Delhi High Court
M/S Sawhney Brothers vs Hongkong And Shanghai Banking ... on 28 April, 2017
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Rev. Pet. No. 166/2017 in LPA 402/2016
M/S SAWHNEY BROTHERS .....Appellant
Through: Mr. T.S. Sawhney, appellant in person.
Versus
HONGKONG AND SHANGHAI BANKING CORPN.
....Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
ORDER
28.04.2017
CM No. 16302/2017 (exemption)
1. Exemption allowed, subject to just exceptions.
2. Application stands disposed of.
CM No. 16303/2017 (for condoning of 45 days delay in filing)
1. For the reasons stated in the application, the delay of 45 days in
filing the Review Petition is condoned. Application stands disposed of.
Review Petition No. 166/2017
1. The Appellant has preferred this application for review of the
judgment dated 06.01.2017 dismissing his appeal against an order dated
06.05.2016 in W. P. (C) 3569/2012 passed by the learned Single Judge,
who had dismissed a second review petition filed by him as being
meritless. LPA No. 725/2016 was filed by the appellant against the
judgment dated 01.06.2012, passed by the learned Single Judge in
W.P.(C) No.3569/2012. The said appeal was disposed of as withdrawn
on 03.03.2014.
2. The order dated 03.03.2014 in the captioned appeal reads as
under:-
" After some hearing Mr. T.S. Sawhney, appellant in
person sought liberty to withdraw the appeal stating that
his arguments on the question of amendment to the L.C. -
which according to him is in issue before the learned
Single Judge in the pending suit and the alleged fraud
played upon him would be urged before the learned
Single Judge.
The appellant is at liberty to urge such questions
of facts and law as are permissible in accordance with
law having regard to the issues framed in the pending
suit and pursue all remedies.
All rights and contentions of all parties are
reserved.
The appeal is accordingly disposed of as
withdrawn."
3. It is now contended by the appellant that the captioned appeal was
not dismissed as withdrawn and he was only advised to withdraw the
amendment application filed therein (CM APPL. No. 5561/2013) and
thus, the process was continuous and there was no delay on his part.
4. However, fact remains that LPA No. 725/2012 was disposed of as
withdrawn by the appellant vide order dated 03.03.2014 passed, in his
presence. Thereafter, he had filed a Review Petition bearing No.
191/2016, against the order dated 01.06.2012, passed by the learned
Single Judge in W.P. (C) No. 3569/2012 and that too after a delay of
around two years, which was dismissed vide order dated 06.05.2016. The
order dated 06.05.2016 reads as under:-
"I do not find merit in this application and review
petition.
Dismissed."
5. Thereafter, the Appellant filed LPA No. 402/2016 challenging the
order dated 06.05.2016, passed by the learned Single Judge in the
captioned petition. The said appeal was also dismissed by the predecessor
Bench and it was held as under:-
"7. In our view, the challenge made by the appellant in
the second review petition has already attained finality
vide order dated 03.03.2014 passed in LPA 725/12 and
now he cannot raise the same ground again in view of the
principle of res judicata.
8. The contention of the appellant that the judgment
passed by the High Court of Cuttack in the case titled as
Ramkrushna Dasmahopatra @ Tikipua vs. Indian Tea
Provisons Ltd. 2013(II) ILR-CUT-I, dated 12.12.2012
has not been considered is concerned, we are of the view
that the said judgment does not come to the rescue of the
appellant, as we have already held above that second
review petition is not maintainable in view of the fact that
the issue raised in LPA 725/2016 has attained finality in
terms of order dated 03.03.2017.
9. Accordingly, the present appeal is dismissed."
6. It has been laid down by the Supreme Court in a catena of
decisions that no appeal lies against an order rejecting a review
application. An appeal shall be incompetent being against an order
rejecting the application for review of a judgment or decree passed by the
learned Single Judge. Order 47, Rule 7 of the Civil Procedure Code bars
an appeal against the order of the court rejecting the review.
7. In the present case, order dated 06.05.2016 passed by the learned
Single Judge is obviously an order rejecting a review application.
Therefore, LPA No. 402/2016 preferred by the appellant against the order
dated 06.05.2016, was itself not maintainable. In these circumstances, the
question of filing a review application in the present appeal, against the
order passed in a separate appeal, does not arise. The present Review
Petition is liable to be dismissed on this ground alone.
8. Even on merits, it may be noted that the appellant had not raised
any ground in LPA No. 402/2016, that LPA No. 725/2012 was actually
never withdrawn by him. It is well settled that a party cannot raise a fresh
ground in a Review Petition which was never argued in the appeal.
A Review Petition has only a limited purpose and cannot be entertained
as "an appeal in disguise". A judgment may be reviewed only if there is a
mistake or error apparent on the face of the record. An error which is not
glaringly obvious and has to be identified by a process of reasoning, can
hardly be said to be an error apparent on the face of the record. The plea
taken in the present application far exceeds the scope of review
jurisdiction.
9. In light of the above, the Review Petition is dismissed.
SANGITA DHINGRA SEHGAL, J
HIMA KOHLI, J
APRIL 28, 2017
gr//
