Master Nitin Goel (Minor) Through ... vs Raj Synthetic Polychem Limited
2007 Latest Caselaw 264 Del

JUDGMENT

Anil Kumar, J.

1. These are the applications for setting aside the order of dismissal dated 11th July, 2006 dismissing CA No.633/2005 of the applicant in default as no one was present and for condensation of delay in filing the application for setting aside the order of default dated 11th July, 2006.

2. The applicant contended that she is the widow of late Shri Mukesh Chhabra and she has been living at Calcutta and it is difficult for her to look after and pursue her case from time to time.

3. The applicant contended that her application being CA No.633 of 2005 for review/modification of order dated 16th November, 2004 was listed on 31st March, 2006. However, the the counsel could not appear on that date on her behalf as she had missed noting it in her diary and the application was renotified for 11th July, 2006.

4. On 11th July, 2006, it is contended by the counsel for the applicant that she was out of India and therefore she had asked her colleague who was looking after her matter to attend the case. The colleague of the learned Counsel for the applicant who had to appear, however, could not locate the matter in the cause list and therefore no one appeared on behalf of applicant in the present facts and circumstances as the applicant is also residing at Calcutta.

5. The learned Counsel for non applicant states that the application have been filed to delay the disposal of the case. He contended that the applications for condensation of delay and for setting aside the order of dismissal be set aside provided the application CA 633 of 2005 of the applicant for modification/ review of order dated 16th November, 2004 is heard and disposed of expeditiously and preferably today.

6. It is apparent that there is sufficient cause for setting aside the order of dismissal dated 11th July, 2006 and also for condoning the delay in filing the application for setting aside the order dated 11th July, 2006 in the facts and circumstances.

7. Therefore, for the reasons stated in the applications and as there is sufficient cause for condensation of delay in filing the application for setting aside the order of dismissal dated 11th July, 2006, the applications are allowed and delay in filing the application for setting the order of dismissal dated 11th July, 2006, is condoned and order dated 11th July, 2006 is also set aside and the application being CA No.633 of 2005 seeking review/modification of order dated 16th November, 2004 is restored to its original number. The applications are disposed of.

CA No.633/2005

8. This is an application by the applicant claiming to be the widow of late Shri Mukesh Chhabra for review/modification of order dated 16th November, 2004 holding that the applicant, Smt.Shashi Chhabra is not the widow of late Shri Mukesh Chhabra.

9. By order dated 16th November, 2004, this Court had disposed of the applications being CA Nos.732-733 of 2002 of Smt.Shashi Chhabra alleging that she is the widow of Shri Mukesh Chhabra, Managing Director of the company in liquidation, seeking a prayer that she is ready to settle the claims of the creditors and, therefore, the winding up orders be recalled and company be handed over to her. The applications of the applicant were considered and it was held that the applicant has no locus standi to move an application seeking settlement of the claims of the creditors and for taking over the company in liquidation. It was categorically noted that no such prayer was made by the applicant in her applications. The Court also relied on the fact that in the probate proceedings, order dated 18th March, 1994 was passed holding that Smt. Shashi Arora @ Shashi Chhabra is not the widow of late Shri Mukesh Chhabra while dismissing the applications of the applicant. It was also noted that the applicant had sought review of order dated 18th March, 1994, which review application was, however, dismissed and the order dated 18th March,1994 holding that the applicant, Smt. Shashi Arora @ Shashi Chhabra is not the widow of Mukesh Chhabra had become final.

10. Consequently, it was held that Smt.Shashi Arora @ Shashi Chhabra is not the widow of Mukesh Chhabra and Ms.Ritu Chhabra is the daughter of Shri Mukesh Chhabra relying on the successions certificate issued to her under Section 322 of the Indian Succession Act by District Judge by order dated 6th March, 1991. The applicant in CA No.633 of 2005 have sought the review/modification of this order on the ground that applicant is well educated lady, and holds M.Sc. degree and she also owns properties worth crores in Calcutta and she has been single-handedly shouldering the responsibility of bringing up her brother's daughter since birth, after her brother's wife died in childbirth. The applicant also sought review of order dated 16th November, 2004 on the ground that the applicant had filed a complaint under Sections 295A/298/323/ 327/ 347/ 384/ 386/ 427/ 354/ 307/ 506/120B/406/498A/509/34 IPC against her in-laws and along with the complaint, the applicant had annexed the order of the Calcutta District and State Consumer Forum where it was held that Smt.Shashi Chhabra is the widow of late Shri Mukesh Chhabra. Reliance was also placed on the order dated 31st August, 1994 passed by a Metropolitan Magistrate and an order dated 25th September, 2005 passed by the High Court against the said order.

