Basudev Mondal v. Krishnaprosad Mondal — 1995 DIGILAW 218 (CAL)

JUDGMENT Nripendra Kumar Bhattacharyya, J.: The writ petitioner/respondent Sri Krishna Prosad Mondal by this petition under Order 47 Rule 1 has prayed for deletion or modification from our judgment dated 29.7.94 passed in FMAT No. 1005 of 1993 that part of the statement namely "We also keep it on record that the Trial Court has found that the appellant is also a hereditary patni as appearing in paragraph 8 of our judgment. 2. We also record that though in the cause title of the 'application the petition has been described as review and/or clarification and/or modification of the judgment and order dated 28.7.94 passed by us in FMAT No. 1005/93 but in the prayer portion no prayer has been made for review and only prayer is made for deletion or modification from the judgment the part that "We also keep it on record that the Trial Court found that the appellant is also a hereditary patni". 3. For proper understanding of the scope and ambit of this application a brief recital of the background of this application is necessary. Accordingly, in brief we are making such recital of the background. 4. The writ which was moved by Sri Krishna Pro sad Mondal was in connection with C.O. No. 10825 (W) of 1992 concering Srirampore Ferry which used to be settled year to year in public Auction as the Ferry is a public Ferry. In public Auction the said Ferry was settled to the highest bidder, Sri Basudeb Mondal for the period from 1st Baisakh 1399 B.S. to 30th Chaitra 1399 B.S. 5. The respondent No. 1 Sri Krishna Prasad Mondal challenged the said settlement before this High Court in its jurisdiction and that was registered here as C.O. No. 10825 (W) of 1992. 6. The Trial Judge in accepting the argument of the writ petitioner that the authorities did not consider the circular, in Memo No. 6132(15) K.M./1160/58 dated 2.4.60 and the judgment of the Hon'ble Justice Mr. Bijayesh Mukherjee,', while such settlement was made quash the settlement with the direction upon the authorities to hold fresh public Auction for such settlement and to consider the said circular and the judgment of Justice Bijayesh Mukherjee at the time of settlement for the Ferry. 7. Bijayesh Mukherjee,', while such settlement was made quash the settlement with the direction upon the authorities to hold fresh public Auction for such settlement and to consider the said circular and the judgment of Justice Bijayesh Mukherjee at the time of settlement for the Ferry. 7. Sri Basudeb Mondal, respondent No. 7 in the writ petition had challenged the said order and/or judgment of the Trial Court in an Appeal being FMAT No. 1005 of 1993 and the appeal was finally heard and disposed of by our judgment dated 29.7.94. While disposing of the appeal in paragraph 8 of our judgment we, inter alia, recorded as Under : "We also keep it on record that the Trial Court found that the appel1ant is also a hereditary patni". 8. This recording by us in our judgment has been sought to be reviewed and/or clarified and/or modified with a further prayer that the said recording should be deleted. 9. Appearing for the petitioner Mr. Arun Prakash Sarkar the learned Advocate, contended in reference to ground No. 1 in the petition, that the said recording is an error apparent on the face of the record, and as such, the judgment should be reviewed. 10. According to him that was not the finding of the Trial Court but that was the narration in the affidavit of the respondent. That being so the recording that the Trial Court found that the appellant is also hereditary patni is an error apparent on the face of the record. 11. Mr. Kashi Kanta Moitra the learned Advocate for the opposite party No.1, on the other hand, contended that was not the narration in the affidavit of the writ petitioner recorded by the Trial Court but in fact that was a finding of the Trial Court. 12. That argument of Mr. Moitra has been adopted by Mr. Gopal Chandra Mukherjee the learned Advocate for the Zilla Parishad. 13. Before we proceed to consider the respective submissions of the learned Advocates for the parties we must point out certain defects in this review application. From the office note it appears that the review application was not filed with the proper court fee stamp. The proper court fee stamp for the review is Rs. 1001- but the review was filed with a Court fee stamp of Rs. 51-only. 14.. From the office note it appears that the review application was not filed with the proper court fee stamp. The proper court fee stamp for the review is Rs. 1001- but the review was filed with a Court fee stamp of Rs. 51-only. 14.. Under Rule 18(2) of Chapter V of appellate side rules of this High Court, the Court fee stamp need to be affixed of Rs. 100/-. During the time of hearing we gave opportunity to the appellant petitioner to pay the deficit court fee and that has been paid subsequently by the petitioner and the defect has been removed. 15. There is another defect. Under Rule 3 of Order 47 of CPC the provisions as to the form of preferring appeal shall apply, mutatis mutandis for review. 16. Rule 1 of Order 41 of CPC enjoys that the Memorandum of Appeal shall be accompanied by a certified copy of decree appeal from and of the judgment on which it is founded. So, the review petition should accompany a certified copy of the judgment regarding which the review has been sought for but in the instant case the review petition has been filed simplicitor without any certified copy of the appellate judgment. 