Calcutta High Court
New Cenral Book Agency Private ... vs Madhusri Konar And Anr on 11 November, 2022
1
ODC-1
RVWO 27 of 2022
With
CS/219/2016
IA No. GA/1/2022
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
[Commercial Division]
NEW CENRAL BOOK AGENCY PRIVATE LIMITED AND ANR.
Vs.
MADHUSRI KONAR AND ANR.
BEFORE :
The Hon'ble JUSTICE KRISHNA RAO
Heard On : 07.11.2022
Order On : 11.11.2022
Appearance:
Mr. Soumya Roy Chowdhury, Adv.
Mr. Sarosi Dasgupta, Adv.
Mr. Dwip Raj Basu, Adv.
.....For the Plaintiff
Mr. Reetobroto Mitra, Adv.
Mr. Shankarsan Sarkar, Adv.
Mr. L.R. Mondal, Adv.
Mr. M.M. Rahaman, Adv.
...For the defendants
2
ORDER
1. The present review application is filed against an order dt. 19th July,
2022 passed in IA No. GA/8/2020 (Old G.A.No.35/2020) in CS No. 219 of 2016
(Madhusri Konar & Anr. - versus- New Central Book Agency Pvt. Limited &
Anr). The prayer is to review the said order and to stay the proceeding of CS
No. 219 of 2016 till the disposal of appeal being F.A. No. 122 of 2020 pending
before the appellate Court.
2. It is not necessary to narrate the facts in details in the present review
application since they have been stated in the main order. It was submitted by
the learned Counsel for the applicant that the order dt. 19th July, 2022 suffers
from bona fide mistake and error apparent on the face of record being contrary
to law.
3. It was further submitted that the order dt. 19th July, 2022 suffers from
on the face of record as it fails to consider Section 10 of the Code of Civil
Procedure.
4. It was further contended that this Court while passing the order dt. 19th
July, 2022 dismissed the application filed by the applicant only on the ground
that whole of the subject-matter in both proceedings are not identical but as
per Section 10 of the Code of Civil Procedure, this Court is required to consider
whether the present suit and the previous suit are directly and substantially in
issue.
5. Learned counsel for the applicant has relied upon the judgment reported
in (2005) 4 SCC 741 (Board of Control for Cricket in India & Anr. -versus-
Netaji Cricket Club & Others) and relied paragraphs 89 and 90:
"80. Order 47, Rule 1 of the Code provides for filing an application
for review. Such an application for review would be maintainable not only
upon discovery of a new and important piece of evidence or when there
exists 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.
90. Thus, a mistake on the part of the court which would include a
mistake in the nature of the undertaking may also call for a review of the
order. An application for review would also be maintainable if there exists
sufficient reason therefor. What would constitute sufficient reason would
depend on the facts and circumstances of the case. The words "sufficient
reason" in Order 47, Rule 1 of the Code is wide enough to include a
misconception of fact or law by a court or even an advocate. An application
for review may be necessitated by way of invoking the doctrine "actus
curiae neminem gravabit".
6. By relying the said judgment it was submitted that this court has
committed mistake by holding that the subject matter of both the proceedings
are not identical instead of taking into consideration that both the suit are
substantially and directly in issue.
7. Similarly the counsel for the applicant has relied upon the following
judgments :
a. (1971) 2 SCC 200 (Raja Shatrunji -versus- Mohammed Azmat Azim
Khan and Others) paragraph 13:
"13. On 27 November, 1962 when the matter was heard by the
High Court, this amendment did not come into the statute-book. That is
why the judgment-debtor made an application to bring it to the notice of
the High Court that the law was that the words "charged under the decree"
were always deemed to have been deleted and this law was effective from
the date of coming into force of the 1952 Act on May 25, 1953. The High
Court by a majority opinion was of the view that the judgment-debtors
should be given relief. Under Order 47 of the Code of Civil Procedure the
principles of review are defined by the Code and the words "any other
sufficient reason" in Order 47 of the Code would mean a reason sufficient
on grounds analogous to those specified immediately previously in that
order. The grounds for review are discovery of new matters or evidence
which, after the exercise of due diligence, was not within his knowledge or
could not be produced by him at the time when the decree was passed or
order made, or the review is asked for on account of some mistake or error
apparent on the face of the record. In Rajah Kotagiri Venkata Subbamma
Rao v. Rajah Vellanki Venkatrama Rao Lord Davey at p. 205 of the Report
said that "the section does not authorise the review of a decree which was
right when it was made on the ground of the happening of some
subsequent event". Counsel for the appellant submitted that when the
High Court decided the matter, the High Court applied the law as it stood
and a subsequent change of law could not be a ground for review. The
appellant's contention is not acceptable in the present case for two
principal reasons; first, it is not a subsequent law. It is the law which all
along was there from 1952. The deeming provision is fully effective and
operative as from May 25, 1953 when the 1952 Act came into force. The
result is that the Court is to apply the legal provision as it always stood. It
would, therefore, be error on the face of the record. The error would be that
the law that was applied was not the law which is applicable.
