Dalmia Industries Limited vs Shri Jagmohan Gupta
2007 Latest Caselaw 638 Del

JUDGMENT

Anil Kumar, J.

1. The applicant/defendant No. 1, Shri Jagmohan Gupta, has sought review of order dated 8th March, 2006 whereby defendant Nos. 2(ii) and 2(iii) who had died even prior to filing of the suit were deleted and there legal representatives were imp leaded under Order I Rule 10 of Code of Civil Procedure and the application of the Defendant No. 1 to reject the plaint under Order VII Rule 11 for rejection of the plaint on the ground that the suit was filed against two dead persons, was dismissed.

2. The order dated 8th March, 2006 was a composite order allowing IA Nos. 6477/1993 (Under Order 1 Rule 10 CPC), 7282/1994 (Under Order 22 Rule 4 CPC) and 7416/1994 (Under Section 5 of the Limitation Act) filed by the plaintiff for impleading the Legal representatives of the deceased defendant No. 2 (ii) and defendant No. 2(iii) as parties to the suit and dismissal of the IA No. 10039/1994 (Under Order 7 Rule 11 CPC) filed by defendant No. 1 for rejection of plaint holding that the plaintiff is entitled to move an application for deletion of the names of the deceased persons who had died prior to the institution of the suit and impleadment of their legal representatives and that the application for impleadment was filed without much delay and was for bonafide reasons and that the particulars regarding other suit CS(OS) 1875/1992 filed by the Defendant No. 1 regarding dates on which it was instituted and the dates on which the notices/summons were served on the plaintiff and whether the plaintiff had notice about the death of the these defendants were not furnished nor any pleading or any documents pertaining to other suit filed by the defendant No. 1 were filed before the Court in this suit. The review of order dated 8th March, 2006 has been sought on the ground that the plaintiff has not satisfied the guidelines/parameters of 'due diligence' and 'bonafide mistake' and as such has failed in two essential ingredients for deleting the names of dead persons and for impleadment of their legal representatives. Learned Counsel's contention is that the findings of the Court are self-contradictory, factually incorrect and against the well-established principles of law.

3. A suit was filed by the plaintiff against the defendants on 15th December, 1992 for specific performance of agreement to sell dated 19th January, 1983. According to the applicant/defendant No. 1 another suit for possession, damages and mesne profit was filed being suit No. CS(OS) No. 1875/1992, Jagmohan Gupta and Anr. v. Dalmia Industries Limited and Ors. by him prior to the suit filed by the plaintiff in respect of the agreement to sell dated 19th January, 1983. According to the applicant, the present suit, for specific performance of agreement to sell being CS(OS) 4622/1992 was filed by the plaintiff as a counter blast to the earlier suit of the defendant No. 1.

4. Learned Counsel for the applicant has also contended that while passing the order dated 8th March, 2006, certain relevant documents produced by the defendant No. 1./applicant have not been considered which are the newspapers cuttings regarding the death of Shri Bimal Prasad Jain which were filed by the defendants in the court on 28th August, 1995 and newspapers cuttings regarding the death of Shri P.C. Jain which were also filed on 28th August, 1995. Reliance has also been placed on certain documents and pleadings and the court proceedings in the Suit No. CS(OS) 1875 of 1992 which was filed by defendant No. 1 against the plaintiff in which the legal representatives of Shri Bimal Prasad Jain and Shri Trilok Kumar Jain, defendant Nos. 2(ii) and 2(iii) were imp leaded. The defendant No. 1/applicant, however, did not file any documents, copies of orders, report about the service of summons in suit No. 1875 of 1992 in the present suit. Nothing has also been filed with the application for review of order dated 8th March, 2006.

