Anil Kumar Singh Deo vs Bonai Industrial Co. Ltd. & Ors
2023 Latest Caselaw 8260 Ori

          ORISSA HIGH COURT : C U T T A C K
                     RVWPET No.328 of 2022
       An application under Section 114 read with Section 151 of
                   the Code of Civil Procedure, 1908


Anil Kumar Singh Deo                                : Petitioner

                               -Versus-

Bonai Industrial Co. Ltd. & Ors.                    : Opposite Parties


For Petitioner                                : M/s. G. Veerapathiran,
                                                     Sr. Adv.
                                                     S.K. Mishra, Sr. Adv.
                                                     J. Pradhan,
                                                     P.S. Mohanty
For Opposite Party No.1                       : M/s. Sanjit Mohanty,
                                                     Sr. Adv.
                                                     J.K. Das, Sr. Adv.
                                                     I. Acharya, C.K. Rout,
                                                     S. Das


                               JUDGMENT

CORAM :

JUSTICE BISWANATH RATH Date of hearing : 19.07.2023 :: Date of judgment:: 31.07.2023

1. This is an application for review of the order dated 10.03.2022 of

this Court passed in C.M.P. No.861 of 2016.

2. Undisputedly C.M.P No.861 of 2016 was listed along with C.M.P.

No. 1133 of 2016. C.M.P. No.861 of 2016 when involved impugned

// 2 //

order dated 4.05.2018 in C.S. No.2 of 2016 deciding on an application

U/s.151 read with Section 11 of the C.P.C. in allowing the above

application, whereas in the same process there also appears consideration

of another application purportedly U/o.7 Rule 11 of C.P.C., rejected but

involved here in C.M.P. No.1133 of 2016 both disposed of here on

10.03.2022.

3. This Court finds, there is no dispute at Bar, further as disclosed

through the materials on record, the C.M.P. No.861 of 2016 when

involved an application U/s.151 read with Section 11 of C.P.C. whereas

the C.M.P No.1133 of 2016 was dealing with a decision of the trial court

involving an application U/o.7 rule 11 of C.P.C.

4. In course of submission Mr. Veerapathiran, learned Senior Counsel

appearing on behalf of the Petitioner bringing a decision of the Hon'ble

apex Court in Special Leave to Appeal No.19252 of 2022 disposed of on

11.11.2022 to the notice of this Court, claimed that this Review

application is an outcome of disposal of the above SLP. This Court on

perusal of the Hon'ble Apex Court order enclosed in the Review

application finds, the order reads as follows:-

"

          ITEM NO.23                  COURT NO.5               SECTION XI-A

                             SUPREMECOURTOFINDIA
                                 RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 19252/2022

// 3 //

(Arising out of impugned final judgment and order dated 10-03-2022 in CMP No. 861/2016 passed by the High Court of Orissa At Cuttack) ANIL KUMAR SINGH DEO Petitioner(s) VERSUS BONAI INDUSTRIAL CO. LTD & ORS. Respondent(s)

(IA No.127918/2022-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)

Date : 11-11-2022 This matter was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE M.R. SHAH HON'BLE MR. JUSTICE M.M. SUNDRESH

For Petitioner(s) Mr. K.K. Mani, AOR Ms. T. Archana, Adv.

Mr. Rajeev Gupta, Adv.

For Respondent(s)

Upon hearing the counsel the Court made the following ORDER Learned counsel appearing for the petitioner seeks permission to withdraw the present Special Leave Petition as the petitioner proposes to file review application before the High Court.

Without expressing anything on the maintainability and / or entertainability of such review application, the present Special Leave Petition stands dismissed as withdrawn.

In case any adverse order is passed in the review application, it will be open for the petitioner to again come before this Court.

             (R. NATARAJAN)                               (NISHA TRIPATHI)
          ASST. REGISTRAR-CUM-PS                       ASSISTANT REGISTRAR"

5. Mr. Veerapathiran, learned Senior Counsel claimed that the review

petition is brought under the direction of the Hon'ble apex Court and with

a rider he has also been given with a scope to move further the Hon'ble

apex Court in case order here goes against him. This Court here finds, in

fact the order of the Hon'ble apex Court discloses a right in favour of the

Petitioner to continue his case in the Hon'ble apex Court, in the event the

case goes against him. Further taking this Court to the grounds in the

// 4 //

review application, made his submission on 3 fold. 1st submission appears

to be; since the CMP No.861 of 2016 involves rejection of an application

order U/o.7 Rule 11 of C.P.C, the C.M.P against such an order was per se

not maintainable and thus in disposal of CMP No.861 of 2016 this Court

failed to appreciate the above serious aspect. 2nd limb of argument of Mr.