Secondly, Section 4 of the 1952 Act confers power on the court to apply
the law notwithstanding any provision contained in the Code of Civil
Procedure. Therefore the application though intituled an application for
review was not so. The substance and not the form of the application will
be decisive."
b. AIR 1957 Cal 727 (Shorab Merwanji Modi & Anr. -versus- Mansata Film
Distributors and Anr.) paragraphs 31 and 33:
"31. It remains to refer to one other matter. The learned Judge has
also given it as a reason for refusing to stay the suit before him under
section 10 that there is an additional party in that suit. That, by itself,
does not make section 10 inapplicable. It is true that the section speaks of
"same parties", but it has been held that the "same parties" mean "the
parties as between whom the matter substantially in issue has arisen and
has to be decided". Complete identity of either the subject-matter or the
parties is not required. Authority for that proposition will be found in Durga
Prasad v. Kanti Chandra Mukherji, (2) (I.L.R. 61 Cal. 670) (Six parties in
one suit and five parties in another); and Wahid-un-Nessa Bibi v. Zamin
All Shah (11) (I.L.R. 42 All. 290); Jai Hind Iron Mart v. Tulsiram
Bhagawandas (3) (I.L.R. 1953 Bom. 416); and Luxmi Bank Ltd v. Hari
Kissan (12) (I.L.R. 1948 Nagpur, 403). The additional party impleaded in
the Calcutta suit is the company Kapur-chand Limited, to which the
payments due to Modi under the agreements were to be made. No
allegation is made against the company except that some money was paid
to it and that it was a party to and knew of the misrepresentations made
by Modi. I do not think that the joinder of Kapurchand Ltd. on such
allegations raises any separate and substantial issue as between it and
the Mansata so as to make Section 10 inapplicable.
33. In the result, Appeal No. 64 of 1955 is allowed in part. The order
of the learned Judge, dated the 28th April 1953, in so far as, by it, he
refused to stay the present suit under section 10 of the Code is set aside
and it is directed that the suit be and do remain stayed so long as the
Bombay suit, viz., Suit No. 1069/X of 1954, may remain pending. The rest
of the order is upheld. Costs of this appeal, which will be half-costs, will be
costs in the suit. Certified for two Counsel."
c. AIR 1972 Cal 128 (Arun General Industries Ltd. -versus- Rishabh
Manufacturers Private Ltd. & Others) paragraph 16:
"16. The scope and extent of identity or similarity of the subject-
matter in issue in two suits has received very careful judicial notice in two
Bench decisions of the Bombay High Court and of this Court to which I will
now refer. The Bombay decision is reported in AIR 1953 Bom 117. In that
case the earlier suit was filed in this Court and the later suit was filed in
the Bombay High Court. The plaintiff in the Bombay suit filed an
application for injunction restraining the defendants in the Bombay suit
from proceeding with the Calcutta suit The defendants in the Bombay suit
in their turn filed an application for stay of the Bombay suit. The Calcutta
suit was filed on a contract for sale of 1898 tyres. It was held that the
tyres were according to certain specifications and that the defendants in
the Calcutta suit (plaintiffs in the Bombay suit) failed to take delivery of
the tyres and therefore damages were claimed for non-acceptance. The
defendants in the Calcutta suit thereafter filed the Bombay suit and
contended that they had a contract to purchase only 1600 tyres and not
1898 tyres. The further contention of the Bombay plaintiffs was that the
tyres were not according to specifications and that the tyres that were
delivered were not according to contract quality. The Bombay plaintiff
therefore claimed refund of the amount paid in respect of the price and
also for damages for nondelivery. The question was whether the matter in
issue in the Bombay suit was directly and substantially in issue in the
Calcutta suit. It was held that Section 10 did not contemplate identity of
issues in the two suits nor that the matter in issue in the two suits should
be entirely the same or identical and that all that the section required was
that the matter in issue in the two suits should be directly and
substantially the same. It was also held that there should be identity of
the subject-matter, and the field of controversy between the parties in the
two suits must be the same, but the identity and the field of controversy
contemplated need not be identical and same in every particular, but the
identity and the field of controversy must be substantially the same. We
respectfully agree with the views of the Division Bench of the Bombay High
Court and we think Chagla C. J. has correctly and appropriately laid down
the extent of the identity of the subject-matter in the two suits. In the facts
of this case we have no doubt that the field of controversy between the
parties in the Jabbalpur suit and the suit in this Court is substantially the
same and, there is substantial identity in the subject-matter in the two
suits."
