Subhas Chandra Sarkar v. Nirmal Kumar Jana — 1997 DIGILAW 163 (CAL)

JUDGMENT Satyabrata Sinha, J. The petitioners have filed this application for review of a judgment passed by a Division Bench on 12.12.96 in FMAT No. 3100 of 96 and FMAT No. 3114 of 96. 2. At the outset we may point out that the dispute between a teacher and the school authorities has been pending in this court for more than two decades. 3. It may be noticed that the petitioners have sought to re-open the entire question involving the aforementioned two appeals on merits which is not permissible in law. We may further notice that this review application does not conform to the Rules of this court. Even the application for review of judgment was not presented to Stamp Reporter as is required under Rule 4 of Chapter X. 4. The said review application therefor ought to have been dismissed on the aforementioned ground but as we have heard the parties on merit of the matter, we would deal with the respective submissions of the learned counsel for the parties. 5. Mr. Harashit Chakraborty, the learned counsel appearing on behalf of the petitioner, submitted that the judgment dated 22.11.1995 passed by a learned Single Judge (from which one of the appeals was filed), was bad in law inasmuch as the said judgment had been passed, keeping in view the judgment/order passed by A.K. Sengupta, J. on 28.9.1989 although the respondent did not comply with the conditions imposed thereunder. It was further submitted that in any event, an appeal lay against an order dated 11.9.1996 whereby the learned Single Judge corrected his order dated 22.11.1995. 6. The other appeal was filed against an ex parte order directing the appellants to show-cause as to why they shall not be proceeded under the Contempt of Courts Act for alleged violation of the aforementioned order dated 22.11.1995. It was submitted that in view of the fact that the order dated 22.11.95 was modified by an order dated 11.9.1996, the observation of this Court that the appeal was filed after 300 days was erroneous. 7. It has been pointed out that earlier an appeal was filed against the order dated 22.11.95 but the said appeal was withdrawn when it was found that the concluding portion of the judgment of the learned Single Judge was not against this school authorities as the writ petitioner was above 40 years of age on 28.9.1989. 7. It has been pointed out that earlier an appeal was filed against the order dated 22.11.95 but the said appeal was withdrawn when it was found that the concluding portion of the judgment of the learned Single Judge was not against this school authorities as the writ petitioner was above 40 years of age on 28.9.1989. The alleged reason for withdrawal of appeal is not borne out from the records of this case. The learned counsel has also not brought the said order to the notice of this court. 8. The applicant knew fully well the implication of the said order and that appears to be the reason why the said explanation is now sought to be given for the first time in the review application. It is stated that services of the respondent was dispensed with for his absence for 42 days in terms of his letter of appointment. 9. It is admitted that the writ petition was not heard by several Hon'ble Judges of this Court and when the matter came up for hearing before Hon'ble Mr. Justice S.R. Misra. Mr. Chakraborty, the learned counsel requested. His Lordship to refer the matter to larger bench on the ground that allegations against some of Judges of this Court had been made by the writ petitioner. We do not find any evidence in support of the said statements. It is further alleged that despite assurance by the learned Judge the matter was not dealt with from that angle and this aspect of the matter has also not been considered by the Appellate Court. 10. It was further urged that the application for review filed by the writ petitioner before the learned Judge was barred by limitation and, thus, order of modification could have been passed on 11.9.1996. In any event, contends Mr. Chakraborty, that said order should have been treated as a new order which gave rise to a new cause of action for the appellants to prefer an appeal. 11. Mr. B.C. Chakraborty, the learned counsel appearing on behalf of the respondents, on the other hand, submitted that this review application is not maintainable principally on the ground of no appeal lay against the orders passed by the learned Trial Judge. It was also submitted that the said application is also not adequately stamped. 12. Admittedly the parties have been litigating for a long time. It was also submitted that the said application is also not adequately stamped. 12. Admittedly the parties have been litigating for a long time. It is admitted that six appeals had been filed by one party or the other in respect of the self-same subject matter and one of the appeals is still pending. 13. By reason of the application the petitioners seek to obtain an order of review in respect of two judgments but only one application has been filed and that two upon affixing a court fee stamp of Rs. 5/- only. As indicated hereinbefore, even the mandatory requirement of the Rules of this High Court had not been complied with. This application, therefore, cannot be treated as a review application but merely a miscellaneous application. One of the appeals was filed against an order dated 22.11.1995 which was modified/corrected by an order dated 11.9.96. Admittedly the petitioners had filed an appeal against an order dated 22.11.95 but withdrew the same. By reason of the aforementioned order dated 11.9.1996 only a typographical error was corrected which was found by the learned Trial Judge as appearing on the face of the record. The appellant, therefore, could not have maintained any appeal against order dated 22.11.1995 as they had already withdrawn the said appeal. If it was the contention of the appellant that the appeal was filed only against the order dated 11.9.1996 modifying the said order dated 22.11.1995, there is no reason as to why the appellant had filed an application for condonation of delay. In our considered view, a typographical or clerical error can always be corrected by a Court of law, ex debito justiciae and no appeal lies against such an order in terms of Clause 15 of the Letters Patent of this Court inasmuch as such an order is not a 'Judgement'. 14. The appellant or his counsel had also acted improperly insofar as a prayer was made that the writ petition be referred to a division bench although it was not the case of the appellant that the case involves an important question of law and only because allegedly the writ petitioner had made certain remarks against A.K Sengupta, J. 15. 