Wednesday, February 8, 2023

Review cannot be re-hearing of original matter: Delhi High Court

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The Delhi High Court has held that a review “cannot be a re-hearing of the original matter” and that the applicant “cannot seek the same relief, which had been sought at the time of arguing of the main matter and which has been rejected.”

A Single-Judge Bench of Justice Asha Menon on Thursday refused to review the August 4 order of the Additional District Judge, who had found no prima facie case in favour of the petitioner and dismissed the application seeking ex-parte injunction against the South Delhi Municipal Corporation on demolishing the construction carried out by the petitioner in the suit premises.

On the issue of review petitions, the court observed:

“The jurisdiction of review is not that of an appeal and such an application can be entertained only if there is an error apparent on the face of the record. There must be a material error on the face of the order which may result in miscarriage of justice. The error which is not self-evident and has to be detected by a process of reasoning cannot be described as an error apparent on the face of the record justifying the Court exercising powers of review. That would be an appeal in the disguise of a Review Petition. Review cannot be sought in a hope that the Court would substitute its earlier view.”

The Court relied upon the Supreme Court judgement in Kamlesh Varma vs Mayawati & Ors (2013) 8 SCC 320, whereby the Apex Court had laid down the principles governing review. Summary of the aforementioned principles:

As per the Supreme Court order, the review will be maintainable on discovery of new and important matter or evidence, which after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him; mistake or error apparent on the face of the record, or any other sufficient reason.

The review will not be maintainable, when a repetition of old and overruled argument is not enough to reopen concluded adjudications, or minor mistakes of inconsequential import. It said the review proceedings cannot be equated with the original hearing of the case, unless the material error manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. The mere possibility of two views on the subject cannot be a ground for review.

The error apparent on the face of the record should not be an error which has to be fished out and searched.

The appreciation of evidence on record is full within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.

The Court, while rejecting the review petition, stated that it does not disclose any error apparent on the face of the record and stated that the counsel for the petitioner has sought to repeat the same arguments over and over again, which is not permissible.

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