Shri Kaushik Mitra vs Smt. Indira Ghosh And Another
2022 Latest Caselaw 245 Cal

                      In the High Court at Calcutta
                       Civil Revisional Jurisdiction
                              Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya



                            RVW 134 of 2021
                                   with
                             CAN 1 of 2021
                                    in
                         C. O. No. 3670 of 2019

                           Shri Kaushik Mitra
                                  Vs.
                     Smt. Indira Ghosh and another




     For the review applicant      :     Mr. Kallol Basu,
                                         Mr. Rajdeep Bhattacharya,
                                         Mr. Amitava Bhowmik


     For the opposite parties      :     Mr. Probal Kumar Mukherjee,
                                         Mr. Debanik Banerjee,
                                         Mr. Mainak Swarnakar


     Hearing concluded on          :     27.01.2022

     Judgment on                   :     01.02.2022



     Sabyasachi Bhattacharyya, J:-



1.

By the present review application, the revisionist petitioner in CO

No.3670 of 2019 has sought review of an order dated August 25, 2021

passed in the said revisional application under Article 227 of the

Constitution of India.

2. Learned counsel for the review applicant/revisionist petitioner argues

that this Court proceeded on a patently erroneous premise in

affirming the order impugned in the said revisional application. The

basis on which this Court's order was passed, it is submitted, was

that the Trial Court had, by an order previous to the impugned order,

already dismissed an application for recall of the order dated

December 6, 2018 passed in Money Suit No. 115 of 2018. Hence, this

Court as well as the Trial Court proceeded to observe that the

applicant could not reopen the said order dated December 6, 2018

afresh.

3. However, learned counsel for the petitioner argues that the previous

order of the Trial Court, whereby the Trial Court had allowed an

application for recall of the earlier order dated December 6, 2018, was

only in the context of seeking a re-hearing of an application under

Order XXVI Rule 4A of the Code of Civil Procedure, which was

different in premises than the subsequent application, rejected by the

impugned order, which had also sought for recall of the order dated

December 6, 2018, but had prayed for recall of the fixation of the suit

itself on the ex parte Board.

4. Learned counsel submits that, even apart from the aforesaid logic,

this Court's order should be reviewed and the Trial Court's impugned

order set aside, since the applicant was erroneously indicted by the

courts for the laches of the advocate.

5. Learned counsel places reliance on several judgments on such score

as well as on the proposition that the power of review is wide enough

for the court to recall its own order if a mistake was committed by the

court, either on fact or on law.

6. The learned Senior Advocate appearing for the opposite party, on the

other hand, contends that the Trial Court, in the order impugned in

the revisional application, had rightly considered that the petitioner's

previous prayer was ultimately for recall of the order dated December

6, 2018, irrespective of the ancillary prayer. Hence, after its rejection,

a second application for recall of the said order dated December 6,

2018 would not lie.

7. On the arguments advanced by learned counsel for the petitioner, the

learned Senior Advocate for the opposite party contends that there is

nothing on record to suggest any fault on the part of the advocate.

8. The learned Senior Advocate further argues that the second

application for recall of the order dated December 6, 2018, in any

event, was barred by the principle of constructive res judicata and the

principle incorporated in Order II Rule 2 of the Code of Civil

Procedure.

9. Upon considering the cited judgments, it is elicited that the Supreme

Court, in M/s. Mukesh Tempo Service Vs. M/s. National Insurance

Company Limited and another, passed in Civil Appeal No.2282 of 2019

on February 28, 2019, had opined that the delay in that case was on

account of negligence on the counsel's part and the litigant should not

suffer due to mistake of his counsel. The court, therefore, condoned

the delay in moving the application for restoration of appeal.

10. In Rafiq and another Vs. Munshilal and another, reported at AIR 1981

SC 1400 =[ (1981) 2 SCC 788], the Supreme Court held that the party

to a litigation may be a villager or belong to a rural area and have no

knowledge of the court's procedure. At the time of hearing the appeal,

the personal appearance of the party is not only not required but

hardly useful. The Supreme Court further recorded the submission of

counsel appearing in the matter to the effect that a practice had grown

up in the High Court from which the matter had been preferred,

amongst the lawyers, that they remain absent when they do not like a

particular bench. However, the Supreme Court proceeded to observe

that even if it did not put its seal of imprimatur on such alleged

practice by dismissing the matter which may discourage such a

tendency, it would bring justice delivery system into disrepute. Since

no fault could be attributed to the party and in view of the court

having no material for ascertaining whether the learned advocate

absented himself deliberately or intentionally, the Supreme Court

proceeded to hold that an innocent party cannot suffer injustice

merely because his chosen advocate defaulted and set aside the order

impugned before the Supreme Court in the said case.