5. Perusal of application being IA No. 6477/1993 which was an application under Order I Rule 10 to implead Shri Arun Kumar Jain son of Shri Bimal Pershad Jain, who had expired on 3rd August, 1991 and IA Nos. 7282 and 7416/1994 which were the applications to implead Shri Dinesh Kumar Jain son of Shri Trilok Kumar Jain who had died on 8th March, 1991 prior to institution of present suit, unequivocally reflect that these applications were filed much before the documents, which are alleged to have not been considered which are the press clippings about the death of two defendants, were filed on 28th August, 1995. Consequently, on the basis of these press clippings which were filed after applications for impleadment of the legal representative of two deceased defendants, knowledge of death of the two defendants can not be imputed to the plaintiff prior to the institution of the suit. Therefore, the plea of defendant No. 1/applicant in the review application that the relevant documents have not been considered while disposing of the said applications is without any legal basis and on the ground that these press clippings which were filed much after the application for deleting the name of deceased defendants and for impleadment of their legal representatives, will not show lack of due diligence or lack of bonafide on the part of the plaintiff and consequently the order dated 8th March, 2006 cannot be reviewed on this ground that these documents, press clippings were not considered.

6. Learned Counsel for the applicant has relied on , Rajender Singh v. Lt. Governor, Andaman and Nicobar Islands and Ors.; , Stephen Laslie Victor D'souza and Ors. v. Stanley Antony D'souza and Ors.; AIR (37) 1950 Federal Court 131, Mt. Jamna Kuer v. Lal Bahadur and Ors. and Green View Tea and Industries v. Collector, Golaghat, Assam and Anr. to contend that the order dated 8th March, 2006 is liable to be reviewed.

7. In Rajender Singh (supra), the claim of the appellant claiming grant of senior grade was refused by the court and while passing the order many important issues were not considered and certain material on record was ignored and, in these circumstances, it was held that it was a clear case of an error apparent on face of record and on account of non-consideration of relevant document, the order passed by the High Court was set aside and the order was reviewed. The case of the applicant/defendant No. 1 is completely different. It is apparent that on the basis of the press clippings about the death of defendant Nos. 2 (ii) and 2(iii) which were filed on 28th August, 1995, it could not be inferred that much before filing of the applications for impleadment of the legal representatives were filed on 19th July, 1993 for impleadment of legal representative of deceased defendant No. 2 (ii) and on 10th August, 1994 for impleadment of legal representatives of deceased defendant No. 2 (iii), the plaintiff had knowledge about the death of these defendants from the said press clippings and before the filing of the suit for specific performance.

8. In Mt. Jamna Kuer (supra), it was held by a Full Bench of the Federal Court that the mistake regarding name of the property which was wrong on the face of record was an apparent mistake and it was held that such correction should be made which had occurred by reason of counsel's mistake. The facts of the case of defendant No. 1/applicant are apparently distinguishable. A single Judge of Bombay High Court in Stephen Laslie Victor D'Souza (supra) had held that where a suit was filed against several defendants and one of them had already died and the plaintiff became aware of defendant's death much later, impleadment of legal representative of deceased defendant after coming to know about the death of the defendant was permitted. It was held that if there is a bonafide mistake on the part of the plaintiff's in filing the suit against the dead person, then the impleadment of legal representative of deceased defendant should be allowed. It was also noticed that bonafide mistake of not impleading the legal representative does not contribute anything to the plaintiff filing the suit against the said dead person and in the circumstances the mistake shall be a bonafide mistake and it could not be construed as neglect or contumacy.

9. In Green View Tea and Industries (supra), the Apex Court had held that in case where material on record escaped notice of High Court while considering the question of compensation to be awarded in land acquisition cases, it would be just fair and in the interest of justice for the High Court to give a second look to the matter. Regarding the scope of review, the Apex Court had held that in exercise of jurisdiction under Order XxxxvII Rule 1 of Code of Civil Procedure, it is not permissible for an erroneous decision to be re-heard and corrected since a review petition has a limited purpose and cannot be allowed to become an appeal in disguise.

10. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it which was observed by the Supreme Court in Ambica Quarry Works v. State of Gujarat . In Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. (2003) 2 SC 111 (vide para 59), the Supreme observed:

It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.

As held in Bharat Petroleum Corporation Ltd and Anr. v. N.R. Vairamani and Anr. AIR 2004 SC 778, a decision cannot be relied on without disclosing the factual situation. In the same judgment the Supreme Court also observed:

Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. It is apparent that the precedents relied on by the applicant/defendant No. 1 are not relevant for the decision of present controversy between the parties nor on the ratio of these decisions, the applicant is entitled for the review of order dated 8th March, 2006.