11. This application seeking modification/review of order dated 16th November, 2004 was filed on 29th April, 2005. In support of the averments made in the application, the documents were filed on 24th May, 2005. The documents which are relied on by the applicant for review of order dated 16th November, 2004 are order dated 25th September, 2005 passed in Criminal Misc. (M) No.977/1995; application for setting aside and review of order dated 6th March, 1991 passed by the learned District Judge, Agra, in Succession Case No.40/1991; affidavit of Smt. Shashi Chhabra in review Misc. Case No.192/1994 before District Judge, Agra; photocopies of travel ticket certificate dated 15th April, 1989 and 17th April, 1989; letter dated 26th July, 1990 by Chief Justice of M.P. Sh.Guman Mal Lodha; photocopy of envelope in handwriting of father-in-law of applicant; marriage certificate of applicant; legal notice dated 21st July, 1990; bank documents and certificate dated 7th September,1980 and 14th September, 1989; order dated 27th August, 1991 of Calcutta District Consumer Forum and order dated 30th September, 1992 of State Consumer Redressal Forum.

12. In the application for recall of order dated 16th November, 2004, some of these documents have been referred, however, the application does not spell out as to why these documents could not be produced by the applicant before passing of order dated 16th November, 2004 in support of her application seeking settlement with the creditors as the widow of late Shri Mukesh Chhabra and for taking over the possession of the assets of company in liquidation.

13. It is no more res integra that discovery of new evidence or material by itself is not sufficient to entitle a party for review of a judgment. A review is permissible on the ground of discovery of new evidence only when such an evidence is relevant and of such a character that if it had been produced earlier it might possibly have altered the judgment, further, it must be established that the applicant had acted with due diligence and that the existence of the evidence, which he has now discovered, was not within his knowledge when the order was passed. If it is found that the petitioner has not acted with due diligence then it is not open to the Court to admit evidence on the ground of sufficient cause. The party seeking a review should prove strictly the diligence he claims to have exercised. In a review application a party cannot be allowed to introduce fresh documents merely to supplement evidence which might possibly have had some effect on the result.

14. So far as the power of review available to a court is concerned, in Ajit Kumar Rath v. State of Orissa and Ors. it was held that this power is not an absolute power and is hedged by the restriction indicated in Order 47 of the Code of Civil Procedure. Such power can be exercised on the application of a person, on the discovery of new and important matter or the evidence which, after the exercise of due diligence, was not within his knowledge or could not be reproduced by her at the time when the order was made.

15. This power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be sought merely for fresh hearing or arguments or correction of an erroneous view taken earlier. The power of review can be exercised only for correction of a patent error of law or fact which stays in the face without any elaborate argument being needed for establishing it. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma the Supreme Court held that:

16. It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to be exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merit.

17. In Shanmugam Servai v. P. Periyakaruppan Servai the court laid down the legal requirements of review under CPC which is as under:

...I am firm in saying that such discovery of new evidence must contain (i) the relevancy of the same and (ii) be such of our character that, it had been given in a suit it would have altered the judgment. It must at least be such as presumably to be believed and if so, it would be conclusive. The discovery afore stated is not only a discovery of new and important materials or evidence : that would entitle a party to apply for, review, but the discovery of any new materials or evidence; and important matter must be one of which was not within the knowledge of the party when the decree was made the person seeking the review should prove strictly the diligence as clearly spelt out in the above rule which he claims to have exercised and also that the matter or evidence to which he wishes to have access to is, if not absolutely conclusive, at any rate, nearly conclusive. What has become more imperative is that a mere and bare assertion in the affidavit that the party could not trace the documents earlier or he was not in possession not in custody of said documents is not a ground at all to seek legal aid provided under the above rule. It is not the proper function of a review application to supplement the evidence or to make it serve the purpose of merely introducing evidence which might possibly have had same effect upon the result.

18. The applicant has failed to make out a case seeking review of order on the ground that the documents now sought to be produced by her be taken into consideration by the Court and these documents could not be filed by her despite due diligence on her part. No plea has even been raised that these documents now sought to be relied on could not be produced by her despite due diligence on her part. In any case in probate proceedings it has been held that she is not the widow of late Shri Mukesh Chabbra. The findings of a civil court has become final as no appeal was filed against the order of probate court and the application filed by the applicant for review of the order of the probate court was dismissed and no appeal was filed by applicant. Consequently on the basis of orders of Consumer Forum the applicant is not entitled for the review of the order of the probate Court.

19. In the circumstances, there is no sufficient cause and no case has been made out by the applicant for review/recalling of order dated 16th November, 2004.

20. The application is without any merit and, therefore, it is dismissed.