Research › Browse › Judgment

Delhi High Court · body

1994 DIGILAW 800 (DEL)

BHASWATA v. RAJ KUMAR MANIK

1994-12-01

MOHD.SHAMIM

body1994
Mohd. Shamim ( 1 ) THIS is an application under Order XLVII Rule I of the Code of Civil Procedure for review of the order dated September 13,1994 passed by this Court. ( 2 ) LEARNED counsel for the petitioner Mr. Shyam Moorjani has contended that the order dated August 17,1994 passed by the court below was without jurisdiction and as such the order dismissing the revision petition without issuing notice to show cause is liable to be set aside and reviewed. ( 3 ) LEARNED counsel for the respondent, Mr. Chopra, on the other hand, has contended that the present petition is for review of the order passed by this Court dated September 13,1994. Hence the said order can be reviewed only in those discerning few cases which fall within the domain of Order XLVII Rule 1 of the Code of Civil Procedure. ( 4 ) SINCE we are concerned with the construction of the said provision of the Code of Civil Procedure, the said provision can be adverted to with profit. It is in the following words:- " (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 to the Court which passed the decree or made the order". ( 5 ) IT is manifest from above that a Court can review an order passed by it in those limited cases where there is: (a) discovery of new and important matter of evidence which, after the exercise of due diligence, was not within knowledge or could not be produced at the time when the decree was passed or order made; (b) some mistake or error apparent on the face of the record and (c) for any other sufficient reason which is analogous to the other reasons specififed above. ( 6 ) LEARNED counsel for the petitioner surprisingly enough has miserably failed to point out any mistake or error apparent on the face of the record in the impugned order passed by this Court dated September 13,1994. He has also failed to show that there is discovery of important and new matter which was not available to him on the date when the impugned order was passed. Instead, the learned counsel for the petitioner has tried to assail the legality and validity of the impugned order passed by the court below. To my mind, this is not permissible in case of a review petition. ( 7 ) THIS Court on hearing the learned counsel for the petitioner on the abovesaid date came to the conclusion that the instant case was not a fit case to interfere with the impugned judgment and order passed by the learned lower court dated August 17,1994 whereby he granted leave to defend the suit to the petitioner subject to his furnishing a bank guarantee to the tune of the suit amount. I thus feel that there was absolutely nowthing wrong with the order. This Court thought fit not to interfere with the same while sitting as a Court of Revisional Jurisdiction. ( 8 ) IT is a well established principle of law that while sitting as a Court of Revision the High Court would not interfere with the orders passed by the courts below in case it comes to the conclusion that substantial justice has been done even if the order suffers from legal infirmity. I am support in my above view by the observations of a Single Judge of this Court ( Hon ble Mr. Justice I. D. Dua as he then was) as reported in Sham Mohan Lal v.)ai Gopal and another, AIR 1968 Delhi 104. . . . I am support in my above view by the observations of a Single Judge of this Court ( Hon ble Mr. Justice I. D. Dua as he then was) as reported in Sham Mohan Lal v.)ai Gopal and another, AIR 1968 Delhi 104. . . . " It is true that the High Court has full power to treat an appeal as a revision and a revision as an appeal when there is no statutory or other impediment in the way and when the interests of justice demand it. It, however, must not be forgotten that interference on revision has an element of discretion and even though there may be some legal infirmity in the order of the Court below, the High Court may appropriately decline interference if it comes to the conclusion that an impugned order is substantially just and the exercise of the revisional power is not called for in the larger interests of substantial justice". ( 9 ) IN the circumstances stated above, I do not see any force in the present application. It is hereby dismissed.