Final Order 1

Order Details: COPY OF ORDER
Pdf Text: RP(C) No.1/25 Gurpreet Singh Sethi Vs. Sawhney Shoes & Anr. Page No.1/8
IN THE COURT OF SH. HARVINDER SINGH JOHAL:
DISTRICT JUDGE-02 & WAQF TRIBUNAL :
PATIALA HOUSE COURTS : NEW DELHI
RP (C) No. 1/25
IN THE MATTER OF:
GURPREET SINGH SETHI
….NON-APPLICANTS
VERSUS
SAWHNEY SHOES AND ANR.
….APPLICANTS
ORDER
30.05.2025
1. This order of mine shall dispose of application under Section 114
read with Order XLVII Rule (1)(a) of CPC, 1908 filed by
applicants seeking review of order dated 09.04.2025, whereby,
the application under Order XXXVI Rule 4 of CPC was
dismissed.
2. Brief facts of the present suit are : Plaintiff has filed the suit for
recovery of Rs.3,50,000/- against the defendants. Defendant no.2
is the proprietor and authorised signatory of defendant no.1.
Plaintiff pleads in the suit that plaintiff and defendants are known
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to each other for a long time and in January, 2019, defendant no.2
has discussed his financial problems with the plaintiff. Thereafter
an amount of Rs.3,50,000/- was paid by the plaintiff to the
defendants as an interest free loan. Subsequent thereto one
cheque was issued by defendant no.2 dated 16.09.2019 of
Rs.3,50,000/- as interest free loan. However, when the cheque
was presented, it bounced, thereby leading to the present suit.
Since notice was issued on the defendants and he has not
appeared. Therefore, an Ex Parte decree was passed on
17.07.2023.
3. Thereafter, an application under Order XXXVII Rule 4 of CPC
has been filed by the applicant/defendants seeking setting aside
of ex-parte decree on the grounds that summons were not
effectively served on defendants as refusal does not amount to
deem service. Reply to the said application has not been preferred
by the non applicant/plaintiff. The said application was dismissed
vide order dated 09.04.2025 against which, the instant
application has been filed by the applicants under Section 114
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read with Order XLVII Rule (1) (a) of CPC, 1908 seeking aside
order dated 09.04.2025 passed by this Court on the following
grounds:-
i. Summons were served on the address i.e. shop/commercial property
of father of defendant no.2;
ii. The refusal of summons was not by defendant no.2;
iii. The address mentioned in the memo of parties is not the residential
address but address of M/s. Sawhney Shoes;
iv. Applications were not having the information qua passing of ex-parte
decree;
v. Forged cheque was presented;
vi. Defendant no.1 is proprietorship firm of Mr. Kuldeep Singh Sawhney
i.e. father of the defendant no.2;
vii.No alleged loan was availed by the applicants;
viii. Suit of the plaintiff was barred by limitation, hence, ex-parte decree is
not maintainable;
ix. No affidavit has been filed by the process server qua service of the
summons;
4. I have heard the arguments advanced by counsel at length. For
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just adjudication, Order 47 (1) and Section 114 of CPC have been
reproduced as under:-
Application for review of judgment.—
(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is
allowed, but from which no appeal has been
preferred, (b) by a decree or order from which no
appeal is allowed, or (c) by a decision on a
reference from a Court of Small Causes, and who,
from the discovery of new and important matter or
evidence which, after the exercise of due diligence
was not within his knowledge or could not be
produced by him at the time when the decree was
passed or order made, or on account of some
mistake or error apparent on the face of the record
or for any other sufficient reason, desires to obtain
a review of the decree passed or order made
against him, may apply for a review of judgment to
the Court which passed the decree or made the
order.
(2) A party who is not appealing from a decree or
order may apply for a review of judgment
notwithstanding the pendency of an appeal by
some other party except where the ground of such
appeal is common to the applicant and the
appellant, or when, being respondent, he can
present to the Appellate Court the case on which
he applied for the review.
