Calcutta High Court (Appellete Side)
Rumpa Ghosh vs International Service Centre & ... on 5 January, 2023
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Shekhar B. Saraf
R.V.W 303 of 2016
Arising out of
C.O. 3315 of 2015
Rumpa Ghosh
VERSUS
International Service Centre & Anr.
For the Applicant : Mr. K.K. Maiti, Adv.,
For the Respondents : Mr. Jahar Chakraborty, Adv.
Mrs. Sabita Mukherjee Roy Chowdhury, Adv.
Mr. Sanket Das, Adv.
Mr. Subhojeet Mukherjee, Adv.
Last Heard on : December 13, 2022
Judgment on : January 05, 2023
Shekhar B. Saraf, J.:
1. The present review petition by Rumpa Ghosh (hereinafter referred to as
the 'applicant') arises from the order dated February 2, 2016 passed by
Justice Ashoke Kumar Dasadhikari in C.O. No. 3315 of 2015.
2
Facts
2. The factual matrix of the case is laid down below:
a. Initially, a title suit no. 1337 of 2006 was filed with the City Civil
Court at Calcutta by International Service Centre and Anr. (the
plaintiff therein, hereinafter referred to as the 'respondents') for
eviction and recovery of Khass possession. The respondents then
filed an application for amendment of the plaint, and by order
dated February 18, 2010, the trial court allowed the said
amendment.
b. In response, an application was filed by the applicant for recalling
the said order dated February 18, 2010. The prayer was granted
by an order dated December 7, 2011 and the amendment stood
rejected due to failure on the part of the respondents to comply
with Order VI Rule 18 of the Civil Procedure Code, 1908.
c. Thereafter, in the said title suit, the applicant filed a written
statement along with a counterclaim to the original plaint on
March 16, 2012. In the meanwhile, a revisional application being
C.O. 1635 of 2012 was filed by the respondents before this Court
against the order dated December 7, 2011.
3
d. By an order dated June 04, 2012, this Court disposed of the said
application and permitted the respondents to apply for
amendment of the plaint before the trial court, and directed that
the same was to be decided in accordance with the law.
e. Subsequently, on September 29, 2012 the amendment was
allowed by the trial court, and a copy of the amended plaint was
also served upon the applicant on November 29, 2012.
f. By an order dated February 06, 2013, the applicant was given time
till March 11, 2013, to file an additional written statement to the
amended plaint. The same date was also fixed for submission of
office report in respect of the counterclaim. Due to certain reasons,
the applicant could not file the additional written statement on the
said date.
g. The office report was then put up for hearing before the trial court
on May 24, 2013, and the date for filing the additional written
statement was then fixed on July 3, 2013. However, even on this
date, due to certain reasons, the applicant could not file the
additional written statement and the matter was adjourned till
November 12, 2013, for filing suggested issues and framing of
issues.
4
h. In any case, the applicant had reasons to believe that the order
dated March 11, 2013 was required to be corrected and/or
modified as certain words were subsequently deleted in the said
order by criss-crossing on the order sheet. The same was also
pointed to this Court by the applicant.
i. By virtue of such subsequent deletions in the order sheet, it is the
applicant's case that she was deprived of her opportunity to file
the additional written statement to the amended plaint. Therefore,
the applicant filed an application on March 11, 2014 under
Section 151 of the Code of Civil Procedure, 1908 for recalling and
modification of order dated March 11, 2013 with a prayer to grant
leave to the applicant to file an additional written statement. The
applicant also prayed to keep the directions for framing of issues
in abeyance.
j. By an order dated May 5, 2015, the applicant's application for
waiver of costs imposed on March 23, 2015, was considered and
rejected. In the said order, the application for recalling and/or
modification of the order dated March 11, 2013, was allowed and
the order dated March 11, 2013 / May 24, 2013, was set aside,
and June 05, 2015 was fixed for filing additional written statement
to the amended plaint. On June 05, 2015, the date to file
additional written statement was further extended to July 23,
2015.
