COMMISSIONER-CUM-SECRETARY, DEPTT. OF ANIMAL HUSBANDRY v. K. RINZING
1996-07-22
M.SENGUPTA
body1996
DigiLaw.ai
M. SENGUPTA, J. ( 1 ) THIS matter comes out of an application filed under O. XLVII, Rule 1 read with S. 151 of the Civil Procedure Code arising out of a judgment passed by this Court on 25-6-96 in Civil 1st Appeal No. 3 of 1995. ( 2 ) THE appeal noted above arose out of an order of injunction passed on 21-11-95 by the learned District Judge, East and North in Civil Suit No. 13 of 1995. The plaintiff in the suit is the respondent in this review proceeding. In the suit he alleged that his agency relating to the business in the hides and skins was terminated prematurely without sufficient grounds and also without any notice on him. The plaintiff also filed a petition for injunction against the order of termination of his agency. The said prayer was allowed by the learned District Judge on 21-11-95. The said order was challenged but this Court by its order dated 25-6-96 confirmed the order of the learned District Judge. ( 3 ) NOW the Government, rather the department dealing with Animal Husbandry matters, who contested the matter of injunction before the learned District Judge and also preferred the appeal has filed this review petition mainly on the ground that a few of the decisions which were referred to on behalf of the appellants were not properly taken into consideration and had that been so done, this Court ought to have come to a different finding. The appellant-petitioners have cited those five decisions at para 8 of their review petition. ( 4 ) AT the time of admission of review petition, the petitioners referred to the decisions of the Mysore High Court in Medical and Dental College v. Nagraj, reported in AIR 1972 Mysore 44, to show that where there are decisions of higher Courts at a particular point and where a Court has taken a view on that point which is not consistent with the law laid down by the Supreme Court, the omission may be said to be an error apparent on the face of the record and in such case review of the judgment should be allowed. Decision reported in Thungabhadra Industries Ltd. , reported in AIR 1964 SC 1372, has also been referred to. The Mysore High Court, while deciding the above noted case relied on this decision of the Supreme Court.
Decision reported in Thungabhadra Industries Ltd. , reported in AIR 1964 SC 1372, has also been referred to. The Mysore High Court, while deciding the above noted case relied on this decision of the Supreme Court. In consideration of all aspects the review petition was admitted. ( 5 ) IT is needless to say that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. This has been categorically held in Thungabhadra's case (AIR 1964 SC 1372) as noted above. Fortunately learned counsels for both the sides conceded to this proposition of law and kept their submissions confined to the limited extent without venturing for rehearing of the appeal. ( 6 ) THOUGH in the review petition there is mention of five cases, the learned Advocate General placed only four out of this list at the time of hearing of this review petition. It would be worth mentioning that in course of hearing of the appeal some kind of written argument was submitted on behalf of the respondents but there we do not find mention of any of such decisions. However, when it comes from the learned Advocate General we may safely accept that those decisions were actually cited by the learned Advocate General but were not discussed properly in the judgment of this Court. Before we deal with those decisions we should note that main argument of the State was that the agency which was created in favour of the plaintiff was not in accordance with S. 7 of the Sikkim (Livestock and Livestock Product Control) Act, 1985 and therefore, it was a void contract under S. 23 of the Contract Act and hence, the agency could be terminated at any time without assigning any reason or without serving any prior notice whatsoever. This Court while dealing with the appeal, however, held that the case did not fall within the purview of S. 23 of the Contract Act. Let us now deal with the cases cited on behalf of the review petitioners and to see how far assistance the petitioners get from those decisions. ( 7 ) THE first one referred to is Waman Shriniwas's case, reported in AIR 1959 SC 689. The fact of the case comes nowhere around the fact of the case which we have been dealing with.
( 7 ) THE first one referred to is Waman Shriniwas's case, reported in AIR 1959 SC 689. The fact of the case comes nowhere around the fact of the case which we have been dealing with. In Waman Shriniwas's case the landlord challenged an agreement or contract between his tenant and an unauthorised sub-tenant. The Court held that such an agreement between the tenant and sub-tenant was contrary to the provision oflaw and, therefore, the same contract could not bind the landlord. The next decision is Brij Mohan Parihar v. MPSRTC, reported in (1987) 1 SCC 13 : (AIR 1987 SC 29 ). The fact of this case also differs widely from the fact dealt with by us. In the Brij Mohan's case some transport permit was issued in favour of the Transport Corporation who in its turn made over the authority to ply buses, under the said permit in favour of a third party. This was not permissible. Under the prevailing law of that State the permit-holder-corporation would have either run the vehicles themselves or in case it was not possible for the corporation to do so, it must have surrendered the permit in favour of the Regional Transport Authority who might have granted the permit to some other applicant. An agreement between corporation and the third party over the plying of vehicles under the said permit could not have any binding effect on the transport authority. The third one is Gurmukh Singh v. Amar Singh, reported in (1991) 3 SCC 79 : (1991 AIR SCW 874 ). In this case the parties joined together to bid an auction in the name of the appellant with the understanding that half of the auction purchased property would go to the respondent if the appellant could bid the property successfully. It was contended by the appellant that such a contract between the appellant and the respondent did not have any binding force under S. 23 of the Contract Act as it was opposed to public policy which tends to defeat any provision of law or purpose of law. The Court held that the agreement between the parties was only a combination to participate at an auction. There was no intention either to peg down the price or to defraud the Government to knock down the sale at a lower price and hence, the contract between the parties was upheld.
