1. It is aptly said

"A Judge must not alter the material of which the Act is woven, but he could and should iron out the creases"

. These famous words of Lord Denning are quoted with approval by the Supreme Court in P. Nalla Thampy v. B.L. Shanker (AIR 1984 SC 135). We are also here required to iron out some such creases which have surfaced on account of different of opinion between two Hon'ble Judges of the Division Bench of this Court while deciding this Review Petition arising from the order dated 28-6-2000 passed by Single Bench of this Court in Second Appeal No. 497/1998.

2. Late Kanhaiyalal who has since died and now represented by the respondents, filed a Suit No. 66-A/1990 in the Court of Civil Judge, Class I, Khilchipur, against the present applicant Ratanlal and others for declaration and injunction in respect of certain agricultural lands. The suit was decreed by the Trial Court on 25-6-1992 and the appeal (No. 38-A/1997) filed by the defendants including the present applicant was also dismissed by Ist Additional District Judge, Rajgarh, vide his judgment and decree dated 21-7-1998. Out of the unsuccessful defendants, only the present applicant/defendant came in Second Appeal before this Court, learned Single Judge before whom the appeal came up for admission, dismissed the same in motion hearing in following terms :--

"Perused the record.

No substantial question of law is involved for adjudication. Dismissed."

3. Applicant Ratanlal moved application under Order 47 Rule 1 of the Code of Civil Procedure, seeking review of the aforesaid order of dismissal, mainly on the ground that no reasons were supplied by the learned Single Judge for dismissing the appeal so as to indicate that the Judge has applied his mind to the points raised in appeal memo. According to the applicant this infirmity in the order stares in the face and manifests clear case of error, apparent on the face of the record.

4. Initially the application for review was placed before the Judge who dismissed the appeal but as the Judge was transferred, the matter, as per Rules, was placed before the Division Bench of this Court. However, the two Hon'ble Judges who heard the review petition differed from each other and recorded conflicting opinions. The matter was initially sought to be referred to a third Judge, but as no question for such a reference was formulated by the Division Bench, the matter, by the order of Hon'ble the Chief Justice has been placed before the Full Bench. This is how the matter has come up before us and only an short but important question requiring determination is

"whether non-supply of detailed reasons or as a matter of that even brief reasoning while dismissing the second appeal in motion hearing would be a case of mistake or error apparent on the face of record so as to constitute a ground for review"

?

5. We have heard Mr. M.G. Upadhyay, learned Counsel for the applicant and Mr. T.N. Singh, learned Counsel for respondents.

6. Mr. Upadhyay, learned Counsel for applicant with his usual vehemence contended that the second appeal filed by the applicant should not have been dismissed in limine without assigning proper reasons. Even when the appeal was disposed of under Order 41 Rule 11 of CPC, it was mandatory on the part of the Judge to have passed a speaking order so as to make it clear that he has applied his mind to the facts and features of the case and the grounds taken by the applicant in his memo of appeal, submitted the Counsel. Passing of an order in a cryptic manner like the one in hand, asserted the Counsel, is a mistake or error apparent on the face of the record and is, therefore, liable to be recalled. Mr. Upadhyay has cited'a catena of rulings in support of his contentions, vide Mahadev (AIR 1972 SC 1932), Umakant (AIR 1973 SC 218), Peera, 1996 (II) MPWN 151, and Jayanmti De, 2000 (II) MPWN 209.

The opposition is equal vehement. Mr. T.N. Singh, learned Counsel for respondents contended that this Bench is not sitting in appeal to judge the correctness or otherwise of the order passed by learned Single Judge and the remedy of the applicant did not lie in moving application for review under Order 47 Rule 1 of CPC. According to him, the present application is nothing but an appeal in disguise which this Bench is not competent to hear or allow.

7. Before we proceed to consider the rival contentions, at the outset it needs to be mentioned that this Bench (FB) while hearing this review application is in no better position than the Bench (SB) which passed the order dated 26-6-2000 dismissing applicant's second appeal in limine, notwithstanding the fact that the said order was passed by a Single Judge and the present application is being heard by a Full Bench consisting of three Judges. Such an unusual course was inevitable because of peculiar fact situation, as already stated hereinbefore. We are conscious of our limits that we are substituting ourselves for the learned Judge who passed the order dated 26-6-2000 and we are expected to do nothing which the learned Judge himself could not have done while exercising power under Rule 1 of Order 47.

