Mr. Sher Singh Dagar vs Dr. Yoganand Shastri & 11 Ors.
2013 Latest Caselaw 339 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment reserved on: 17.01.2013
                                      Judgment pronounced on: 23.01.2013

+      REV. PET. No. 268/2012 in ELECTION PET 12/2009

       MR. SHER SINGH DAGAR                                        ...Petitioner
                         Through:            Mr. Naresh Kaushik and Ms. Amita
                                             Kalkal, Advs.

                                Versus

       DR. YOGANAND SHASTRI & 11 ORS.               ...Respondents
                        Though:   Mr. R.M. Bagai and Ms. Damini
                                  Khaira, Advocates

CORAM:

HON'BLE MR. JUSTICE V.K. JAIN


V.K. JAIN, J.

Vide order dated 21st March, 2012, IA No.6871/2011, filed by the petitioner

was allowed, subject to payment of Rs.50,000/- as cost and the Additional

Affidavit filed by him was taken on record. Vide Review Petition No.268/2012,

the respondent No.1 is seeking review of the aforesaid order primarily on the

following grounds:-

i) The proposition of law propounded by the Court in the order dated 21 st

March, 2012 to the effect that the court ought to give opportunity to the petitioner

to amend the plaint or amplify the material facts was erroneous and against the law

laid down by the Supreme Court, since in none of the judgments, the Supreme

Court said that the delay was immaterial in allowing the amendment;

ii) In the present case even material facts are missing and therefore there was

no question of amplifying the same since the material facts cannot be supplied after

expiry of the period of limitation;

iii) The petitioner has not disclosed the source of information in respect of

commission of the alleged corrupt practices and the verification of the Additional

Affidavit of the petitioner does not meet the requirement of law;

iv) The court did not consider the law laid down by the Supreme Court in

Bhagwan Das vs. Thakur Das 84(2000) DLT 57 where the Election Petition was

dismissed for non-disclosure of material facts;

v) The reliance by the Court upon Mahendra Pal vs. Ram Dass Malanger &

Ors. AIR 2000 SC 16 was misplaced since the petitioner had not obtained any

permission to file the Additional Affidavit;

vi) Because the contents of the Additional Affidavit cannot be treated as

material particulars;

vii) Because the Additional Affidavit has been filed by the petitioner in a

surreptitious and covert manner;

viii) Because there is an error apparent on the face of the record in the impugned

order by brushing aside undue delay of 900 days by holding that permission to give

particulars cannot be rejected merely on account of delay;

ix) Because the Supreme Court has held in Dhartipakar Madan Lal Agarwal

vs. Rajiv Gandhi AIR 1987 SC 1577 that casting more than ones does not amount

to a corrupt practice;

x) Because Supreme Court has held in Ram Sukh vs. Dinesh Agarwal 2009

(10) SCC 541 held that no cause of action arises if material facts are missing;

The review petition has been opposed by the petitioner.

2. A Review Petition would lie primarily if there is a mistake or error apparent

on the face of the record or some new and important matter or evidence is

discovered which after exercise of due diligence was not in the knowledge of the

review petitioner or could not be produced by him at the time when the order was

passed. In Thungabhadra Industries Ltd. vs. Govt. of Andhra Pradesh AIR

1964 SC 1372, the order of September, 1959 contained a statement that the case

did not involve any substantial question of law. It was held that even if the

aforesaid statement was wrong, it would not follow that it was an error apparent on

the face of the record because a mere erroneous decision could not be characterized

as vitiated by error apparent. It was held that a review is not an appeal in disguise

whereby an erroneous decision is reheard and corrected but lies only for patent

error. In Parsion Devi & Ors v. Sumitri Devi & Ors 1997 (8) SC 751, the

Supreme Court held that an error which is not self-evident and has to be detected

by a process of reasoning can hardly be said an error apparent on the face of the

record, justifying the court to exercise its power of review under Order 47 Rule 1

of CPC. It was further held that in exercise of the jurisdiction under Order 47 Rule

1 of CPC, is not permissible for an erroneous decision to be re-heard and corrected.

In Rajan Bai 2007 15 SCC 513, the Supreme Court held that in the absence of an

error apparent on the face of the record, the finality attached to the judgment/order

cannot be disturbed. In Inder Chand Jain v. Motilal 2009 14 SCC 663, the

Supreme Court held that the review Court does not sit in appeal over its own order

and re-hearing of the matter is not permissible in law.

3. A perusal of Para 6 of the order dated 21.3.2012 would show that the Court,

while passing the said order considered the case of respondent No.1 that the

Election Petition lacks material facts and falls short of mandatory requirement of

Section 3 of the Representation of the People Act. It was also noted that the

Additional Affidavit had been filed only after respondent No.1 had filed IA

No.7208/2010 for dismissal of the Election Petition on the ground that it does not

contain material particulars. The Court also considered the allegations that the

Additional Affidavit had been filed in a surreptitious manner without seeking

permission of the Court. The Court also took note of the contention of respondent

No.1 that there was failure on the part of the petitioner to explain the delay in filing

the Additional Affidavit and the Election Petition was liable to be rejected for want

of material particulars since the lacunae in the Election Petition could not be filled

by way of an Additional Affidavit. It would, therefore, not be correct to say that

the contention of respondent No.1 have not been taken into consideration while

passing the order dated 21st March, 2012. If the respondent No.1 is aggrieved on

account of the Court not accepting his above-referred contentions, the proper

remedy for him is to file an appeal against the order dated 21 st March, 2012 and a

Review Petition is not the appropriate remedy.