The Court held that the agreement between the parties was only a combination to participate at an auction. There was no intention either to peg down the price or to defraud the Government to knock down the sale at a lower price and hence, the contract between the parties was upheld. In the instant case it was observed by the Court"the public policy is not static. It is variable with the changing times and the needs of the society. The march of law must match with the fact situation. A contract tending to injure public interest or public welfare or fraudulent to defeat the rights of the third parties is void under S. 23 of the Contract Act". In the case dealt with by us, the Government itself initiated the initial contract wherein neither any such infirmity had been noticed nor there was any scope for that. Therefore, Gurmukh's case also does not help the petitioners in any way. The fourth case was Bangalore Medical Trust v. B. S. Muddappa, reported in (1991) 4 SCC 54 : (AIR 1991 SC 1902 ). In this case the Bangalore Development Authority gave a huge plot of land in favour of the Medical Trust on the recommendation of the Chief Minister. The piece of land was, however, earmarked for a park. The Court held that when the relevant act specifically provided for use of a land for a particular purpose the Government cannot, so long the law remains unchanged, lawfully enter into an agreement with any one to utilise the land for a purpose other than the purpose specified in the Act itself. It was held in this case that such a change was not permissible even at the behest of the Chief Minister of the State. This case also does not help the petitioners to the desired extent. Therefore, we find that the cases referred to are not adequate to support the claim of the petitioners. We may hold that even if those cases were taken into consideration during the hearing of the appeal, would not have led the Court to take its decision otherwise than what it has already taken. ( 8 ) IT would be worth noting that the Court while dealing with the appeal did not ignore the submission made on behalf of appellant over the provision of S. 23 of the Contract Act.
( 8 ) IT would be worth noting that the Court while dealing with the appeal did not ignore the submission made on behalf of appellant over the provision of S. 23 of the Contract Act. The Court arrived at the decision that the case was not hit under S. 23 of the Contract Act. The decision might not he palatable to the appellants but it remains a fact that the Court, rightly or wrongly, arrived at a decision on this point. If the Court applies its mind to a particular fact or law and then comes to a conclusion after conscious reasoning it can never he contended, even if the conclusion was wrong, that the error is one apparent on the face of the record. Decision reported in AIR 1965 Orissa 49 (Manu Pujhari v. State of Orissa) may be referred to in this context. Mere erroneous decisions are not liable to be reviewed. Only errors apparent on the face of the record are liable to he reviewed and such errors must stare one in the face whew no elaborate arguments are necessary to pin point those errors. Such a view was taken by Bombay High Court in the decisions reported in AIR 1984 Bom 458 (R. R. Chaurasia v. Mathewcharian) and in AIR 1989 Bom 91 (Chandrakant v. Sripat ). We have already noted that in our judgment we dealt with the question of applicability of S. 23 of the Contract Act and drew the conclusion alter conscious reasoning. Under such a circumstance there remains no scope for review. ( 9 ) IT was pointed out by the plaintiff-opposite party that the order passed by this Court on 25-696 was not an appealable order under O. XLIII, Rule 1, C. P. C. but the appellants approachedthis Court immediately after passing of the said order that it would go for appeal. In the review petition also they stated that they had not gone for appeal. There cannot be any question of going on appeal when it is barred under the law. Learned Advocate General representing the petitioners contended that appeal was loosely used and in fact the appellants meant Special Leave Petition for appeal. This is not a very important matter to deal with. However, in consideration of all aspects we hold that there is no ground to review our earlier judgment.
Learned Advocate General representing the petitioners contended that appeal was loosely used and in fact the appellants meant Special Leave Petition for appeal. This is not a very important matter to deal with. However, in consideration of all aspects we hold that there is no ground to review our earlier judgment. The review petition is, therefore, dismissed on contest. No order as to costs. Petition dismissed. --- *** --- .