Calcutta High Court (Appellete Side)
Harisadhan Halder & Ors vs Madhai Mondal & Ors on 4 July, 2022
04.07.2022
36
Akb/ss
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Shekhar B. Saraf
R.V.W. 95 OF 2018
In
W.P.A. 17197 of 2017
I.A.CAN 1 of 2018 (old No. CAN 4952 of 2018)
HARISADHAN HALDER & ORS.
Versus
MADHAI MONDAL & ORS.
For the Respondents/Applicants :Mr.Pankaj Halder,
Mr. Sanatan Panja,
Mr. Tapas Manna,
For the Writ Petitioners/Respondents :Mr. Indranath Mitra,
Mr. Subhankar Das,
Heard on : July 04, 2022
Judgment on: July 04, 2022
Order Dictated in Open Court :
1. Heard learned Counsel appearing for the parties in the Review
Petition.
2. The contention of the respondents/applicants is that the impugned
order dated July 11, 2017 was passed in the Writ Petition ex parte.
He further submits that the order restraining the petitioner herein
from carrying on any construction or further construction at the
plot in question was passed without jurisdiction as the father of
the petitioners had obtained a sanction plan in 1994. He submits
that the above fact was not brought before the knowledge of the
Court, and accordingly, the review lies.
3. It is to be seen from the order passed on July 11, 2017 that the
Hon'ble Judge had directed the respondent no.9 being the Prodhan
of the Raidhigi Gram Panchayat to consider the representation of
the writ petitioner and till hearing of the said representation of the
writ petitioner, no further construction was to be carried out at the
plot concerned.
4. Though the order dated July 11, 2017 was passed by the Hon'ble
Court ex parte, it is to be noted that service of the writ petition was
duly made upon the respondents/applicants, and despite that
none appeared for such respondents/applicants.
5. At the outset, it would to apt to discuss the jurisdiction of this
Court to review its own judgment. I had the occasion to examine
the principles of review while sitting on the Division Bench with the
Hon'ble Justice Harish Tandon in the case of The State of West
Bengal & Anr. Vs. Confederation of State Government
Employees & Ors. reported in (2019) 3 WBLR (Cal) 39. After
examining a catena of Supreme Court Judgments [See Sasi (D
through LRs -v- Aravindakshan Nair reported in (2017) 4 SCC,
paras 6-9; Haridas Das -v- Smt. Usha Rani Banik reported in
(2006) 4 SCC 78, paras 15-18; Parsion Devi -v- Sumitri Devi
reported in 1997 (8) SCC 715, paras 7-10; Aribam Tuleshwar
Sharma -v- Aribam Pishak Sharma reported in (1979) 4 SCC
389, para 3] I had culled out the principles that emerge from a
perusal of the land-mark Supreme Court Judgments on the issue
of review. The same are delineated below :-
A. The power to review is inherent in the High Court
and the High Court can review its own order/judgment
passed in a writ petition.
B. This power of review is a limited power and would
be governed by the principles of Section 151 read with
Order XLVII Rule 1 of the Code of Civil Procedure.
C. Firstly, a Court can review its own judgment
when there is discovery of new and important matter or
evidence that was in spite of exercise of due diligence not
within the knowledge or could not be produced due to
cogent reasons by the party seeking a review. Secondly,
the court may review its order or judgment on account of
some mistake or error apparent on the face of the record.
Thirdly, a residuary3 clause in Rule 1 of Order XLVII
provides for a review 'for any other sufficient reason'. It is
to be noted that the Apex Court on several occasions has
held that the third condition "for any other sufficient
reason" has to be read within the four corners of the first
two conditions.
D. An error which is not self-evident and has to be
detected by a process of reasoning is not an error
apparent on the face of the record.
E. A review petition has a limited purpose and
cannot be allowed to be "an appeal in disguise". There is
a sharp distinction between an erroneous decision that
can be only appealed against and an error apparent on
the face of the record that is subject to review.
6. I am of the opinion that, given the limited scope of review, this
Review Application does not satisfy any of the aforementioned
principles regarding review by the Court of its own judgment.
7. It is also to be noted that the respondents/ applicants have
claimed that the petitioners/respondents have suppressed material
facts in order to secure an ex parte order dated July 11, 2017 from
this Court. The respondents/applicants claimed that the writ
petitioner/respondent did not disclose to the Court that a sanction
plan for the said plot had already been obtained in 1994 by the
father of the applicants herein.
8. It is axiomatic that any petitioner in a Writ Petition has to
approach the Court with "clean hands" based on good faith and
has to produce before the Court all material facts that are relevant
for adjudication of the said matter.
9. In Asiatic Engineering Co. -v- Achhru Ram and others reported
in AIR 1951 Allahabad 746 (Full Bench) the Court observed that
no relief can be granted in a writ petition under Article 226 which
is based on misstatement or suppression of material facts. As
authored by Ruma Pal, J. in S.J.S. Business Enterprises (P) Ltd.
-v- State of Bihar and others reported in (2004) 7 SCC 166,
suppression of a material fact by a litigant disqualifies such litigant
from obtaining any relief. The relevant portion is provided below:
"13. As a general rule, suppression of a material fact by a litigant
disqualifies such litigant from obtaining any relief. This rule has
been evolved out of the need of the courts to deter a litigant from
abusing the process of court by deceiving it. But the suppressed fact
must be a material one in the sense that had it not been suppressed
it would have had an effect on the merits of the case. It must be a
matter which was material from the consideration of the court,
whatever view the court may have taken........"
10. It is the contention of the petitioner in this Review Petition that
there has been suppression of material facts. In my view, this
submission is incorrect as there has been no suppression of
material facts whatsoever. Upon a plain reading of the order dated
July 11, 2017 it is clear that the Court only directed the
respondent no. 9 to decide on the representation of the writ
petitioner and while doing so granted an opportunity of hearing to
be given to both the writ petitioner and the private respondent (the
petitioner herein). In spite of service, the private respondent chose
not to appear in the matter and therefore was not able to place the
facts before the Court. However, the decision of the Court was
simpliciter to direct the respondent no. 9 to grant an opportunity
of hearing to both the parties and decide the issue based upon
relevant documents that may be produced by both the parties.
Accordingly, the Court by itself did not go into merits of the case
of the writ petitioner. In light of the same, the attempt of the
petitioner to file a Review Application one year after the order
dated July 11, 2017 is clearly a mala fide action and is bereft of
any merit whatsoever. One may further note that new facts that
have been brought before this Court in the Review Petition were in
the special knowledge of the applicant herein and was not and
could not have been in the knowledge of the writ petitioner.
Therefore, having not appeared in the matter, due care was not
taken by the applicant herein. In light of the same, it is clear that
in the present facts and circumstances no case is made out for
review of the order dated July 11, 2017.
11. Accordingly, the Review Petition is dismissed.
12. There shall be no order as to costs.
13. Urgent Photostat certified copy of this order, if applied for, should
be made available to the parties upon compliance with the
requisite formalities
(Shekhar B. Saraf, J.)
