Vipul M. Pancholi, J.:— The applicant has filed this application with a prayer to recall the CAV judgment dated 31.7.2015 passed by this Court in Company Application No. 248 of 2014 and it is also prayed that thereafter, this Court may pass fresh orders as may be deemed proper in the interest of justice.
2. Heard learned advocate Mr. Pahwa with learned advocate Mr. Jasani for the applicant, learned advocate Mr. R.M. Desai for respondent no. 1-Official Liquidator, learned advocate Mr. B.T. Rao for respondent no. 3.
3. At the outset, learned advocate Mr. Pahwa has submitted that this application is filed under Rule 9 of the Companies (Court) Rules, 1959 which gives inherent powers to this Court. Learned advocate submitted that the applicant had filed Company Application No. 248 of 2014 seeking substitution in place of IFCI Limited as secured creditor. The applicant did not pray that the applicant may be permitted to be substituted in place of IFCI Limited as secured creditor for the purpose of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘SARFAESI Act’). The said application was a simple application for substitution in place of IFCI Limited by virtue of contract of Deed of Assignment and provisions of SARFAESI Act would not apply and, therefore, the substitution was prayed under the provisions of Contract Act read with the Transfer of Property Act. Learned advocate Mr. Pahwa, thereafter, contended that secured creditor generally means a creditor who holds some special pecuniary assurance of payment of his debt such as a mortgage, collateral or lien. The applicant never claimed to be a secured creditor as defined under SARFAESI Act since the applicant never wanted to invoke the provisions of SARFAESI Act.
4. Learned advocate for the applicant thereafter relied upon the provisions of Sections 58 and 59-A as well as Section 130 of Transfer of Property Act. Learned advocate submitted that as per the provision, any person can transfer his rights in favour of any third person by process of assignment. He, therefore, submitted that the applicant does not seek to invoke or apply the provisions of SARFAESI Act. However, through oversight, this Court has considered the provisions of SARFAESI Act and held that the applicant is not entitled to get benefit under SARFAESI Act and cannot be termed as secured creditor. Thus, this Court may recall the order dated 31.7.2015 passed in Company Application No. 248 of 2014.
5. On the other hand, learned advocate Mr. Rao submitted that this application is filed under Rule 9 of the Companies (Court) Rules for recalling of the order dated 31.7.2015 passed by this Court. However, in fact, the applicant is seeking review of the said order. Learned advocate Mr. Rao submitted that in fact, the applicant wanted to get the benefit as secured creditor under the provisions of SARFAESI Act and, therefore, this Court considered the provisions of SARFAESI Act. At the time of arguments, learned advocate for the applicant has also made submissions and requested this Court that benefit be given to the applicant as secured creditor under the provisions of SARFAESI Act and, therefore, now at this stage, the applicant cannot change its stand. This Court has recorded the submissions of the parties in detail and considered only this point and dismissed the application of the applicant and, therefore, there is no error apparent on the face of the record which can be rectified by this Court. He has relied upon the decision rendered by the Honourable Supreme Court in the case of Meera Bhanja (Smt) v. Nirmala Kumari Choudhury (Smt)..) reported in (1995) 1 SCC 170, more particularly, paragraphs 8, 9 and 15. He further relied on the decision rendered by this Court in the case of Heemanshu Horns Pvt. Ltd. v. Kapadvanj Nagarpalika, reported in 2007 (4) GLR 3484, more particularly, paragraphs 10, 11, 12 and 13. He relied on the decision rendered by this Court in the case of Ahmedabad Electricity Company Ltd. v. Municipal Corporation of the City of Ahmedabad, reported in 2003 (1) GLR 397.
6. Relying upon the aforesaid decisions rendered by the Honourable Supreme Court as well as this Court, learned advocate Mr. Rao submitted that this application is misconceived and the applicant has failed to demonstrate that there is an apparent error on the face of the record in the order passed by this Court on 31.7.2015 and, therefore, this Court may dismiss this application.
