Shivani vs Employee State Insurance ...
2018 Latest Caselaw 4254 Del

#71

        IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                   Judgment delivered on: 25.07.2018

REVIEW PETITION 282/2018 in W.P.(C) 6657/2018

SHIVANI                                                           ..... Petitioner



                               versus



EMPLOYEE STATE INSURANCE CORPORATION ..... Respondent


Advocates who appeared in this case:
For the Petitioner  : Mr. Sanjay Sharma, Advocate
For the Respondent  : Mr. V.K. Singh and Ms. Prachi Singh, Advocates with Mr. Subhash
                      Kumar, SSO



CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

                                    JUDGMENT

SIDDHARTH MRIDUL, J (ORAL)

CM APPL.29550/2018 (Exemption)

Exemption granted subject to all just exceptions.

The application is disposed of accordingly.

REVIEW PETITION 282/2018 & CM APPL.29549/2018 (Directions)

1. By way of the present petition, the petitioner seeks review of the order

dated 03.07.2018, passed by this Court, whereby the writ petition being

W.P.(C) 6657/2018 (for short 'First Petition'), instituted on behalf of the

petitioner herein, was dismissed as withdrawn, in view of the leave sought

for, in this behalf, by counsel for the petitioner.

2. It is a matter of record that a similar petition seeking identical reliefs,

subsequent to the order of which review is sought, was instituted on behalf

of the petitioner, being W.P.(C) 7177/2018 (for short 'Second Petition'),

which was also dismissed as withdrawn, in pursuance to the leave sought for,

on behalf of counsel for the petitioner on 13.07.2018.

3. Now, the applicant seeks review of the order dated 03.07.2018 in the

first petition, that came to be dismissed as withdrawn, as afore-stated.

4. The grounds on which the review petition has been instituted belatedly

and after having assailed the impugned order passed by the Employees State

Insurance Corporation (for short 'ESIC'), in two distinct writ petitions; is

ostensibly that owing to subsequent developments, a review is maintainable.

5. On a specific query, learned counsel appearing on behalf of the review

petitioner states that, subsequent to the dismissal of the second petition, they

became aware of a prior notification dated 19.07.2017, which supports their

case.

6. In this behalf, it must be observed that there are no pleadings in the

review petition as to when and how the petitioner became aware of the said

notification dated 19.07.2017; and further how despite the exercise of due

diligence, the said notification dated 19.07.2017 was not within the

knowledge of the review petitioner or could not be produced by him at the

time of hearing of the first petition.

7. In fact, learned counsel appearing on behalf of the official respondent,

on advance notice states that, the petitioner was aware of the said

notification dated 19.07.2017 issued by them, at the time of hearing of the

second writ petition and that a copy thereof, had in fact, been handed over in

Court.

8. Be that as it may, the jurisdiction exercised by this Court in a review

petition is within a narrow compass and is sparingly exercised, strictly in

consonance with the mandate of provisions of Order XLVII of the Code of

Civil Procedure, 1908. For the sake of felicity, the same is reproduced

hereunder:-

"ORDER XLVII- REVIEW

1. Application for review of judgment-- (1) Any person considering himself aggrieved--

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record of for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

[441] [Explanation--The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.] 2 . [To whom applications for review may be made.] Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), s.

3 . Form of applications for review-- The provisions as to the form of preferring appeals shall apply mutatis mutandis, to applications for review.

4 . Application where rejected-- (1) Where it appear to the Court that there is not sufficient ground for a review, it shall reject the application.

(2) Application where granted--Where the Court is of opinion that the application for review should be granted, it shall grant the same:

Provided that--

(a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and

(b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not

within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.

5 . Application for review in Court consisting of two or more judges-- Where the Judge or Judges, or any one of the judges, who passed the decree or made the order a review of which is applied for, continues or continued attached to the Court at the time when the application for a review is presented, and is not or not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same.

6 . Application where rejected-- (1) Where the application for a review is heard by more than one judge and the Court is equally divided, the application shall be rejected. (2) Where there is a majority, the decision shall be according to the opinion of the majority.

7 . Order of rejection not appealable. Objections to order granting application-- [442][(1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit.] (2) Where the application has been rejected in consequence of the failure of the applicant to appear, he my apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same.

(3) No order shall be made under sub-rule (2) unless notice of the application has been served on the opposite party. 8 . Registry of application granted, and order for re-hearing-- When an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit.

9. Bar of certain application-- No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained."

9. In the present circumstances, seeking a recall of an order, wherein the

petitioner was granted leave to withdraw the petition, after having made

lengthy submissions, not once but twice, would be an abuse to the process of

Court.

10. In view of the foregoing discussion, no ground for review is made out.

The same is accordingly dismissed. The pending application also stands

disposed of.

SIDDHARTH MRIDUL (JUDGE)

JULY 25, 2018 dn