Allahabad High Court

1. Heard Sri Akshat Srivastava, learned counsel for the review-petitioner and Sri Anurag Shukla, learned Senior Counsel assisted by Ms. Ankit Tiwari, learned counsel for respondent nos. 1, 2, 5, 6, 8, 9, 10, 11 and 12.

2. The instant review-petition has been preferred along with an application seeking condonation of delay, seeking review of judgment and order dated 03rd August, 2003 passed by this Court in Second Appeal No. 58 of 2023 (Ram Kumar and 29 others vs. Bitana and 12 others) whereby this Court dismissed the second appeal at the admission stage.

3. The review-petition is reported to be barred by 117 days.

4. Having considered the application for condonation of delay which is duly supported by an affidavit wherein it has been stated that against the final judgment and order dated 03rd August, 2023, the review-petitioner had preferred a Special Leave Petition before the Apex Court and on 11.12.2023, the counsel for the review-petitioners appearing in the Apex Court had withdrawn the Special Leave Petition and had sought liberty for filing a review which was granted by the Apex Court on 11.11.2023 and thereafter the instant review-petition has been preferred. The ground shown is found to be sufficient and the delay in filing the review shall stand condoned.

5. The Court thereafter has heard the learned counsel for the review- 2 CMRAD No. 27 of 2024 petitioner on merits of the review.

6. Sri Akshat Srivastava, learned counsel for the review-petitioner has vehemently urged that the basic reason, as indicated in the judgment and order dated 03.08.2023, upon which this Court had dismissed the second appeal was on the premise that the plea of undue influence and domination of the will of the plaintiffs could not be substantiated without indicating any proximity of relationship.

7. It is urged that this finding is not quite correct,inasmuch as, there can be various relationships which may have myriad implications inter-se the parties and to say that several sale deeds were executed wherein Sri Surendra Nath Srivastava was not shown as a witness cannot be an inference that he did not have the capacity to influence the will of the plaintiffs and it is a specific case that because of the domination exercised by Sri Surendra Nath Srivastava, the plaintiffs were led into executing the sale deeds, though, they had only agreed to execute a compromise.

8. It is thus urged that this finding recorded is an error apparent on the face of record, coupled with the fact that this would have an impact on the final outcome of the judgment, hence, for the aforesaid reason, the judgment deserves to be reviewed.

9. The learned counsel for the review-petitioner has further urged that even the issue regarding payment of sale consideration was not appropriately considered. Once the defendants who could not establish the payment of sale consideration, placing the burden on the present review- petitioners while deciding the case on 03.08.2023 is not in the sound exercise of jurisdiction especially when the records were not available and the second appeal was being heard at the admission stage. This also vitiates the approach upon which the judgment has been passed requiring a review.

10. Sri Anurag Shukla, learned Senior Counsel for the respondent nos. 1 and 2 has categorically stated that the attempt of the review-petitioner is to seek a re-hearing on the second appeal on merits which is not within the scope of Order XLVII Rule 1 and 2 C.P.C.

11. It has further been urged that as far as the finding regarding 3 CMRAD No. 27 of 2024 relationship is concerned, it was the specific case of the plaintiffs that their will was dominated by Sri Surendra Nath Srivastava. A plea taken by a party, in terms of Section 101 of the Evidence Act, is to be proved by the person raising such plea. This aspect of the matter has been considered in detail by the court and in this regard attention has been drawn, of the Court, to paragraphs 21 to 23 of the judgment under review.

12. It is urged that the findings given by the court is based on material evidence and even though the counsel for the review-petitioner has raised the issue that it is not based on evidence yet nothing has been brought on record to substantiate that the said findings do not get support from the material available on record. These are pure findings of fact which have been affirmed by the First Appellate Court and have been concurred by the Second Appellate Court and it does not require any further re-look.

13. Sri Shukla, learned Senior Counsel has further urged that the issue raised relating to payment of consideration, is absolutely misconceived, for the reason that there was a specific case indicating that Sri Bhogai had accepted the sale consideration. In case if the review-petitioners sought to contend that the sale consideration was not paid then it was incumbent upon them to have produced Sri Bhogai as a witness to contradict/to disprove the statement/plea of the defendant, however, they failed to do so and after having suffered a decree on merits after leading of evidence, this issue cannot be raised at the review of a second appellate judgment.

14. It is thus urged that the ground stated do not fall within the ambit of review, accordingly, the review petition deserves to be dismissed.

