Bombay High Court
Chandrakant Kantilal Shah And Ors vs Shri. Rajiv Navinchandra Shah And Ors on 24 January, 2024
Author: Amit Borkar
Bench: Amit Borkar
2024:BHC-AS:3667
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
REVIEW PETITION NO.1 OF 2024
IN
WRIT PETITION NO.15335 OF 2023
Chandrakant Kantilal Shah & Ors. ... Petitioners
V/s.
Rajiv Navinchandra Shah & Ors. ... Respondents
Mr. Sharan Jagtiani, Senior Advocate with Mr. Munal
Vajani, Mr. Kartikey Bhatt and Mr. Prasanna Tare for
the review petitioner.
Mr. R.D. Soni with Mr. Gaurang Jhaveri, Ms. Vandana
Bait, Mr. Harsh Nishar, Mr. Amey Deshpande and Ms.
Niyati Sontakke for respondent No.1.
Mr. Rubin Vakil i/by Mr. Mufeez Ansari for respondent
No.14.
Dr. Abhinav Chandrachud with Ms. Akshada Shetye for
respondent No.21.
CORAM : AMIT BORKAR, J.
DATED : JANUARY 24, 2024
P.C.:
1. In this review petition, the short question that arises for
consideration is whether the omission of the court due to its
inadvertence or on account of the failure of the parties to draw its
attention to consider material date affecting the merits of the case
can be included within the expression "error apparent on the face
of record" as required under Order 47 Rule 1 of the Code of Civil
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Procedure, 1908 ("C.P.C." for short)
2. The facts necessary for adjudication of the review petition
are as follows:
i) The petitioner is the original plaintiff who filed suit for
declaration, injunction and partition.
ii) After the issues were framed, the plaintiff filed an affidavit
on 26 June 2023 in lieu of examination-in-chief. Therefore, the
trial commenced on 26 June 2023.
iii) On 26 September 2023 Respondents/original defendant
Nos.1 to 4 and 8 to 10 initially filed additional written statement.
However, on the same date, the Trial Court discarded the
additional written statement on the ground that such an additional
written statement was filed without the court's permission.
iv) On 11 October 2023, the respondents/defendants applied to
Order 6, Rule 17 of the Code of Civil Procedure, 1908 (for short
'C.P.C.') to incorporate the same plea of res judicata. According to
them, on 13 January 2023, a substantive suit was dismissed
between the then-plaintiff and the said defendants. The issues
raised in the present suit are similar to those raised in the earlier
suit, and, therefore, the present suit is barred by the principle of
res judicata.
3. The Trial Court, by the order impugned in the petition,
allowed the application for amendment. The petitioner, therefore,
filed the writ petition. This court, by the order under review,
allowed the writ petition.
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4. The defendants have filed a present review petition
contending the following grounds for review of the decision in the
writ petition:
(i) The basis of the judgment was the incorrect date of
commencement of trial, i.e. 26 July 2023, which is a false
statement on oath made by the writ petitioner; The correct date of
commencement of trial is 26 June 2023.
(ii) The superior Court stayed not only the execution of the order
but also the effect of a judgment in the civil suit. The stay of the
judgment of the civil suit, which gives rise to the plea of res
judicata, was vacated on 27 June 2023, which event occurred after
the commencement of trial and, therefore, proviso to Order 6 Rule
17 of C.P.C. was inapplicable.
5. To explain the scope of power under Order 47 Rule 1, the
learned Senior Advocate for the review petitioner has relied on the
judgments of the Apex Court in Haridas Das v. Usha Rani
Banik, (2006) 4 S.C.C. 78; Kamlesh Verma v. Mayawati,
(2013) 8 SCC 320; Meera Bhanja v. Nirmala Kumari
Choudhury, (1995) 1 SCC 170; S. Bagirathi Ammal v.
