REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 5217 OF 2010

Asharfi Devi (D) THR. LRs.            ….Appellant(s)

VERSUS

State of U.P. & Ors.        …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1. This appeal is directed against the final judgment

and order dated 16.12.2008 passed by the High Court

of Judicature at Allahabad in Civil Misc. Review

Application No.81507 of 2008 in Civil Misc. Writ

Petition  No.10557 of 2002  whereby the  High  Court

dismissed the Civil  Misc. Review Application filed by

the original appellant herein.

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2. In order to appreciate the short controversy

involved in this appeal, few facts need mention infra.

3. The appellants herein are the legal

representatives of the original appellant, who was the

writ petitioner and the review petitioner whereas the

respondents herein were the respondents in the writ

petition and the review application.

4. The original appellant was the owner of certain

lands. These lands were subjected to ceiling

proceedings under the Urban Land (Ceiling and

Regulation) Act, 1976.   The ceiling proceedings

eventually resulted in declaring some lands in excess

of ceiling limits as surplus.   The State claims to have

taken possession of the surplus land way back in the

year 1982. The Ceiling Act was repealed for the State

of UP on 22.03.1999.  

5. In  the  year  2002, the  original  appellant filed  a

writ petition against the respondents­State of UP and

its authorities  in the Allahabad High Court claiming

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therein that since the original appellant continued to

remain in possession of the surplus land even after the

Repeal Act came into force, all the ceiling proceedings

against her in relation to the lands in question stood

lapsed in terms of Repeal Act.

6. This writ petition was dismissed by order dated

14.03.2008. The original appellant (writ petitioner) felt

aggrieved by the dismissal of her writ petition and filed

Review Application No.81507/2008 in the High Court.

By impugned order dated 16.12.2008, the High Court

dismissed the review application.  

7. The original appellant felt aggrieved and filed the

present appeal by  way of special leave against the

review order dated 16.12.2008 in this Court.

8. Heard Mr. Jayant Bhushan, learned senior

counsel for the appellants and Dr. M.P. Raju, learned

counsel for the respondents.

9. It is clear from the record that the original

appellant (writ petitioner) never challenged the legality

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and correctness of the main order dated 14.03.2008

passed in the writ petition (10557/2002) but confined

her challenge only to the order dated 16.12.2008

passed in the review application.

10. Though, learned counsel for the appellant

contended that reading of the list of dates in this

appeal shows that the original appellant has

challenged the main order dated 14.03.2008 also along

with the review order dated 16.12.2008, but we do not

find it to be so.  

11. In our opinion, the original appellant not having

challenged the legality of the main order dated

14.03.2008 in a separate SLP or in this appeal, this

Court is not called upon to examine the legality and

correctness of the main order dated 14.03.2008 in the

present appeal.

12. Mr. Jayant Bhushan, learned senior counsel for

the appellants, however, argued that this Court should

invoke the powers under Article 142 of the

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Constitution  and  permit the  appellants to challenge

the main order. We find no merit in this submission

for three reasons.  

13. First, the  original  appellant  did  not  assign any

reason as to what prevented her in the last almost 11

years in not filing the SLP against the main order;  

14. Second, there  was  no legal impediment  on  the

appellants’ right to file the SLP in this Court as soon

as the main order dated 14.03.2008 was passed and

lastly,  when  the  present  SLP was  filed in the  year

2010 against the review order, the original appellant

again did not challenge the main order dated

14.03.2008.       

15. In  the light  of these  three  reasons,  we  find no

good ground to invoke extraordinary powers under

Article 142 of the Constitution and permit the

appellants(legal representatives of original appellant)

to question the legality of main order dated 14.03.2008

in this appeal.

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16. Now coming to the merits of the case, we have to

only examine the question as to  whether the  High

Court was right  in dismissing the review application

filed by the original appellant holding that there was

no error apparent on the face of the main order dated

14.03.2008 within the meaning of Order 47 Rule 1 of

the Code of Civil Procedure, 1908 (hereinafter referred

to as  “the Code”).

17. Having heard the learned counsel for the parties

and on perusal of the record of the case, we find no

merit in this appeal.

18. While examining the legality of the review order,

we cannot  examine  the legality  of  main order  dated

14.03.2008 on its merits because, as mentioned

above, this appeal does not arise out of the  main

order.  Therefore, we have to confine our inquiry with a

view  to find  out  whether the review order is legally

sustainable or not.

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19. On perusal of the main order dated 14.03.2008,

we find that the High Court dismissed the writ petition

holding that the writ petitioner (original appellant

herein) failed to prove her possession over the land in

question on the date of repeal.   It was held that the

State  had taken  possession of the land  in the  year

1982 as per the panchnama prepared by the State.

20. In review, the High Court held that while

recording the aforementioned finding in the main

order, no apparent error, whether on facts or law

within the meaning of Order 47 Rule 1 of the Code,

was committed attracting the rigor of Order 47 Rule 1

of  the Code.  

21 It is a settled law that every error whether factual

or legal cannot be made subject matter of review under

Order 47 Rule 1 of the Code though it can be made

subject matter of appeal arising out of such order.  In

other words, in order to attract the provisions of Order

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47  Rule  1 of the  Code, the error/mistake  must  be

apparent on the face of the record of the case.  

22   Learned counsel for the appellants then argued

the  appeal  as if this  appeal  arises  out  of the  main

order dated 14.03.2008. He extensively referred to the

pleadings and several documents as  if  we are called

upon to examine the legality of the main order itself.

23. We find no merit  in any of his submissions for

more than one reason. First, as mentioned above, this

appeal does not arise out of the main order but arises

out of review order only and, therefore, we cannot

examine the legality and correctness of the main order

in this appeal like an Appellate Court.  

24. Second, we examined the matter only with a view

to find out as to whether the High Court was right in

dismissing the review application and thereby justified

in upholding the main order dated 14.03.2008 holding

that it did not contain any error/mistake apparent on

the face of the record.  

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25. In other words, we examined the issue only with

a view to find out as to  whether the review order,

which is subject matter of this appeal, was passed in

conformity with the requirements of Order 47 Rule 1 of

the Code or not.  

26. Third, having examined, we are of the view that

the review order  was passed in  conformity  with the

requirements of  Order  47 Rule  1 of   the Code and,

therefore, the High Court  rightly  concluded that the

main order impugned in the review application did not

contain  any factual or/and legal error(s)  within the

meaning of Order 47 of the Code so as to entitle the

review Court to recall the same in its review

jurisdiction.

27. And lastly, once the finding was recorded by the

High Court in the writ petition that the writ petitioner

(original appellant) failed to prove her actual

possession on the land in question on the date of

repeal, such finding could not have been examined de

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novo  in review jurisdiction by the same Court like an

Appellate Court on the facts and evidence.  

28. In view of the foregoing  discussion,  we  concur

with the reasoning and the conclusion arrived at by

the High Court (Review Court) in the impugned order

and find no merit in this appeal.

29. The appeal thus fails and is accordingly

dismissed.                

        …...…...................................J.  [ABHAY MANOHAR SAPRE]

...…...……..............................J.            [DINESH MAHESHWARI]

New Delhi; February 01, 2019  

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