4. In Balwan Singh v. Lakshmi Narain (1960) 3 SCR 91, the Supreme Court

specifically held that an Election Petition is not liable to be dismissed in limini

merely because full particulars of a corrupt practice alleged in the petition are not

set out and where an objection is raised by the respondent that a petition does not

give full particulars of an alleged corrupt practice and the objection is upheld by

the Tribunal. It should give an opportunity to the petitioner to apply for leave to

amend or amplify the particulars of the corrupt practice alleged. Therefore, the

view taken in para 10 of the order dated 21st March, 2012 that if an objection is

taken by the respondent that the petition lacks material particulars, the court ought

to give an opportunity to the petitioner either to amend the petition or to amplify

the material facts alleged in the petition by giving the requisite particulars of the

material facts pleaded by him, cannot be said to be incorrect. If the Court cannot

dismiss a petition on the ground that the requisite particulars with respect to the

material facts alleged in the petition have not been given and an opportunity must

necessarily be given to the petitioner, for supply of such particulars, the delay in

giving such particulars becomes immaterial and the application seeking permission

to give the necessary particulars in respect of the material facts alleged in the

petition cannot be rejected merely on account of delay in seeking such a

permission. Therefore, the proposition of law enunciated in para 10 of the

aforesaid order that an application seeking permission to give particulars cannot be

rejected even if the period of limitation prescribed for filing the Election Petition

has expired by the time permission is sought to furnish particulars, cannot be said

to be incorrect.

Vide order dated 21st March, 2012, this court took the view that the

Additional Affidavit sought to be filed by the petitioner was by way of particulars

of the material facts already pleaded in the Election Petition and no additional

material fact was sought to be pleaded by way of the Additional Affidavit. If the

view taken in this regard by the Court is not a correct view, the remedy of the

respondent No.1 lies in filing an appeal against the said order and a Review

Petition would not be the appropriate remedy since taking incorrect view of such a

matter is not an error apparent on the face of the record. The respondent No.1

cannot be allowed by way of this petition to re-argue the matter on merits and say

that the material facts pertaining to the particulars sought to be given by way of

Additional Affidavit of the petitioner have not been pleaded in the petition. In any

case, IA No.7208/2010 filed by respondent No.1 under Sections 83 and 86 of

Representation of the People Act read with Order 7 Rule 11 CPC for dismissal of

the Election Petition on the ground that it does not contain material particulars is

still pending disposal and it would be open to respondent No.1 to make such

submissions as are open to him in law, at the time of hearing of the above-referred

application.

5. The learned counsel for respondent No.1 has referred to Subhash Desai, v.

Sharad J.Rao and Others AIR 1994 Supreme Court 2277, Azhar Hussain v.

Rajiv Gandhi 1986 (Supp) Supreme Court Cases 313, Prestige Lights Ltd. V.

State Bank of India (2007) 8 Supreme Court Cases 449 and Gajanan Krishnaji

Bapat and Another v. Dattaji Raghobaji Meghe and Others AIR 1995

Supreme Court Court 2284. However, none of these judgments is relevant for

the purpose of deciding this review petition though they may be relevant at the

time of consideration of IA No.7208/2010.

The learned counsel for respondent No.1 has also referred to decision of this

Court in RP No.228/2007 in LPA No.262/2001 decided on 28th May, 2009.

In the above referred case, while passing the order dated 25 th April, 2007,

the Court had relied upon the decision in Amita Gulati & Ors. vs. Union of India

& Ors. in CWP No.2273/1995 decided on 6th March, 1996. The revision

petitioner pointed out to the Court that Amita Gulati's appointment was on contract

basis relating to a particular project whereas the appointment of the petitioner was

temporary for one year at the first instance and this difference had escaped the

attention of the Court while delivering the judgment under review. Acknowledging

the distinction pointed out by the learned counsel for the review petitioner, the

Court allowed the Review Petition and recalled the judgment dated 25th April,

2007. However, the facts of the case before this Court are altogether different. No

error apparent on the fact of record has been pointed by the review petitioner. The

reliance upon this judgment is, therefore, wholly misplaced.

6. For the reasons stated above, I find no merit in the review petition and the

same is, therefore, dismissed. Considering the fact that it has taken more than eight

months to decide this revision petition which the learned counsel for the review

petitioner argued extensively on a number of hearings, I burden the review

petitioner with cost assessed at Rs.10,000/-.

V.K.JAIN, J

JANUARY 23, 2013 ks