5
k. On July 23, 2015, the applicant filed another application under
Section 151 of the Civil Procedure Code, 1908, for modification of
the order dated May 05, 2015 to the extent that the counter-claim
to the original plaint should not be set aside and prayed for
keeping the directions for filing of additional written statement in
abeyance till modification of the said order. The trial court rejected
the said prayer and also stated that the chapter of filing the
written statement was now closed.
l. The applicant challenged the said order by way of Civil Revision
application being CO 3315 of 2015 before this Court. The
applicant prayed for order dated July 23, 2015 passed by trial
court to be set aside rejecting the prayer of the applicant for
modification of order no. 65 dated May 5, 2015 of trial court to the
extent of counter-claim of the applicant and to keep the said order
in abeyance till disposal of the said revisional application. By a
reasoned order dated February 2, 2016, this Court dismissed the
said application. A special leave petition was preferred by the
applicant against the said order before the Supreme Court and on
July 08, 2016, the same was dismissed as withdrawn.
m. Lastly, a review petition being R.V.W. 303 of 2016 has been filed
against the order dated February 2, 2016 of this Court in C.O.
3315 of 2015.
6
Submissions
3. Mr K.K. Maiti, counsel appearing on behalf of the applicant, has put
forth the following arguments:
a. The counsel argued that the Court had misconstrued the facts of
the case and proceeded on an erroneous presumption that the
applicant in the revisional application was herself responsible for
withdrawing her counterclaim and that on her prayer itself, the
order dated March 11, 2013 was recalled by the trial court in its
order dated May 05, 2015. The counsel further argued that the
applicant, in its recalling application, merely sought modification
of the order to the extent that the applicant is allowed to file an
additional written statement to the respondent's amended plaint.
b. The counsel submitted that the Court erroneously proceeded and
committed an error apparent on the fact of the record by
misconstruing the applicant's submission with respect to
counterclaim and additional written statement. He stated that this
Court's order dated February 2, 2016, contains an error inasmuch
as it records that the applicant has accepted the order dated
March 11, 2013, and has never questioned the same and, on the
contrary, records that the applicant has asked for recalling of the
7
said order dated March 11, 2013. The counsel says that such an
error is sufficient to set aside the impugned order.
c. The counsel contended that the impugned order affirmed the
mistake committed by the trial court based on misconception of
facts. He went on to submit that the impugned order did not take
into consideration the scope of the applicant's application for
recalling the order of the trial court dated March 11, 2013 and, on
the contrary, proceeded on the erroneous presumption that since
such application was allowed and the order recalled, the applicant
cannot, at that stage, seek to restore her counter claim. The
learned counsel further argued that the impugned order gave rise
to an alarming situation where the counter claim filed by the
petitioner as long back as on March 16, 2012 along with the court
fees has been disregarded due to an apparent misconception of
fact by the trial court, which was further affirmed by the impugned
order. Ergo, the review of the impugned order is necessary as it
has caused severe prejudice to the applicant.
d. The counsel, as a response to the contentions raised by the
respondents with respect to the limitation point, argued that
keeping in mind the Supreme Court order and in the absence of
any time frame set by the Supreme Court, there is no requirement
to file any Section 5 application for the purpose of filing this review
petition.
8
4. Mr. Jahar Chakraborty counsel appearing on behalf of the respondents
propounded the following arguments:
a. The counsel contended that the amended plaint was filed long
back and thereafter adequate opportunities were granted to the
applicant but she abused the process of court and chose not to file
the additional written statement despite grant of repeated
extensions.
b. The counsel argued that acceptance of counter-claim by order
dated March 11, 2013 was recalled by the trial court only on the
application made by the petitioner/defendant. The counsel further
argued that the order dated May 5, 2015 was passed upon
contested hearing and therefore, the petitioner is herself
responsible for withdrawing her counter-claim and on her prayer
the order passed on March 11, 2013 was recalled.
c. The counsel submitted that no review applies in the present
petition as the same is time barred and further, no Section 5
application for condonation of delay has been filed by the
Applicant.
