Page No.# 1/9 vs The Union Of India on 5 January, 2026

Author: Kalyan Rai Surana

Bench: Kalyan Rai Surana

                                                                       Page No.# 1/9

GAHC010285222023




                                                                 2026:GAU-AS:198

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

                                Case No. : Review.Pet./21/2024

            JAMUNA SHIL SARKAR
            W/O LATE CHANU SARKAR
            RESIDENT OF VILLAGE ROWMAR PART I, PO AND PS GORESWAR, DIST
            BAKSA, ASSAM 781364



            VERSUS

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



Advocate for the Petitioner   : MR H R A CHOUDHURY, MR. M ALAM,M ALAMGEER

Advocate for the Respondent : SC, NF RLY,




             Linked Case : MFA/83/2019

            SMTI JAMUNA SHIL SARKAR AND ANR
            W/O LATE CHANU SARKAR

            RESIDENT OF VILLAGE ROWMARI PART I
            PO AND PS GORESWAR
            DIST BAKSA
            ASSAM
            781364
                                                                    Page No.# 2/9

          2: SMTI. ASHARANI SARKAR

          W/O SRI KRISHNA PADA SARKAR

          RESIDENT OF VILLAGE JOYPUR
          PO TULSHIBIL
          PS GOSSAIGAON
          DIST KOKRAJHAR
          BTAD
          ASSAM 783345
          VERSUS

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


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

Advocate for : MR. A ALAM Advocate for : SC NF RLY appearing for UNION OF INDIA

BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA

For the petitioner : Mr. A. Alam, Advocate.

For Union of India : Mr. B. Sharma, standing counsel.

Date on which judgment is reserved     : 11.12.2025

Date of pronouncement of judgment      : 05.01.2026

Whether the pronouncement is of
the operative part of the judgment?    : No

Whether the full judgment has been
Pronounced?                             : Yes
                                                                       Page No.# 3/9

                         JUDGMENT AND ORDER
                                     (CAV)

Heard Mr. A. Alam, learned counsel for the petitioner. Also heard Mr. B. Sharma, learned standing counsel for the NF Railway.

2. By filing this review petition, the petitioner has prayed for review/modification/alteration of order dated 30.11.2023, passed by this Court in MFA No. 83/2019, by which not only the appeal was dismissed for non- prosecution, but also on merit.

3. The learned counsel for the petitioner has submitted that he left for the Court from his home at 09:30 AM, but on reaching midway towards the Court he realized that the file which he was studying in the morning was left on the table at his home and therefore, he went back to get the file but by the time he reached back, due to traffic jam it was already 11:45 AM and in the meanwhile, the matter was dismissed. Thereafter, the petitioner preferred this application for setting aside the order of dismissal of the connected appeal.

4. The learned counsel for the petitioner had referred to the order of this Court dated 18.09.2025, wherein the Court query was to the effect whether apart from recalling that part of the order by which the connected MFA was dismissed for non-prosecution, but the order was also on merit and therefore, whether by exercising review jurisdiction, the Court would have power to reverse the finding recorded on merit. Accordingly, it is submitted that the Court would have power to set aside the impugned order in view of the unique facts and circumstances of this case. It is submitted that the Page No.# 4/9

learned Railway Tribunal relied on the evidence of ASI Rabindranath Ray in arriving at a conclusion that the deceased was not a bonafide passenger. However, the learned Tribunal failed to appreciate that in the case diary produced before the learned Tribunal that there is a entry made on 16.06.2014 at 01:00 PM regarding seizure of journey ticket. Accordingly, it is submitted that the facts were wrongly appreciated not only by the learned Railway Claims Tribunal, but the same error has percolated in the order of this Court. It is further submitted that not only the record should reveal that the availability of the seizure list was corroborated by the entries made in the case diary and moreover, the Officer-In-Charge of Bongaigaon GRPS, Assam had recorded on 30.08.2014, below the signature of the seizing officer (certified to be true copy). Accordingly, it is submitted the fact that there was an entry in the case diary regarding seizure of the journey ticket of the deceased, there was good and sufficient reason and justification for re-hearing of the entire matter.

5. The learned counsel for the petitioner has submitted that in the case of Sangram Singh Vs. the Election Tribunal, AIR 1955 SC 425, the Supreme Court of India had held to the effect that principle of natural justice requires that no one should be condemned unheard. Accordingly, it is submitted that the petitioner ought not to be precluded from participating in the hearing on merit. The learned counsel for the petitioner has also relied on the case of Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji and Ors., (7987) 2 SCC 107, wherein it was held by the Supreme Court of India to the effect that when such substantial justice and technical constraints are pitted against each other, the cause of substantial justice deserves to be preferred. It was further observed by the Supreme Court of India that it must be grasped that Page No.# 5/9

the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injuries and is expected to do so. Referring to the judgment of the Supreme Court of India in the case of S. Madusadhan Reddy V. Narayana Reddy, (2022) 0 Supreme (SC) 734, it was observed that if there exist material error, manifest on the face of the record of the order, which undermines its soundness or results in miscarriage of justice, review can be exercised. It is further submitted in the case of Sowchandrakante and Anr. V. Sheikh Habib, (1975) 1 SCC 674, the Supreme Court of India held that it is proper only when there is glaring omission or patent mistake or like grave error that has crept in the earlier judicial order, review of the judgment can be made.