7. Learned advocate Mr. Desai appearing for the Official Liquidator as well as learned advocate Mr. M.B. Gandhi appearing for respondent no. 5 have supported the arguments canvassed on behalf of learned advocate Mr. Rao and submitted that Rule 9 of Companies (Court) Rules is not applicable in the facts of the present case and, therefore, this Court may dismiss this application.
8. Learned advocate Mr. Pahwa in rejoinder has placed reliance upon the decision rendered by Full Bench of Madras High Court in the case of Chinnah Goundan v. Subramania Chettiar, reported in AIR 1959 Madras 246 and more particularly in paragraphs 2, 8 and 9 which reads as under:
“2. The decree-holder put up the other mortgaged items for sale and purchased them himself. He then assigned the decree to the plaintiff in the present suit. Conformably to the order of the court, the plaintiff sought execution for the realisation of the balance due under the mortgage decree by sale of the mortgage right over the suit properlies. That was by his application in E.P. No. 15 of 1946 which resulted in the sale of the mortgage right, the plaintiff himself becoming the purchaser. The sale certificate Ex. A-10 which was issued to him specifically stated that what was only sold was the mortgage right. In the meanwhile Vaidyalinga's rights had been acquired by defendants 2 to 4.
9. Before considering that question it is necessary to find the remedies available under the law to a submortgagee. A debt secured by a mortgage being the property of the mortgagee, he can, in his turn assign or create a security over it. If he chooses to create a mortgage over it, such a mortgage is called a sub or derivative mortgage. The sub-mortgagee will have the security of the mortgage right created by the original mortgagor for the payment of his debt. In relation to the sub-mortgage, the mortgagee will be the mortgagor. He will therefore have a right to pay off his debt and redeem the property. There will be a corresponding right in the sub-mortgagee to sue on the submortgage and to enforce the sub-mortgage as against the security, that is, the mortgage right. In neither of these proceedings will the mortgager be interested. Order XXXIV Rule 1 C.P.C. states that all persons interested in the mortgage security or in the right of redemption should be joined in a suit relating to a mortgage. In a sub-mortgage the only person interested in the mortgage security is the submortgagee and the person interested in the right of redemption would be the mortgagee. The mortgagor will not be a necessary party to either of the suits mentioned above.
10. The mortgagor who has a right to redeem his mortgage cannot be deprived of his right to redeem by the creation of a sub-mortgage by his mortgagor. The redemption of the mortgage will put an end to the sub-mortgage and the submortgagee being a person interested in the mortgage right would be a necessary party to a suit for redemption by the mortgagor. The sub-mortgagee who, to a limited extent, is an assignee of the mortgtge right will have a corresponding right to sue the mortgagor by reason of his derivative title. In enforcing his sub-mortgage he can bring to sale the properties mortgaged to his mortgagor, viz., the mortgagee, instead of merely bringing to sale the interest of the latter. In such a case the form of the decree would be to direct an account being taken between the mortgagee and the mortgagor, and also between the sub-mortgagee and the mortgagee, and declare their respective rights in the sale proceeds of the mortgaged property. Form No. 11 to Appendix D to the First Schedule to the Civil Procedure Code provides for such a case. In Vellayyan Chettiar v. Mahalinga, 1938-1 Mad LJ 171: (AIR 1938 Mad 30), Venkataramana Rao J. observed:
“Ordinarily a sub-mortgagee's right just like any other mortgagee is to enforce his mortgage and bring to sale the property mortgaged to him, that is, the interest of the mortgagee in the property mortgaged to the latter. But the law permits him to enforce sale of his said property under circumstances and conditions which would entitle the original mortgagee to bring the properties to sale. To such a suit the original mortgagor should be made a party. The principle on which this is allowed is that a sub-mortgagee's claim is by a derivative title from the mortgagee and he is in fact an assignee of the mortgagee. When the mortgagee effects a mortgage of his mortgage interest he is creating a transfer of his rights as mortgagee though not absolutely. Therefore when a submortgagee sues for sale of the property he is enforcing the right of the original mortgagee.”