9
Observations & Analysis
5. I have heard the counsel appearing for the respective parties and
perused the materials on record.
6. In the interest of justice, I will straight away move to decide the present
review application on merits without delving into the question of
condonation of delay in filing of the same. That being said, this Court
feels that it would be apt to discuss the jurisdiction of this Court to
review its own judgments.
7. Often when one addresses judges as Lordships, they forget that judges
are human too and therefore, are not infallible. In recognition of this
principle, being a Court of Record under Article 215 of Indian
Constitution, power of review is inherent in the High Court. However,
this power is not without its own limitations and is subject to certain
restrictions. The power to review is to be exercised only in a very limited
category of circumstances and that too with extreme caution.
8. At this juncture, it is prudent to peruse Order XLVII Rule 1 of the Civil
Procedure Code, 1908 which delineates the grounds on which a review
can be sought:
a. discovery of new and important matters or evidence which
after the exercise of due diligence was not within the
knowledge of the applicant;
10
b. such important matter or evidence which could not be produced
by the applicant at the time when the decree was passed or
order made; and
c. on account of some mistake or error apparent on the face of the
record or any other sufficient reason.
[See Haridas Das -v- Usha Rani Banik (Smt) and Ors. reported in
(2006) 4 S.C.C. 78, para 15]
9. In Parsion Devi and Ors. -v- Sumitri Devi and Ors. reported in
(1997) 8 SCC 715, the Supreme Court held that in exercise of the
jurisdiction under Order 47 Rule 1 of the Civil Procedure Code, 1908, it
is not permissible for an erroneous decision to be "reheard and
corrected". There is clear distinction between an erroneous decision and
an error apparent on the face of the record. While the first can be
corrected by the higher forum, the latter only can be corrected by
exercise of review jurisdiction as a review petition has a limited
purpose.
10. In the recent case of S. Madhusudan Reddy -v- Narayana Reddy
reported in 2022 S.C.C. OnLine SC 1034, the Supreme Court
reaffirmed the grounds on which a review petition would be
maintainable under the provisions of the Civil Procedure Code, 1908.
The relevant paragraphs have been extracted below :-
11
"18. A glance at the aforesaid provisions makes it clear that a
review application would be maintainable on (i) discovery of
new and important matters or evidence which, after exercise of
due diligence, were not within the knowledge of the Applicant
or could not be produced by him when the decree was passed
or the order made; (ii) on account of some mistake or error
apparent on the face of the record; or (iii) for any other
sufficient reason.
*
20. In Parsion Devi v. Sumitri Devi, stating that an error that is not
self-evident and the one that has to be detected by the process
of reasoning, cannot be described as an error apparent on the
face of the record for the Court to exercise the powers of review,
this Court held as under:
7. It is well settled that review proceedings have to be strictly
confined to the ambit and scope of Order 47 Rule 1 C.P.C.
In Thungabhadra Industries Ltd. v. Govt. of A.P. this Court
opined:
11. What, however, we are now concerned with is
whether the statement in the order of September
1959 that the case did not involve any substantial
question of law is an 'error apparent on the face of
the record'. The fact that on the earlier occasion the
Court held on an identical state of facts that a
substantial question of law arose would not per se be
conclusive, for the earlier order itself might be
erroneous. Similarly, even if the statement was
wrong, it would not follow that it was an 'error
apparent on the face of the record', for there is a
distinction which is real, though it might not always
be capable of exposition, between a mere erroneous
decision and a decision which could be characterized
as vitiated by 'error apparent'. A review is by no
means an appeal in disguise whereby an erroneous
decision is reheard and corrected, but lies only for
patent error.
