delay condonation petition, the contention, it must be said, is without any basis whatsoever. The court applied its mind to find out whether there is any substance in the review petition and whether the delay needs to be considered. The court has considered the reasons for the delay, though not by a separate order. The court below has adverted to this aspect and has observed that truth and justice should be upheld and therefore the matter needs to be reconsidered. Moreover, the review Petitioner has given an explanation and his reasons for the delay. It could not be said that there was deliberate laches or negligence on his part, and moreover, the court below has analyzed that if at all any injury is caused to the Respondents before the court below, that can be compensated by awarding costs.

37. Learned Counsel appearing for the Respondents relied on the decisions reported in State of Nagaland Vs. Lipok, JT 2005 (4) SC 10 with regard to the issue as to what constitute sufficient cause etc. It is seen observed as follows:

The expression "every day's delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pited against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides.

The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. the factors which are peculiar to an characteristic of the functioning of the governmental conditions would be cognizant to ad requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit.

There was sufficient cause for condoning the delay in the institution of the appeal.

It is also observed as follows:

“The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan Vs. M. Krishnamurthy it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplate that the Court has to go in the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause recorded in the peculiar circumstances of the case is sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels.

What constitutes sufficient cause cannot be laid down by hard and fast rules. In New India Insurance Co. Ltd. Vs. Shanti Misra this Court held that discretion given by Section 5 should not be defined crystallised so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In Brij Indar Singh Vs. Kanshi Ra, it was observed that true guide for a court to exercise the discretion under Section 5 is whether the Appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

In Concord of India Insurance Co. Ltd. Vs. Nirmala Devi which is a case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy, the default in delay was condoned. In Lala Matu Din Vs. A. Narayanan, this Court had held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive.

In the said decision it is also observed that in case it is found that the refusal to condone delay will result in gross miscarriage of justice, that would be a ground to condone the delay. Normally, when it is found that there is some substance in the matter, liberal approach is taken with regard to the condonation of delay.

38. It is not necessary that the court should independently consider the delay condonation petition and thereafter consider the merits of the review petition. What is to be seen is whether the court has arrived at a conclusion that there was sufficient cause to condone the delay and in ascertaining that aspect the court is well within its powers to see whether there is any substance in the review petition at all. If the court is of the opinion that there is no substance in the review petition, then allowing the delay petition will be an idle exercise. In order to avoid such contingency, if the court below considered the merits of the review petition, it could not be found fault with. This contention too has to fail.

39. However, as rightly noticed by the court below, any injury caused to the Plaintiff in the suit, who is the Appellant before this Court can be compensated by granting adequate compensation by way of costs. Taking into consideration the pendency of the proceedings for a long time and the various steps taken by the Appellant, it is felt that she should be awarded costs of Rs. 1,50,000/ payable by the review Petitioner before the court below.

In the result, while dismissing this appeal, it is ordered that the review Petitioner before the court below shall pay a sum of Rs. 1,50,000/- as costs to the Plaintiff in the suit within one month from the date of this order, failing which this appeal will stand allowed and the review petition and the delay condonation petition will stand dismissed.