11. He further relied on the decisions rendered by the Hon'ble Supreme Court in the case of S. Nagaraj v. State of Karnataka, reported in 1993 Supp (4) SCC 595, more particularly, in paragraphs 18 and 19 as under:
“18. Justice is a virtue which transcends all barriers. Neither the rules of procedure not technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the room from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is till wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. Here as explained, the Bench of which one of us (Sahai, J.) was a member did commit an error in placing all the stipendiary graduates in the scale of First Division Assistants due to State's failure to bring correct facts on record. But that obviously cannot stand in the way of the Court correcting its mistake. Such inequitable consequences as have surfaced now due to vague affidavit filed by the State cannot be permitted to continue.
19. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally an dproperly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain rae v. Bijai Govind Singh that an order made by the Court was final and could not be altered:
“….nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in …. The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.”
12. Basis for exercise of the power was stated in the same decision as under:
“It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.”
Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitutionmakers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression, ‘for any other sufficient reason’ in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.”
13. Learned advocate Mr. Pahwa submitted that this Court has not properly considered the provisions contained in Sections 58 and 59A of the Transfer of Property Act and, therefore, the order dated 31.7.2015 passed by this Court in Company Application No. 248 of 2014 be recalled and, thereafter, this Court may pass appropriate order.
14. I have considered the submissions canvassed on behalf of learned advocates for the parties. I have also gone through the order dated 31.7.2015 passed by this Court in Company Application No. 248 of 2014 as well as the affidavit in support of the Judges' Summons of Company Application No. 248 of 2014 along with the documents and affidavits filed by Bank of Baroda in the said proceedings. The present applicant in the affidavit in support of Judges Summons of Company Application No. 248 of 2014 has stated in paragraphs 8 and 10 as under:
“8. I say and submit that earlier, IFCI also filed a purshis dated 21.11.2011 before the Debts Recovery Tribunal, Ahmedabad in Original Application No. 452 of 2000 reaffirming that the IFCI Ltd. has assigned its dues in favour of the applicant. I beg to annex a copy of purshis dated 21.11.2011 filed before the Debts Recovery Tribunal, Ahmedabad in Original Application No. 452 of 2000 at Annexure-III.
10. I say and submit that apropos to the Deed of Assignment, the Applicant has become the secured creditor of the Company in Liquidation and all the rights of IFCI Ltd. in relation to the financial facilities extended to the Company in Liquidation and the underlying security interests therein vests in the Applicant vis-a-vis the Company in liquidation.”
15. It is also required to be noted that learned advocate for the applicant in the said application, at the time of arguments, submitted that the applicant be substituted as secured creditor and given the benefit under the SARFAESI Act and therefore, learned advocate Mr. Rao appearing for the Bank of Baroda submitted in detail, after relying upon the provisions contained in SARFAESI Act, that the applicant cannot be substituted as secured creditor and permitted to proceed under the provisions of SARFAESI Act. In fact, Bank of Baroda has filed the affidavit in the said proceedings wherein in paragraph 16, learned advocate of Bank of Baroda has referred to Section 5, Section 2(z)(a), 2(v), 2(m) and other provisions of SARFAESI Act. Learned advocate Mr. Rao, therefore, relied upon the various decisions rendered by the Hon'ble Supreme Court on the aforesaid aspect which has been considered by this Court in the order dated 31.7.2015.
16. Though this application is filed for recalling the order dated 31.7.2015 passed by this Court, in substance, the applicant seeks review of the order dated 31.7.2015 passed by this Court in Company Application No. 248 of 2014. Thus, this Court is required to consider the scope of review jurisdiction of this Court. Rule 9 of Companies (Court) Rules, 1959 provides that:
“Rule 9. Inherent powers of Court-Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to give such directions or pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”
17. It is true that this Court is having power to give such direction or pass such orders as may be necessary for the ends of justice or to prevent the process of abuse of the Court, that does not mean that this Court can permit the applicant to argue new case before this Court after the application is disposed off. Thus, reliance placed by learned advocate for the applicant on Rule 9 of the aforesaid Rules is misconceived in the facts of the present case.
