JUDGMENT J.R. Vora, J.

1. This application is filed for the review or the modification of the Order passed by this Court in Appeal From Order No. 436 of 2000 on 19-7-2001 (reported in 2007(3) GLR 2308),

2. Facts goes to show that the present applicant filed Regular Civil Suit No. 1 of 2000 in the Court of District Judge at Jamnagar stating that the plaintiff is a partnership firm engaged in the business of manufacturing and selling edible oil and their brand name or trade mark is "EKKA". The description of the trade mark is also described in detail by the plaintiff. The grievance was made that the defendant by adopting the similar trade name and trade mark of "TIN EKKA" passes off their goods as the goods of the plaintiff and were liable to the action under common law and for that suit came to be filed for restraining the defendant from using the trade mark label "TIN EKKA" with the device which is being used by the defendant and for the damages caused to the plaintiff by passing off the goods. The plaintiff also filed temporary injunction application at Exh. 5 under Order 39, Rules 1 and 2 for the temporary injunction restraining defendants from using brand name or trade mark "TIN EKKA". The said application came to be rejected by the trial Judge, therefore, being aggrieved the said Appeal From Order No. 436 of 2000 was preferred by the original plaintiff.

3. In that appeal both the sides were at length heard and the following order was passed (at page No. 2318 of GLR) "22. In this view of the matter, while observations and the order passed below application Exh. 5 as aforesaid cannot be countenanced, at the same time, at this prima facie juncture, no order can be passed in favour of the plaintiff also because there is no evidence at this stage to pass any interim order in favour of the plaintiff which according to the tests laid down by the Apex Court in Cadila's case [2001 (2) GLR 1419 (SC)] can be adduced and proved by the plaintiff during trial. In this view of the matter, the following order is passed :

The observations of the learned trial Judge below Exh. 5 and the order passed thereon are set aside. To that extent, the Appeal is allowed with no order as to costs. However, as aforesaid, no order at this stage is passed in favour of the plaintiff below application Exh. 5, and to remand application Exh. 5 for fresh disposal would be futile exercise, instead, the trial Court is directed to decide the Regular Civil Suit No. 1 of 2000 within 4 months according to law from the date of receipt of writ of this Court or on producing a certified copy of the order by any of the parties, whichever is earlier. Defendants are directed to produce their statement of Accounts of their business before trial Court from the date of the suit till its disposal, because in case, if any decree for damages is to be passed in favour plaintiff, the same may assist the trial Court in appreciation. The trial Court is further directed to decide the case finally after applying tests as laid down by the Apex Court in Cadila's case (supra). D. S. permitted."

4. Now, this application is filed for the review or modification of the abovesaid order by stating that since the appeal was allowed and order of injunction in favour of the plaintiff was natural consequence of that order which was not considered by the Court, and therefore, it is urged that since the appeal is allowed the final order passed by this Court be modified to the extent that either temporary injunction be granted in favour of the plaintiff or the Exh. 5 application be remanded back to the trial Judge for decision thereon.

5. Learned Advocate Mr. R. R. Shah, for the applicant was heard at length. It is urged that the final order directing the trial Court hurts the plaintiff because the same prejudices the right of the plaintiff as to the trade mark. It is urged that since appeal was allowed and plaintiffs have produced sufficient evidence on record in favour of the plaintiff, the plaintiff was entitled to have temporary interim injunction in his favour. There was evidence, according to learned Advocate, regarding prior user of the trade mark by the plaintiff. Vide Exh. 3 the documents in this respect was produced along with the plaint, the affidavits of the dealers were also produced in support of the case of the plaintiff, and therefore, it is urged that the order under review is required to be modified to the extent that when appeal is allowed interim relief as prayed for be granted to the present applicant-original appellant-plaintiff. Learned Advocate has placed reliance on a decision of High Court of Kerala in the matter of National Garments, Kaloor, Cochin v. National Apparels, Ernakulam, Cochin, wherein it is observed that, "in the cases of passing off the principle applicable for granting interlocutory injunction is slightly different from the principle applicable in ordinary cases. For a temporary order in an action for passing off, the plaintiff need not in general show a strong prima facie case. However, the prima facie case that is required to be shown must be something more than a case that will avoid the action being struck out as frivolous or vexatious. Generally stated "even if the chance of success at the trial are only 20 percent" the interim relief sought for is required to be granted. There is another reason for the grant of the interlocutory injunction under such circumstances, such an order would stop the infringement without delay. Not only that from experience it is clear that a successful motion for interlocutory injunction "normally puts an end to the litigation and the infringement, with a great saving in expense compared with a full trial". Relying on this observation learned Advocate for the applicant vehemently urged that the order under review is required to be modified to the extent as prayed for. It is urged that when an appeal is allowed the appellant would not be able to approach the higher forum, and therefore, there is no other remedy for the applicant except to approach this Court by way of this application.

