Court No.3.
HIGH COURT OF SIKKIM
Record of proceedings
Review Petition No. 02 of 2022
DIVISIONAL FOREST OFFICER (T) & ORS. .... APPELLANTS
VERSUS
ASHOK TSHERING BHUTIA .... RESPONDENT
Date: 22.08.2022
CORAM
HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, J.
For Appellants : Dr. Doma T. Bhutia, Additional Advocate General.
Mr. S.K. Chettri, Government Advocate.
Mr. Shakil Raj Karki, Assistant Government Advocate.
..........
1. This is a review petition filed under Rule 44 and 45 of the
Sikkim High Court (Practice and Procedure) Rules 2011 read with
Section 114 and Order 47 of the Code of Civil Procedure, 1908
(CPC) seeking review of the cost imposed upon the appellants vide
order dated 10.03.2022. Heard the learned Additional Advocate
General. On 02.06.2022 pursuant to the notice issued in the review
petition the respondent appeared in person and stated that he had
nothing to submit insofar as the review petition is concerned. The
respondent is not present today. The review petition is based on
three facts stated therein i.e.:-
(i) That the matter had been fixed on 01.03.2022 for
hearing on which date the learned Additional
Advocate General was available to argue the
matter however, due to unavailability of this bench
matter was fixed on 10.03.2022 by the registry
without consulting the learned counsel.
Court No.3.
HIGH COURT OF SIKKIM Record of proceedings
(ii) The learned Additional Advocate General had been
engaged to appear before the Supreme Court on
10.03.2022 and therefore, could not be present
before this court on that day and
(iii) that although, the Reader of this court had been
telephonically informed that the appellants would
be seeking adjournment, the impugned order
dated 10.03.2022 records that the court was not
informed.
2. The adjournment sought for by the appellants on 10.03.2022
was therefore, for genuine reasons and circumstances beyond the
control of the conducting counsel.
3. The Supreme Court in S. Madhusudhan Reddy vs. V.
Narayana Reddy and Ors1 held that the court's jurisdiction of
review is not the same as that of an appeal. A judgment can be
open to review if there is a mistake or an error apparent on the face
of the record, but an error that has to be detected by a process of
reasoning, cannot be described as an error apparent on the face of
the record for the Court to exercise its powers of review under
Order XL VII Rule 1 CPC.
4. Rule 45 of the Sikkim High Court (Practice and Procedure)
Rules 2011 provides for review on the ground of discovery of fresh
evidence. The learned Additional Advocate General submits that
there was error apparent on the face of the record inasmuch as
although the matter had been originally listed on 01.03.2022 on
1 (2022) LiveLaw (SC) 685 Court No.3.
HIGH COURT OF SIKKIM Record of proceedings
which date this bench was not available it failed to consider this
fact while passing the impugned order dated 10.03.2022.
5. The record reveals that the registry on 25.02.2022 had
written a note in which it was stated that the instant matter will be
listed on 10.03.2022 instead of 01.03.2022 and the said fact has
been informed to the learned advocate for the appellants as well as
the respondent. In view of this fact it is quite certain that
information had been given to the parties before listing the matter
on 10.03.2022.
6. A perusal of the order dated 10.03.2022 reveals that this
court thought it fit to adjourn the case on the request of the
learned Assistant Government Advocate to 16.03.2022 after
imposing the cost of Rs.7500/- dissatisfied with the adjournment
sought on the ground that the learned Additional Advocate General
had to go to Delhi for another case and could not appear before this
court; further that she herself did not have the brief to prepare for
the hearing and that the court was not informed earlier.
7. It is apparent that while passing the order dated 10.03.2022
this court had not considered the fact that although initially the
matter had been adjourned to 01.03.2022 because of the
unavailability of this bench on that day the matter could not be
taken up compelling the registry to have it relisted on 10.03.2022
on which date the learned Additional Advocate General was not
available.
8. In view of the same, this court deems it proper to review the
order dated 10.03.2022 and reduce the cost imposed from
Rs.7500/- to Rs.500/- which shall be deposited within a period of Court No.3.
HIGH COURT OF SIKKIM Record of proceedings
one week from today as directed by this court vide order dated
10.03.2022. The review petition is partly allowed and disposed of.
Judge
Index: yes/No to/ Internet: yes/No
