Page No.# 1/6 vs Pabitra Boro
2025 Latest Caselaw 1774 Gua

Gauhati High Court

Page No.# 1/6 vs Pabitra Boro on 7 January, 2025

                                                                  Page No.# 1/6

GAHC010071992023




                                                            2025:GAU-AS:314

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

                       Case No. : Review.Pet./22/2024

         ANIL SAIKIA AND 3 ORS.
         S/O- LATE PARMESHWAR SAIKIA, R/O- H/NO. 4, DEBADARU PATH,
         AMBIKAGIRI NAGAR, R.G.B. ROAD, P.O. ZOO ROAD, P.S. GEETA NAGAR,
         GUWAHATI, DIST.- KAMRUP(M), ASSAM.

         2: MONO SAIKIA
          S/O- LATE PARMESHWAR SAIKIA
          R/O- H/NO. 4
          DEBADARU PATH
         AMBIKAGIRI NAGAR
          R.G.B. ROAD
          P.O.- ZOO ROAD
          P.S. GEETA NAGAR
          GUWAHATI
          DIST.- KAMRUP(M)
         ASSAM.

         3: NALINI SAIKIA
         W/O- BUDHIN SAIKIA
          R/O- H/NO. 4
          DEBADARU PATH
         AMBIKAGIRI NAGAR
          R.G.B. ROAD
          P.O. ZOO ROAD
          P.S.- GEETA NAGAR
          GUWAHATI
          DIST.- KAMRUP(M)
         ASSAM.

         4: SUMI SAIKIA
         W/O- ANIL SAIKIA
          R/O- H/NO. 4
          DEBADARU PATH
         AMBIKAGIRI NAGAR
                                                                            Page No.# 2/6

             R.G.B. ROAD
             P.O. ZOO ROAD
             P.S.- GEETA NAGAR
             GUWAHATI
             DIST.- KAMRUP(M)
             ASSA

            VERSUS

            PABITRA BORO
            S/O- GAJENDRA BORO, R/O- WARD NO. 3, TANGLA TOWN, P.O. AND P.S.
            TANGLA, DIST.- UDALGURI, BTAD, ASSAM

            2:BALIN SAIKIA
             S/O- LATE PARMESHWAR SAIKIA
             R/O- H/NO. 4
             DEBADARU PATH
            AMBIKAGIRI NAGAR
             R.G.B. ROAD
             P.O.- ZOO ROAD
             P.S. GEETA NAGAR
             GUWAHATI
             DIST.- KAMRUP(M)
            ASSAM

Advocate for the Petitioner   : MR. P P BARUAH, MS. R DEVI,MR. D GOSWAMI

Advocate for the Respondent : MR. R K BHUYAN, MS. P MEDHI(R-2),MR N K KASHYAP(R-

2),MR. M KASHYAP

BEFORE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY For the Petitioners : Mr. PP Baruah, Advocate.

For the Respondent               : Mr. R Rabha, Advocate


Date of Hearing                  : 04.12.2024

Date of Judgement                : 07.01.2025
                               JUDGMENT & ORDER (CAV)
                                                                             Page No.# 3/6

1. Heard Mr. PP Baruah, learned counsel for the petitioners. Also heard Mr. R Rabha, learned counsel for the respondent.

2. The present application under Section 114 read with Section 151 of the Code of Civil Procedure, 1908 is filed by the petitioners seeking review of the judgment & order dated 20.02.2023 passed by this Court in FAO No. 5/2021 allowing the appeal.

3. The brief facts of the case leading to the filing of this application is that the opposite party herein as the plaintiff instituted a suit registered as TS No. 103/2020 against the petitioners herein as defendants, for specific performance of contract and for injunction.

4. Along with the said suit, the appellant preferred an application under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 to restrain the defendants from transferring/ alienating as well as changing the nature and character of the schedule B suit land, which was the subject matter of the contract, of which the plaintiff sought specific performance. The said application was registered as Misc (J) Case No. 111/2020. The learned trial court dismissed the aforesaid Misc case by its order dated 27.04.2021 and declined to pass any order of injunction as sought.

5. Being aggrieved, the plaintiff preferred an appeal under Order XLIII Rule 1 (r) of the Code of Civil Procedure, 1908, which was registered as FAO No. 5/2021.