Veerapathiran, learned Senior Counsel appears to be; the case was listed

without indication of the name of the learned counsel for Opposite Parties

i.e. the present Petitioner herein and it is wrong to observe that there

appears, non-appears for Opposite Parties in the said case and thus the

process in decision went wrong. Mr. Veerapathiran, learned Senior

Counsel further taking this Court to the other ground of attack to the

impugned order in the Review application and reading through the same

complained that there is wrong determination of the dispute involved

therein and thus attempted to strengthen his pleading on review of the

order involved. Mr. Veerapathiran, learned Senior Counsel also took this

Court to each of the grounds raised in the Review Application.

6. Mr. Mohanty, learned Senior Counsel along with Mr. J.R. Das, also

a learned Senior Counsel advancing their submission reading through the

Special Leave Petition and grounds therein contended that the SLP(C)

involved simply rested on the question of maintainability of the CMP

No.861 of 2016 in the High Court as it involved rejection of an

// 5 //

application U/o.7 Rule 11 of C.P.C and thus contended that the C.M.P.

involved herein never involved consideration of the provision U/o.7 Rule

11 of C.P.C and Petitioner herein obtained permission for leave under

misrepresentation of facts. In the process Mr. Mohanty, learned Senior

Counsel also taking this Court to the other grounds raised herein

submitted that the list on the date of disposal very much indicated the

name of the learned counsels already appeared for other side and the

Petitioner herein has mischievously brought a false claim.

7. Further on the merit on the review aspect Mr. Mohanty, learned

Senior Counsel taking this Court to the order sought to be reviewed and

further taking this Court to the nature of the suit and the developments

taken place in the meantime, contended that the suit is in fact no more

maintainable and thus claimed, there will be abuse of process, in the

event the suit is allowed to continue. Mr. Mohanty, learned Senior

Counsel also referring to the decisions vide AIR 1980 SC 2041 in the

case of Avtar Singh Sekhon Vrs. Union of India & Ors., 2022 (3) CCC

246 / 2022 (4) Civil CC (SC) involving Civil Appeal Nos.5503 - 5504 of

2022 : in the case of S. Madhusudhan Reddy Vrs. V. Narayana Reddy

and Ors. along with S. Narsimha Reddy Vrs. V. Narayana Reddy and

Ors. and (2021) 13 SCC 1 : in the case of Ram Sahu (Dead) through

// 6 //

L.Rs. & Ors. Vrs. Vinod Kumar Rawat & Ors., took support of all these

decisions and claimed for dismissal of the Review Petition.

8. Both the learned Senior Counsel appearing for the parties

submitted that order sought to be reviewed was passed on 10.03.2022 and

the review petition was filed on 23.11.2022 and also contested the

Review Petition on its suffering on account of barred by limitation.

9. Hearing the submissions of both the learned Senior Counsels, this

Court finds, Petitioner herein bringing the Review application involving

the order dated 11.11.2022 in SLP (C) No.19252 of 2022 vide Anexure-1,

attempted to convince this Court that the Review Petition has been

brought under the permission of the Hon'ble apex Court. This Court here

reading the plea before the Hon'ble apex Court in the above SLP(C)

No.19252 of 2022 read together with the grounds therein from page 17 of

the SLP(C) No.19252 of 2022 finds, the Review Petitioner had the

following question of law:-

"2. QUESTIONS OF LAW:

The questions of law arising for the consideration of this Hon'ble court are as follows:

(i) Whether the single Judge of the High Court erred in reversing the well considered order of Trial Order rejecting the application filed Under Order 7 Rule 11 of C.P.C?

(ii) Whether the single Judge of the High Court erroneously reversed the Order of the Trial Court and allowed the Order 7 Rule 11 application on the ground the mining lease carried on by the company has expired and dismissed the suit. The single Judge failed to note that the suit is for permanent injunction and expiry of mining has nothing to do with the suit?