d. AIR 1990 Ori 23 (Shyama Sunder Mohapatra -versus- Janaki Ballav
Patnaik & Ors.) paragraph 5:
"5. Coming to the core question in the case formulated earlier, the position
is well settled that in a civil suit piecemeal trial of the issues should be
avoided and attempt should be made to consider all the issues together as
far as possible. This principle is embodied in Sub-rule (1) of Rule 2 of Order
14 of the Code. Sub-rule (2) of the said Rule contains an exception where
issues both of law and of fact arise in the same suit and the court is of
opinion that the case or any part thereof may be disposed of on an issue of
law only, it may try that issue first if that issue relates to - (a) the
jurisdiction of the court, or (b) a bar to the suit created by any law for the
time being in force. If the court is satisfied that a particular issue passes
the tests laid down in Sub-rule (2) and if the court thinks it fit it may
postpone the settlement of the other issues until after those issues have
been determined, and may deal with the suit in accordance with the
decision on that issue."
e. (2010) 4 CHN 909 (Cal) (Amrita Bazar Patrika Private Ltd. & Ors -versus-
Jayanta Sengupta & Ors):
"As held by the Supreme Court in National Institute of Mental
Health & Neuro Sciences v. C. Parameshwara (supra) the fundamental
test to attract Section 10 is whether the final decision in the previous suit
would operate as res judicata in the subsequent suit. Section 10 would
apply if the decision in the previous suit would non-suit the subsequent
suit.
For attracting the bar of Section 10, it is not necessary that the
reliefs prayed for in both the suits should be identical. Nor is it necessary
that the causes of action should be identical. Even if the reliefs are based
on different causes of action, the later suit should be stayed if the subject
matter in controversy is the same, as held in Shorab Merwanji Modi
(supra) and in Challapalli Sugar Ltd. vs. Swadeshi Sugar Supply Pvt. Ltd.
(supra). The subject matter of the subsequent suit must be covered by the
previously instituted suit.
For the purpose of operation of Section 10 it is also not necessary
that all the parties on either side should be the same in both the suits. It is
enough if there is substantial identity of the parties as held in Shorab
Merwanji Modi vs. Mansata Film Distributors (supra), cited by Mr. Mitra.
The view has been reaffirmed in A.G. Industries Ltd. vs. Risabh
Manufacturers (supra)."
8. Per contra, Learned for the respondents submits that no ground is made
out by the petitioner in the instant review application for review of the order. It
is further contended that the petitioner has repeated old and overruled
arguments for reopening of the conclusion arrived by this Court while passing
the order dt. 19.07.2022.
9. Learned Counsel for the respondents further contended that this Court
while passing the order dt. 19.07.2022 had considered all the grounds raised
by the petitioner at the time of moving an application under Section 10 of the
Code of Civil Procedure.
10. Learned Counsel for the respondents further submitted that the
petitioner relying upon new judgments passed by the Hon'ble Supreme Court,
this Hon'ble Court and other Hon'ble High Courts and intend to review the
order passed by this Court dt. 19.07.2022 which is not permissible. He further
submits that this Court while passing the order dt. 19.07.2022 had considered
the judgment passed by the Hon'ble Supreme Court in the case reported in
(2005) 2 SCC 256 (National Institute of Mental Health and Neuro Sciences -vs-
C. Parameshwara) and the order passed by the Coordinate Bench of this Court.
11. Learned Counsel for the respondents further submits that this Court
cannot exercise an inherent power and nor can appellate power be exercised in
the guise of exercising the power of review. It is further contended that Hon'ble
Supreme Court in several judgments held that the Court's jurisdiction of
review, is not the same that of an appeal.
12. Learned Counsel for the respondents further submits that there is no
error apparent on the face of record and the grounds put forth by the petitioner
cannot be described as an error apparent on the face of record to exercise its
power of review under Order XLVII, Rule 1 of CPC.