8.77Again,0in Meera0Bhanja v. Nirmala0 Kumari0 Choudhury
while quoting with approval a passage from Aribam
Tuleshwar Sharma v. Aribam Pishak Sharma this Court
once again held that review proceedings are not by way of
an appeal and have to be strictly confined to the scope
and ambit of Order 47 Rule 1 C.P.C.
9. Under Order 47 Rule 1 C.P.C. a judgment may be open to
review inter alia if there is a mistake or an error apparent
on the face of the record. An error which is not self-evident
and has to be detected by a process of reasoning, can
hardly be said to be an error apparent on the face of the
record justifying the Court to exercise its power of review
under Order 47 Rule 1 C.P.C. In exercise of this
jurisdiction under Order 47 rule 1 C.P.C. it is not
permissible for an erroneous decision to be 'reheard and
corrected'. A review petition, it must be remembered has a
limited purpose and cannot be allowed to be 'an appeal in
disguise'."
[emphasis added]
11. Furthermore, the Supreme Court in the case of Shri Ram Sahu (Dead)
Through LRs. -vs- Vinod Kumar Rawat & Ors in Special Leave
Petition (Civil) No. 28150 of 2017 reiterated the principles of review. The
relevant paragraphs are reproduced below -
7. The dictionary meaning of the word "review" is "the act of
looking, offer something again with a view to correction or
improvement". It cannot be denied that the review is the
creation of a statute. In the case of Patel
Narshi Thakershi vs.0Pradyumansinghji Arjunsinghji,0(19
71) 3 SCC 844, this Court has held that the power of
review is not an inherent power. It must be conferred by
law either specifically or by necessary implication. The
review is also not an appeal in disguise.
8. What can be said to be an error apparent on the face of the
proceedings has been dealt with and considered by this
Court in the case of T.C. Basappa vs T.Nagappa, A.I.R.
1954 SC 440. It is held that such an error is an error
which is a patent error and not a mere wrong decision. In
the case of Hari Vishnu Kamath vs Ahmad Ishaque, A.I.R.
1955 SC 233, it is observed as under: "It is essential that
it should be something more than a mere error; it must be
one which must be manifest on the face of the record. The
real difficulty with reference to this matter, however, is not
so much in the statement of the principle as in its
application to the facts of a particular case. When does an
error cease to be mere record? Learned counsel on either
side was unable to suggest any clear cut rule by which
the boundary between the two classes of errors could be
demarcated."
12. In addition to the above principles, I am of the view that while
considering review applications we must also keep in mind the
principles of natural justice wherein the Courts must not forget that
the end goal of such power is to correct the wrongs committed and
ultimately prevent miscarriage of justice. I firmly believe that principles
of natural justice must take centre place in every possible situation and
that they are to be kept in mind whenever a Court renders its decision
in any review application. As guardian of citizens' rights and liberties,
the Courts must realise that they are not unerring and should always
be open to correcting their wrongs in the interest of justice.
13. Coming to the facts of the present case, it appears that, in reality, it
was not the applicant's plea to recall the order dated March 11, 2013,
but rather her plea was limited to the extent of allowing her to file an
additional written statement at a later date. This Court committed an
error apparent on the face of the record in coming to the conclusion
that there was no merit in the revisional application filed against the
trial court's order dated July 23, 2015 which had set aside its own
order dated March 11, 2013/May 24, 2013.
14. At this juncture, I feel it is important to point out that in effect, while I
pronounce this judgment, the order which has been challenged before
me is not just the one dated February 02, 2016 by this Court but also
the trial court order dated July 23, 2015 which will be affected by my
order today. While perusing the latter, it appears that while the trial
court was right in extending the time to file additional written
statement but by setting aside the entire order dated March 11, 2013,
for all practical purposes, the written statement and the counter claim
of the applicant to the original plaint also got set aside. This Court,
while pronouncing its judgment in the revisional petition against the
said trial court order, concurred with the findings of the trial court that
the applicant was herself responsible for obtaining an order to set aside
the entire order dated March 11, 2013, but in doing so this Court
disregarded the misinterpretation of the applicant's plea by the trial
court.
