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M/s. Vaigai Agro Products Ltd. Rep.through Nagarajan Assistant General Manager, Tirunelveli & Another v/s The Assistant Provident Fund Commissioner Employees Provident Fund Organization Regional Office, Tirunelveli & Another

    REV.APLC(MD) No. 22 of 2022 & C.M.P.(MD) No. 591 of 2022
    Decided On, 31 January 2022
    At, Before the Madurai Bench of Madras High Court
    For the Petitioner: V.O.S. Kalaiselvam, Advocate. For the Respondent: -----

Judgment Text
(Prayer: Review application filed under Order 47 Rule 1 read with Section 114 of the Code of Civil Procedure to review the order dated 15.07.2021 passed in W.A.(MD) No.1170 of 2021.)

S. Vaidyanathan, J .

1. This review has been filed to review the Judgment dated 15.07.2021 passed in W.A.(MD) No.1170 of 2021, wherein this Court in Paragraph No.31(i) has passed the following orders:

“W.A.(MD) No.1170 of 2021 is dismissed and the respondent – Organisation is directed to conduct a fresh enquiry as ordered by the learned Writ Court for the period in question and compute the contribution payable by the Management. This exercise shall be completed within a period of three months from the date of receipt of a copy of this Judgment. Needless to state that the appellant – Management shall extend full cooperation to the enquiry.”

2. This Court, while interfering with the order dated 27.02.2018 passed in W.P.(MD) No.21130 of 2017, has categorically permitted the petitioner - Management to putforth their submissions when the enquiry is conducted by the Employees Provident Fund Organization and the Management was also expected to extend their fullest cooperation.

3. This Court is of the view that no prejudice would be caused to the petitioner – Management, if fresh enquiry is conducted, as the Management will have ample opportunity to putforth all the defence available to them.

4. It is an axiomatic principle in law that rehearing of matter on merits and re-appreciation of the arguments / pleas raised by the litigants in the original order is certainly impermissible under review. It is to be remembered that review cannot be heard as an appeal, even if the order is an erroneous one. The ambit of review passed in writ petition is very limited. That apart, for correcting an erroneous decision 'Review' does not lie. It should also be remembered that it is well settled that the scope of review is very minimal, as held by a Honourable Division Bench of this Court in the case of The Special Officer, Kallal Co-operative Primary Agricultural and Rural Development Bank Ltd., Karaikudi, Sivagangai District vs. R.M.Rajarathinam and others [Review Application (MD)No.82 of 2013] decided on 04.02.2015, by holding as under:

"10. From the records, it is seen that the review applicant did not contest the claim of the first respondent on merits in the writ petition. On the other hand, the learned counsel for the review applicant admitted the contentions of the first respondent. Based on the said admission only, an order was passed in the writ petition. The review application and the writ appeal filed by the review applicant herein were dismissed as not maintainable. W.A.(MD) No. 502 of 2009 filed against the order dated 26.07.2007 passed in W.P.(MD) No.4636 of 2004, was dismissed by a Division Bench of this Court, holding that the review applicant is not entitled to agitate the issue on merits. It is well settled that the scope of review is very limited. The review applicant cannot re-argue and he is not entitled for re-hearing on merits.

11. The scope of review was considered by the Hon'ble Apex Court in a judgment reported in 2000 (6) SCC 224 [Lilli Thomas and Others Vs. Union of India and Others], wherein, in paragraph 52, it was held as under:

"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. Pradyumansinghji Arjunsinghji [1971 (3) SCC 844 : 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 or 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 a miscarriage of justice nothing would preclude the Court from rectifying the error. ....."

(emphasis supplied)

12. A Division Bench of this Court in a judgment reported in 2014 (3) TLNJ 245 (Civil) [M.Jai Kavitha Vs. The Authorised Officer, Syndicate Bank, Regional Office, Chennai - 1 and others], in which, one of us [V.DHANAPALAN, J.] is a party, has considered the scope of judicial review, wherein the decision of the Honourable Apex Court was noted with approval. Paragraph No.9 of the said Judgment reads as under:

"9.The power of review under Order 47 Rule 1 of CPC can be exercised by a court of law, if the order in question comprises a mistake or an error apparent on the face of record. Once an order is pronounced, it should not be altered, unless there is an apparent error. Law is well settled that erroneous finding is not a ground for review, so also improper consideration for that matter. In review application, the court does not sit in appeal over its own judgment and the said application cannot be treated as an appeal. This position has been ruled by the Supreme Court in Lily Thomas Vs. Union of India [2000 (6) SCC 224]. Therefore, in the absence of any error apparent on the face of record, we are not inclined to interfere with the order in question, except to the extent of deleting of the portions in paragraphs 14 and 15 of the impugned order, with which the applicant is concerned as to having an impact on the proceedings pending before the tribunal, as stated in the foregoing paragraph." (emphasis supplied)