11. However, in the present case, there is absolutely no material-on-

record even to suggest that the litigant was a villager or came from a

rural area or was otherwise handicapped in any manner.

12. That apart, the facts of the cited case were entirely different from the

present case. In the case at hand, there is no allegation from any

quarter regarding the advocate appearing in the Trial Court following a

general practice of the advocates' abstinence from hearings by choice.

13. Moreover, the Supreme Court has the benefit of Article 141 of the

Constitution of India, which specifically enumerates that the law

declared by the Supreme Court shall be binding on all courts within

the territory of India.

14. Such law making power is not vested either with this Court or the

Trial Court. Hence, it would be beyond the jurisdiction of this Court

to lay down a general proposition in the above regard, particularly

since the facts of the two cases are entirely different.

15. Learned counsel for the applicant also refers to Board of Control for

Cricket of India and another Vs. Netaji Cricket Club and others,

reported at (2005) 4 SCC 741. In the said case, a converse proposition

to that advanced by the present applicant was being considered by the

Supreme Court, when it held that it was of the opinion that the

jurisdiction of the High Court in entertaining a review application

cannot be said to be ex facie bad in law and Section 114 of the Code

empowers a Court to review its order if the conditions precedent laid

down therein are satisfied. Considering the scope of Order XLVII

Rule 1 of the Code of Civil Procedure as well, the Supreme Court held

that such an application for review would be maintainable not only

upon discovery of a new and important piece of evidence or when

there is existence of an error apparent on the face of the record but

also if the same is necessitated on account of some mistake or for any

other sufficient reason. Upon consideration of the facts of the said

case, the Supreme Court laid down the above proposition.

16. However, the facts of the present case do not justify application of the

same principle, simply because there is no mistake discernible from

the face of the order under review or the records.

17. It is also well-settled that, in a catena of cases, the Supreme Court

has observed time and again that the expression "or for any other

sufficient reason", appearing in Rule 1 of Order XLVII of the Code of

Civil Procedure has to be read mutatis mutandis with the previous

expressions used in the provision. The primary grounds for review, as

provided in the provision, are discovery of new and important matter

or evidence which was not within the knowledge of, or could not be

produced by, the party concerned at the relevant juncture even after

the exercise of due diligence or some mistake or error apparent on the

face of the record.

18. The arguments advanced in the present review application do not

indicate any new and/or important matter or evidence, which was not

within the knowledge of or could not be produced by the applicant

after the exercise of due diligence, at the relevant point of time when

the order of this Court was passed.

19. For a mistake to be an error "apparent on the face of the record", it

has to be ex facie decipherable on the face of the order itself.

20. However, in order to accept or negate the arguments advanced by the

review applicant in the present matter, one has to go through the

entire gamut of orders passed in the connected suit, from which the

revision arose. A mere perusal of the order under review or the Trial

Court's order are not sufficient to come to such a conclusion.

21. Even upon a consideration of the order-sheet of the suit, it is left to

debate as to whether the proposition advanced by the applicant is

tenable in law or acceptable. Hence, there is no error or mistake

apparent on the face of the record in the present case.

22. Even following the ratio laid down in BCCI (supra), it cannot, by any

stretch of imagination, be held that the order under view suffers from

any mistake or gross error sufficient to entitle the applicant to a

review.

23. Since detailed arguments are necessary to substantiate the applicant's

proposition, it cannot be said that the contours of review jurisdiction

are satisfied in the present case, even imparting the widest possible

connotation thereto.

24. A perusal of the order-sheet and consideration of the arguments of the

parties indicate that two applications and three orders or the Trial

Court are germane in the context.

25. The first important component of the narrative is the order dated

December 6, 2018, which is the genesis of the entire matter.