15. No other point has been pressed by the learned counsel for the review- petitioner and the respondents.

16. The Court has heard the learned counsel for the parties and also perused the material available on record.

17. Apparently, the scope of review is restricted as held by the Apex Court in a catena of decisions including in Ram Sahu (Dead) Through Lrs. and Ors. v. Vinod Kumar Rawat and others; (2021) 13 SCC 1. This aspect was also considered by the Apex Court in a recent decision in Maleeswari v. K. Suguna, 2025 SCC On Line SC 1927 and the relevant 4 CMRAD No. 27 of 2024 portion reads as under:- "15. It is axiomatic that the right of appeal cannot be assumed unless expressly conferred by the statute or the rules having the force of a statute. The review jurisdiction cannot be assumed unless it is conferred by law on the authority or the Court. Section 114 and Order 47, Rule 1 of CPC deal with the power of review of the courts. The power of review is different from appellate power and is subject to the following limitations to maintain the finality of judicial decisions:

15.1 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 of CPC.

15.2 Review is not to be confused with appellate powers, which may enable an appellate court to correct all manner of errors committed by the subordinate court.

15.3 In exercise of the jurisdiction under Order 47 Rule 1 of CPC, it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered, has a limited purpose and cannot be allowed to be an appeal in disguise.

15.4 The power of review can be exercised for the correction of a mistake, but not to substitute a view. Such powers can be exercised within the limits specified in the statute governing the exercise of power.

15.5 The review court does not sit in appeal over its own order. A rehearing of the matter is impermissible. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. Hence, it is invoked only to prevent a miscarriage of justice or to correct grave and palpable errors.

16. To wit, through a review application, an apparent error of fact or law is intimated to the court, but no extra reasoning is undertaken to explain the said error. The intimation of error at the first blush enables the court to correct apparent errors instead of the higher court correcting such errors. At both the above stages, detailed reasoning is not warranted.

17. Having noticed the distinction between the power of review and appellate power, we restate the power and scope of review jurisdiction. Review grounds are summed up as follows:

17.1 The ground of discovery of new and important matter or evidence is a ground available if it is demonstrated that, despite the exercise of due diligence, this evidence was not within their knowledge or could not be produced by the party at the time, the original decree or order was passed.

17.2 Mistake or error apparent on the face of the record may be invoked if there is something more than a mere error, and it must be the one 5 CMRAD No. 27 of 2024 which is manifest on the face of the record.8 Such an error is a patent error and not a mere wrong decision.9 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.

17.3 Lastly, the phrase ?for any other sufficient reason? means a reason that is sufficient on grounds at least analogous to those specified in the other two categories.

18. Courts ought not mix up or overlap one jurisdiction with another jurisdiction. Having noted the appellate and review jurisdiction of the Court, we will apply these principles to the impugned order to determine whether the High Court was within its power of review jurisdiction or had exceeded it by reversing the findings, as if the High Court were sitting in appeal against the order dated 23.09.2022. We appreciate the above tabulated summary of the view taken in the impugned order while doing so."

18. Having considered the submissions of the counsel for the review- petitioner and noticing the scope of review in light of the decisions of the Apex Court, it would reveal that the Second Appellate Court had clearly taken note of the fact that the plea of undue influence and domination of the will was raised by the plaintiffs. It was the plaintiff who had to clearly establish the same and the material on record did not suggest that such proximity was established which could indicate that Sri Surendra Nath Srivastava had any capacity to influence the will, as suggested.

19. The findings on the other hand as indicated in paragraph 20 to 22 of the judgment in review clearly deals with the aforesaid matter and apart from the bald submission of learned counsel for the review-petitioner, it could not be indicated as to how the same is vitiated, for this Court to form an opinion that it is an error apparent on the face of record.

20. Any plea which requires lengthy arguments or delving deep into the evidence is not an error apparent on the face of record. Thus, for the said reasons, the first plea does not find favour with this Court and is accordingly turned down.

21. Regarding the issue of payment of sale consideration, it is a clear case that Sri Bhogai had accepted the sale consideration in full. In case if it was disputed by the review-petitioner then it was open for the review- petitioner to have examined Bhogai during trial which was not done. In absence of producing the best witness before the Court and the Court had 6 CMRAD No. 27 of 2024 already taken a view which cannot be said to be perverse, this Court in exercise of powers under Section 100 C.P.C. is loath to intervene with findings of fact. There is nothing brought to the notice of the Court, to the contrary, that could prove that the sale consideration was not paid. Nothing of this sort was either proved or brought before the Trial Court or the First Appellate Court. In view of the aforesaid, the second submission is contrary to the admitted fact that Bhogai was never examined as a witness which has been taken note of by the Court while passing the judgment dated 03.08.2023. This Court finds that the learned counsel for the review-petitioner could not not establish any error apparent on the face of the record to persuade this Court to entertain the review.

22. In light of the aforesaid, this Court finds that there is no merit in the instant review which is accordingly dismissed. In the facts and circumstances, there shall be no order as to costs. November 27, 2025 Asheesh (Jaspreet Singh,J.)

