In MISC. CIVIL APPLICATION NO.302/2020-BOM HC- Court cannot sit in appeal over its judgment while exercising power of review, says Bombay HC Justice V.G.Bisht [18-04-2022]

Read Order: The Executive Engineer, Lower Pus Project, Pusad, Dist. Yavatmal v. Ashokkumar S/o Deobarao Naik & ors 

Tulip Kanth

Nagpur, April 19, 2022: While dismissing an application seeking review of the judgment passed in First Appeal pertaining to the determination of compensation with respect to certain plots of land, the Nagpur Bench of the Bombay High Court has held that the grounds which had been raised could be grounds for appeal before the Appellate Court.

Analyzing the concepts of Appeal and Review, the Bench of Justice V.G.Bisht said, “In any case, this Court cannot sit in appeal over its judgment while exercising the power of review”.

Herein, the applicant (original second respondent) sought review of the judgment and award dated October 3, 2019 passed by this Court in First Appeal.

According to the applicant this Court hasd not given any specific reason or finding to differ with the earlier rate fixed by this Court in another First Appeal and other connected matters arising out of the same judgment and award of the Reference Court while granting Rs. 1,66,000 per hector for irrigated land and Rs 3,000 per tree for Orange and Sweet lime tress. According to the applicant’s counsel, this Court had not considered the evidence brought on record which had been placed by the present first respondent in the form of a joint measurement report. Also, without considering the age of the orange trees, Rs. 3,000 per tree had been granted. It was also submitted that  there was an error apparent on the face of the record which had occurred while passing judgment under review and therefore, review in proper perspective was required. 

Opposing this submission, it was submitted from the side of the first respondent that this Court had taken into consideration all relevant material and also precedent which were needed for the decision of appeal in question and there was no apparent error on the face of the record and since the present application did not satisfy the requirements of Order XLI Rule 1 of the Code of Civil Procedure, the same was liable to be dismissed.

The High Court observed that there was no dispute with the fact that the First Appeal in question  was preferred against the judgment of the Reference Court and other connected matters. This Court had not only considered the submissions advanced by the parties, but also considered the judgment of this Court in First Appeal in which the price of dry crop land of village Ghamapur was fixed @ Rs. 83,000 per hector. Since the land in question was admittedly an irrigated land, this Court had followed the dictum given by the Apex Court in case of Chindha Fakira Patil (dead) through Lrs. Vs. Special Land Acquisition Officer, Jalgaon and held that the appellant was entitled for double the rate of dry crop land i.e. Rs. 1,66,000 per hector.

Moreover, this Court had also referred to the judgment given by it in Santosh D. Bhaiswar Vs. State of Maharashtra and others, decided on January 9, 2005, and held that the appellant was entitled for compensation @ Rs. 3,000  per tree for Orange and Sweet Lime trees. Thus, this Court allowed the appeal in the aforesaid terms.

With regard to the applicant’s submission that the judgments and the evidence were not properly appreciated while disposing of the first appeal, the Bench held that the same required debate followed by process of reasoning and advertence on merits which was in the province of the Appellate Court. 

The Court further asserted,”Apparently, there is no error which is self-evident. In any case, this Court cannot sit in appeal over its judgment while exercising the power of review. Whatever the findings are recorded by this Court while passing the judgment on 03.10.2019, cannot be treated as an error on the face of the record for the purpose of review.”

Affirming that the grounds which had been raised could be grounds for appeal before the Appellate Court, the Bench dismissed the application saying that no case for review was made out.