13. Learned Counsel for the respondents relied upon the recent judgments
passed by the Hon'ble Supreme Court dt. 18.08.2022 in Civil Appeals No. 5503
- 04 of 2022 (S. Madhusudhan Reddy -versus- V. Narayana Reddy & Ors.) and
submits that the petitioner has not made out any case for review of the order
dt. 19.07.2022.
14. Learned Counsel for the respondents further relied upon the judgment
reported in (2006) 5 SCC 501 (Jain Studios Ltd. -versus- Shin Satellite Public
Company Limited) in which Hon'ble Supreme Court held that :
"11. So far as the grievance of the applicant on merits is concerned,
the learned counsel for the opponent is right in submitting that virtually the
applicant seeks the same relief which had been sought at the time of
arguing the main matter and had been negatived. Once such a prayer had
been refused, no review petition would lie which would convert rehearing
of the original matter. It is settled law that the power of review cannot be
confused with appellate power which enables a superior Court to correct
all errors committed by a subordinate Court. It is not rehearing of an
original matter. A repetition of old and overruled argument is not enough to
reopen concluded adjudications. The power of review can be exercised
with extreme care, caution and circumspection and only in exceptional
cases."
15. Learned Counsel for the respondents further relied upon the judgment
reported in (2013) 8 SCC 337 (Union of India -versus- Sandur Manganese and
Iron Ores Ltd. & Ors.) wherein the Hon'ble Supreme Court held that :
"25. In the present case, the error contemplated in the impugned
judgment is not one which is apparent on the face of the record rather the
dispute is wholly founded on the point of interpretation and applicability
of Section 11(2) and 11(4) of the MMDR Act. In review jurisdiction, mere
disagreement with the view of the judgment cannot be the ground for
invoking the same. As long as the point is already dealt with and
answered, the parties are not entitled to challenge the impugned judgment
in the guise that an alternative view is possible under the review
jurisdiction. Hence, in review jurisdiction, the Court shall interfere only
when there is a glaring omission or patent mistake or when a grave error
has crept in the impugned judgment, which we fail to notice in the present
case."
16. Heard, the Learned Counsel for the respective parties perused the
grounds of the review application and the judgment relied by the respective
parties.
17. Learned Counsel for the petitioner tried to canvas that this Court had
dismissed the application filed by the petitioner under Section 10 of the Code of
Civil Procedure on the ground that the entire subject-matter in both the
proceedings are not identical and this Court has not considered that while
deciding the application under Section 10 of the Code of Civil procedure this
Court has to consider whether the matter is directly and substantially in issue.
18. While passing the order dt. 19.07.2022, this Court held that:
"The fundamental test of applicability of section 10 of the Code of
Civil Procedure is whether on final decision being reached in the previous
suit, such decision would operate as res judicata in the subsequent suit,
this court hold that section 10 is not attracted in the instant suit. Section
10 would apply only the case where the whole of the subject matter in
both the suit is identical. The Hon'ble Supreme Court had given stress that
the key word in Section 10 are the matter in issue is directly and
substantially in issue" in previous instituted suit. The word "directly and
substantially in issue" are used in contradistinction to words "incidentally
or collaterally in issue." In the instant suit the respondents have claimed
royalty and damages against the petitioners and in the previous suit, the
petitioners have claimed for declaration of agreement dt. 07.11.1981 is still
subsisting and binding and declaration the letter dt. 09.10.2013 is illegal
and bad in law thus the whole of the subject matter in both proceedings
are not identical."
19. After going through the entire order passed by this Court dt. 19.07.2022,
this Court has rejected the prayer made by the petitioner and it is settled law
that once such prayer is refused, no review petitioner would lie which would
convert rehearing of the original mater. It is also settled law that the power of
review cannot be confused with appellate power which enables a superior court
to correct to all errors committed by the Sub-Ordinate Courts. It is not
rehearing of an original matter. A re-petition of an old and overruled argument
is not enough to reopen concluded adjudications.
20. It is also settled law that as long as the point is already dealt with and
answered, the parties are not entitled to challenge the impugned judgment in
the guise that an alternative view is possible under the review jurisdiction. In
review jurisdiction, the Court shall interfere only when there is a glaring
omission of patent mistake or when a grave error has kept in the impugned
judgment, which this Court failed to notice in the present case.
21. In view of the above, this Court does not find any merit in the review
application filed by the petitioner.
22. RVWO No. 27 of 2022 along with GA No. 1 of 2022 are thus dismissed.
(KRISHNA RAO, J.)
p.d