5. In yet another decision, the Division Bench of this Court in B.Dhanalakshmi vs M. Shajahan and Others, reported in AIR 2004 Madras 512, has opined that the power of review is not an appeal in disguise. The relevant paragraphs of the said order are given below:

"11. From the above judgments, it is seen that the law is well settled inasmuch as the power of review is available only when there is an error apparent on the face of the record and not on erroneous decision. If the parties aggrieved by the judgment on the ground that it is erroneous, remedy is only questioning the said order in appeal. The power of review under Order 47 Rule 1 C.P.C. may be opened inter alia only if there is a mistake or an error apparent on the face of the record. The said power cannot be exercised as is not permissible for an erroneous decision to be "reheard and corrected". A review application also cannot be allowed to be "an appeal in disguise". Similarly, the error apparent on the face of the record must be such an error, which must strikes one on mere looking at record and would not require any long drawn process of reasoning on points, where there may conceivably be two opinions.

12. Based on the above principle of law, we are not inclined to accede to the contention of the review applicants insofar as the relief of review by placing reliance on the time taken by the appellants from the date of return of the copy application and the date of filing the writ petition. Though the learned counsel for the review applicants Mr. R. Natesan and Mrs. Radha Gopalan may be correct in contending that while computing the period of limitation each day delay should be explained. The period taken by the appellants to file writ petitions also may have bearing in computing the period as the objectors cannot be allowed to take their own time to file writ petition. However, for the reasons as to our limited power of exercise of review our order in setting aside the grant on the ground that the revision petitions were maintainable, we are not inclined to review our order by adding the number of days taken by the writ appellants for filing the writ petitions after the copy application was received. As in that event, our order would be completely reversed."

6. It is pertinent to mention here that Review should not be heard as an appeal and even if the order is erroneous, it cannot be reviewed under Order 47 Rule 1 CPC. In that regard, the Hon'ble Kerala High Court in C.C.Sivaprasad vs. K.Sasidharan and another, reported in AIR 2006 Kerala 167 has been pleased to observe as under:

"9. It is clear from the impugned order of the learned Sub Judge that the application for review was considered as if it was an appeal. The learned Sub Judge has proceeded to rehear the application filed under Rule 90 of Order XXI afresh ignoring the limited power available under Order 47, Rule 1. No apparent error was evident in the impugned order dated 6-4-2002 which was reviewed by the learned Sub-Judge. Even if it is taken that the order dated 6-4-2002 was erroneous that will not enable the learned Sub Judge to review the order as if the petition was an appeal. From the records of the executing Court, it cannot be said that there was no settlement of proclamation, as has been found by the Court below. Even if it is taken that there was no settlement of proclamation, that will not itself enable the judgment debtor to get the sale set aside unless he could satisfy the Court that by such irregularity, substantial injury was sustained. The learned Sub Judge in the impugned order did not even consider the existence of a substantial injury and still reviewed the earlier order on the ground that there is an apparent error when there was no such apparent error. The learned Sub Judge was not correct in exercising the power of review when there was no glaring omission or patent mistake or grave error that has crept in the order dated 6-4-2002. Even if the order was erroneous and could have been interfered in an appeal, that cannot be reviewed under Order 47, Rule 1 of the Code. On the facts and the records available, the finding of the learned Sub Judge is unsustainable. The order dated 6-4-2002 could not have been reviewed exercising the power under Order 47, Rule 1 on the grounds alleged."

7. Furthermore, this Court, in R.Mohala vs. M.Siva and others [Review Petition No.61 of 2018 and WMP No. 10818 and 10819 of 2018] decided on 25.04.2018, has elaborately discussed the scope of reviewing the order passed in the writ petition, by holding as under:

“5. In the Writ petition, the contentions of the learned counsel for the parties were heard in detail and a detailed order has been passed to demolish the violated portions caused by the Review Petitioner / 7th Respondent within a time frame. Even though the Review Petitioner drew the attention of this Court to the provisions of Sections 197 to 203 of Tamilnadu District Municipalities Act, 1920 and contended that it does not fall under any of the said provisions, this Court has taken note of the entire facts and passed final orders and the Supreme Court has come down heavily with regard to encroachment matters. That apart, there is no ground to review this order.

6. To maintain a review application, the review petitioner must satisfy the three requirements of Order 47 Rule 1 of C.P.C., which are as under:

(i) From discovery of new and important matter or evidence which after 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;

(ii) There is some mistake (or) error apparent on the face of the record in the judgment under review; and

(iii) or any other sufficient reasons.