1. Heard Sri Akshat Srivastava, learned counsel for the review-petitioner and Sri Anurag Shukla, learned Senior Counsel assisted by Ms. Ankit Tiwari, learned counsel for respondent nos. 1, 2, 5, 6, 8, 9, 10, 11 and 12.

2. The instant review-petition has been preferred along with an application seeking condonation of delay, seeking review of judgment and order dated 03rd August, 2003 passed by this Court in Second Appeal No. 58 of 2023 (Ram Kumar and 29 others vs. Bitana and 12 others) whereby this Court dismissed the second appeal at the admission stage.

3. The review-petition is reported to be barred by 117 days.

4. Having considered the application for condonation of delay which is duly supported by an affidavit wherein it has been stated that against the final judgment and order dated 03rd August, 2023, the review-petitioner had preferred a Special Leave Petition before the Apex Court and on 11.12.2023, the counsel for the review-petitioners appearing in the Apex Court had withdrawn the Special Leave Petition and had sought liberty for filing a review which was granted by the Apex Court on 11.11.2023 and thereafter the instant review-petition has been preferred. The ground shown is found to be sufficient and the delay in filing the review shall stand condoned.

5. The Court thereafter has heard the learned counsel for the review- 2 CMRAD No. 27 of 2024 petitioner on merits of the review.

6. Sri Akshat Srivastava, learned counsel for the review-petitioner has vehemently urged that the basic reason, as indicated in the judgment and order dated 03.08.2023, upon which this Court had dismissed the second appeal was on the premise that the plea of undue influence and domination of the will of the plaintiffs could not be substantiated without indicating any proximity of relationship.

7. It is urged that this finding is not quite correct,inasmuch as, there can be various relationships which may have myriad implications inter-se the parties and to say that several sale deeds were executed wherein Sri Surendra Nath Srivastava was not shown as a witness cannot be an inference that he did not have the capacity to influence the will of the plaintiffs and it is a specific case that because of the domination exercised by Sri Surendra Nath Srivastava, the plaintiffs were led into executing the sale deeds, though, they had only agreed to execute a compromise.

8. It is thus urged that this finding recorded is an error apparent on the face of record, coupled with the fact that this would have an impact on the final outcome of the judgment, hence, for the aforesaid reason, the judgment deserves to be reviewed.

9. The learned counsel for the review-petitioner has further urged that even the issue regarding payment of sale consideration was not appropriately considered. Once the defendants who could not establish the payment of sale consideration, placing the burden on the present review- petitioners while deciding the case on 03.08.2023 is not in the sound exercise of jurisdiction especially when the records were not available and the second appeal was being heard at the admission stage. This also vitiates the approach upon which the judgment has been passed requiring a review.

10. Sri Anurag Shukla, learned Senior Counsel for the respondent nos. 1 and 2 has categorically stated that the attempt of the review-petitioner is to seek a re-hearing on the second appeal on merits which is not within the scope of Order XLVII Rule 1 and 2 C.P.C.

11. It has further been urged that as far as the finding regarding 3 CMRAD No. 27 of 2024 relationship is concerned, it was the specific case of the plaintiffs that their will was dominated by Sri Surendra Nath Srivastava. A plea taken by a party, in terms of Section 101 of the Evidence Act, is to be proved by the person raising such plea. This aspect of the matter has been considered in detail by the court and in this regard attention has been drawn, of the Court, to paragraphs 21 to 23 of the judgment under review.

12. It is urged that the findings given by the court is based on material evidence and even though the counsel for the review-petitioner has raised the issue that it is not based on evidence yet nothing has been brought on record to substantiate that the said findings do not get support from the material available on record. These are pure findings of fact which have been affirmed by the First Appellate Court and have been concurred by the Second Appellate Court and it does not require any further re-look.

13. Sri Shukla, learned Senior Counsel has further urged that the issue raised relating to payment of consideration, is absolutely misconceived, for the reason that there was a specific case indicating that Sri Bhogai had accepted the sale consideration. In case if the review-petitioners sought to contend that the sale consideration was not paid then it was incumbent upon them to have produced Sri Bhogai as a witness to contradict/to disprove the statement/plea of the defendant, however, they failed to do so and after having suffered a decree on merits after leading of evidence, this issue cannot be raised at the review of a second appellate judgment.

14. It is thus urged that the ground stated do not fall within the ambit of review, accordingly, the review petition deserves to be dismissed.