11. This Court while deciding the applications for impleadment of the legal representatives of deceased defendant Nos. 2 (ii) and 2(iii) who had died prior to the institution of the suit had held that plaintiff was not aware of the death of Bimal Prasad Jain prior to the institution of the suit and after coming to know about the death of Shri Bimal Prasad Jain, filed the application without much delay and non-impleadment of the legal representatives at the time of filing of the suit was for bonafide reasons. The applicant is not entitled for review of this order on the ground that there was no bonafide on the part of plaintiff in not impleading the legal representatives as this will be re- adjudication of the entire matter which would be nothing but re-hearing of all the pleas and contentions in the garb of review application.

12. This is not disputed that the two suits filed by the plaintiff and the defendant No. 1 have not been consolidated. Various allegations now made by the applicant has not been raised categorically even in the replies to the applications filed on behalf of the plaintiff. The defendant No. 1 can not be permitted to improve his pleas and contentions raised on behalf of the defendant No. 1 in his replies to the applications of the plaintiff. By order dated 8th March, 2006 this aspect was categorically considered. Relevant part of the order is as under:

17. The non applicant, however, has failed to give the particulars of other suit as to when the other suit was instituted and when the notices/summons of the other suit with the copy of the plaint were served on the plaintiff. The present suit was filed on 15th December, 1992 and the application for impleadment of Shri Arun Kumar Jain was filed on 19th July, 1993 after coming to know from the service report of the summons which were sent in the name of Shri Bimal Pershad Jain that he has died. The counter claim in the present suit for recovery of possession was filed by the defendant No. 1 on 15th January, 1993. No other facts have been disclosed by the defendant No. 1 and other defendants which would show that the plaintiff was aware of the death of Shri Bimal Pershad Jain prior to filing of the suit.

18. From the above facts the probable inference is that the plaintiff was not aware of the death of Shri Bimal Pershad Jain, prior to the institution of suit and after coming to know about the death of Shri Bimal Pershad Jain, the application for impleadment of his legal representative, Shri Arun Kumar Jain was filed without much delay. Therefore, non impleadment of the defendant No. 2 (ii) was for bona fide reasons in the facts and circumstances.

13. Perusal of the replies filed by the defendant No. 1/applicant to the applications of the plaintiff makes it clear that the applicant/defendant No. 1 had only specified that a suit for recovery of possession was filed by him prior to the institution of the present suit by the Plaintiff however, nothing was produced to demonstrate that the plaintiff was aware of the death of the defendants and has deliberately filed the suit without impleading the legal representatives as parties as a result of which the applications for impleadment were allowed.

14 The details of the suit which was instituted by the defendant No. 1, facts of which were in the knowledge of the defendant No. 1 at the time when the replies were filed by the defendant No. 1, should have been pleaded by him and applicant should have produced the relevant orders and pleading to substantiate his pleas. However no effort was made by the defendant No. 1 to produce the details and the defendant No. 1 can not be allowed to rely on the same which facts are allegedly in another file. Merely because both the cases, present case and the case filed by the defendant No. 1 are tried by the same Court will not absolve the liability of the applicant to plead the same in the replies and file relevant documents in support of them. Even on considering the pleas of the defendant No. 1, it can not be concluded conclusively that there is lack of bona fide or due diligence on the part of the plaintiff.

15. It is no more res integra that review of an order cannot be exercised as an 'appeal in disguise'. A distinction has been drawn between a review of an order and an appeal and that there is no overlapping between the two. A review can be filed only when there is an error apparent on the face of record. In Ajit Kumar Rath v. State of Orissa and Ors. it was held that the power to review is not an absolute power and is circumscribed 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 him at the time when the order was made. 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. Similarly in Shanmugam Servai versus 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 aforestated 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.

16. A review is permissible on the ground of discovery of new evidence only on applicant establishing the he 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. 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. The details of evidence regarding knowledge of the plaintiff about the death of the two defendants, was not specifically pleaded in the replies to the applications of the plaintiff nor has even been produced with the application for review. The defendant No. 1/applicant wants to rely on certain documents in the record of the suit filed by him, which are also disputed by the plaintiff, without producing the copies of the same in the present suit.