// 7 //

(iii) Whether the grounds raised in Order 7 Rule 11 application are post Trial defences which can be decided only after framing of issues?

(iv) Whether the case of the Petitioner is covered by a recent judgment reported in 2021 SCC OnLine Sc 735, 2021 SCC OnLIne SC 565, 2006 (5) SCC 658, and 2007 (14) SCC 183?

(v) Whether the plaint can be rejected without adducing necessary oral and documentary evidence?

10. Next reading the grounds in the same SLP(C) No.19252 of 2022

this Court finds, at Para-5 therein the following grounds have been

made:-

5. GROUNDS:

Leave to Appeal is sought for on the following grounds: I. Because the single Judge of the High Court erroneously reversed the Order of the Trial Court and allowed the Order 7 Rule 11 application on the ground the mining lease carried on by the company has expired and dismissed the suit. The single Judge failed to note that the suit is for permanent injunctiona nd expiry of mining has nothing to do with the suit.

II. Because the single Judge of the High Court erred in reversing the well considered order of Trial Order rejecting the application filed Under Order 7 Rule 11 of C.P.C.

III. Because the grounds raised in Order 7 Rule 11 application are post Trial defences which can be decided only after framing of issues.

IV. Because the case of the Petitioner is covered by a recent judgment reported in 2021 SCC OnLine Sc 735, 2021 SCC OnLine SC 565, 2006 (5) SCC 658, and 2007 (14) SCC 183.

V. Because the plaint cannot be rejected without adducing necessary oral and documentary evidence.

VI. Because the Hon'ble High Court utterly failed to appreciate that the question of limitation is mixed question of law and fact and theefore, the plaint cannot be rejected on the ground of limitation without adducing necesaryoral and documentary evidence.

VII. The suit filed by the pettiioner/plaintiff is one suit for injunction restraining the respondents 2 to 10 or their men or servant or anybody under through them or under them in anyway acting as managing director or directors of the 1st defendant and for the cost of the suit. On the other hand, the Learned Judge has allowed the CMP on the

// 8 //

ground since the lease which has been given in the name of the respondents has been come to an end and consequently survives in the suit and allow the application and dismissing the suit is a clear error apparent on the face of the record.

VIII The Learned Judge ought to have held that the suit is one for injunction restraining the respondents from attending the office, but on the other ground simply the Government lease which has been executed in favour of the defendants have come to an end and there is nothing survive is a clear error apparent on the face of the record and also on applicaiotn of mind.

IX The Learned Judge erred in discussing with regard to the rules of Mines and Minerals Development Regulation Act is a clear error since that case is not at all discussed in this plaint.

X The suit is mere suit for injunction and the application filed by the respondent/defendant is one under Order VII Rule 11 and another under Section 151 of C.P.C for an abuse of process of law, but without discusisng both the issues deciding the appeal on the ground since the leae has been over is a clear error apparent on the face of the record.

XI The Learned Judge ought to have held that the suit is one on the grond that the respondents are not the Directors and they entered into the company int eh back door and they have no right to act as a Director and on that grond only, an injunction has been sought. There is no question of discussion about with regard to the Government lease and since the lease has been over, nothing survives and hence the suit is to be dismissed is a clear error apparent on the face of the record. Having accepted that the Learned Judge ought to have held that looked into the nature of allegation involving the alleged fraud by the ancestors of the defendants 2 to 10 and for the no survival of the ancestors even at the time of filing the suit, no reason in continuing with such a suit is another clear error apparent on the face of the record. On that ground, it is clearly proved and accepted that the appellants are the legal heirs and survivors of the ancestors.

XII The Learned Judge erred in saying that the Court has also taken note of the fact that while entering the hearing of the admission stage, there was already appearance of the plaintiff by a set of counsel and there is already service of notice, but without giving any notice subsequently and deciding the matter in the absence of the counsel is another error apparent on the face of the records. When admittedly the Advocates are not appearing and report no instructions, normally notice to the parties will be sent, but

// 9 //

in this case, surprisingly no notice was sent to the parties, but in their absence the suit has been decided knowing fully well that originally it was contested by both sides. XII The Learned Judge ought to have held that the notice to the parties has not been served subsequently and therefore deciding the matter in the absence of the respondents advocate is a clear error apparent on the face of the record.

