Page No.# 1/9 vs Union Of India
2025 Latest Caselaw 2916 Gua

Gauhati High Court

Page No.# 1/9 vs Union Of India on 7 February, 2025

Author: Malasri Nandi

Bench: Malasri Nandi

                                                                         Page No.# 1/9
                                                                                     2022:GAU-AS:11831
GAHC010174102022




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                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                              Case No. : Review.Pet./149/2022

            M/S NORTH EAST IODISED SALT (P) LTD.
            PO BHADRAPALLI, GANDHINAGAR, TRIPURA.



            VERSUS

            UNION OF INDIA.
            REPRESENTED BY THE GENERAL MANAGER, NF RAILWAY, MALIGAON,
            GUWAHATI, ASSAM 781011



Advocate for the Petitioner   : MR. K P MAHESWARI, MS. C SAHA,MS. M SHARMA

Advocate for the Respondent : MRS. UMA CHAKRABORTY, MS. M CHATTERJEE




             Linked Case : MFA/15/2011

            UNION OF INDIA
            REPRESENTED BY THE GENERAL MANAGER
            N.F. RAILWAY
            MALIGAON
            GUWAHATI
            DIST. KAMRUP ASSAM


             VERSUS

            M/S NORTH EAST LODISED SALTP LTD.
                                                                            Page No.# 2/9
                                                                                       2022:GAU-AS:11831
          BHADRAPALI
          GANDHIJGRAM
          TRIPURA


          ------------

Advocate for : SC NF RLY Advocate for : appearing for M/S NORTH EAST LODISED SALTP LTD.

BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI

JUDGMENT & ORDER (CAV)

Date : 07-02-2025

Heard Ms. M. Sharma, learned counsel for the review petitioner. Also heard Mrs. U. Chakraborty, learned Standing Counsel, Railways.

2. By filing this application u/s 114 read with Rule 1, Order XLVII of the Code of Civil Procedure, 1908, the petitioner has prayed for review of the Judgment and Order dated 17.08.2022 passed by this Court in MFA No.15/2011.

3. The present review petitioner was the respondent in MFA No.15/2011 and Page No.# 3/9 2022:GAU-AS:11831 Claim Applicant in the Original Claim Application No. OA.35/2006. As per the facts of the case, the review petitioner had filed the Claim Application before the Railway Claims Tribunal, Guwahati Bench, claiming compensation amounting to Rs.4,66,590/- vide Claim Application No. OA.35/2006. The learned Tribunal vide judgment and order dated 12.11.2010 had awarded a decree of Rs. 4,66,590/- along with interest @ 6% per annum from the date of filing of the application and also directed the Respondent to make the payment within 90 days from the date of the order, failing which the amount shall carry interest @ 7% per annum till realization. The Respondent was also directed to pay proportionate cost of application fee Rs.4,799/- and legal practitioner's fee of Rs.3000/-.

4. Being highly aggrieved with the impugned judgment and order dated 12.11.2010, the Respondent N.F Railway preferred an appeal before this Court vide MFA No.15/2011. This Court vide order dated 17.08.2022 allowed the appeal and set aside the judgment and order dated 12.11.2010 passed by the Tribunal. Hence, this review petition.

5. It was urged by the learned counsel for the review petitioner that the findings of this Court passed in the common judgment and order dated 17.08.2022 is liable to be reviewed as this Court had taken a view in paragraph 8 (viii) that the counsel for the Appellant-Railways has placed reliance in the case of Union of India vs. Bajaj Trading Company vide MFA Case No.20/2012 (Gauhati High Court), is incorrect and liable to be reviewed because the learned counsel for the Review Petitioner who was the Respondent therein, relied on the said judgment in support of Review Petitioner's claim to prove the actual loading of the consignment as mandates under proviso to Section 63 of the Railways Act, 1989.

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6. It is also the submission of learned counsel for the Review Petitioner that the judgment dated 17.08.2022 of this Court is liable to be reviewed because the Review Petitioner proved the loading of 32,894 bags of crystal common salt and the price by producing "Purchase Invoice" at the time of filing of Claim Application before the learned Tribunal where the purchase invoices reflected the railway receipts no.220443 to 220444 vide invoice no.04 to 05 and date of booking i.e. 04.06.2005 quantity, rate , total cost price including the railway freight Rs.22,84,465/- and Misc. and siding expense and wagon clearing i.e. Rs.1668/- which is sufficient to prove that the said 32,894 bags of crystal common salt were put on rails.