6. By further relying on the case of Shivdeo Singh and Ors. V. State Punjab, AIR 1963 SC 1908, it has been submitted that power of review inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Also relying in the case of Rajendra Kumar & Ors. Vs. Rambhai & Ors. AIR 2003 SC 2095, it is submitted that the Supreme Court of India had held that if any order for which review is sought suffers from any error apparent on the face of record, permitting the order to stand will lead to failure of justice. Reliance is also place on the case Lily Thomas V. Union of India, AIR 2000 SC 1650, wherein the Supreme Court of India held that if the Court finds that the error pointed in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice, nothing would preclude the Court from rectifying the error. Thus, it is submitted that as there was manifest error in the order of this Court, review could be exercised. By Page No.# 6/9

relying on the decision of the Supreme Court of India in the case Sasi (dead through LRs) V. Arabindakshan Nayar, it has been held that a judgment may be open to review inter aila if there is a mistake or an error apparent on the face of the record. Further, by relying on the case of Doli Rani Saha V. Union of India (2024) 0 Supreme (SC) 665, it has been submitted that in a similar circumstances, in a case involving claim before Railway Claims Tribunal, the claim was dismissed and the petitioner filed an appeal before this Court. The Court dismissed the matter and the appellant approached the Supreme Court of India and the Supreme Court of India held that in view of the overwhelming materials on record there cannot be a feather of doubt that the deceased was a bonafide passenger on the train in question and that grievous injuries was sustained leading to his death due to fall from the train and accordingly, compensation was granted. Note of written submission along with the copies of the judgments and orders on which reliance is placed has been filed, which is made a part of record.

7. Per contra, the learned standing counsel for the respondents has submitted that on merit this Court in the impugned order had recorded the relevant materials based on which the matter was dismissed on merit. It is submitted that this was a case where evidence in form of the Railway ticket was planted after making unauthorized entries in the case diary by the succeeding investigating officer of the case and that fact that no seizure of ticket came into light when the Tribunal examined the earlier investigating officer. Accordingly, it is submitted that as the Court had decided the matter on merit, no case of review was made out.

8. At the outset, it would be relevant to quote hereinbelow the Page No.# 7/9

provisions of Order XLI, Rule 17 of the CPC:

"17. Dismissal of appeal for appellants' default.--(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed."

9. Therefore, as per the mandate of Order XLI, Rule 17 of the CPC, in the absence of the appellant, the Court ought not to dismiss the appeal on merit. Thus, it is required to be examined as to the judicial interpretation of the said provision.

10. In the case of Sharda Construction v. The State of Bihar & Ors., (2024) 0 Supreme(SC) 1303, the Supreme Court of India had held that the appeal ought not to have been dismissed on merits without giving an opportunity to the appellant to make his submissions.

11. In the case of Benny D'Souza & Ors. v. Melwin D'Souza & Ors., (2023) 0 Supreme(SC) 1799, the Supreme Court of India had held to the effect that dismissal of the appeal on merits is contrary to the provisions of Order XLI, Rule 17 CPC and on that ground alone the impugned order passed by the High Court was set aside.

12. In the case of Probodh Ch. Das & Anr. v. Mahamaya Das & Ors., (2019) 0 Supreme(SC) 1359, while examining the order of dismissal of a second appeal on merits where appellant had remained absent, it was held that Court cannot dismiss appeal on merits where appellant remains absent on the date fixed for hearing.

13. In the past, similar view had been taken by the Supreme Court of India in the case of (i) Navnirman Development Consultants (I) Pvt. Ltd. v. Divisional Commissioner & President District Sports Complex Executive Page No.# 8/9

Committee, (2017) 0 Supreme(SC) 998, (ii) Ashwathamma v. Lakshmamma & Ors., (2015) 0 Supreme(SC) 1550, Ghanshyam Dass Gupta v. Makhan Lal, (2012) 0 Supreme(SC) 544.

14. Thus, the impugned order dated 30.11.2023, passed by this Court in MFA No. 83/2019, thereby dismissing the appeal on default as well as on merit is an error apparent on the face of the record, as the provision of Explanation to Rule 17(2) of Order XLI of the CPC was not taken note of while passing the order.

15. Misconception of law on part of the Court is an acceptable grounds for review of the order. In this regard, the Court finds support from the case of Board for Control for Cricket, India & Anr. v. Netaji Cricket Club, & Ors., (2005) 0 Supreme(SC) 47 [equivalent reporting in (2005) 4 SCC 741] . Paragraph 88 and 89 extracted from (2005) 0 Supreme(SC) 47, are quoted below:-

"88. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.

89. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit".

16. Therefore, in light of the finding that the order dated 30.11.2023, passed by this Court in MFA No. 83/2019, is vitiated due to error apparent on the face of the record, the petitioner has been able to make out a case for interference with the said order.

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17. Therefore, the review is allowed and the order dated 30.11.2023, passed by this Court in MFA No. 83/2019 stands recalled.

18. Resultantly, the MFA No. 83/2019 is restored to file.

19. Registry shall list the said MFA No. 83/2019 at the earliest.

JUDGE

Comparing Assistant

Champak DN: c=IN, o=Personal, postalCode=781029, l=Kamrup, st=Assam, street=Shankar Nagar, Lalmati, Khongkhowa Gaon, Basistha, GMC Assam India 781029, title=9013, 2.5.4.20=31762e5045d3a8bbe6ceb1a1e7ad525e191516 3404aa3f7455384bdb657099ec,

Rajbongshi serialNumber=7084416d64831421be0deab877bb3d7ce fb63bcb7333fc124f96b61566bdbeac, [email protected], cn=Champak Rajbongshi Date: 2026.01.07 14:58:16 +05'30'