15. No other point has been pressed by the learned counsel for the review- petitioner and the respondents.

16. The Court has heard the learned counsel for the parties and also perused the material available on record.

17. Apparently, the scope of review is restricted as held by the Apex Court in a catena of decisions including in Ram Sahu (Dead) Through Lrs. and Ors. v. Vinod Kumar Rawat and others; (2021) 13 SCC 1. This aspect was also considered by the Apex Court in a recent decision in Maleeswari v. K. Suguna, 2025 SCC On Line SC 1927 and the relevant 4 CMRAD No. 27 of 2024 portion reads as under:- "15. It is axiomatic that the right of appeal cannot be assumed unless expressly conferred by the statute or the rules having the force of a statute. The review jurisdiction cannot be assumed unless it is conferred by law on the authority or the Court. Section 114 and Order 47, Rule 1 of CPC deal with the power of review of the courts. The power of review is different from appellate power and is subject to the following limitations to maintain the finality of judicial decisions:

15.1 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 of CPC.

15.2 Review is not to be confused with appellate powers, which may enable an appellate court to correct all manner of errors committed by the subordinate court.

15.3 In exercise of the jurisdiction under Order 47 Rule 1 of CPC, it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered, has a limited purpose and cannot be allowed to be an appeal in disguise.

15.4 The power of review can be exercised for the correction of a mistake, but not to substitute a view. Such powers can be exercised within the limits specified in the statute governing the exercise of power.

15.5 The review court does not sit in appeal over its own order. A rehearing of the matter is impermissible. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. Hence, it is invoked only to prevent a miscarriage of justice or to correct grave and palpable errors.

16. To wit, through a review application, an apparent error of fact or law is intimated to the court, but no extra reasoning is undertaken to explain the said error. The intimation of error at the first blush enables the court to correct apparent errors instead of the higher court correcting such errors. At both the above stages, detailed reasoning is not warranted.

17. Having noticed the distinction between the power of review and appellate power, we restate the power and scope of review jurisdiction. Review grounds are summed up as follows:

17.1 The ground of discovery of new and important matter or evidence is a ground available if it is demonstrated that, despite the exercise of due diligence, this evidence was not within their knowledge or could not be produced by the party at the time, the original decree or order was passed.

17.2 Mistake or error apparent on the face of the record may be invoked if there is something more than a mere error, and it must be the one 5 CMRAD No. 27 of 2024 which is manifest on the face of the record.8 Such an error is a patent error and not a mere wrong decision.9 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.

17.3 Lastly, the phrase ?for any other sufficient reason? means a reason that is sufficient on grounds at least analogous to those specified in the other two categories.

18. Courts ought not mix up or overlap one jurisdiction with another jurisdiction. Having noted the appellate and review jurisdiction of the Court, we will apply these principles to the impugned order to determine whether the High Court was within its power of review jurisdiction or had exceeded it by reversing the findings, as if the High Court were sitting in appeal against the order dated 23.09.2022. We appreciate the above tabulated summary of the view taken in the impugned order while doing so."

18. Having considered the submissions of the counsel for the review- petitioner and noticing the scope of review in light of the decisions of the Apex Court, it would reveal that the Second Appellate Court had clearly taken note of the fact that the plea of undue influence and domination of the will was raised by the plaintiffs. It was the plaintiff who had to clearly establish the same and the material on record did not suggest that such proximity was established which could indicate that Sri Surendra Nath Srivastava had any capacity to influence the will, as suggested.

19. The findings on the other hand as indicated in paragraph 20 to 22 of the judgment in review clearly deals with the aforesaid matter and apart from the bald submission of learned counsel for the review-petitioner, it could not be indicated as to how the same is vitiated, for this Court to form an opinion that it is an error apparent on the face of record.

20. Any plea which requires lengthy arguments or delving deep into the evidence is not an error apparent on the face of record. Thus, for the said reasons, the first plea does not find favour with this Court and is accordingly turned down.

21. Regarding the issue of payment of sale consideration, it is a clear case that Sri Bhogai had accepted the sale consideration in full. In case if it was disputed by the review-petitioner then it was open for the review- petitioner to have examined Bhogai during trial which was not done. In absence of producing the best witness before the Court and the Court had 6 CMRAD No. 27 of 2024 already taken a view which cannot be said to be perverse, this Court in exercise of powers under Section 100 C.P.C. is loath to intervene with findings of fact. There is nothing brought to the notice of the Court, to the contrary, that could prove that the sale consideration was not paid. Nothing of this sort was either proved or brought before the Trial Court or the First Appellate Court. In view of the aforesaid, the second submission is contrary to the admitted fact that Bhogai was never examined as a witness which has been taken note of by the Court while passing the judgment dated 03.08.2023. This Court finds that the learned counsel for the review-petitioner could not not establish any error apparent on the face of the record to persuade this Court to entertain the review.

22. In light of the aforesaid, this Court finds that there is no merit in the instant review which is accordingly dismissed. In the facts and circumstances, there shall be no order as to costs. November 27, 2025 Asheesh (Jaspreet Singh,J.)