Dharam Raj v. Shri Akshay Pant And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** RVW/286/2017 IA No.CAN/1/2023 Dharam Raj Vs.

Shri Akshay Pant and others Mr. P.C.Das ... for the petitioner Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the Administration September 29, 2023 [SR] Item No.5 This is an application for condonation of delay of 118 days in filing the instant review application. After hearing the parties and on perusal of the averments made in the said application, we are satisfied that the petitioner was prevented by sufficient cause in not filing the instant review application within the time limit set therefor. Accordingly, the delay in filing the review application is condoned. The review application shall be formally registered in the docket of the Court. We invited the attention of both the counsel that we will proceed to dispose of the review application on merit.

The litigation has a chequered history as the petitioner approached the Court on several occasions and from time to time the orders were passed. Ultimately the writ petition concerning the appointment to the post of a Protocol Officer on adhoc basis was a subject matter of challenge and ultimately the writ petition was disposed of on the basis of the consent having recorded therein that the petitioner would join post of Lower Grade Clerk (LGC).

Challenging the said order, the Division Bench was moved solely on the ground that the no consent was ever given to the counsel appearing for the petitioner in this regard and, therefore, the said order needs interference. By an order which is a subject matter of review in the instant

application the Division Bench declined to interfere with such recording after noticing the judgment of the Apex Court rendered in case of State of Maharashtra vs. Ramdas Shrinivas Nayak reported in (1982) 2 SCC 463 wherein the Apex Court held that the recording of the event by the court is sacrosanct which can neither be disputed by filing an affidavit nor is permissible to retract therefrom. However, the Apex Court held that proper remedy is to approach the same Judge promptly raising an issue that such event never happen before it faints from the memory of the learned Judge.

Pursuant to the liberty having granted, in view of the law enunciated in the said judgment, the petitioner approached the writ court more precisely before the same Judge and wanted to contend that such recording of the consent that the petitioner would join the Lower Grade Clerk post was never accorded nor given. Interestingly, while disposing of the said application, the learned advocate, who appeared before the writ court on behalf of the petitioner, categorically admitted that such recording of consent has been made correctly as he in fact made such submission on the instruction of the petitioner. On disclosure of the aforesaid stand, the learned Judge proceeded to dismiss the said application, which was further assailed in MAT/892/2017 and the said appeal was dismissed.

The review application is filed on the ground that the recording of the finding that there was a consent given by the petitioner to the learned advocate in this regard is contrary to the record more particularly in view of several orders passed in connection with the writ petition. The learned advocate appearing for the petitioner submits that the review application is maintainable, if no such consent was given by the counsel as well as no instruction by the client as held by the Apex Court in the case of Union of India and another vs. Mohan Rocky Springwater Breweries Limited and another reported in (2011) 15 SCC 229.

It is further submitted that in the case of Rajendra Singh Verma Dead) Through Lrs. And others vs. Lieutenant Governor (NCT of Delhi) and others reported in (2011) 10 SCC 1, it is held that if such consent is not given, there is no fetter on the part of the Court to review its own order. Lastly a judgment of the Apex Court rendered in State of Rajasthan and another vs. Surendra Mohnot and others reported in (2014) 14 SCC 77 is cited on the scope

and the jurisdiction exercised by the High Court on an application for review.

The counsel for the opposite party disputes the aforesaid contention. It is submitted that the moment the Court has held that the consent was given and correctly recorded, it is not open to the petitioner to take rebound and challenge the same. Furthermore, the review application is to be decided on the well settled parameters enshrined under Order 47 Rule 1 of the CPC and never intended to reopen the whole issue. It is thus submitted that the instant application is vexatious, harassive and abuse of process of the law and therefore, be dismissed with exemplary costs. Before we proceed to deal with the matter, we must record that the scope of review against the order is limited in the sense that the review cannot be allowed beyond the parameters set forth in Order 47 Rule 1 of CPC.

The Apex Cout in Surendra Mohnot and others (supra) succinctly laid down the scope of the review exercised by the Court. There is no hesitation in our mind that the review jurisdiction cannot be used as a tool for reopening of the entire case nor for the purpose of reappreciation of the evidence or re-visitation of the order challenged therein. It cannot be entertained for the purpose of re-writing the judgment when the order is explicit and records the facts and law applicable in this regard. The Court does not act as a court of appeal in exercising the powers conferred under Order 47 Rule 1 of the Code but has to consider the case within the circumference thereof.

The order which contains an error apparent on the face of the record is liable to be reviewed provided such error is so manifest that it does not require a roving enquiry into the facts and the voluminous documents to be reassessed. Otherwise the purpose of incorporating the ground of review i.e., the error apparent on the face of the record shall have no meaning and each and every order shall be susceptible to be reviewed on the merit. The re-appreciation of the facts, evidence, documents is impermissible under the review jurisdiction nor the same can be exercised upon revisitng the entire voluminous documents in a quest to find out the error in the order.

In Surendra Mohnot and others (supra), the Apex Court has succinctly laid down the aforesaid proposition in the following:

"21.

While dealing with the inherent powers of the High Court to review its order under Article 226 of the Constitution in Shivdeo

Singh v. State of Punjab the Constitution Bench observed ( AIR p.1911, para 8) that nothing in Article 226 of the Constitution precludes a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave palpable errors committed by it.

22.

In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, the two-Judge Bench speaking through Chinappa Reddy, J.

observed thus: (SCC p. 390, para 3) "3... "It is true as observed by this Court in Shivdeo Singh v. State of Punjab, there is nothing in Article 226of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it.

