Uttarakhand High Court
SA/140/2016 on 5 January, 2021
SA No. 140 of 2016
Hon'ble Sharad Kumar Sharma, J.
Mr. Siddhartha Singh, Advocate for
the appellant.
Mr. Ramesh Chandra Mishra and Mr.
Vinod Tiwari, Advocates for the
respondent.
The second appeal in question was
decided by this Court on its merit and
was allowed by the judgment dated
01.07.2019. Seeking its review, the
respondent no. 3 herein had filed a
Review Application No. 708 of 2019,
which was dismissed on 09.08.2019.
Against the dismissal of review, a SLP
(Civil) No. 20616 of 2019 was preferred
before the Hon'ble Apex Court and the
SLP, too was dismissed by the judgment
dated 02.09.2019. The review, which was
preferred against it, was also dismissed
on 11.10.2019, as against which yet
another SLP being SLP (C) No. 41568 of
2019, was preferred and the same was
dismissed by the Hon'ble Apex Court on
09.12.2019. It needs to refer that the
provisions contained under Order 47 Rule
9, creates a bar of subsequent institution
of a review application, once the earlier
review has already been rejected on
11.10.2019.
Learned counsel for the review
applicant/respondent no. 3 had made
reference to a judgment reported in 2019
(12) SCC 689 'Kelvin Jute Company
Limited Workers Provident Fund and
Another vs. Krishna Kumar Agarwal
and Others', and particularly he has
drawn the attention of this Court to the
contents and the finding; as recorded in
paragraph-14 of the said judgment, which
is quoted hereunder:
"14. Having regard to the judgment dated
15.03.2002 passed by the learned Single Judge
of the High Court in Writ Petition No. 4312 of
1993, which has been affirmed by the Division
Bench of the Calcutta High Court and by this
Court in the judgment dated 21.01.2016, we are
afraid any application for 11 recall/modification
which has the effect of reviewing the original
judgment in the Writ Petition cannot be
entertained by this Court. The main contention
of the applicants seem to be that writ petitioners
had played fraud on Court and that the basis of
the judgment of the High Court has been
obtained by misleading that Court. If that be the
position, nothing prevents the applicants from
approaching the High Court and seeking a
review of the judgment. We make it clear that in
the event of such a review being filed on the
ground of fraud, the High Court will be free to
examine the same and the judgment of this
Court dated 21.01.2016 shall not stand in any
way of the High Court looking into that aspect
of the matter. Without prejudice to such liberty
and making it further clear that such
applications may not be dismissed on the
ground of delay in case they are filed within
thirty days from today, M.A. No. 2363 of 2018
(previously I.A. No. 6 of 2016) in C.A. No.
2593 of 2006 and M.A. No. 2364 of 2018
(previously I.A. Nos. 9 and 10 of 2016) in Civil
Appeal No. 2591 of 2006 are dismissed."
The said principle, which has been
laid down by the Hon'ble Apex Court in
the aforesaid judgment was in the light of
the fact where the principal order, which
was sought to be recalled on the pretext
that the same was obtained by playing
fraud, there has to be a reasonable time
period within which the said plea of order
having being obtained by fraud, which
would be agitated by the applicant, by
filing a recall application or a review
application, which was filed earlier and
which stood rejected, there was no such
alleged plea of fraud taken therein.
In the instant case, since the
principal judgment rendered in the
second appeal on 01.07.2019 and the
judgment in review dated 11.10.2019,
has been subsequently affirmed by the
Hon'ble Apex Court after the dismissal of
the first review. The principles enunciated
in paragraph-14 of the aforesaid
judgment Kelvin Jute Company Ltd.
(supra), the reference of paragraph-14,
which has been made by the learned
counsel for the appellant, will not be
applicable in the present case because
there it was a recall/modification, which
was being considered, which is altogther
having a different context altogether, so
far it relates to the ambit of review
provided under Section 114 to be read
with Order 47 Rule 1.
Since second review being barred
under Order 47 Rule 9, the review lacks
merit and the same is, accordingly,
rejected.
(Sharad Kumar Sharma, J.)
05.01.2021
Pooja
