STATE OF GUJARAT v. AJAYBEN DAYABHAI DAYABHAI CHAVDA
2006-08-11
A.L.DAVE
body2006
DigiLaw.ai
A. L. DAVE, J. ( 1 ) THIS application for review is preferred by the State on the ground that, while disposing of the Second Appeal, a decision of a Division Bench of this Court rendered in Letters Patent Appeal No. 610 of 2005 dated 22nd June, 2005 was not brought to the notice of this Court by the concerned Assistant Government Pleader by mistake and was not considered by this Court. It is contended that the decision of the Division Bench deals with the very issue, which was decided by the Civil Courts and the Division Bench has taken a contrary view in the matter and, therefore, the order in the Second Appeal by this Court may be reviewed in light of decision in the case of Board of Control Cricket in India v. Netaji Cricket Club (2005) 4 SCC 741 , where a view is taken by the Apex Court that expression mistake in Order XLVII, Rule 1 of the Code of Civil Procedure would cover a mistake on part of the Court regarding nature of undertaking given by counsel of a party and, therefore, the order may be reviewed. Learned Assistant Government Pleader has drawn attention of this Court to Government Resolution dated 27th June, 1967, which was forming part of the record of the Trial Court, at Exhibit 64, Government Resolution dated 6. 4. 2002 and the decision of the Division Bench to contend that cut off date of 1. 1. 1997 has been upheld by the Division Bench, whereas the deceased employee had expired in the year 1992 and, therefore, he could not have claimed benefits of pension, etc. ( 2 ) LEARNED Advocate, Mr. Sampat, has opposed this application. According to him, the scope for review is very limited. He submitted that there is no mistake on the part of the Court while disposing of the Second Appeal. He submitted that the Courts below had relied on the 1967 resolution, which has not been considered by the Division Bench while disposing of the Letters Patent Appeal. He also submitted that this review application is only by way of a counter-blast to a Contempt Application preferred by the opponent, which is preferred in the year 2005, whereas the review application along with delay condonation application is preferred in the year 2006. He, therefore, submitted that this application may be rejected.
He also submitted that this review application is only by way of a counter-blast to a Contempt Application preferred by the opponent, which is preferred in the year 2005, whereas the review application along with delay condonation application is preferred in the year 2006. He, therefore, submitted that this application may be rejected. ( 3 ) THIS Court has taken into consideration rival side contentions. The decision of the Apex Court in the case of Board of Control Cricket in India (supra) has taken a view that, if there is a mistake on the part of the Court regarding nature of undertaking given by the counsel of a party, a review would be permissible. ( 4 ) IN the case on hand, this Court, while dealing with the Second Appeal, came to a specific conclusion that no substantial question of law arose. There were concurrent findings of fact by both the Courts below and the appeal was, therefore, dismissed. Attention of this Court was not drawn towards the decision of the Division Bench, which is now sought to be relied upon. However, this Court has taken into consideration the unreported decision of the Division Bench in Letters Patent Appeal No. 610 of 2005 dated 22nd June, 2005. Despite a close scrutiny, this Court is at loss to find out any consideration or even reference to the 1967 resolution relied upon by both the Courts below and, therefore, it cannot be said that the said decision will have any impact on the decision in the Second appeal. While disposing of the Second Appeal by order dated 2. 9. 2005, the Court did examine the findings of the Courts below in light of Government Resolution of 1967, at Exibit 64. The Court also examined the question of Section 80 notice and, ultimately, recorded that there was absence of substantial question of law and dismissed the appeal. No other contention was raised before this Court. ( 5 ) THE picture that emerges, therefore, is that the Division Bench in the Letters Patent Appeal has not considered the 1967 resolution, which was relied upon by both the Courts below. The Letters Patent Appeal Bench took into consideration 2002 resolution while deciding the question whether the cut off date of 1. 1. 1997 was proper or not. In that 2002 resolution also, there is no reference to 1967 resolution.
The Letters Patent Appeal Bench took into consideration 2002 resolution while deciding the question whether the cut off date of 1. 1. 1997 was proper or not. In that 2002 resolution also, there is no reference to 1967 resolution. Now, therefore, the questions that are required to be examined by this Court would be whether a resolution of 2002 would be applicable to the facts of the present case or not and whether the decision in the said Letters Patent Appeal will have any impact on decision of the Civil Courts founded on 1967 resolution. These are questions which cannot be examined in a review application. In the opinion of this Court, considering the scope of review, this application cannot be entertained and is, therefore, rejected.