18. In the case of Meera Bhanja (supra), the Hon'ble Supreme Court considered the scope of review power of the High Court and has held in paragraphs 8, 9 and 15 as under:
8. 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, CPC. 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 Sharmal, speaking through Chinnappa Reddy, J., has made the following pertinent observations: (SCC p. 390, para 3) 1 (1979) 4 SCC 389 : AIR 1979 SC 1047 173 “It is true as observed by this Court in Shivdeo Singh v. State of Punjab2, 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.”
9. 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 Tirumale3 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.
19. In our view the aforesaid approach of the Division Bench dealing with the review proceedings clearly shows that it has overstepped its jurisdiction under Order 47, Rule 1 CPC by merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error. It would not become a patent error or error apparent in view of the settled legal position indicated by us earlier. In substance, the Review Bench has re-appreciated the entire evidence, sat almost as court of appeal and has reversed the findings reached by the earlier Division Bench. Even if the earlier Division Bench's findings regarding C.S. Plot No. 74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate court. Learned counsel for the respondent was not in a position to point out how the reasoning adopted and conclusion reached by the Review Bench can be supported within the narrow and limited scope of Order 47, Rule 1 CPC. Right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned. It could not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers. Only on that short ground, therefore, this appeal is required to be allowed. The final decision dated 8-7-1986 of the Division Bench dismissing the appeal from Appellate Decree No. 569 of 1973 insofar as C.S. Plot No. 74 is concerned as well as the review judgment dated 5-9-1984 in connection with the very same plot, i.e., C.S. Plot No. 74, are set aside and the earlier judgment of the High Court dated 3-8-1978 allowing the second appeal regarding suit Plot No. 74 is restored. The appeal is accordingly allowed. In the facts and circumstances of the case, there will be no order as to costs.”
20. The Division Bench of this Court also considered the scope of review power of High Court in the case of Ahmedabad Electricity Company Limited (supra), wherein this Court has relied upon decision of the Honourable Supreme Court in the case of Meera Bhanja (supra) and dismissed the review application.
21. Similarly, the Hon'ble Division Bench in the case of Heemanshi Horns Pvt. Ltd. (supra) has observed and held in paragraphs 10, 11, 12 and 13 as under:
“10. It is not in dispute that the powers of the Court to review its previous decisions has no other limitation except as provided by Order 47 of the Code of Civil Procedure. There are three grounds on which Review is permitted, namely, (i) discovery of new and important matter or evidence, (ii) some mistake or error apparent on the face of record and (iii) for any other sufficient reasons. Except in these three circumstances, no review is permitted by law.
11. In this respect, it is necessary to observe that how the Apex Court has settled this law. In the matter of 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.
12. Likewise, the same view has been reiterated by the Apex Court in the matter of Meera Bhanja v. Nirmala Kumari as, wherein the Supreme Court observed in paras 8 and 9 as under:
8. 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, CPC. 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 a review the orders under Article 226 of the Constitution of India. The Apex Court then referred to the observations made in the decision of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (supra), as referred to above. The Apex Court further observed in para-9 as under:
9 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. Malikarjun Bhavanappa Tirumale 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 Page 1852 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.
