Calcutta High Court
M/S. Bhowmick Enterprise (India) vs Uoi & Ors on 9 November, 2022
ORDER OD-1
IA NO: GA/2/2022
IN
APO/28/2019
ARISING OUT OF
EC/206/2018
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
M/S. BHOWMICK ENTERPRISE (INDIA)
VERSUS
UOI & ORS.
BEFORE:
HON'BLE JUSTICE HARISH TANDON
HON'BLE JUSTICE HIRANMMAY BHATTACHARYYA
Date: 9th November 2022.
APPEARANCE:
Mr. Tapas Dutta, Advocate
Mr. Mrityunjoy Halder, Advocate
...for the applicant.
The Court:- After the litigation has been set at rest upon dismissal of
an application for review, instead of challenging the order, an application
is taken out captioned as application for granting certificate for appeal to
Supreme Court under Article 134A read with Article 133(1) of the
Constitution of India solely on the premise that the order disposing of an
appeal which was subsequently reviewed has not correctly interpreted the
judgement of the Supreme Court rendered in case of Hyder Consulting
(UK) Limited v. Governor, State of Orissa Tr. Chief reported in (2015) 2
SCC 189 and therefore, leave should be granted to file an appeal before
the Supreme Court.
At the very outset, we must record that the petitioner challenged the
order of the Single Bench by way of an intra court appeal provided under
Clause 15 of Letters Patent and the same was disposed of on 22nd August
2019. Subsequently, an application for review was taken up agitating the
same point, which was dismissed on 16th July 2021. The same point is
projected in the instant application seeking a certificate to appeal before
the Supreme Court, realising the embargo having been created under
Order 47 Rule 9 of the Code of Civil Procedure. A point is taken that there
is no fetter in exercise of powers by the High Court being the court of
record to correct the error and reliance is placed upon a judgment of the
Supreme Court in case of M.M. Thomas v. State of Kerala and Another
reported in (2000) 1 SCC 666.
It is, no doubt, true that Article 215 of the Constitution provides that
the High Court is a court of record and therefore has inherent powers to
correct the records. There is no quarrel to the settle proposition of law in
this regard, provided the case of such nature is made out. The manner in
which the certificate is sought, it appears to us that the applicant intended
to have a decision contrary to what has already been taken by this Bench
on an earlier occasion, as and by way of certificate to appeal to the
Supreme Court. High Court does not enjoy any power to entertain an
application for review against an order made on an application for review
under Order 47 Rule 9 of the Code of Civil Procedure. The Apex Court in
M.M. Thomas's case held that such power of correcting its own record is
in-built into the High Court enjoying inherent and plenary powers, but
such power is bridled with any express or implied power created in law.
The learned counsel appears to have grappled his thoughts by the
observations of the Apex Court in M.M. Thomas where it says that the
High Court enjoying plenary power has the power to review relating to the
errors apparent on the face of the record. As indicated above, the
aforesaid plea was taken in the review application and this Court did not
find that the error as perceived by the learned counsel for the petitioner
comes within the peripheral of the errors apparent on the face of record.
Such inherent and plenary power conferred upon the High Court is not
unbridled and any decision taken contrary to it would create an
anomalous situation and create a chaos in the judicial system. The point
was reviewed in the appeal and the review having been decided by this
Court, we do not find that mere allegation over deducing the ratio
decidendi from the Supreme Court judgment can be regarded as a
substantial question of law of general importance. We, thus, do not find
that it is a fit case where certificate should be granted.
The application is dismissed.
[HARISH TANDON, J.]
[HIRANMMAY BHATTACHARYYA, J.]
s. kumar