8. In order to appreciate the rival contentions it would be useful here to read the relevant part of Rule 1 of Order 47, which is as follows :--

"1. Application for review of judgment.--(1) Any person considering himself aggrieved-

9. This Rule should be read with Section 114. Scope of an application for review is much more restricted than that of an appeal. The Court of Review has only a limited jurisdiction circumscribed of the definitive limits fixed by the language used in Order 47 Rule 1. It may allow a review on three specified grounds, namely : one : discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed or order was made; two : mistake or error apparent on the face of the record; or three : or any other sufficient reason. Needless to add that the words "any other sufficient reason" mean a reason sufficient on grounds at least analogous to those specified immediately previously. In the instant case, we are concerned only with the ground two, i.e., "mistake or error apparent on the face of the record". The error apparent on the face of the record could not be and has not been defined precisely or exhaustively there being an element of indefiniteness inherent in its very nature and so it has always been left to be determined judicially on the facts of each case. [See : Hari Vishnu (AIR 1955 SC 233)]. Such an error may be of fact or of law or of both, but the same ought to be apparent on the face of the record and should have been a reason for passing of the order sought to be reviewed. In other words, the Court undertaking review of the order passed by it, should be satisfied that but for the said error the order in question could not have been passed. One has to distinguish "error apparent" from mere erroneous decision. Hon'ble the Supreme Court in Thungabhadra (AIR 1964 SC 1372), has made the legal position on the point luculent, in following terms :--

"There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent", A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out."

10. At this stage it would be appropriate to read Section 100 of CPC providing for Second Appeal. Sub-section (1) thus reads :--

100. Second Appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

11. Section 101 further provides : "No Second Appeal shall lie except on the grounds mentioned in Section 100". So, read with Section 101, Section 100 expressly bars Second Appeal unless a question of law and that too a substantial one is involved in a case. The High Court before admitting a second appeal has to satisfy itself that the case involves a substantial question of law. Needless to say that the satisfaction has to be arrived at after considering the grounds as put forth by the appellant as also the record and judgments of the two Courts below.

12. In the backdrop of the aforesaid legal position when we examine the order dated 28-6-2000, we find that the Court while hearing the applicant/ appellant on the question of admission, considered the record of the case (the records of the two Courts below were also before the Court) and recorded a clear finding : "No substantial question of law is involved for adjudication". With this finding the appeal was dismissed in limine. It may be noted here that all the issues involved in the case were decided against the applicant defendant by both the Courts below. Obviously, the order was passed in terms of Sections 100 and 101 read with Order 41 Rule 1 of CPC. Whether or not the aforesaid satisfaction was justified on material on record, is none of our concern while hearing this review petition where we sitting as successor Bench of the Bench which passed the order, are required to see only as to whether the order is vitiated by "mistake or error apparent on the face of the record". We cannot, for that purpose, undertake a review of the evidentiary material or take recourse to long drawn process of reasoning. Even where;there may conceivably be two opinions on a particular point, that can hardly be said to be an error apparent. As already stated, the scope of review is much more restricted than that of appeal. We cannot as successor Bench, examine the correctness or otherwise of the order. Any such effort on our part would convert this review into an appeal in disguise and would rather set a very wrong precedent. It would also destroy the distinction which the Apex Court in Thungabhadra (supra) characterised as real, between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent".

13. The various decisions cited by the learned Counsel for applicant only lay down that even when a case is disposed of in motion hearing, the Court is required to record in brief its ground for doing so. However, non-supply of grounds cannot be characterised as "error apparent" It could be a ground for the applicant to assail the order in appeal, but not to invoke review jurisdiction of this Court. Recourse to Order 41 Rule 1 of CPC by the applicant is wholly misconceived and his application deserves dismissal with costs.

14. Since we have heard this case independently of the conflicting opinion recorded by two Hon'ble Judges of Division Bench of this Court, we need not to send the case back to the Division Bench. We ourselves dispose of the application and dismiss the same with costs. Counsel's fee Rs. 2,000/-, if certified.