26. The said order had two ingredients. The Trial Court observed that

none appeared for the defendant on repeated calls and no steps were

taken by the defendant, although the plaintiff had filed hazira. It was

further found that the record revealed that no step had been taken by

the defendant on the two previous dates. In such circumstantial light,

the suit was directed to be proceeded with ex parte against the

defendant.

27. Only after such detailed observations, the Trial Court further

proceeded to hear an application filed by the plaintiff under

Order XXVI Rule 4A of the Code of Civil Procedure and ultimately to

allow the same. We find the said order at page 76 of the review

application.

28. Coming to the prayer of the first application for recall filed by the

applicant, appearing at page 70 of the present review application, it is

seen that the applicant had prayed for recall of the order dated

December 6, 2018. As a consequential prayer, though, it was also

prayed that a date may be fixed for hearing of the application under

Order XXVI Rule 4A of the Code of Civil Procedure.

29. The said application was dismissed on merits vide order dated

January 22, 2019 passed in Money Suit No.115 of 2018. Such order

is annexed at page no.79 of the present review application and reveals

that the Trial Court clearly observed that it appeared from Order No.9

dated December 6, 2018 that the suit was proceeding ex parte against

the defendant and, under such circumstances, there was no scope for

the defendant to move or place any application before the court. The

court further went on to observe that it was significant to point out

that no objection against the petition under Order XXVI Rule 4A of the

Code of Civil Procedure had been filed by the defendant, which was

one of the grounds for rejection of the recall application.

30. In the order dated January 22, 2019 at page no.79, it is reflected that

both parties were heard at length and the case records were perused

by the Civil Judge (Senior Division).

31. The second application, which is relevant in the context, also prayed

for recall of the order dated December 6, 2018, but this time with a

consequential prayer for removal of the suit itself from the ex parte

Board to the interlocutory Board, as it appears from page no.84 of the

present review application.

32. The said application was rejected on contest vide order dated August

31, 2019, which was challenged before this Court in C.O. No.3670 of

2019.

33. A careful scrutiny of the order dated August 31, 2019 shows that the

defendant in the suit had prayed for setting aside the order dated

December 6, 2018 by setting up miscommunication by the advocate's

clerk on the relevant date as a ground. The court took note of the

objection of the plaintiff that a similar petition had been heard and

rejected by the Trial Court on January 22, 2019. The court also

elaborately considered that the suit had been filed for defamation

against the defendant and that a similar petition of the defendant was

rejected on contest vide OrderNo.9 dated January 22, 2019. It was

further observed by the Trial Court on August 31, 2019 that it had

carefully perused the order dated January 22, 2019 where the

predecessor-in-chair had already rejected the defendant's "prayer for

recall of Order No.9 dated 06.12.2018 on contest". "So, therefore", the

Trial Court could not refuse its own order, since it was held

tantamount to abuse of power of the court. On such ground, the

recall application was rejected and the suit was reverted back to the

previous stage, fixing the subsequent dated for submission of the

commissioner's report.

34. A careful examination of the nature of the two recall applications filed

in the Trial Court and the averments made in each of them reveals

that the grounds made out therein were not only confined,

respectively, to the application under Order XXVI Rule 4A of the Code

of Civil Procedure and to the suit itself. General explanations were

given in both the recall applications for the absence of the applicant

on December 6, 2018. It was averred in each of the said recall

applications that unless the order dated December 6, 2018 was

recalled, the defendant would suffer irreparable loss and injury. The

prayer portion of both the applications specifically sought recall of the

order dated December 6, 2018. Only consequentially, the first

application sought re-hearing of the application under Order XXVI

Rule 4A of the Code of Civil Procedure and the second application

sought for a removal of the suit from the ex parte Board. However,

irrespective of the consequential reliefs sought, the primary prayer in

both the recall applications was substantially the recall of the order

dated December 6, 2018.

35. Since both the components, that is fixation of the suit for ex parte

hearing and disposal of the application under Order XXVI Rule 4A of

the Code of Civil Procedure were implicit in the order dated December

6, 2019, the first recall application filed by the applicant, which was

dismissed on merits on January 22, 2019, itself closed the chapter of

seeking a recall of the order dated December 6, 2018 as a whole.

36. The Trial Court had clearly, in the order dated January 22, 2019,

recorded its reasons for refusing the applicant's prayer for recall, as

per the grounds argued and pleaded by the applicant in the said

application. It was beyond the jurisdiction of the Trial Court to

traverse beyond such reasons or sit in judgment over the same

subsequently, since the cardinal relief sought in both recall

applications was the same.