13. Now, so far as the present case is concerned, true it is that, the only circumstance pleaded in the Review is error apparent on the face of record has been based upon (i) absence of advocate, (ii) true points could not be made out, and (iii) earlier there was a decision of this Court. Without further entering into the merits but for the purpose only as aforesaid, if the record is seen, it is apparent from the record that the court had become helpless as the learned Counsel for the petitioners could not make him available for hearing even if the petitions were adjourned 10 times. Therefore, merely, since the learned Counsel for the petitioners was not available and the matter was decided on merits, hardly could be said a ground for review in particular facts and circumstances of this case and covered under mistake apparent on the face of the record. The mistake apparent on the face of the record are the mistakes which are evident and for which the review court would not enter into reappreciation of the material produced in the earlier proceedings. Those evident errors can be corrected under the review jurisdiction. The decisions cited by learned Counsel in support of his say are the decisions pertaining to the facts of that particular case and deciding the principles exercising of review jurisdiction. Now, in this case, when we go through the petitions filed and the affidavit-in-reply preferred by the respondent Nagarpalika, it undoubtedly borne out that it was a disputed question of fact whether any objections came to be filed either by the owner or the petitioners before the Municipality. By bare reading of Annexure-‘K’ to the petition, makes it very clear that rented premises were not exempted from the house tax and classes of persons and property exempted are well defined at Annexure-K, in which category, undoubtedly, the present applicants would not fall. Above all, the decision of this Court in the matter of Shri Kailas Mills, Bulsar v. The Sarpanch, Daheri Gram Panchayat, Bulsar, (Spl. Civil Application No. 1687 of 1974) rests on the particular rules framed under the Gujarat Gram and Nagar Panchayat Taxes and Fees Rules, wherein after interpreting the phrase belonging to rented premises were declared exempted from the house rent with reference to that particular statute, and by no stretch of reasoning, this could be said to be a precedent to be followed by the Division Bench in the Special Civil Applications in question. Therefore, the fact remains that, prima facie, it could not be shown that the objections were taken by the applicants before Kapadvanj Municipality, and alternative efficacious remedy of appeal was whether resorted to and more so when Annexure-K makes it very clear that the applicants were not entitled to exemption from the house tax. Consequently this goes to indicate that the process of assessment could not be challenged by way of petitions in the jurisdiction under Article 226 of the Constitution of India. It must be noted that no rejoinder-in-affidavit-in_ reply came to be filed in these petitions nor anything could be produced to say that, in fact, the objections were filed and that were received duly by Kapadvanj Nagarpalika. Some copies of letters placed on record cannot be made to Page 1853 believe a court of law that such letters were received by the respondent - Nagarpalika. Even it was not made clear that by contract, it was whose responsibility to pay tax, either by owner or by tenants. Above all, the matter was covered by a decision of this Court in the matter of Gujarat Vidya Sabha v. Municipal Corporation of The City of Ahmedabad as reported in 1995 (1) GLR 419, which still holds field. Therefore examining merits, prima facie, for aforesaid purpose, we have to conclude that these are not the cases to exercise review jurisdiction treating the absence of learned Counsel and the ratio laid down in Spl. C.A. No. 1687 of 1974 to be the ground for review of the judgment and order as such grounds cannot be labelled them to be mistakes committed by the Division Bench of this Court apparent on the face of the record. If this is to be permitted, then it would be necessary for this Court to observe that there was no disputed question of facts, and that in fact, prima facie, the applicants were exempted from house tax even though the policy of exemption adopted by Municipality had been placed on record at Annexure-K, to which, no affidavitin-rejoinder could be filed. It must be borne in mind that the Division Bench dealing with the review proceedings cannot over step its jurisdiction under Order 47 Rule 1 of the Civil Procedure Code by reasoning that the reasons adopted by earlier Bench were suffering from patent error, that would amount to sitting as a court of appeal over the decision rendered by a court of equal jurisdiction in the guise of review petition. Errors would not become patent errors merely labelling them to be patent errors, and that too, on only two grounds, as mentioned above. There is no error at all apparent on the face of the record striking one on merely looking at the record. This is discussed only with reference to the fact that while dealing with sufficient cause for condonation of delay, liberal approach to advance the cause of justice becomes the pious duty of the court and merits are one of the considerations.”
22. Reliance is placed by the learned advocate Mr. Pahwa on the decision rendered by the Madras High Court in case of Chinnah Goundan (supra). However, the aforesaid decision was not cited and relied upon by learned advocate for the applicant while arguing the Company Application No. 248 of 2014. Therefore, the applicant tried to put forward new case before this Court in this application which is not permissible. This Court had considered the arguments of the learned advocates for the parties while deciding Company Application No. 248 of 2014 and passed the appropriate order. However, by way of this application, it appears that the applicant has tried to put forward new case before this Court which is not permissible in the eye of law and on that ground, review application is not required to be entertained. The applicant has failed to demonstrate any error apparent on the face of the record. Thus, this application which is filed for recalling of the order requires to be dismissed. Accordingly, the same is dismissed.