Supreme Court: Exercising its civil appellate jurisdiction, the division bench of M.R. Shah* and C.T. Ravikumar J.J., held that while allowing the review application and setting aside the judgment dated 03-03-2017, the Madras High Court had exceeded its review jurisdiction under Order 47 Rule 1 read with Section 114 of Code of Civil Procedure, 1908 (‘CPC')
In the matter at hand, the appellant being aggrieved by the order passed by the Tiruchirappalli City Municipal Corporation in respect of the pathway comprised in Indian Bank Colony, Simco Meter Road, Tiruchirappalli Taluk and District, preferred a writ petition before the High Court. The Respondents had relied on the report of the Survey Department and the measurements given in the Survey Report.
However, the High Court had discarded the Survey Report and chose to rely upon other two reports. Consequently, the High Court had allowed the review petition and dismissed the other connected writ petitions as well as the contempt petition which was the subject matter of appeal in the present case.
The Court relied upon Perry Kansagra v. Smriti Madan Kansagra (2019) 20 SCC 753 which had stated that while exercising the review jurisdiction in an application under Order 47 Rule 1 read with Section 114 of CPC, the Review Court does not sit in an appeal over its own order. It was observed that a rehearing of the matter was impermissible in law and the same cannot be considered as an appeal in disguise. It was further clarified that the power of review can be exercised for correction of a mistake but not to substitute a view, thus, the same was wholly unjustified to rewrite a judgment by which the controversy had already been decided.
The Bench opined that the High Court had erred in its reasoning by relying on the Survey Report which was discarded by the judgement passed in the main petition. Once the said Survey Report was adjudicated upon by the High Court, thereafter the same could not have been considered again while deciding the review petition.
The Court, therefore, stated that the High Court while deciding the review application under Order 47 Rule read with Section 114 CPC has exercised its appellate jurisdiction against the order dated 03-03-2017 which is wholly impermissible.
“An erroneous order may be subjected to appeal before the higher forum but cannot be a subject matter of review under Order 47 Rule 1 CPC.” stated the Bench while setting aside the order passed by the High Court in allowing the review application.
Consequently, the Bench remitted back the contempt petition and the connected writ petitions before the High Court to decide the same afresh in accordance with law and on its own merits.
[S. Murali Sundaram v. Jothibai Kannan, (2023) SCC OnLine SC 185, decided on 24-02-2023]
Judgment authored by Justice M.R. Shah
Advocates who appeared in this case :
For the appellant- Advocate V. Prabhakar
For the respondent- Advocate Haripriya Padmanabhan