14. The appellant or his counsel had also acted improperly insofar as a prayer was made that the writ petition be referred to a division bench although it was not the case of the appellant that the case involves an important question of law and only because allegedly the writ petitioner had made certain remarks against A.K Sengupta, J. 15. We also do not appreciate the insinuations against the learned Single Judge that despite assurance, His Lordship did not deal with the question that certain allegations had been made by the petitioner against A.K. Sengupta, J. That by itself was not a ground for the applicant and/or his counsel to ask the Court to refer the matter to a larger bench. Evidently, the applicant intended to avoid the Court by adopting such tactics. Neither any affidavit has been filled by the learned advocate nor by the applicant to that effect. Such an affidavit could have been filed by the applicants only if he was present in the Court on that date. In this view of the matter without there being any materials on record we cannot and do not intend to entertain the contention of the learned counsel. 16. It is really a matter of great concern that such prayers are being made in this High Court inasmuch as it is well known that the petitioner cannot chose his own forum. Such an attempt on the part of a litigant or his counsel attracts the provisions of the Contempt of the Court Act. In Re. A.K. Pandey reported in AIR 1990 SC page 260 such attempt on the part of a litigant to take recourse to forum convenience was deprecated and rejected by the Apex Court. 17. It was for this Court, in the aforementioned situation, to consider the question of condonation of delay. Before us even it had not been pointed out that earlier an appeal had been filed against the order dated 22.11.95 and was drawn. 17. It was for this Court, in the aforementioned situation, to consider the question of condonation of delay. Before us even it had not been pointed out that earlier an appeal had been filed against the order dated 22.11.95 and was drawn. In paragraph 5 for the application of condonation of delay it is stated : "That the Judgment shows that His Lordship issued order on condition of age bar and it was found that judgment was not against the school authority as he completed 45 years when the order was issued and according to Rule 4(g) of the requirement rule and in terms of the order he cannot have any claim of the appointment and the appeal which was filed against the judgment and order of Hon'ble Mr. Justice Shree Ranga Mishra dated 22.11.95 and it was not pressed and the Appeal Court was pleased to allow to appeal to dispose the same for non-prosecution. A copy of the said order of appeal court is annexed hereto and marked "A". Neither any appeal number was stated therein nor the relevant facts were brought to our notice which does not speak well of the conduct of the appellant. No such averment even appears to have been made in the memo of appeal. 18. In that view of the matter it must be held that the applicants are also guilty of suppression of material facts. 19. So far as the order dated 11.9.1996 is concerned, the same had been considered by this court on merits and in our opinion the direction to consider the case of teacher, who had been serving in the school for a long time, even after he had crossed the age bar cannot be said to be an illegality. Such orders have been passed by this court and the Apex Court in numerous cases. 20. So far as FMAT No. 3100 of 96 is concerned, the same arose out of a contempt proceeding. A contempt petition was filed for non-compliance of the order dated 22.11.95 and notices were directed to be issued as against the District Inspector of Schools, Secondary Education, Calcutta and the Managing Committee as to why they have not complied with the said order. No contempt rule had been issued 14.8.1996 was the date fixed therefor when an application for recalling of the said order was filed. No contempt rule had been issued 14.8.1996 was the date fixed therefor when an application for recalling of the said order was filed. As no rule had been issued and no order of punishment had been passed, the question of preferring any appeal against such order did not arise. Even no order affecting the right of the appellant was passed. The appellants not only filed a misconceived and ill advised appeal but have also filed this review application. Such a frivolous application cannot be entertained. 21. The Constitution does not provide for a power of review in a High Court while exercising its jurisdiction under Art. 226 of the Constitution of India. However, it is well known that the High Court in exercise of its inherent jurisdiction can review its own judgment. Reference in this connection may be made to Shivdeo Singh & Ors. vs. State of Punjab & Ors. reported in AIR 1963 SC page 1909. Although a power of review is to be exercised under the inherent jurisdiction of this court, the same has to be exercised on the principles analogous to Order 47 Rule 1 of the Code of Civil Procedure. 22. No error apparent on the face of the records has been pointed out. It is also not a case where discovery of new and important matter or evidence which after exercises of due diligence was not within the applicant's knowledge or could not be produced by him at the time when the order was passed, has taken place. The said appeal itself was, therefore, not maintainable. 23. However, it appears that in the third paragraph of page 2 of the judgment it has wrongly been stated that the Director of School Education filed an appeal, although the said appeal was filed by the writ petitioner. The judgment dated 12.12.96 shall stand modified to the aforementioned extent. This court can correct a mere clerical or typographical error in exercise of its inherent jurisdiction as also under s. 152 of the Code of Civil Procedure. 24. It is now well known that after a writ petition is disposed of and the proceedings are terminated, the same cannot be reopened by filing a miscellaneous application. 25. This court can correct a mere clerical or typographical error in exercise of its inherent jurisdiction as also under s. 152 of the Code of Civil Procedure. 24. It is now well known that after a writ petition is disposed of and the proceedings are terminated, the same cannot be reopened by filing a miscellaneous application. 25. Reference in this connection may be made to State of U.P. vs. Brahma Dutta reported in AIR 1987 SC 943 and Pritpal Singh vs. State of Punjab reported in AIR 1987 SC 1832 . 26. We do not, thus, find any merit warranting exercise of our jurisdiction of review except to the extent made hereinbefore. 27. This application is, therefore, dismissed with costs. 28. Advocates fees assessed at 200 G.Ms. Basudev Panigrahi, J.: I agree. Review Application dismissed.