6. This court, after hearing the parties and perusal of the material available on the record allowed the appeal by judgment dated 20.02.2023 and provided that the defendants shall not change the nature and character of the schedule B land

or alienate the same to any 3rd party till disposal of the suit.

7. The present review is filed seeking review of the aforesaid order dated Page No.# 4/6

20.02.2023 as reflected hereinabove.

8. Though different grounds for seeking review were taken in the review petition, however, Mr. PP Baruah, learned counsel for the petitioners has confined his argument only to one ground and argues that the error apparent on the face of the record is that, in so far as the balance of convenience is concerned, this court concluded that the learned trial court, in its order dated 27.04.2021 found that the balance of convenience is in favour of the plaintiff and passed the judgment under review, whereas in the order passed by the learned trial court, the learned trial court observed that though there is prima-facie case in favour of the plaintiff but balance of convenience and irreparable loss and injury are not in favour of the plaintiff.

9. Per contra, Mr. R Rabha, learned counsel for the respondent submits that there is no error apparent on the face of the record inasmuch as this court while considering the appeal had elaborately dealt with the pleadings of the parties including the statement made in the plaint as well as in the written statement and concluded that the three golden principles for grant of injunction were available and accordingly passed the order under review and therefore, the error projected cannot be said to be an error apparent on the face of the record inasmuch as this court had not passed the order solely on the ground that the learned trial court had found prima-facie case and balance of convenience in favour of the petitioner. This court as an appellate court, after independent appreciation had arrived at the conclusion in the order under review. Therefore, according to the learned counsel for the respondent, this is not a fit case where this court should entertain the present application.

10. I have given anxious consideration to the argument advanced by the learned counsel for the parties.

Page No.# 5/6

11. The law is well settled that a review application is maintainable on the discovery of new and important matters or evidence which, even after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him when the decree was passed, or the order was made. Secondly, such a review application shall be maintainable on account of such mistake or error apparent on the face of the record or for any other sufficient reason.

12. The material error, to exercise the power of review must be manifest on the face of the order and should result in a miscarriage of justice or undermine its soundness (Ref: Col. Avtar Singh Sekhon -Vs- Union of India and Others reported in 1981 SCC (1) 168.

13. The "error apparent on the face of the record" shall mean an error that is self-

evident and no process of reasoning is required to detect such error. Therefore, when an error is not self-evident and is required to be detected by the process of reasoning, such error cannot be described as an error apparent on the face of the record.

14. It is also equally well settled that while exercising review jurisdiction, a Court cannot re-appreciate the evidence to arrive at a different conclusion, even when two views are possible.

15. It is well settled that "any other sufficient reasons" shall mean "a reason sufficient on the grounds at least analogous to those specified in rule". (Ref:

Union of India -Vs- Sandur Manganese & Iron Ores Ltd. reported in 2013 8 SCC 337.)

16. Now coming into the case in hand, the error stated to have been apparent i.e. that the learned trial court though concluded that the balance of convenience is not in favour of the plaintiff and this court concluded that the learned trial court has arrived at a conclusion that balance of convenience is in favour of the Page No.# 6/6

plaintiff, even if is correct, same cannot be treated as an error apparent on the face of the record having substantial effect on the determination made.

17. This court after appreciation of the pleadings of the parties and material available on record recorded its own independent conclusion and after arriving at the satisfaction that the three golden principles for grant of injunction were satisfied and therefore, the disputed property is required to be protected during the pendency of the suit, granted the injunction, more particularly, relying on the decision in Wander Limited Vs Antox India (P) Limited reported in 1990 (Supp) SCC 727.

18. The aforesaid determination is reflected at paragraph Nos. 13, 14, 15 and 16 of the judgment dated 20.02.2023 passed in FAO No. 5/2021.To summarise the alleged error apparent on the face of the record, even if it is correct, is having no bearing on the final conclusion that has been arrived by this court in its judgment dated 20.02.2023 passed in FAO No. 5/2021.

19. Therefore, for the reasons recorded hereinabove, this court is of the unhesitant view that this review petition lacks merit and accordingly, same stands dismissed. Parties to bear their own costs.

JUDGE

Comparing Assistant