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2006 DIGILAW 319 (GAU)

Pratima Mukherjee v. Amitava Mukherjee

2006-03-31

A.B.PAL

body2006
JUDGMENT A.B. Pal, J. 1. This review petition has been preferred by four Petitioners herein for setting aside the judgment and order of this Court passed on 28.2.2005 in F.A.O. No. 2 of 2001 solely on the ground that the submissions advanced by Shri D. Chakraborty, learned Counsel for them which provided the foundation for that order were contrary to their instructions and pleadings in the partition suit from which the said appeal originated and, therefore, the decision rendered on the basis of such submission need to be reviewed. 2. I have heard Mr. S. Talapatra, learned senior Counsel, assisted by Mr. B. Banerjee, learned Counsel for the Petitioners and Mr. P. Deb Roy, learned Counsel for the Respondents. 3. Shri Amitava Mukherjee and Shri Subrata Mukherjee are the two brothers, the first and the second Respondents herein. They cjaimed that they are the sons of one Late Debendra Kumar Mukherjee and Smt. Malati Mukherjee, the third Respondent herein. The first and second Respondents herein filed a partition suit No. T.S.(P)37/1999 ? against the Petitioners herein. In the course of said suit they filed a prayer for appointment of Receiver in respect of 'Schedule D property of the plaint', which was disposed of by the learned trial court on 13.9.2000 rejecting the prayer. It was pleaded by the above two Respondents herein that after the death of Debendra Kumar Mukherjee on 25.4.1997, the Petitioners herein had taken over possession of the D-Schedule business forcibly and paid them only Rs. 3,500 as monthly grant. But after February 1998 they ceased to pay the same, which prompted the Respondents to submit a prayer for appointment of a Receiver. Aggrieved by the order rejecting their prayer to appoint a Receiver, they filed an appeal against the order of rejection dated 13.9.2000 which was registered as F.A.O. No. 2/2001. 4. On 28.2.2005, the said appeal was disposed of by this Court when learned Counsel for the parties agreed that payment of monthly grant would be revived and that would obviate necessity of appointment of a Receiver. Another submission of Mr. Chakraborty was recorded in para-4 of my judgment and order which was that Smt. Malati Mukherjee was a concubine of Late Debendra Kumar Mukherjee from whom first and second Respondents were born. Another submission of Mr. Chakraborty was recorded in para-4 of my judgment and order which was that Smt. Malati Mukherjee was a concubine of Late Debendra Kumar Mukherjee from whom first and second Respondents were born. However, the said appeal was instated only for the limited purpose of either to appoint a Receiver or to restore payment of monthly grant, not to decide relationship between Late Debendra Kumar Mukherjee and Malati Mukherjee. The Petitioners herein contended that as such a submission of their counsel was not in terms of their pleadings in the partition suit between the parties herein, the same should be expunged. Again, the order under review directing the Petitioners to pay Rs. 3,500 per month as grant to the Respondents herein was also not in terns of the pleadings or instructions and for that reason that part of the order also need to set aside. In other words, the entire order has to be re-written if the review petition is allowed. 5. Mr. Talapatra, learned senior Counsel for the Petitioners herein advanced an argument that any decision even from misconception of the advocate on laws or facts is sufficient ground for review of the judgment. In support of this contention, he has placed reliance on the decision of the Supreme Court in Board of Control for Cricket in India and Anr. v. Netaji Cricket Club and Ors. (2005) 4 SCC 741 . In paras 88, 89 and 92 the observations of the Apex Court reads as follows: 88. We are, furthermore of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex-facie bad in law. Section 114 of the Code empowers a court to review its order if the conditions precedent laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court, except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit. 89. Order 47, Rule 1 of the Code provides for filing an application for review. The substantive provision of law does not prescribe any limitation on the power of the court, except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit. 89. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. 92. Yet again in Lily Thomas this Court has laid down the law in the following terms: (SCC pp. 247-48, para 52) 52. The dictionary meaning of the word 'review' is the act of looking offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradhymansinghji Arjunsinghji held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the court from rectifying the error. (emphasis supplied) It would appear from the above that a mistake on the part of the court, which would include a mistake in the nature of wrong assumption may, also call for a review of an order. It is true that for the sake of justice, which should be the only paramount consideration, no rule and technicality of law should be allowed to stand in the way of administration of justice. It is true that for the sake of justice, which should be the only paramount consideration, no rule and technicality of law should be allowed to stand in the way of administration of justice. But, at the same time it has also to be seen whether there has been really any error in the judgment and order under review and whether such mistake has taken place from a wrong assumption. 