11. Reading both the above, this Court finds, the main thrust of the

argument in the challenge of the order of this Court in C.M.P No.861 of

2016 appears to be; for there involves disposal of an application U/o.7

Rule 11 of C.P.C. the C.M.P No.861 of 2016 was not entertainable. But

in fact the C.M.P No.861 of 2016 never involved such question and the

Review Petitioner obtained leave from the Hon'ble apex Court to move

Review under suppression of material facts and the SLP(C) No.19252 of

2022 was a misdirected, misconceived and misrepresented one.

12. Be that as it may, the question raised by Mr. Veerapathiran, learned

Senior Counsel that the C.M.P was heard without notice to Opposite

Party therein, is out and out false. Records involving CMP makes it clear

that there was definite appearance for plaintiff and the undisputed fact

remains, in spite of sufficiency of notice and appearance of names of

counsel for plaintiff on the date the CMP was taken up for final hearing,

nobody appeared to contest on behalf of the plaintiff and the present

review petition has been brought completely on wrong premises and

therefore, cannot be entertained. From ground XII in SLP(C) No.19252 of

2022 involved so also the grounds and para 'C', it appears, there is clear

// 10 //

admission by the Review Petitioner that there was already appearance on

behalf of the plaintiff but claimed in the event nobody was present to

represent the plaintiff on the date of notice, a fresh notice claimed to have

been made. This Court here finds, review petitioner makes out a claim for

fresh notice even after appearance of a set of counsel for

plaintiff/Petitioner herein, which is unknown to law and the review

application is otherwise not entertainable in the eye of law. This Court

keeping in view the serious allegation of listing of the CMP No.861 of

2016 without naming the counsel for Opposite Parties, called for the list

from the Registry dated 10.03.2022 and finds, the case position at

Sl.No.52 of the list dated 10.03.2022 clearly indicates as follows:-

"

52) CMP/861/2016 BONAI INDUSTRIAL M/S. A. DASH, M/S (MC 862/16 is at fl. A for CO. LTD. PRAMOD KU. BEHERA, S.

     stay. MC 1418/16 is at                           JENA, S.J. MOHANTY, MR.
     fl.D for vacation of                             SANJIT MOHANTY. I.A.
     interim orders. caveat at                        ACHARYA, R.S. SWAIN,
     fl.B and Fl.C. M/S                               MR. JANA KALYAN DAS
     Pramod .Ku. Behera and
     S.Jena            entered    Vs.
     appearance by filing
     vakalatnama which is at                           M/S. ANUPAM RATH, E.
     fl.V on behalf of                                 RAJARAMAN, V. JENA, M/S.
     Rajendra ch. Deo who is                           G. VEERAPATHIRAN
     not a party to this case.    ANIL KUMAR SINGH
     LCRs have been sent for      DEO
     scanning MENTION
WITH CMP/1133/2016                BONAI  INDUSTRIAL M/s. S.J. MOHANTY, I.A.
     MC.1155/16 at fl. A for      COMPANY LTD       ACHARYA, A. DAS, R.S.
     app. Order. Mc. 1156/16                        SWAIN
                                  Vs.
     at fl. B for stay. MC
     1371/17 is at fl.C for       ANIL KUMAR SINGH M/S. ANUPAM RATH, V.
     intervention.)               DEO              JENA, M/S. T.K. MISHRA,
                                                   S.S.P. ACHARYA




                                        // 11 //

The claim of the learned Senior Counsel that matter was decided

without opportunity to the learned Counsel for plaintiff is not only false

but undisputedly is against the publication in the list of particular date

taken note hereinabove.

13. Further there is no dispute in the Bar that the suit vide C.S. No.2 of

2016 was only for "injunction" and in the meantime the lease involved

and granted in favour of the respondent/ defendant had come to an end. In

this scenario the Court had a clear observation in the disposal of Civil

Suit that in fact there remains nothing to be adjudicated in the Civil Suit.

14. Coming to the other grounds involved in the review application,

this Court finds, the plaintiff-Petitioner appears to be dissatisfied with the

judgment and that too claims that there was possibility of a different

view, which are no grounds to entertain a review petition. Law has been

fairly well settled on this aspect holding that possibility of two views does

not invite a review petition. Law has also been fairly settled to the extent

that jurisdiction of the Court in the review matter is not that of an appeal

and a judgment can be reopened to be reviewed provided there is mistake

or error apparent on the face of the record. Case at hand did not have such

contingency even. The Hon'ble apex Court has even gone to the extent

holding that an error that is made in a process of reasoning cannot be

// 12 //

termed as an error apparent on the face of the record, for a Court to

exercise its power of review U/o.47 Rule 1 of CPC. Further there is also

no scope to substitute its opinion in the entertainment of a review petition.

