In CIVIL APPEAL Nos.1167-1170 of 2023-SC- Erroneous order may be subjected to appeal before higher forum but cannot be subject matter of review under Order 47 Rule 1 CPC, rules Apex Court
Justices M.R. Shah & C.T. Ravikumar [24-02-2023]

Read Judgment: S. MURALI SUNDARAM V. JOTHIBAI KANNAN & ORS

Mansimran Kaur

New Delhi, February 27, 2023: Even if the judgment sought to be reviewed is erroneous, the same cannot be a ground to review the same in exercise of powers under Order 47 Rule 1 CPC, the Supreme Court has observed.

A Division Bench of Justice M.R. Shah and Justice C.T. Ravikumar allowed the appeals by observing that the High Court exceeded in its jurisdiction and exercised the jurisdiction not vested in it under Order 47 Rule 1 read with Section 114 CPC while allowing the review application.

 Before the High Court, the respondents- review petitioners heavily relied upon the report of the Survey Department and the measurements given in the survey report. However, the High Court discarded the survey report and chose to rely upon other two reports and consequently allowed the writ petitions by detailed judgment.The impugned common judgment passed by the High Court mainly allowing the review application was the subject matter of present appeals.

After considering the submissions from both the sides, the Court noted that by the impugned judgment and order the High Court  allowed the review application filed under Order 47 Rule 1 CPC and  set aside the judgment and order dated March 3, 2017  passed in a Writ Petition.

While allowing the review application the High Court observed and held that the earlier judgment and order dated March 3, 2017 was erroneous. Therefore, the question which was posed before the Top Court for consideration was whether the High Court was justified in allowing the review application filed under Order 47 Rule 1 CPC and setting aside the reasoned judgment and order passed in the main writ petition.

In view of the same, the Bench referred to the judgments in Perry Kansagra vs. Smriti Madan Kansagra  and Shanti Conductors (P) Ltd. Vs. Assam SEB.

Applying the law laid down by this Court in the aforesaid two decisions to the facts of the case on hand, the Bench opined that while allowing the review application and setting aside the judgment and order passed in Writ Petition. the High Court  exceeded in its jurisdiction and  exercised the jurisdiction not vested in it while exercising the review jurisdiction under Order 47 Rule 1 read with Section 114 CPC. From the reasoning given by the High Court, it appeared that according to the High Court the judgment and order passed in Writ Petition  was erroneous. 

While passing the impugned judgment and order the High Court observed and considered the Survey Report dated December 12, 2007 which was already dealt with by the High Court while deciding the main writ petition and the High Court discarded and/or not considered the Survey Report. 

Once the Survey Report fell for consideration before the High Court while deciding the main writ petition thereafter the same could not have been considered again by the High Court while deciding the review application, the Court stated. 

From the impugned judgment and order passed by the High Court it appeared that the High Court has decided the review application as if the High Court was exercising the appellate jurisdiction against the judgment and order dated March 3, 2017. 

“Even if the judgment sought to be reviewed is erroneous the same cannot be a ground to review the same in exercise of powers under Order 47 Rule 1 CPC. 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” ,the Court further remarked. 

In view of such observations and applying the law laid down by this Court on Order 47 Rule 1 read with Section 114 CPC, the Bench observed that while allowing the review application the High Court exceeded in its jurisdiction and exercised the jurisdiction not vested in it under Order 47 Rule 1 read with Section 114 CPC and therefore the impugned judgment and order passed by the High Court was unsustainable.

Hence, the appeals were allowed.