Case Note & Summary
The Supreme Court allowed an appeal against the High Court's order in a review petition that deleted a paragraph from its earlier judgment in a property dispute. The original plaintiff, Shri Ram Sahu (since deceased, represented by legal representatives), had filed a civil suit seeking declaration that a sale deed dated 25.03.1995 executed by defendant no.3 in favor of defendant nos.1 and 2 was null and void, and for permanent injunction. The plaintiff claimed ownership based on a will executed by Chhimmabai on 19.10.1993 and asserted continuous possession. The defendants denied the will and claimed that defendant no.3 was adopted by Chhimmabai and had sold the property to defendant nos.1 and 2, who were bona fide purchasers in possession. The trial court dismissed the suit, disbelieving the will and upholding the adoption. On appeal, the High Court dismissed the first appeal but made observations in para 20 regarding the plaintiff's possession of the disputed house, based on evidence including the plaintiff's testimony and an application filed by the defendants under Section 151 CPC seeking possession. Two years later, the defendants filed a review petition seeking deletion of para 20, which the High Court allowed on the ground that no specific issue on possession was framed by the trial court. The Supreme Court held that the High Court exceeded its review jurisdiction under Order 47 Rule 1 CPC, as there was no error apparent on the face of the record. The finding on possession was based on appreciation of evidence, and the parties had led evidence on possession. Non-framing of a specific issue does not vitiate the finding if the parties were aware of the rival case and led evidence. The High Court's order amounted to re-appreciation of evidence, which is impermissible in review. The Supreme Court set aside the impugned order and restored para 20 of the High Court's judgment.
Headnote
A) Civil Procedure - Review Jurisdiction - Order 47 Rule 1 CPC - Error Apparent on Face of Record - The High Court exceeded its review jurisdiction by deleting a finding on possession recorded in the appellate judgment, as the deletion was based on the ground that no specific issue on possession was framed by the trial court, which does not constitute an error apparent on the face of the record. The finding on possession was based on appreciation of evidence and parties had led evidence on possession. (Paras 1-10) B) Civil Procedure - Framing of Issues - Order 14 Rule 1 CPC - Non-framing of Issue - Non-framing of a specific issue does not vitiate a finding if the parties were aware of the rival case and led evidence on the point. The court can decide the matter on the basis of evidence led, even if no specific issue is framed. (Paras 8-10) C) Civil Procedure - Review - Scope - Order 47 Rule 1 CPC - A review is not an appeal in disguise and cannot be used to re-appreciate evidence or substitute a different view. The High Court's deletion of para 20 amounted to re-appreciation of evidence, which is impermissible in review jurisdiction. (Paras 7-10)
Issue of Consideration
Whether the High Court exceeded its review jurisdiction under Order 47 Rule 1 CPC by deleting para 20 of its earlier judgment which recorded a finding on possession, on the ground that no specific issue on possession was framed by the trial court.
Final Decision
The Supreme Court allowed the appeal, set aside the impugned order of the High Court dated 14.07.2017 in Review Petition No.465 of 2015, and restored para 20 of the judgment and order dated 10.12.2013 passed in First Appeal No.241 of 2005.
Law Points
- Review jurisdiction under Order 47 Rule 1 CPC
- Error apparent on face of record
- Non-framing of issue does not vitiate finding if parties aware and evidence led