Palani Roman Catholic Mission, (2009) 10 SCC 464; Board
of Control for Cricket in India v. Netaji Cricket Club,
(2005) 4 SCC 741; M.M. Thomas v. State of Kerala & Anr,
(2000) 1 SCC 666; and Municipal Corporation of Greater
Mumbai & Anr. v. Pratibha Industries Ltd. & Anr., (2019)
3 SCC 203.
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6. The original petitioner has filed a reply to the review petition
stating that due to inadvertence, the date of commencement of
trial was stated to be 26 July 2023 in the memo of the writ
petition. There is no question of treating judgment dated 11
December 2023 as suffering from error apparent on the face of the
record.
7. The review has been sought on the ground that the
judgment in the writ petition is based on an error of inadvertence,
which amounts to an error apparent on the face of the record. The
parameters for exercising power under Order 47, Rule 1 of the
Code of Civil Procedure are well settled. An error may be a ground
for review, but it must be apparent on the face of the record, which
means an evident error and does not require any extraneous
matter to show its incorrectness. It must be an error so manifest
and evident that no court would permit such an error to remain on
the record. The error may be one of fact or one of law, but the
error of law must be definite and does not admit any ambiguity or
discussion. A conclusion arrived at by the process of conscious
reasoning cannot constitute an error of law apparent on the face of
the judgment to be reviewed. However, a review cannot be granted
on the mere ground that the decision arrived at is erroneous on
merits, nor can a judgment in a second appeal be reviewed on the
grounds of discovering new and important evidence on a question
of fact. If a judgment proceeds on an erroneous assumption as to a
material fact, or where the court omits to try a material issue and
arrives at a conclusion, or where the court decides against a party
on matters not in issue or where a Judge erroneously concludes
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that he was bound by the findings of fact of the lower court, the
judgment can be reviewed. In other words, where a judgment
proceeds under a misapprehension of the actual state of
circumstances or the court has failed to consider essential facts on
record or fails to refer to some important documents affecting the
very jurisdiction of the court, then the judgment can be reviewed.
However, whether it is an error of law or fact, it must be an error
of inadvertence.
8. Omission on the part of a court, either due to its
inadvertence or on account of the failure of the counsel to draw its
attention, to consider material pieces of evidence on the record
affecting the merits of the case has always been held either an
error apparent on the face of the record or as sufficient cause for
justifying interference by way of review.
9. The Federal Court in the case of Mst. Jamna Kunwar v.
Lal Bahadur, A.I.R. 1950 F.C. 131., held as follows
"Whether the error occurred by reason of the counsel's
mistake or it crept in by-reason of an oversight on the part of
the court was not a circumstance which could affect the
exercise of jurisdiction of the court to review its decision. We
have no doubts that the error was apparent on the face of
the record and in our opinion the question as to how the
error occurred is not relevant to this enquiry."
10. In the case of M.M.B. Catholicos v. M.P. Athanasius,
A.I.R. 1954 S.C. 526, the Supreme Court inter alia observed as
follows:--
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"The cases to which the reference has been made indicate
that the misconception of the Court must be regarded as
sufficient reason analogous to an error apparent on the face
of the record."
11. In the case of Raghubir Gir v. Badam Gir, 1950 A.L.J.
204., a Division Bench of Allahabad High Court held that where
there was an error in the original order of a Civil Judge which
appeared to have been passed with pointed attention towards the
question of saleability of certain houses as such without any
particular attention to the saleability of the site, the error could be
said to be analogous to an error apparent on the face of the record
within the meaning of Or. XLVII, Rule 1, C.P.C. The Division Bench
quoted with approval the following observations of another
Division Bench made in the case of Narain Das v. Chirauji Lal
[XXIII A.L.J. 56 at p. 58.] :--
"In our opinion, the words "for any other sufficient reason"
in Or. 47, R. 1, are not only very wide in themselves, but
were intentionally so made by the legislature, because of the
possibility of exceptional cases arising in which obvious
injustice would be worked by strict adherence to the terms of
the decree as originally passed. We are not prepared to hold
that the court below was outside its jurisdiction in passing
the order now under appeal."