But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate Court to correct all manner of errors committed by the subordinate Court."

23.

In Thungabhadra Industries Ltd. v The State of Andhra Pradesh, while dealing with the concept of review the court opined thus:- (

AUR p. 1377, para 11) "11... "A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it. A clear case of error apparent on the face of the record would be made out."

24.

In Northern India Caterers (India) Ltd., v. Lt. Governor of Delhi, R.S. Pathak, J (as His Lordship then was) while speaking about jurisdiction of review observed that:- ( SCC p. 172, para 8) "8... it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility."

25.

To appreciate what constitutes an error apparent on the face of the record, the observations of the Court in Satyanarayan Lazminarayan Hegde v.

Mallikarjun Bhavanappa Tirumale are useful : (AIR p.

137) "An error which has to be established by a long-drawn process of reasoning on points where there

may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.

Where an alleged error is far from self evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ."

On the enunciation of law laid down by the Apex Court in the above note, let us consider whether the petitioner has been able to make out a case for invocation of a review jurisdiction.

As indicated above, the writ petition was disposed of recording the submissions advanced by the counsel for the petitioner on instruction that his client is ready to go and join the Lower Grade Clerk post after the Court found that the post of Protocol Officer on adhoc basis is contrary to the statutory rules. Even an application on the basis of a liberty having granted by the Division Bench seeking modification, clarification and/or expunction of the aforesaid portion was disposed of in presence of the same counsel, who represented the petitioner and categorically admitted that such recording of the submission was correct which is also reflected in the said order dated 27th April, 2017 passed in CAN/29/2017 in WP/47/2016. The moment the counsel for the petitioner stood firm on the submission advanced before the Court and on the basis of the said submission, the proceeding was dispose of, there is no justification to interfere with the said order.

Even an appeal assailing the said order was disposed of by this Court holding that there was no discrepancy in recording the submissions advanced before the Trial Court on the basis of the instruction received from the petitioner which cannot be said to be palpably illegal, perverse or remotedly suggest the error apparent on the face of the record.

The decision rendered in case of Mohan Rocky Springwater Breweries Ltd and another (supra) as relied upon by the petitioner does not take any different view to

what has been taken in case of Ramdas Shrinivas Nayak (Supra). In fact the Apex Court held that the appropriate course to be adopted in this regard to file an application for review before the Judge which has been done in the garb of a clarification, modification and/or expunction of such submission. We do not thus find that such judgment can be of any assistance in the instant review application. We are unable to comprehend the reason for citing a judgment delivered by the Apex Court in Rajendra Singh Verma (supra). The paragraph nos. 164 to 168 as relied upon by the petitioner cannot be reconciled with the submissions advanced before us. The aforesaid paragraph relates to entitlement of the benefit to the judicial officers which does not appear to have any manner of application in the instant case.

After dictating the preceding paragraphs, a judgment is cited by the petitioner delivered by the Apex Court in Ved Pal vs. Prem Devi reported in 2018(9) SCC 496 wherein it is held that the compromise decree passed in a proceeding under Order 23 Rule 3 of the CPC can only be assailed by instituting a fresh suit or by way of a review on the ground of fraud. There is a complete embargo created in Order 23 Rule 3A of the Code relating to the institution of the suit for setting aside the compromise decree on the ground that it is not lawful.

The obvious reason for incorporation of the aforesaid provisions can be ascertained with certainty on introduction of Rule 1A of Order 43 of the Code where the appeal against the decree passed in a suit after recording of a compromise or refusing to record a compromise is maintainable on the ground that the compromise should or should not have been recorded.

Obviously the fraud is viewed seriously and it admits no ambiguity that it unravels all solemn acts. A beneficiary of fraud cannot be permitted to reap the benefit therefrom and therefore the decree can be impinged on the ground of fraud even in collateral proceedings.

We do not find any quarrel to the proposition as laid down in Ved Pal(supra) but the question still remains whether any fraud has been committed the counsel appearing for the petitioner stood firm on his submission advanced on taking instruction from his client, even at the stage when an application for expunction of the portion where such submission was recorded in the parent order and therefore, it cannot be said that there has been any fraud practiced upon the court.

The member of the bar who has a duty to represent the client in pursuit of the dispensation of justice has equal responsibility in addressing the issue based upon the pleadings as an officer of the Court. The fraud cannot be allowed to be taken unless the particulars thereof are elaborately pleaded as envisaged under Order 6 Rule 4 of the CPC.

Recently a trend has developed at the bar in making a submission and citing a judgment on an abstract proposition of law without looking into the pleadings whether any case of such nature has been made out. The pleading has an important factor which weighed in dispensation of justice and, therefore, a case cannot be permitted to be made out at the bar as the counsel thinks that such point should be considered by the court. Such arguments having no nexus with the pleadings simply consume the precious time of the court and invite the Judge to consider each and every case cited at the bar in the judgment to make it more voluminous.

The point which has no bearing on the core issue is sometime argued which not only tantamount to a wastage of judicial hour but to be termed as misuse of the liberty enjoyed by the member of the legal profession while making his submission on behalf of the client. As indicated above, we do not find that it is a case where the court should review its judgment. The application for review is dismissed with costs assessed at Rs.1,00,000/- (Rupees one lakh only) to be deposited with the State Legal Services Authority, Port Blair within four weeks from date. Learned advocate for the petitioner prays for removing the costs imposed upon the petitioner. The same is considered and refused.

Urgent Photostat certified copies of this order, if applied for, be made available to the parties subject to compliance with requisite formalities ( Harish Tandon, J. ) ( Rai Chattopadhyay, J. )