6. Having heard learned Advocate for the applicant and looking to the relief claimed, it will be necessary to ascertain that what is the review jurisdiction of the Court under Section 114 and Order 47 of the Civil Procedure Code and whether the prayer asked for would fall within the scope of the review as envisaged by the Civil Procedure Code.

7. The Court cannot have inherent power of review apart from the provisions made in Section 145 of Civil Procedure Code and Order 47. This provision authorises review in following three contingencies :

8. It is an established law that "any other sufficient cause" only means that a reason sufficient on grounds at least to those specified immediately previously. It should be borne in mind that review would not be permissible even if the Court has proceeded on a wrong exposition of law or has wrongly decided on question of law. A review would not be permissible on the ground that the decision is erroneous on the merits.

9. In case of Meera Bhanja (Smt) v. Nirmala Kumari Choudhury (Smt)., as reported in AIR 1995 SC 455, Apex Court was pleased to observe in Para 8 as under :-

"It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, C.P.C. In connection with the limitation of the powers of the Court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047 : 1979 (4) SCC 389 speaking through Chinnappa Reddy, J., has made the following pertinent observations (Para 3) :

"It is true, there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was - erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of errors committed by the subordinate Court."

Now, it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137, wherein, K.C. Das. Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record :

"An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ."

In other decision in the matter of Ajit Kumar Rath v. State of Orissa and Ors., as reported in 1999 (9) SCC 596, observed in Paras 30 and 31 as under :-

"30. The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a Court under Section 114 read with Order 47 C.P.C. The power is not absolute and is hedged in by restrictions indicated in Order 47. The power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it.

It may be pointed out that the expression "any other sufficient reason" used in Order 47, Rule 1 means a reason sufficiently analogous to those specified in the rule.

31. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment."

10. Again in one more decision in the matter of Md. Ashraf Ali v. Debraj Wadhera., as reported in 1995 Supp (2) SCC 654, the Apex Court observed that the High Court was not empowered to review the judgment which had passed on merits under Order 47, Rule 1 Civil Procedure Code and overturned the judgment he had passed on merits. This was not permissible to the learned Judge at all in view of the strict terms of Order 47, Rule 1 Civil Procedure Code.

11. From the above, it is well settled that the scope of the review is limited. Though, it is vehemently urged that the right of the plaintiff which is prejudiced is sought to be placed before this Court in this review application and no second innings has been initiated, but it is apparent that what is rejected by this Court on merits is being attempted to be decided again. Secondly, the review sought for is not permissible within the ambit and scope of Section 114 or Order 47 of the Civil Procedure Code, simply because something what is decided on merits sought to be decided again. Secondly, if we peruse the judgment for which this review application is preferred in clear terms it is established that there was no prima facie case in favour of the plaintiff to grant any interim relief. At that stage, the evidence on record was taken into consideration. If any error is committed, the judgment or observation may be subject to appeal to the Higher Forum, but not to subject to the review jurisdiction. I cannot agree with the submissions made on behalf of the applicant that since the appeal is allowed the appellant-applicant herein cannot approach the Higher Forum, but order itself is very clear that appeal was allowed to the extent only that the observations made by the learned Judge in coming to the conclusion were set aside. At the same time, after considering all the facts, it was also decided that there was no prima facie case in favour of the plaintiff to grant any interim relief. Undoubtedly, this will give a right to the applicant to approach the Higher Forum in appellate jurisdiction and by no stretch of reasoning this can be within a scope of review, and in the circumstances the course adopted by the Apex Court in the decision of Cadila Healthcare Limited v. Cadila Pharmaceuticals Limited, as reported in JT 2001 (4) SC 243 : [2001 (2) GLR 1419 (SC)] was adopted as a precedent and instead of remanding the application Exh. 5 suit was directed to be expedited because for establishing the deceptive similarity, evidence was needed. The request of the applicant for review of the order and to modify the order to the extent of granting interim relief in favour of applicant cannot be accepted.

12. For the above reasons, this review application stands summarily rejected.