It is here, this Court takes the view of the Hon'ble apex Court in certain

decisions, which runs as follows:-

(i) AIR 1980 SC 2041 : Col. Avtar Singh Sekhon vs Union of India and others,

6. The selection on which the review petitioner stakes his claim is of 1971, vintage and the vacancy to be filled was of the year 1979, The respondent, therefore, contested the petitioner's 1971, credentials as obsolete and even obscurantist. We need not re-open that issue except to state that in the final order, passed after hearing both sides, the inviolability of the 1964 policy had been nailed. A closer reading of the 1964 policy statement reveals that under it seniority for an earlier promotee is conferred in the substantive rank provided he has been earlier included in the approved list. Such a situation has not arisen here at all. Be that as it may, the final direction of the Court appeal did permit the Central Government to evolve its policy within one month. This not having been done, the respondent drew the attention of the Court to the non-compliance and for consequential orders. At the hearing of that petition (the so-called contempt petition) the respondent through Shri R. K. Garg and the Central Government through the learned Attorney General were heard. Shri Kapil for the petitioner (review) intervened and was heard. But we must fairly state that his client had not been given formal notice and perhaps he had a grievance of not having been heard adequately. We cannot fault him for filing a review petition but hasten to clarify that we wholly desist from making any observations on the happenings set out in the respondent's papers put into Court. Nor did we permit Shri Garg to refer to those matters since they were, in our view, extraneous to the merits of the review petition and related to another proceeding pending before another bench. We must record that Shri Kapil has with youthful vigour and clarity of advocacy presented his case fairly. The gravamen of his grievance is merely that he should have been heard if a direction to his prejudice was to be made. We are mindful of the force in this plea and cannot dismiss it merely because the sands of time are running out against the respondent whose approaching retirement will make his legal success, if any, a pyrrhic victory and, worse a tragic irony. Of course, that by the way, is the life-style of most litigative triumphs."

(ii) 2022 SCC ONLINE SC 1034 : S. Madhusudhan Reddy Versus V.

Narayana Reddy and Others

18. A glance at the aforesaid provisions makes it clear that a review application would be maintainable on (i) discovery of new

// 13 //

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; (ii) on account of some mistake or error apparent on the face of the record; or (iii) for any other sufficient reason.

19. In Col. Avatar Singh Sekhon v. Union of India and Ors. 1980 Supp. SCC 562, this Court observed that a review of an earlier order cannot be done unless the court is satisfied that the material error which is manifest on the face of the order, would result in miscarriage of justice or undermine its soundness. The observations made are as under:

12. A review is not a routine procedure. Here we resolve to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review out earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kante and Anr. V. Sheikh Habib (1975) 1 SCC 674 this Court observed:

A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility .... The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality"

(iii) Ram Sahu v. Vinod Kumar Rawat : (2021) 13 SCC 1 :

7.2. In Lily Thomas v. Union of India [Lily Thomas v. Union of India, (2000) 6 SCC 224 : 2000 SCC (Cri) 1056] , it is observed and held that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. It is further observed in the said decision that the words "any other sufficient reason" appearing in Order 47 Rule 1CPC must mean "a reason sufficient on grounds at least analogous to those specified in the rule" as was held in Chhajju Ram v. Neki [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11 : (1921-22) 49 IA 144 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Mar Poulose Athanasius [Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, AIR 1954 SC 526] .

7.3. In Inderchand Jain v. Motilal [Inderchand Jain v. Motilal, (2009) 14 SCC 663 : (2009) 5 SCC (Civ) 461] in paras 7 to 11 it is observed and held as under : (SCC pp. 668-69) "7. Section 114 of the Code of Civil Procedure (for short "the Code") provides for a substantive power of review by a civil court and consequently by the appellate courts. The words "subject as aforesaid" occurring in Section 114 of the Code mean subject to such conditions and limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in Order 47 of the Code must be taken into consideration. Section 114 of the Code although does not prescribe any limitation on the power of the court but such limitations have

// 14 //

been provided for in Order 47 of the Code; Rule 1 whereof reads as under : (Kamal Sengupta case [State of W.B. v. Kamal Sengupta, (2008) 8 SCC 612 : (2008) 2 SCC (L&S) 735] , SCC p. 631, para 17) '17. The power of a civil court to review its judgment/decision is traceable in Section 114CPC. The grounds on which review can be sought are enumerated in Order 47 Rule 1CPC, which reads as under:

"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, 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 of the court which passed the decree or made the order."

