Satish Mehra vs Smt. Anita Mehra
1998 Latest Caselaw 988 Del

ORDER

Lokeshwar Prasad, J.

1. This order shall govern the disposal of the two application (R.A. No. 45/98 & C.M. No. 3180/98), both filed by the petitioner. The first application (R.A. No. 45/98) has been field by the petitioner under Section 114 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC'), seeking recall/review of order dated the 2nd September, 1998, passed on an application which was filed by the learned counsel for the respondent before this Court on 2nd September, 1998 under Section 151 CPC. The second application (C.M. 3180/98) has been filed by the petitioner under Section 151 CPC with the prayer that the documents, referred to therein, be taken on record.

2. The facts relevant for the disposal of the above mentioned two applications lie in a narrow compass. The petitioner and the respondent got married as per the Hindu rites at New Delhi on 18th February, 1980. The parties to the marriage, i.e., the petitioner and the respondent, for some time after marriage, resided at Safdarjung, New Delhi and thereafter the petitioner left for the United States of America on 6th March, 1980. The respondent followed the petitioner in May 1980. The petitioner and the respondent resided together at various places in the United States of America till 3st October, 1992. On 31st October, 1992, the respondent wife left the matrimonial home in USA.

3. Out of the wedlock three children were born. The first child 'Nikita' was born on 2nd April, 1998. The other two children, by name 'Riva' and 'Neal', are twins, who were born on 10th October, 1989. All the three children were born at New Jersy(U.S.A.).

4. The respondent wife accused the petitioner of child abuse of daughter Nikita who at the relevant time was only four years old. A police complaint was lodged in the United States of America. It is the petitioner's contention that the police, after investigation, found the allegations of child abuse as untrue. However, the respondent wife returned to India with the children in March, 1993.

5. After her return to India in March 1993 the respondent wife filed a petition under Section 7 read with Section 10 & 19 of the Guardians & Wards Act, 1890 and the Hindu Minority & Guardianship Act, 1956 seeking the custody of the minor children. Alongwith the above mentioned petition, the respondent wife also filed an application under Section 12 of the Guardians & Wards Act, 1890, seeking the interim custody of the minor children Nikita, Riva and Neal. The learned Guardian Judge vide order dated the 8th August, 1994 has allowed the above mentioned applications, field by the respondent wife, under Section 12 of the Guardians & Wards Act, 1890.

6. Feeling aggrieved, the petitioner has field a revision petition (C.R. No. 502/95) under Section 115 CPC, assailing the above order, passed by the learned Guardian Judge. The petition (C.R. No. 502/95), field by the petitioner, is being contested by the respondent wife. During the course of arguments on 2nd September, 1998, the learned counsel for the respondent field an application under Section 151 CPC with the prayer that the documents referred to therein be taken on record. After hearing the parties i.e. the petitioner and the learned counsel for the respondent and also after taking into consideration the material on record, more particularly the facts stated in the above-said application, the same was allowed vide order dated the 2nd September, 1998. As already stated, the application (R.A. No. 45/98) has been field by the petitioner for the recall/review of the above-said order dated the 2nd September, 1998.

7. The other application (C.M. 3180/98) has been field by the petitioner under Section 151 CPC with the prayer that the documents, referred to therein, be directed to be taken on record.

8. Reply to both the applications has been field on behalf of the respondent, strongly opposing the prayer made by the petitioner.

9. In so far as the above mentioned two applications are concerned, I have heard the petitioner and the learned counsel for the respondent at length and have also carefully gone through the documents/material on record. The application (R.A. 45/98), as already stated, has been field by the petitioner under Section 114 CPC read with Section 151 CPC for the recall/review of order dated the 2nd September, 1998. The order dated the 2nd September, 1998 has been passed by this Court on an application field by the respondent under Section 151 CPC for taking on record the documents mentioned therein. The above-said order is not an ex-parte order. The same has been passed by this Court after hearing the petitioner and the learned counsel for the respondent at the length. As per settled law, culled out from various judicial decisions, there are definitive limits to the exercise of the power of review. The power of review under Section 114 CPC may be exercised on the discovery of new and important matter or evidence which after the exercise of due diligence was not with the knowledge of the person seeking the review or which would not be produced by him at the time when the order was made. It may also be exercised where some mistake or error apparent on the face of the record issue found. But, the same cannot be exercised on the ground that the decisions was erroneous on merits because that would be the province of a court of appeal. A power of review is not be confused with appellate power which may enable an appellate court to correct all kind of errors committed by the subordinate court. If the above criterion is applied to the present application, in the facts & circumstances of the present case, in my opinion, no case is made out for the review/recall of order dated the 2nd September, 1998 as prayed for by the petitioner vide review application (R.A. No. 45/98) because in the first place the order dated 2nd September, 1998, is not an ex-parte order. The same has been passed not only in the presence of the parties but also after hearing the petitioner and the learned counsel for the respondent at length. Secondly, the main thrust of the petitioner, while arguing the above application, was that the copy of the application, on which the order dated the 2nd September, 1998 was passed was not complete and the respondent thereby has played a fraud by not supplying a complete copy of the application together with annexures. In my opinion, the above ground taken by the petitioner, can by no stretch of imagination, be a ground for the review of order dated the 2nd September, 1998. No doubt the copy of the application, supplied to the petitioner in the Court on 2nd September, 1998 was deficient insofar as copies of some of the annexures were concerned but it cannot be stated that the above-said lapse on the part of the respondent was deliberate or motivated. Moreover, no prejudice has been caused to the petitioner on account of above lapse. Above all, the deficiency was made goods as soon as the same was pointed out by the petitioner on the following date of hearing.

10. For the foregoing reasons, the application (R.A. No. 45/98), filed by the petitioner for the review/recall of order dated there the 2nd September, 1998, in my opinion, is devoid of substance and the same merits dismissal. Accordingly, the same is dismissed.

11. As regards the second application (C.M. NO. 3180/98), filed by the petitioner, for taking on record the documents mentioned therein, the position is that vide above mentioned application, the petitioner has prayed for taking on record the following documents:-

(a) Copy of the affidavit dated the 17th March, 1993 of Mr. Ralph Diamond (at Pages 286-288 of the paper-book).

(b) A copy of order dated the 6th May, 1998 passed by the Metropolitan Magistrate, Patiala House Courts, New Delhi in case State Vs. S.K. Khosla, relating to F.I.R. No. 110/94 under Section 420/468/471 IPC P.S. Connaught Place, New Delhi (annexed with the application).

12. As regards the document mentioned at (a) above, the position in that the above-said document is already on record (at pages 286-288 of the paper-book). The learned counsel for the respondent, in all fairness, did not dispute the correctness of the above fact during the course of arguments. Since the above mentioned document is already on record, no orders are required insofar as the above document is concerned.

13. As regards the document mentioned at (b) above, the same in my opinion, is neither relevant nor germane for the purpose of deciding the present revision petition and consequently the prayer of the petitioner for taking on record the above-said document is declined. The above mentioned application stands disposed of in above terms. In the facts & circumstances of the case no orders as to costs.