7. The learned counsel for the review petitioner also pointed out that the consignment was booked under "Railway Risk Rate" as contained in the Railway Receipt and on the contrary the Appellant stated in their memo of appeal that the consignment was booked on "said to contain" at own risk of the sender, is wrong. According to learned counsel for the review petitioner, in the instant case, the consignment was booked under "Railway Risk". Therefore, the Railways are responsible for the loss of 3186 bags of cystal common salt. Hence, learned counsel for the review petitioner prays to review the judgment and order as aforesaid.

In support of her submission, learned counsel for the review petitioner has relied on the following case laws:

a) (2016) 1 GLT 447 (Union of India vs. Sunrise Traders)

b) MFA 122/2011 (Union of India vs. Ms. Jayprakash Associates Limited) Page No.# 5/9 2022:GAU-AS:11831

8. In response, learned counsel for the respondent Railways has argued that an application for review would lie when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. It is further submitted that it is beyond any doubt that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.

Learned counsel for the respondent has referred to following case laws:

                    i)      (2000) 6 SCC 224 (Lily Thomas & others vs.
                    Union of India)
                    ii)     (2022) 5 GLT 161 ( Tage Gerang vs. Taje
                    Gerang)
                    iii)   (2023) 6 GLT 171 ( Samsul Hoque & Ors vs.
                    State of Assam)
                    iv)    (2022) O Supreme (SC) 734 (S. Madhusudhan
                    Reddy vs. V. Narayana Reddy and Others)

9. Having heard the learned counsel for the parties and on perusal of the judgment passed by this Court dated 17.08.2022, the only point that arises for consideration in this review petition is that whether the review petitioner has made out a case for reviewing the judgment and order dated 17.08.2022.

10. Order XLVII of CPC deals with review of judgment and order which reads as follows:

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

a) by a decree or order from which an Page No.# 6/9 2022:GAU-AS:11831 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, or 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.

(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.)"

11. On a bare look at the aforesaid provisions, it reveals that review application would be maintainable on discovery of new and important matters or evidence which after exercise of due diligence, were not within the knowledge of the applicant or could not be produced by him when the decree was passed or the order made on account of some mistake or error apparent on the face of the record or for any other sufficient reason.

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12. In the case of Parsion Devi and others vs. Sumitri Devi & others (1997) 8 SCC 715, it was held that an error that is not self-evident and the one that has to be detected by the process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise the powers of review. The Court observed as under -

"7. It is well-settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Tungabhadra Industries Ltd. vs. Govt. of A.P 1964 SCR (5) 174, this Court opined-

'11. What however we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an error apparent on the face of the record. The fact that n the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not perse be conclusive, for the earlier order it shall might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an error apparent on the face of the record, for there is a distinction which is real though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by error apparent. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.'

13. In the case of Meera Bhanja vs. Nirmala Kumari Choudhury (1995) 1 SCC 170, while quoting with approval a passage from Aribam Tuleswar Sharma vs. Ariban Pishak Sharma (1979) 4 SCC 389 , Hon'ble Supreme Court once again held that review proceedings are not by way of an appeal and have to strictly confine to the scope and ambit of order 47 Rule 1 CPC.

14. It is also settled law that on exercise of review jurisdiction, the court cannot re-appreciate the evidence to arrive at a different conclusion even if two Page No.# 8/9 2022:GAU-AS:11831 views are possible in a matter. In Kerala State Electricity Board vs. Hitech Electrothermics and Hydropower Ltd. and Others (2005) 6 SCC 65 , it was observed as follows:

"10. .... In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise."

15. In view of the aforesaid legal proposition, it is well settled that the power to review is not an inherent power. The term 'mistake' or 'error apparent' by its very connotation signifies an error which is evident from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. An order of decision of judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view would be taken by the Court/ Tribunal on a point of fact or law. In any case while exercising the power of review, the Court concern cannot seek any appeal over its judgment/decision.

16. In the case in hand, the grounds of review taken by the review petitioner as mentioned above, does not come under the purview of error apparent on the Page No.# 9/9 2022:GAU-AS:11831 face of the record. Only the appeal lies. The review petitioner is at liberty to approach the appropriate forum seeking relief, if advised.

17. In view of the above discussion, this Court does not find any ground to review the judgment and order dated 17.08.2022, passed by this Court in MFA Case No.15/11. Hence, the review petition is dismissed.

18. The review petition is disposed of accordingly. No order as to cost.

JUDGE

Comparing Assistant