Case Note & Summary
The applicants, Park View Cooperative Housing Society Ltd. and Vinayak Narayan Ghatate, were the respondents in Second Appeal No.110/2011 before the Bombay High Court, Nagpur Bench. The second appeal had been decided on 8 April 2014, allowing the appeal and dismissing the suit as infructuous, reversing the judgments of the trial court and first appellate court which had held the suit not maintainable. The applicants filed a review application under Section 114 read with Order 47 Rule 1 of the Code of Civil Procedure, 1908, arguing that the second appeal was decided without framing any substantial question of law as required under Section 100(4) CPC. They contended that this failure constituted an error apparent on the face of the record. The court considered the scope of review jurisdiction, noting that review is not an appeal in disguise and is limited to correcting errors apparent on the face of the record, not erroneous decisions. The court held that the failure to frame a substantial question of law, while a procedural irregularity, does not amount to an error apparent on the record because it requires examination of the records and arguments to determine whether a substantial question of law existed. Such an issue could only be corrected in appeal, not review. The court also noted that the order in the second appeal had already been challenged in a separate appeal before the Supreme Court, which was pending. Consequently, the review application was dismissed.
Headnote
A) Civil Procedure - Review - Error Apparent on Face of Record - Section 114, Order 47 Rule 1 CPC - The court considered whether non-formulation of a substantial question of law under Section 100(4) CPC in a second appeal amounts to an error apparent on the record. Held that such failure is a procedural irregularity but not an error apparent on the face of the record, as it requires examination of records and arguments, and thus falls outside the scope of review. (Paras 2, 5-7)
B) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The court examined the mandatory requirement under Section 100(4) CPC to formulate a substantial question of law before deciding a second appeal. Held that while the requirement is mandatory, the failure to do so does not automatically render the judgment void or subject to review; it is a ground for appeal, not review. (Paras 2, 5-7)
Issue of Consideration
Whether failure to formulate a substantial question of law while deciding a second appeal and reversing the decree constitutes an error apparent on the face of the record, or merely an erroneous decision correctable only in appeal.
Final Decision
The review application is dismissed. The court held that the failure to frame a substantial question of law does not constitute an error apparent on the face of the record, and the remedy lies in appeal, not review.
Law Points
- Review jurisdiction
- Error apparent on face of record
- Substantial question of law
- Section 100 CPC
- Section 114 CPC
- Order 47 Rule 1 CPC
Case Details
2014 LawText (BOM) (12) 110
Misc. Civil Application No.629 of 2014 in Second Appeal No.110 of 2011
Mr. K.H. Deshpande, Senior Advocate a/w. Mr. A.C. Dharmadhikari, Advocate for Applicants; Dr. R.S. Sundaram, Advocate for Respondents
Park View Cooperative Housing Society Ltd. and Vinayak Narayan Ghatate
Union of India, The Defence Estate Officer, and Estate Officer
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Nature of Litigation
Review application against an order in a second appeal
Remedy Sought
Review of the order dated 8 April 2014 in Second Appeal No.110/2011
Filing Reason
Applicants contended that the second appeal was decided without framing a substantial question of law, which is mandatory under Section 100(4) CPC, and that this constitutes an error apparent on the face of the record.
Previous Decisions
The trial court and first appellate court had held the suit not maintainable. The second appeal was allowed on 8 April 2014, reversing those decisions and dismissing the suit as infructuous.
Issues
Whether failure to formulate a substantial question of law under Section 100(4) CPC while deciding a second appeal amounts to an error apparent on the face of the record, reviewable under Section 114 CPC.
Whether the review application is maintainable or the remedy lies in appeal.
Submissions/Arguments
Applicants argued that under Section 100(4) CPC, it is mandatory to formulate a substantial question of law before deciding a second appeal, and failure to do so is an error apparent on the face of the record.
Respondents argued that the failure to frame a substantial question of law is not an error apparent on the record but a procedural irregularity that can only be corrected in appeal.
Ratio Decidendi
The failure to formulate a substantial question of law under Section 100(4) CPC while deciding a second appeal is a procedural irregularity that does not amount to an error apparent on the face of the record. Such an error can only be corrected in appeal, not in review, as review is limited to errors apparent on the record without requiring examination of evidence or arguments.
Judgment Excerpts
The issue that arises for consideration in this application for review is whether failure to formulate a substantial question of law while deciding the second appeal and reversing the decree as passed can be said to be an error apparent on the face of the record or whether the same is merely an erroneous decision that can only be corrected in appeal.
In the present case, the order passed in the second appeal is sought to be reviewed on the ground that no substantial question of law was framed. However, the same cannot be said to be an error apparent on the face of the record as it would require examination of the records and the arguments advanced to ascertain whether any substantial question of law arose for consideration.
Procedural History
The trial court and first appellate court held the suit not maintainable. The second appeal was allowed on 8 April 2014, reversing those decisions and dismissing the suit as infructuous. The applicants filed this review application on 29 September 2014. The review was heard and dismissed on 23 December 2014.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100, Section 100(4), Section 114, Order 47 Rule 1