6. In Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi AIR 1980 SC 674 , the Apex Court held that a party is not entitled to seek a review of the judgment merely for the purpose of a re-hearing and a fresh decision of the case. In Umesh Chandra Lahkar v. Siba Ram Deka and Ors. (1990) 2 GLR 189, this Court (Saraf, J.) held in the same line that a party is not entitled to seek review of the judgment delivered by a court merely for the purpose of re-hearing and fresh decision of the case. 7. The powers of a court to review, though limited to the extent that it should not amount to re-hearing and re-writing of the judgment, know no limit when they come to upholding the virtue of justice, in the wake of which every error on the face of the judgment under review has to be rectified if otherwise justice stands defeated. In the judgment and order under review, I have only recorded in para-4 what Mr. Chakraborty, learned Counsel for the Petitioners herein did exactly submit. Mr. Chakraborty has not come forward to say to this Court what he submitted before this Court was not authorized by his clients or his submissions were from sheer misconception of facts. Presumably, he refused to do so. The Petitioners then decided to change horse and engaged another counsel to make a different submission at their bidding stigmatizing the former counsel. It cannot be the subject matter of enquiry by this Court as to what was the precise instructions by the Petitioners to their lawyer or whether he made any deviation from the beaten track. The Petitioners then decided to change horse and engaged another counsel to make a different submission at their bidding stigmatizing the former counsel. It cannot be the subject matter of enquiry by this Court as to what was the precise instructions by the Petitioners to their lawyer or whether he made any deviation from the beaten track. It is the established practice followed in every court that on the submission of the lawyer of a party which may not be strictly in terms of the pleadings, many cases are closed and reliefs are granted, which is indicative of the fact that such counsel make submissions only after receiving verbal instructions. As Mr. Chakraborty, former counsel for the Petitioners has not stated what he submitted before this Court in the said appeal and recorded in para-4 of the judgment under review is not in terms of the instructions received by him from his clients, it cannot be the duty of the court to examine at his back the pleadings of the Petitioners in the trial court vis-a-vis the submissions made by Shri Chakraborty before this Court in order to determine whether he acted off the track. That apart, the submission made by Mr. Chakraborty about the relation between Late Debendra Kumar Mukherjee and Smt. Malati Mukherjee is a mere submission only, on which no decision on the point has been rendered in the judgment and order under review. 8. It was pleaded before the learned trial court that the Respondents were receiving a monthly grant of Rs. 3,500 from the Petitioners herein who had allegedly taken over the possession of the said property after the death of Debendra Kumar Mukherjee. Further pleading was that non-payment of the said grant prompted the said Respondents to file the prayer for appointment of a Receiver. It was the joint submission by the counsels for the parties before this Court that the Petitioners herein would restore payment of the monthly grant and on that basis the prayer for appointment of a Receiver was abandoned. It is not anybody's case that this Court made any mistake while recording the submissions of the learned Counsel for the parties. If any of the counsels for the parties made any submission from any misconception of fact or of law, he-could have made a statement accordingly before this Court which has not been done. It is not anybody's case that this Court made any mistake while recording the submissions of the learned Counsel for the parties. If any of the counsels for the parties made any submission from any misconception of fact or of law, he-could have made a statement accordingly before this Court which has not been done. Thus, when there is no apparent error committed by this Court in recording the submissions of the lawyers for the parties, it cannot be, in my view, the duty of this Court to undertake a probe as to whether the submissions advanced by Mr. Chakraborty, the former counsel for the Petitioners, before this Court in the said appeal were in line with their pleadings in the partition suit pending in the court below in order to determine whether he was off the track without instruction, to justify review of the order in appeal. This Courts refuse to undertake any such exercise which is virtually a blame-game at the back of the lawyer concerned. 9. Having said so, let it be on record also that the controversial submissions made by Mr. Chakraborty about relationship of late Debendra Kumar Mukherjee and Smt. Malati Mukherjee shall remain his own submission only and shall not be accepted in any form by the trial court for deciding any issue before it in the said partition suit. The monthly grant which the Petitioners are liable to pay to the Respondents, without fail, in terms of the order under review shall also be subject to the final decision by the trial court in the said suit and if it is found at the end the Respondents concerned herein are not entitled to that monetary benefit, the trial court shall make necessary order, at the instance of the Petitioners herein, for refund/recovery of the money so paid in just and proper manner. 10. Subject to the above, this review petition does not appear to have any merit and consequently, the same is dismissed without any cost. 11. Send down the trial court record immediately. Petition dismissed.