7. The basic principle to entertain the review under Order 47 Rule 1 C.P.C. is to correct the errors but not to substitute a view. The judgment under review cannot be reversed (or) altered taking away the rights declared and conferred by the Court under the said judgment; once a judgment is rendered, the Court becomes functus officio and it cannot set aside its judgment or the decree; no inherent powers of review were conferred on the Court; the review Court cannot look into the trial Court judgment; it can look into its own judgment for limited purpose to correct any error or mistake in the judgment pointed out by the review petitioner without altering or substituting its view in the judgment under review; the review court cannot entertain the arguments touching the merits and demerits of the case and cannot take a different view disturbing the finality of the judgment; the review cannot be treated as appeal in disguise, as the object behind review is ultimately to see that there should not be miscarriage of justice and shall do justice for the sake of justice only and review on the ground that the judgment is erroneous cannot be sustained.

8. It is settled law that even an erroneous decision cannot be a ground for the Court to undertake review, as the first and foremost requirement of entertaining a review petition is that the order under review of which is sought, suffers from any error apparent on the face of the order and in absence of any such error, finality attached to the judgment/order cannot be disturbed.

9. In “Shanmuga Sundara Nadar vs.Tamil Nadu Housing Board, rep. by its Chairman, Madras and others”, reported in 1988 (2) L.W. 57 (MAD.), this Court held as under:

"The power to review is a restricted power which authorises the Court to look through the judgment not in order to substitute a fresh or second judgment but in order to correct it or improve it, because some material which it ought to have considered has escaped consideration or failed to be placed before it for any other reason or because it suffers from a patent error which cannot be sustained by any process of reasoning. The Court cannot under cover of review arrogate to itself the power to decide the case over again because it feels then that the assessment of evidence, etc., done formerly was faulty or even incorrect. An erroneous view of evidence of law is not a ground for review. A wrong exposition of the law, a wrong application of the law and failure to apply the correct law have been held to be not a ground for review."

10. In “Meera Bhanja vs. Nirmala Kumari Choudhury” reported in (1995) 1 SCC 170, the Supreme Court, while considering the scope of the power of review of the High Court under Order 47, Rule 1, C.P.C., held as under:

"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 C.P.C. The review petition of error apparent on the face of the record and not on any other ground. An error apparent on the face of the record must be such an error which must strike one on mere looking at the record and would not require any longdrawn process of reasoning on points where there may conceivably be two opinions. The limitation of powers on court under Order 47, Rule 1, C.P.C. is similar to jurisdiction available to the High Court while seeking review of the orders under Article 226."

11. Having regard to the above, this Court does not find any error apparent on the face of the order in order to entertain the present review application.

Accordingly, this Review Petition is dismissed. Consequently, connected miscellaneous petitions are closed.

8. In the case in Parsion Devi vs. Sumitri Devi, reported in 1997 (8) SCC 715, the Honourable Apex Court has reiterated the position with regard to review of an order as follows:

"Under Order 47, Rule 1, CPC 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 Order 47, Rule 1, CPC. In exercise of the jurisdiction under Order 47, Rule 1, CPC, 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."

9. The applicant, in the guise of seeking for review cannot adopt the tactics of apprising the facts once again, which is impermissible in law, as no fresh documents and new facts cannot be considered and perused in an application filed for review and the Court cannot rehear the matter afresh / de novo, in the light of the judgment of the Hon'ble Supreme Court in the case of Ajit Kumar Rath vs. State of Orissa and Others, reported in 1999 (9) SCC 596, wherein it was categorically held as follows:

".......The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression "any other sufficient reason" used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule.

Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of th

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e liberty given to the Tribunal under the Act to review its judgment." 10. At this stage, this Court wants to emphasize that the well settled legal position is that 'Review' erases the order / judgment from an inception. In review, a Court of Law cannot rehear the matter De novo. Moreover, reappraisal of the whole gamut of materials on record for unearthing an error/errors would amount to an exercise of appellate jurisdiction, which is legally impermissible. There is no second opinion of a prime fact that the 'Power of Review' is a creation of a statute. A mere fact that divergent/different views on the same subject are quite plausible/possible, it is not a ground to review the earlier order passed by a Court of Law. To put it precisely, the 'Power of Review' is not to be exercised for substituting the earlier views arrived at by the concerned Competent Court. An erroneous decision can be subject to an appeal to a Higher Forum. But, a review is impermissible on the ground that the Court of Law proceeded on a wrong proposition of law. Generally speaking, an error apparent on the face of record means that an error must be quite obvious and self evident and in short, it does require an elaborate argument to be established, as per decision of the Honourable Supreme Court in Thungabhadra Industries Limited vs. The Government of A.P., reported in 1964 AIR 1372. 11. In view of the settled proposition of law in the matter of reviewing the order, having regard to the facts and circumstances of the present case, this Court finds no apparent error on the face of the judgment made in W.A. (MD) No.1170 of 2021, dated 15.07.2021, as the applicant has failed to satisfy the three ingredients of Order 47 Rule 1 of C.P.C., [referred to above in the order of this Court in R.Mohala vs. M.Siva and others (supra)], necessitating review of the order so passed. 12. In fine, this review application is dismissed. No costs. Consequently, connected miscellaneous petition is closed.