Whether an order can be reviewed on ground that it was passed due to misconception of court?

It  is an error apparent on the face of the record  if  the
judgment   does  not  deal  effectively  and  determine   an
important  issue in the case on which depends the  title  of
the plaintiff and the maintainability of the suit.
To decide against a party on matters,which do not come with-
in the issues on which parties went to trial clearly amounts
to an error apparent on the face of the record.
Where the error complained of is that the Court assumed that
a  concession had been made when in fact none had been made
or  that the Court misconceived the terms of the  concession
or  the scope and extent of it or the attitude taken, up  by
the  party  and has been misled by a misconception  of such
alleged  concession,  such  error  must  be  regarded  as  a
sufficient  reason analogous to an error on the face of  the
record within the meaning of Order 47, rule I of the Code of
Civil Procedure.
Such error will not generally appear on the record and will
have  to  be  brought  before  the  Court  by  means  of  an
affidavit.

Supreme Court of India

Moran Mar Basselios Catholicos ... vs The

 Most Rev. Mar Poulose ... on 21 May, 1954

Equivalent citations: 1954 AIR SC 526, 1955 SCR 520

BENCH:
JAGANNADHADAS, B.
DAS, SUDHI RANJAN
HASAN, GHULAM

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Whether party is estopped from rebutting uninformed concession made at bar by its counsel?

 At this stage, we must deal with the submission made on
behalf of the appellant that there was a concession by the
respondent before the High Court that AGREEMENT-II is not a
tripartite agreement but a bipartite agreement16
.
What is the number of parties to a document is a
question of fact. When a fact is in issue17, the same is required
to be proved in accordance with the provisions of the Evidence
Act. Disposition of the property whether it be by way of a
contract or grant or any other, if reduced to writing, parties
are prohibited from giving any evidence regarding the terms of
such disposition18 except the document itself or ‘secondary
evidence’19 of that document. Provided that such secondary
16 20.. That apart, Shri A. Krishnan, learned counsel for the respondent, at the very outset had admitted that
the findings recorded by the learned District Judge to say that the Assignment Agreement is a tripartite
agreement is not correct and the objection in this regard raised by Shri V.K. Tankha, learned Senior
Advocate, may be accepted, he agrees that the same is a Bi parte agreement.
17 The Indian Evidence Act, 1872 – Section 3. Facts in issue.– The expression “facts in issue” means and
includes – any fact from which, either by itself or in connection with other facts, the existence,
non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or
proceeding, necessarily follows.
18 Section 91 – Evidence of terms of contracts, grants and other dispositions of property reduced to
form of documents – When the terms of a contract, or of a grant, or of any other disposition of property,
have been reduced to the form of a document, and in all cases in which any matter is required by law to be
reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant
or other disposition of property, or of such matter, except the document itself, or secondary evidence of its
contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
19 Section 63 – Secondary evidence. Secondary evidence means and includes.— (1) certified copies given
under the provisions hereinafter contained;
 (2) Copies made from the original by mechanical processes which in themselves ensure the
accuracy of the copy, and copies compared with such copies;
 (3) Copies made from or compared with the original;
 (4) Counterparts of documents as against the parties who did not execute them;
 (5) Oral accounts of the contents of a documents given by some person who has himself seen
it.

evidence is otherwise admissible under the Evidence Act.
Though oral evidence can be secondary evidence under
Section 63(5), Section 64 mandates that documents must be
proved by primary evidence except in exceptional
circumstances specified under the other provisions of
Evidence Act. Logically, a concession at the bar regarding the
content of a written agreement including the fact as to who are
the parties to the document, in our opinion, does not stand on
any different footing than the oral evidence of the parties. The
concession made by the counsel for the respondent is not
secondary evidence admissible under any of the clauses ofSection 65 of the Evidence Act. Therefore, in our opinion, the
concession made at the bar by the learned counsel (for the
respondent herein) before the High Court does not preclude
the respondent from asserting that AGREEMENT-II is a
tripartite agreement. The tenor and content and the fact that
representatives of the three companies signed the document
cannot be ignored simply on the basis of an uninformedconcession made at the bar.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8299 OF 2016
(Arising out of SLP (C) No.33227 of 2015)
Sasan Power Limited 
V
North American Coal Corporation
India Private Limited 
Citation: (2016) 10 SCC813

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