37. The applicant could not, in law, resile from that position and reopen

the chapter of recalling the order dated December 6, 2018 afresh, by

filing a fresh recall application with the same prayer, merely by

altering the ancillary prayer from re-hearing of the interlocutory

application under Order XXVI Rule 4A of the Code of Civil Procedure

to removal of the suit from the ex parte Board. Irrespective of such

replacement and substitution of ancillary relief, the plinth of the

averments and prayer in both the recall applications were self-same,

being the recall of the order dated December 6, 2018. Merely choosing

one and relinquishing the other consequential prayer in the first recall

application would only debar the applicant from taking such other

ground again in a second recall application, both on the principles of

constructive res judicata and that laid down in Order II Rule 2 of the

Code of Civil Procedure, as rightly contended by the opposite party.

38. Merely replacing the ancillary prayer would not alter the primary

complexion of the recall application, which was the recalling of the

order dated December 6, 2018. Hence, the Trial Court was absolutely

justified in rejecting the second recall application on the ground that a

similar petition had been dismissed on contest by its previous order

dated January 22, 2019.

39. That apart, a perusal of the order of this Court dated August 25,

2021, which is under review, clearly shows that this Court had not

only considered the specific reason given in the impugned order dated

August 31, 2019 but had also considered that no steps had been

taken by the defendants on two previous dates as well as on December

6, 2018 itself, thereby taking the tally of being absent to three

successive occasions.

40. Based on such considerations as well, this Court had held

categorically that the defendant/petitioner was continuously negligent

in attending/contesting the suit and that the convenient shifting of

blame on the erstwhile advocate for the petitioner in the Trial Court

merely amounted to passing the buck and did not serve any useful

purpose, since the erstwhile advocated was not before the Trial Court

or this Court to vindicate or controvert such allegations. In the

circumstances of the case, it was also observed by this Court that,

unless the contrary is proved, counsel act as agents of the litigants

and, by mere shifting of blame to the erstwhile advocate, the petitioner

cannot take unnecessary advantage, thereby giving a go-by to the

provisions of law.

41. Unlike the cited judgments on the proposition of the binding effect of

counsel's acts on the litigants, the observations in the present order

under review clearly indicated that the litigant himself was at fault for

having occasioned delay on several previous occasions, which was a

finding on the basis of the records available before this Court.

42. It is also relevant to note that the present applicant, as the revisionist

petitioner, was duly represented by counsel, who had advanced

arguments in extenso at the time of disposal of the revisional

application. The points argued in connection with the present review

application, although fully available to the applicant/petitioner at that

juncture as well, were not advanced by learned counsel for the

applicant when the revisional application was dismissed on August

25, 2021. The nature of such arguments is primarily factual and not

purely legal, and thus could be waived by learned counsel for the

applicant at the relevant point of time. Having kept silence on such

purported grounds at the relevant time of disposal of the revision, it

does not now lie in the mouth of the applicant to agitate such

contentions afresh in a review application, thereby stretching the

borders of the review jurisdiction, as contemplated under Order XLVII

and Section 114 of the Code of Civil Procedure, to limits beyond

recognition.

43. In the particular circumstances of that case, the Supreme Court had

observed in BCCI (supra) that the court can also consider its mistakes

while deciding a review application.

44. However, even a detailed enquiry of the materials-on-record presented

before the revisional court clearly indicates that the

petitioner/ applicant cannot show beyond all other possibilities, that

the order under review should have been passed in the converse.

45. In the absence of any mistake on the part of this Court as discussed

above, let alone gross or obvious or apparent on the face of the record,

and/or discovery of any new matter which was not available to the

revisionist petitioner at the relevant juncture, the propositions as laid

down in the cited judgments, relied on by the learned counsel for the

applicant, are not applicable in the circumstances of the present case

to justify the prayer for review made in the instant application.

46. In such view of the matter, R.V.W. 134 of 2021, along with CAN 1 of

2021, is dismissed on contest without, however, any order as to costs.

47. Urgent certified copies of this order shall be supplied to the parties

applying for the same, upon due compliance of all requisite

formalities.

( Sabyasachi Bhattacharyya, J. )