📘 CIVIL PROCEDURE CODE : SUPREME COURT JUDGMENT

Order XLVII Rule 1 – Haridas Das v. Smt. Usha Rani Banik [2006 SC]

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📜 JUDGMENT

Case Law on Order 47 Rule 1

Haridas Das v. Smt. Usha Rani Banik [2006 SC]

Challenge in this appeal is to the order passed by a learned Single Judge of the Gauhati High Court on an application for review under Order XLVII Rule 1 of the Code of Civil Procedure, 1908. The application was filed by respondent No. 1 for review of the judgment and order dated 21.8.2002 passed in Second Appeal.

One Kalipada Das , (respondent No. 1 in the review petition) the original owner of the suit property, entered into an oral agreement with the appellant on 19.8.1982 and on the same day, the appellant paid a sum of Rs. 14,000/- towards the agreed consideration of Rs. 46,000/- to sell his portion of the suit property, with a dwelling house standing thereon.

The possession of the suit property was also handed over to the appellant, with a promise that a sale deed would be executed in favour of the appellant within three years.

In view of threatened dispossession, the appellant with a view to protect his possession of the suit property filed Title Suit No. 201/85 inter alia, seeking confirmation of possession over the suit land and premises, and for permanent injunction restraining Kalipada Das from dispossessing the appellant and from selling the suit property to any third party.

By an interim order Kalipada Das was directed to maintain status quo in respect of the suit property. The appellant filed another suit being Title Suit No. 1 of 1986 for specific performance of the agreement for sale and for the execution of the proper deed of sale in respect of the suit property.

By the impugned order as noted above the High Court held that no leave under Order II Rule 2 CPC was obtained by the respondent in Title Suit No. 201 of 1985.

Therefore, the Title Suit No. 1 of 1986 filed for specific performance of the agreement for sale of land is hit by the provisions of Order II CPC.

According to the High Court this is a case where review was permissible on account of some mistake or error apparent on the face of the record.

In order to appreciate the scope of a review, Section 114 of the CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it “may make such order thereon as it thinks fit.”

The parameters are prescribed in Order XLVII of the CPC and for the purposes of this lis, permit the defendant to press for a rehearing “on account of some mistake or error apparent on the face of the records or for any other sufficient reason”.

Neither of them postulates a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents.

This is amply evident from the explanation in Rule 1 of the Order XLVII which states that the fact that the decision on a question of law has been reversed or modified by a subsequent decision shall not be a ground for review.

Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection.

⚖️ Reference to Thungabhadra Industries Case

This Court in Thungabhadra Industries Ltd. v. Andhra Pradesh [1964 SC] held as follows:

There is a distinction between a mere erroneous decision and a decision vitiated by “error apparent”. A review is not an appeal in disguise and lies only for patent error.

Where without elaborate argument one could point to the error and say that it stares one in the face, a clear case of error apparent is made out.

A perusal of Order XLVII Rule 1 shows that review could be sought from discovery of new evidence, mistake or error apparent, or any other sufficient reason.

An error requiring lengthy reasoning cannot be said to be an error apparent on the face of the record.

Such error cannot be cured by a writ of certiorari.

When these principles are applied to the present case, the High Court clearly fell in error in accepting the prayer for review.

The crucial question relating to Order II Rule 2 CPC was irrelevant to the present suit.

The High Court also erred in holding that no leave was sought under Order II Rule 2.

The oral agreement was mentioned in para 7 of the plaint and reservation for specific performance was recorded.

That being so, the High Court has erroneously held about infraction of Order II Rule 2.

This was not a case where Order II Rule 2 had any application.

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