12. In the case of Naurata v. Anokha, A.I.R. 1954 Pepsu 85, it
was held by a Division Bench that when important documentary
evidence already on record was not brought to the notice of the
court and referred to by either party when the appeal was heard,
all the same, the documents being already there, the error is
apparent on the face of the record, which an error whether it
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occurs by reason of the counsel's mistake or it creeps in by reason
of an oversight on the part of the court can always be a good
ground for exercise of the jurisdiction of the court to reverse its
decision.
13. Bearing in mind the aforesaid parameters, I shall now
examine the merits of the application for review. The facts relevant
to the adjudication of the issue involved in the review petition are
as follows:
i) On 13 January 2023, a Special Civil Suit bearing No.55 of
2010 between the then plaintiff and defendant Nos.1 to 4 and 8 to
10 and other defendants came to be dismissed;
ii) In an appeal against the said decree, the Appellate Court
granted the stay to the effect and operation of not only the decree
but also the judgment passed in Special Civil Suit No.55 of 2010;
iii) On 26 June 2023, the plaintiff filed an affidavit in lieu of
examination-in-chief, which resulted in the commencement of trial
as required under proviso to Order 6, Rule 17 of CPC.;
iv) On 27 June 2023, the Appellate Court vacated the stay
granted to the execution and operation of judgment in Special
Civil Suit No.55 of 2010;
v) On 26 September 2023, the defendants, without permission
of the court, filed an additional written statement raising a plead
of res judicata;
vi) On 26 September 2023, the Trial Court discarded such an
additional written statement on the grounds that permission of the
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court was not obtained before filing an additional written
statement;
vii) On 11 October 2023, the petitioner filed an application for
amendment under Order 6, Rule 17 of C.P.C. to incorporate a plea
of res judicata based on judgment in Special Civil Suit No.55 of
2010.
14. This court allowed plaintiffs' writ petition mainly on two
grounds:
(a) Merely because the effect of the judgment in a civil suit is
stayed, may not dis-entitle the defendants from raising plea
of res judicata earlier; and
(b) After the stay was vacated on 27 June 2023, the Trial
Court fixed the suit for leading evidence on five occasions.
The petitioner had the opportunity to apply for amendment
on five occasions till 26 July 2023, which was considered the
date of commencement of trial, for which the defendants did
not plead due diligence.
15. In so far as a first ground for rejecting the amendment is
concerned, a copy of the appellate court's order was not brought to
the notice of this court, indicating that the appellate court stayed
the effect of the entire judgment. A copy of the order passed by the
appellate court indicates that the appellate court stayed the entire
judgment of the Trial Court and, therefore, the findings rendered
in Special Civil Suit No.55 of 2010 would not come into operation
till the stay of the entire judgment is vacated. The fact stay of
entire judgment in Special Civil Suit No.55 of 2010 was not
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brought to the notice of this court during arguments by the parties
to the petition.
16. The second reason assigned for allowing the writ petition
was lack of due diligence as required under proviso to Order 6
Rule 17 of the C.P.C. The appellate court vacated the stay to the
judgment in Special Civil Suit No.55 of 2010 on 27 June 2023. The
trial commenced one day before the vacation of such stay--the
cause of action for seeking amendment accrued to the peitioner
after the commencement of trial. Hence, the proviso to order 6
rule 17 will not come into operation. Hence, it was not necessary
for the defendants to plead and prove the exercise of due diligence
as required under proviso to Order 6 Rule 17 of the C.P.C.
17. In my view, therefore, review petitioners are successful in
substantiating the ground that omission on the part of this court to
consider the correct date of commencement of trial due to its
inadvertence on account of the failure of Counsel for the parties to
draw its attention to said material fact affect merits of the case and
such error in the facts of the case needs to be treated as an error
apparent on the face of record justifying interference by way of
review. Hence, the following order:
(a) Review Petition No.1 of 2024 is allowed in terms of
prayer clause (a);
(b) Civil Writ Petition No.15335 of 2023 stands dismissed.
18. At this stage, learned advocate for the contesting
respondents seeks continuation of stay. Since there was stay in
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force during the pendency of the writ petition and review petition,
the same shall continue for a period of four weeks from today.
(AMIT BORKAR, J.)