17. In the case of Parsion Devi and Ors. v. Sumitri Devi and Ors. the Supreme Court has held as under:

It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. Under Order 47 Rule 1 CPC 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 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC 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.

An error which is not self evident and has to be dictated by a process of reasoning can hardly be said to be an error apparent on the face of the record.

18. In the case of the applicant/defendant No. 1 neither it has been pleaded that he acted with due diligence and the facts now sought to be raised were not within his knowledge or these facts could not be brought before the Court despite due diligence on his part or the documents relied on by the defendant No. 1 could not be produced by him despite due diligence on his part. Even now the plea of the applicant is that the facts should have been noted by the Court from the other suit filed by the defendant No. 1 which was also listed on the same dates when the present suit was listed. The plea of the applicant is that all these facts which now the defendant No. 1 want to take into consideration are available in the file of suit No. 1875 of 1992 and so should have been noticed by this Court.

19. Scope of review being limited was also considered and held in a recent judgment of this Court in the case of Anil Kumar Jain and Anr. v. Union of India in CM No. 4274 in WP(C) No. 1246/1990 decided on 5th May, 2005 where the Court has held as under:

The scope of the review jurisdiction of the Court is a very limited one. The applicant cannot pray for review of a judgment merely because some of the judgments have not been noticed by the Court particularly when the judgments were not even referred to before the Court at that stage and in any case the applicant will be in no position to say so. Furthermore, the jurisdiction of review does not extend for substituting a view taken by the Court on merits or otherwise of the contentions raised before the Court on the facts and circumstances of a case. The applicant is essentially praying before the Court that the view taken by the Court on different facets of the case - legal and factual - should be substituted primarily because another view was possible. The power to review normally is the creation of a statute. However, in exercise of powers by the High Court under Article 226 of the Constitution of India, the Court can take recourse to the power of review by necessary implication. Such power of review has a limited scope and is normally used for the correction of a mistake but not to substitute a view in law. Such mistake or error contemplated under this rule must be such which is apparent on the face of the record and not a correction of an error which requires long drawn process of reasoning. The limitation on the powers of the Court under Order 47 Rule 1 are similar and applicable to the jurisdiction available to the High Court under Article 226 of the Constitution of India. With caution the Court has to ensure that such power is not exercised like entertaining an 'Appeal in disguise'. Where conceivably there may be two opinions and an error has to be established by a long drawn process it is not an error apparent on the face of the record. Reference in this regard can be made to the judgment in the case of R.S. Rajanna v. Sri Basavaiah and Ors. Para 11 and in the case of Prem Dutt v. Punjab State 1998 Vol. 1 PLR 444.8. In the case of Parsion Devi and Ors. v. Sumitri Devi and Ors. the Supreme Court has held as under:

It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. Under Order 47 Rule 1 CPC 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 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC 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.'

An error which is not self evident and has to be dictated by a process of reasoning can hardly be said to be an error apparent on the face of the record.

20. The concept of finality of judgment has to be enforced with its normal rigor. If the practice adopted by the applicant in the present case, is permitted to grow, it will amount to undermining the concept of finality as in every case, the party who is not satisfied with the order, would seek a rehearing of the matter in the disguise of review. The applicant, in the present case, is also seeking a rehearing of his plea that there was no due diligence and lack of bona fide on the part of the plaintiff in the garb of the review application. Such a modus operandi would not be permissible in law and can not be allowed. It is a settled canon of law that merely because a party is not satisfied with the order of the court or it is possible to take another view on reasonable interpretation on law and facts, would by itself be no ground for review of a judgment/order. In the circumstances the application is beyond the purview and scope of Order 47 Rule 1 of the CPC and is an attempt on the part of the applicant/defendant No. 1 to have the rehearing of the matter on merits on the basis of alleged facts in another suit filed by the applicant which have not been produced even now by the applicant. The application for review, therefore, does not entitle the applicant/defendant No. 1 for reconsideration of the entire matter.

21. The application for review is, therefore, without any merit and it is dismissed. The parties are, however, left to bear their own costs.