8. An application for review would lie inter alia 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. In Rajender Kumar v. Rambhai [Rajender Kumar v. Rambhai, (2007) 15 SCC 513 : (2010) 3 SCC (Cri) 584] this Court held : (SCC p. 514, para 6)

6. The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed.'

9. The power of review can also be exercised by the court in the event discovery of new and important matter or evidence takes place which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was made. An application for review would also lie if the order has been passed on account of some mistake. Furthermore, an application for review shall also lie for any other sufficient reason.

10. It is beyond any doubt or dispute 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.

11. Review is not appeal in disguise. In Lily Thomas v. Union of India [Lily Thomas v. Union of India, (2000) 6 SCC 224 : 2000 SCC (Cri) 1056] this Court held : (SCC p. 251, para 56) '56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise."

// 15 //

iv) This Court from the decision in the case of Sow Chandra Kante &

Anr. Vrs. Sheikh Habib : (1975) 1 SCC 674 finds, the view of the

Hon'ble apex Court in this circumstances runs as follows:-

"Mr Daphtary, learned counsel for the petitioners, has argued at length all the points which were urged at the earlier stage when we refused special leave thus making out that a review proceeding virtually amounts to a re- hearing. May be, we were not right is refusing special leave in the first round; but, once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly entertained. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel's certificate which should not be a routine affair or a habitual step. It is neither fairness to the Court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be, as counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality.

2. We dismiss the petition unhesitatingly, but with these observations hopefully."

15. It is here taking into account the plethora of decisions taken note

hereinabove and considering the citations cited by the learned Senior

Counsel for the Review Petitioner in the case of Laxcmidhar Das Vrs.

State of Orissa & Ors. : 120 (2015) CLT 351, this Court for the series of

decisions referred to hereinabove supporting the case of Opposite Parties

finds, the decision vide 120 (2015) CLT 351 does not fit to the case of the

// 16 //

Petitioner, as it is not a case deciding the Civil Miscellaneous Proceeding

without affording opportunity, rather the case involved herein is; in spite

of sufficiency of notice and appearance of a set of counsel for the plaintiff

i.e. the Opposite Party in the CMP, none turned to contest the case,

further as has already been disclosed hereinabove. For the lease made in

favour of the defendant in the Civil Suit involved herein came to an end

in the pendency of the Civil Suit, there was no purpose in continuing with

the Civil Suit, which had prayer only for injunction. This Court, therefore,

observes, in disposal of C.M.P No.861 of 2016, there is no prejudice to

the plaintiff i.e. the review Petitioner herein otherwise.

16. Coming to deal with the objection by the learned Senior Counsel

appearing for Opposite Parties herein on the limitation aspect in bringing

the Review Petition herein, this Court finds, in fact the Review Petition

involves the order of this Court in CMP No.861 of 2016 dated 10.03.2022

whereas the review petition was brought on 23.11.2022 much after expiry

of one month. Unfortunately there is even no limitation petition

accompanying with the Review Petition even for condonation of delay, if

any. Thus the review petition also suffers on account of delay and

remains unentertainable otherwise.

17. In the above backdrop of the case, this Court finds, there is no case

made out for entertaining a review application. As a consequence, this

// 17 //

Court is constrained to dismiss the review petition. The attempt of the

Petitioner since appears to be an abuse of process and unnecessarily

dragging the Opposite Parties/Respondents to litigation again and again,

this Court quantified the litigation cost to be paid to the Opposite

Parties/Respondents at Rs.20,000/- (rupees twenty thousand) which be

paid to the Opposite Parties/Respondents through their counsels at least

within a period of two weeks from today.

(Biswanath Rath) Judge

Orissa High Court, Cuttack.

The 31st day of July, 2023// Ayaskanta Jena, Senior Stenographer

Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 31-Jul-2023 13:21:07