15. I do concur that adequate time and opportunity has been provided to
the applicant for filing her additional written statement and at the same
time it is also true that more than seven years since the trial court's
order in question was passed and that the original suit itself is now
pending for over sixteen years. The end goal of our judicial system is
not just to ensure that justice is achieved but that it is achieved in a
timely manner so as to not nullify its objectives. However, just to glance
at the other side of the coin, achieving justice quickly should never
result in giving decisions in haste. While delay in filing of the additional
written statement by the applicant despite grant of multiple
opportunities by the trial court is significant and cannot be overlooked,
yet nullifying the applicant's counter claim first by the trial court and
then by this Court, in my view, goes against the principles of justice.
16. Before moving towards the concluding portion of this judgment, I feel it
would be apt to refer to M/s Northern India Caterers (India) Ltd -vs-
Lt. Governor of Delhi reported in 1980 2 SCC 167 in which the
Supreme Court held the following -
"8. It is well-settled that a party is not entitled to seek a
review of a judgment delivered by this Court merely for
the purpose of a rehearing and a fresh decision of the
case. The normal principle is that a judgment pronounced
by the Court is final, and departure from that principle is
justified only when circumstances of a substantial and
compelling character make it necessary to do so: Sajjan
Singh v. State of Rajasthan [AIR 1965 SC 845]. For
instance, if the attention of the Court is not drawn to a
material statutory provision during the original hearing,
the Court will review its judgment: G.L. Gupta v. D.N.
Mehta [(1971) 3 SCC 189]. The Court may also reopen its
judgment if a manifest wrong has been done and it is
necessary to pass an order to do full and effective
justice: O.N. Mohindroo v. Distt. Judge, Delhi [(1971) 3
SCC 5]. Power to review its judgments has been conferred
on the Supreme Court by Article 137 of the Constitution,
and that power is subject to the provisions of any law
made by Parliament or the rules made under Article 145.
In a civil proceeding, an application for review is
entertained only on a ground mentioned in Order 47 Rule
1 of the Code of Civil Procedure, and in a criminal
proceeding on the ground of an error apparent on the face
of the record (Order XL Rule 1, Supreme Court Rules,
1966). But whatever the nature of the proceeding, it is
beyond dispute that a review proceeding cannot be
equated with the original hearing of the case, and the
finality of the judgment delivered by the Court will not be
reconsidered except "where a glaring omission or patent
mistake or like grave error has crept in earlier by judicial
fallibility": Sow Chandra Kante v. Sheikh Habib [(1975) 1
SCC 674]."
17. It is clearly evident from the facts of the present case that a patent
mistake has been committed by this Court in the impugned order
under challenge wherein it failed to recognise the error committed by
the trial court, and in fact, proceeded to repeat the same error. While
the delay in filing of the additional written statement cannot be ignored,
one cannot also neglect the fact that the applicant's prayer was for
modification and not for recalling the order dated March 11, 2013 as
was mis-interpreted by both the trial court and this Court in
concluding that the applicant's plea was to set aside the entire order
dated March 11, 2013. Therefore, I am of the view that this Court erred
in misconstruing the facts and that the impugned order falls within the
grounds of the review as delineated in the aforementioned judgments.
18. In view of the above findings, this review petition being R.V.W. 303 of
2016 is allowed and the order dated February 2, 2016, passed by this
Court in C.O. 3315 of 2015, is set aside and effectively, the trial court's
order dated July 23, 2015 is also set aside. Resultantly, the trial court's
order dated May 5, 2015 is modified to the extent that the counter-
claim to the original plaint is not set aside. I also direct the trial court
to provide the applicant with a last opportunity to file her additional
written statement to the amended plaint. Keeping in view the delay in
the suit, the trial court (in case of non-availability, the judge-in-charge)
is directed to fix strict time limits and endeavour to complete the trial
within six months from date.
19. There shall be no order as to costs.
20. 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.)