17. In that the review application is defective and the review petition is liable to be rejected on the aforesaid ground alone. 18. Be that as it may, though the review petition is liable to be rejected on the aforesaid ground even then we proceed to consider the submissions of the learned Advocates for the parties as we have proposed to do earlier. 19. We have already recorded the respective submissions of Mr. Sarkar and Mr. Moitra. According to Mr. Sarkar, recording in paragraph 8 of the judgment that the "Trial Court found that the appellant is also a hereditary patni" is an error apparent on the face of the record as that was the narration of statement made by the writ petitioner in his application and for affidavit. 20. While according to Mr. Moitra that was not the narration but the finding of the Trial Court. 21. From the contention of Mr. Sarkar it appears that by long drawn process of reasoning he tried to establish that the said recording by us is an error apparent on the face of the record, as the Trial Court recorded the narration from the affidavit. 22. Moitra that was not the narration but the finding of the Trial Court. 21. From the contention of Mr. Sarkar it appears that by long drawn process of reasoning he tried to establish that the said recording by us is an error apparent on the face of the record, as the Trial Court recorded the narration from the affidavit. 22. According to Mr. Moitra that was not the narration in the affidavit recorded by the Trial Court but it was his finding. 23. So, there are two opinions. The Supreme Court in the case of Mira Bhanza vs. Nirmala Kumari Chowdhury, reported in 1995 W. B. Law Reporter (SC) 117 has held, inter alia, : "That an error which has to be established by a long drawn process of reasoning on points where there may be conceivably be two opinions can hardly be said to be an error apparent on the face of the record. 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 persons 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 even apparent on the face of the record is found; it may also be exercised on an analogous ground. But it may not be exercised on the ground that the decision was erroneous on merit". 24. By the instant petition of review the petitioner has sought review of our judgment on the ground that there is an error apparent on the face of the record and that has been taken as ground No. 1 in his petition for review. 25. We have already pointed out that there is difference of opinion as to that recording as made by us. 26. According to Mr. Sarkar that was the narration recorded from the affidavit-in-opposition of respondent No. 7 in the writ petition while according to Mr. Moitra this is the finding of the Trial Court. So, there are two opinions and to establish that it is an error apparent on the face of the record straneous argument was made by Mr. Sarkar. According to Mr. Sarkar that was the narration recorded from the affidavit-in-opposition of respondent No. 7 in the writ petition while according to Mr. Moitra this is the finding of the Trial Court. So, there are two opinions and to establish that it is an error apparent on the face of the record straneous argument was made by Mr. Sarkar. So conceivably as there are two opinions and according to the ratio laid down by the Supreme Court in the case of Mtra Bhanza (supra) there is no error apparent on the face of the record. 27. We have already pointed out the part from our judgment regarding which the petitioner has prayed for review or modification of the same. We also pointed out that in the cause title the petitioner also asked for clarification of our judgment and in the prayer portion prayed for deletion of that part. This is not the scope of the review. If the petitioner is aggrieved by our judgment the scope to challenge the same is by way of an appeal. 28. Supreme Court in the case of Devaraja Pillai vs. Sellayya Pillai, reported in AIR 1987 SC 1160 has held, inter- alia, that if a party is aggrieved by the judgment of a Single Judge sitting in Second Appeal the appropriate remedy for the party is to file an appeal against that judgment. A remedy by way of an application for review •is entirely misconcived and if a Single Judge entertains the application for review then he totally exceeds his jurisdiction in allowing the review, merely because he takes a different view on construction of the document. 29. In the instant case as modification, deletion or clarification has been sought for and as that is not within the scope of review and the applicant could prefer an appeal against our judgment and no review is competent for the same. 30. If it is the contention of the petitioner that recording by us is an illegality then review of the same is not competent. Review is not meant for that. 31. A single bench of1 this Court in the case of Chandmall Clwpra vs. State of West Bengal; reported in AIR 1986 Ca1 111; inter alia, held: That review is not permissible on the ground that decision is erroneous on merit. 32. Review is not meant for that. 31. A single bench of1 this Court in the case of Chandmall Clwpra vs. State of West Bengal; reported in AIR 1986 Ca1 111; inter alia, held: That review is not permissible on the ground that decision is erroneous on merit. 32. In view of our discussions above we do not find any merit in this review application and hence the review application stands rejected. Application rejected.