1 [Explanation.—The fact that the decision on a
question of law on which the judgment of the
Court is based has been reversed or modified by
the subsequent decision of a superior Court in any
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other case, shall not be a ground for the review of
such judgment.]
2. [To whom applications for review may be
made.]—Rep. by the Code of Civil Procedure
(Amendment) Act, 1956 (66 of 1956) s. 14.
3. Form of applications for review.—The
provisions as to the form of preferring appeals
shall apply, mutatis mutandis, to applications for
review.
4. Application where rejected.—(1) Where it
appears to the Court that there is not sufficient
ground for a review, it shall reject the application.
114. Review.—Subject as aforesaid, any person
considering himself aggrieved— (a) by a decree or
order from which an appeal is allowed by this
Code, but from which no appeal has been
preferred. (b) by a decree or order from which no
appeal is allowed by this Code, or (c) by a decision
on a reference from a Court of Small Causes, may
apply for a review of judgment to the Court which
passed the decree or made the order, and the Court
may make such order thereon as it thinks fit.
5. Coming to the facts of the present case by virtue of present
review, applicants wants to agitate on the merits of the case again,
which has been conclusively decided by this court vide detailed
order passed on 17.07.2023. It is apparently clear that in case, the
applicants are aggrieved from the outcome of the order, remedy
lies with the appellate court. The review jurisdiction is very
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limited where court can entertain only in the case of apparent
error on the face of the record.
6. Reliance has been placed in the case titled as
Madhusudhan
Reddy Vs. Narayana Reddy, (2022) 17 SCC 255, wherein,
Hon’ble Supreme Court of India after examining catena of
judgments gave itself finding in para no.33, which is reproduced
as under:
33. As can be seen from the above
exposition of law, it has been
consistently held by this Court in
several judicial pronouncements that
the Court’s jurisdiction of review, is
not the same as that of an appeal. A
judgment can be open to review if
there is a mistake or an error apparent
on the face of the record, but an error
that has to be detected by a process of
reasoning, cannot be described as an
error apparent on the face of the record
for the Court to exercise its powers of
review under Order 47 Rule 1 CPC. In
the guise of exercising powers of
review, the Court can correct a mistake
but not substitute the view taken
earlier merely because there is a
possibility of taking two views in a
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matter.
7. The counsel for the non applicant/plaintiff has also relied upon
the other judgments of Hon’ble Apex Court where a crux is
drawn that :-
(i) Review jurisdiction is very limited and nothing can be
commented on merit of the case. Moreover, as far as, error
apparent on the face of the record, the Hon’ble Supreme Court
has very categorically mentioned that:
(ii) A judgment can be open to review if there is a mistake or
an error apparent on the face of the record, but an error that has to
be detected by a process of reasoning, cannot be described as an
error apparent on the face of the record for the Court to exercise
its powers of review under Order 47 Rule 1 of CPC;
(iii) Moreover, it was also held by the Hon’ble Supreme Court
that in the guise of exercising powers of review, the Court can
correct a mistake but not substitute the view taken earlier merely
because there is a possibility of taking two views in a matter;
(iv) It is also held that there is a clear distinction between an
erroneous decision as against an error apparent on the face of the
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record. An erroneous decision can be corrected by the superior
court, however an error apparent on the face of the record can
only be corrected by exercising review jurisdiction.
8. As discussed above by way of catena of judgments, as per record,
there is no error apparent on the face of the record and attempt to
seek a challenge to the merits of the case by virtue of review
petition. The present applicant cannot be allowed. Accordingly,
the present application under Order XLVII read with Section 114
of CPC filed on behalf of the applicants stands dismissed.
9. File be consigned to the record room, after necessary
compliance. The instant applications be tagged in the main suit
for their consignment.
Announced in the open court on (Harvinder Singh Johal)
30.05.2025 DJ-02 & Waqf Tribunal
NDD/PHC/ND/30.05.2025
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