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2001 DIGILAW 593 (CAL)

Kamala Bose v. Dipali Saba

2001-09-12

AMIT TALUKDAR

body2001
JUDGMENT 1. This Court on the basis of an application under Article 227 of the Constitution of India filed by the petitioners herein by its Judgment and Order dated March 13, 2000 in C.O. No. 1443 of 1996 dismissed the said Application and upheld the Order passed by the learned Additional House Rent Controller, Serampore in Case No. H.R.C. 92 of 1993 dated 23.2.96. However, it directed that six months time be allowed to the petitioners to vacate peaceful possession of the suit premises in favour of the Opposite Party No. I upon an undertaking given by the petitioner before this Court within a fortnight; in default, of which Order will be executed forthwith. 2. Pursuant thereof the petitioner, Shymal Kumar Basu filed an undertaking by affirming an Affidavit on 27.3.2000. 3. An Application for review of the Judgment and Order passed by this Court on March 13.3.2000 arising out of H.R.C. No. 92 of 1993 under Section 298 of the West Bengal Premises Tenancy Act, 1956 passed on March 13, 2000 was filed by the petitioner on the ground that in the Judgment and Order passed by this Court that errors have crept through this Hon'ble Court's oversight as well as mistakes of the learned Advocate as such, the said Judgment and Order should be corrected and that the law that has been cited and applied is the law applicable when the relationship of landlord and tenant exits but the same arc not applicable in the case of the Petitioner No.2 who is a co-sharer in possession and, therefore, the same is an error apparent on the face of the record and that the Judgment and Order of this Court was passed without taking into account various important factors. 4. The Review Application was filed on May 2, 2000. 5. Being C.A.N. No. 3549 of 2000. 6. Another Application being C.A.N. No. 3682 of 2000 was also filed on behalf of the petitioner on May 5, 2000 for releasing the petitioner from the undertaking given by him on 27.3.2000 in pursuance of the parent Order passed by this Court on March 13, 2000 in connection with C.O. No. 1443 of 1996. 7. 6. Another Application being C.A.N. No. 3682 of 2000 was also filed on behalf of the petitioner on May 5, 2000 for releasing the petitioner from the undertaking given by him on 27.3.2000 in pursuance of the parent Order passed by this Court on March 13, 2000 in connection with C.O. No. 1443 of 1996. 7. The grounds taken in the said Application being C.A.N. No. 3682 of 2000 for discharging the petitioner from the undertaking given by him before this Court was on the premises that the same was given 'under mistaken advice of his learned Advocate' and as such, he should be discharged thereof. 8. The Opposite Party (Landlady petitioner) in the meanwhile filed an Application for contempt on September 20, 2000 being C.P.A.N., No. 1650 of 2000 as the petitioners had failed to comply with the solemn Order passed by this Court and vacate the suit premises within the time specified on the basis of the undertaking given by them. 9. This Court has heard the submissions of the learned Counsels appearing for the parties in support of their respective Applications at great length with regard to the question of reviewing the said Order. The submission of the learned Counsel for the petitioner for reviewing the said Order on the ground that there was error apparent in the Judgment, in this Court's humble view can neither entitle nor arm this Court on the basis of such prayer to upset its earlier finding. An error apparent on the face of the record cannot be a good ground for review of an earlier Order and this Court finds sustenance with regard to this position from the decision of (1) Dokka Samuel Vs. Jacob Lazarus Chelly reported in 1997 (4) SCC 478 and this Court finds no merit in the Application for review being C.A.N. No.3549 of 2000. 10. As a necessary corollary to the above finding the Application for discharging the petitioner from the undertaking given by him before this Court on March 27, 2000 being C.A.N. No. 3682 of 2000 also stands disposed of as being untenable as the Review Application is dismissed. It necessarily follows the prayer for releasing the respondent from the undertaking does not arise and the said prayer is also refused. 11. Now with regard to the question of the Application for Contempt being C.P.A.N. No. 1650 of 2000. 12. It necessarily follows the prayer for releasing the respondent from the undertaking does not arise and the said prayer is also refused. 11. Now with regard to the question of the Application for Contempt being C.P.A.N. No. 1650 of 2000. 12. So far as the Application for Contempt being C.P.A.N. No.1650 of 2000 is concerned the learned Advocate for the petitioner Shri Abhra Mukherjee led by Shri Shibdas Ghosal-both of whom are present when this Order is being dictated and being pronounced in open Court prays that the petitioner will require some further time to comply with the parent Order passed by this Court on March 13, 2000. 13. On the basis of their undertaking the Contempt Application being C.P.A.N. No. 1650 of 2000 is kept in abeyance till December 2001. In the event, the Order is not complied with, liberty is given to mention. 14. Accordingly, all the Applications being C.A.N. No. 3549 of 2000. C.A.N. No. 3682 of 2000 stand disposed of in terms of the Order passed in the foregoing paragraphs; whilst the Application being C.P.A.N. No. 1650 of 2000 is kept adjourned till December 2001. 15 After this order was dictated and pronounced in open Court in presence of the learned Counsels of both the parties, Shri Mukherjee prayed for stay of the Order dismissing the prayer of review or the Judgment and Order passed by this Court. This was objected to by the learned Counsel appearing for the opposite party. 16. Since the said Order was passed on the basis of the decision of the Supreme Court in the case of Dokka Samuel v. Dr. Jacob Lazarus Chelly (supra), the said prayer is considered and refused. Urgent xerox certified copy of this order, if applied for, that may be available to the applicant as expeditiously as possible.