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2008 DIGILAW 739 (CAL)

Ashima Kumar Dutta v. Swapan Dutta

2008-07-25

PRABUDDHA SANKAR BANERJEE

body2008
Judgment :- (1.) THIS is an application under Order 47 Rule 1 of the Civil procedure Code filed by the present petitioners against the opposite parties with prayer for reviewing the order dated 17th May 2007 passed by this Court in connection with C. O. No. 3180 of 2006. (2.) THE said civil revision was filed by the present opposite parties against the present petitioners under Article 227 of the Constitution of India. (3.) THE said revisional application was preferred by the defendants in T. S. No. 329 of 1981 which was pending before the learned Civil Judge, Junior division, Purulia in connection with Title Suit No. 28 of 1981 against the plaintiffs who are petitioners in this review application. In that C. O. , the defendants challenged the order dated 20. 7. 2006 by which the application under section 17 (3) of the West Bengal Premises Tenancy Act filed by the plaintiffs was allowed. The defendants in that case also prayed for permission to deposit the arrears of rent since Kartick 1409 BS to 1413 BS together with interest after condoning the delay. (4.) BY order dated 20. 7. 2006 the learned Trial Judge rejected the prayer of the defendants to allow them to deposit the said arrears of rent after condonation of delay. (5.) THIS Court after hearing learned counsel for the parties allowed the C.O. by setting aside the order impugned. (6.) THIS Court also allowed the prayer by the present petitioners to deposit the arrears of rent under section 17 (1) of the West Bengal Premises Tenancy act after condoning the delay. The petitioners were directed to deposit the entire arrears of rent under section 17 (1) of the West Bengal Premises Tenancy act together with statutory interest by five equal monthly instalments and if there is any odd number, the same is to be paid with the last instalment. The Court also directed payment of Rs. 5,000/- as cost to be deposited before the Court below within the period of one month from the date of that order. (7.) MR. Bidyut Banerjee, learned senior counsel appearing for the present petitioners prayed for review of the order on the following grounds. a) That there was apparent error in the face of the order. 5,000/- as cost to be deposited before the Court below within the period of one month from the date of that order. (7.) MR. Bidyut Banerjee, learned senior counsel appearing for the present petitioners prayed for review of the order on the following grounds. a) That there was apparent error in the face of the order. b) That the Court exceeded its jurisdiction by allowing the defendants/ petitioners in C. O. No. 3180 of 2006 to deposit the arrears of rent beyond the period i.e. from Kartick 1409 to Jaistha 1413 as the subsequent period was not the subject matter of the application for condonation of delay. (8.) MR. Banerjee, in course of his argument drew attention of the Court to the application by which the defendants prayed before the Court below for condonation of delay for the period Kartick 1409 to Jaistha 1413 regarding deposit of rent under section 17 (1) of the West Bengal Premises Tenancy Act. (9.) MR. Banerjee, further contended that no where in the application for condonation of delay for deposit of arrears of rent under section 17 (1) of the west Bengal Premises Tenancy Act, the defendants ever prayed for permitting them to deposit the subsequent arrears after condoning the delay. As such it was the contention of Mr. Banerjee that there was apparent error in the face of the order and accordingly, the Court should invoke its power under order 47 Rule 1 of the Civil Procedure Code and modify the order it was further contended on behalf of the present petitioners that there was provision for procedural review and in support of his contention he relied upon the cases in between (i)Arun Kumar Ray v. Prafultayalandanr. reported in 2006 (1) WBLR calcutta 914 (paragraph 18) and (ii) Grindlays Bank Ltd. v. The Centred government Industrial Tribunal and others reported in AIR 1981 SC 606 , the relevant page being 606 (paragraph 10). (10) MR. Banerjee, also relied upon the case in between Grindlays Bank ltd. v. Central Government Industrial Tribunal and others reported in 1979 (2)CHN 476. (11.) TO meet those pleas Mr. S. P. Roychowdhury learned senior counsel appearing for the opposite parties in this review application contended that the application is not maintainable as the same has been filed in the disguise of an appeal. It was the contention of Mr. v. Central Government Industrial Tribunal and others reported in 1979 (2)CHN 476. (11.) TO meet those pleas Mr. S. P. Roychowdhury learned senior counsel appearing for the opposite parties in this review application contended that the application is not maintainable as the same has been filed in the disguise of an appeal. It was the contention of Mr. Roychowdhury that this Court after due consideration of materials on record and after hearing the learned counsel for the parties for number of, days passed the order in question on 17th May, 2007 and the present petitioners who were opposite parties in that review application accepted the same and did not file any appeal against that order. It was the further contention of Mr. Roychowdhury that accepting the genuineness and correctness of the order, the present petitioners filed another application before the Court below under section 17 (3) of the West Bengal premises Tenancy Act. After the said application was rejected on 28. 6. 2007 the present petitioners came up with the review application on 9. 7. 2007. Accordingly, Mr. Roychowdhury contended that when the subsequent attempt to strike out the defence against delivery of possession was rejected, the present petitioners opted for filing this review application before this Court. (12.) MR. Roychowdhury further contended that in rarest of rare case, the court can pass appropriate order to review, if it is found that there was apparent error in the face of the order. (13.) MR. Roychowdhury on the basis of judgment passed by this Court in connection with C. O. contended that there was no such error apparent on the face of the order and accordingly, the instant review application should be dismissed. It was the further contention of the present opposite parties through their learned senior advocate Mr. Roychowdhury that the trial Court by order dated 28. 6. 2007 dismissed the application filed by the present petitioners under section 17 (3) of the West Bengal Premises Tenancy Act and by the same order allowed the applications filed by the defendants to allow them to deposit the arrears of rent as ordered by this Court. In support of his contention the copy of the order dated 28. 6. 2007 passed in connection with the suit in question which is annexed with the affidavit-in-opposition was referred. In support of his contention the copy of the order dated 28. 6. 2007 passed in connection with the suit in question which is annexed with the affidavit-in-opposition was referred. (14.) ON the basis of interpretation of statute it has become the settled proposition of law that the Court should not invoke its power under Order 47 Rule 1 Civil Procedure Code unless and until there is apparent error on the face of the order. (15.) I have already stated that the present review application has been challenged by Mr. Roychowdhury also on the ground that the same has been filed in the disguise of an appeal which is not permissible as per law. (16.) IT was the main contention of Mr. Banerjee, learned senior counsel for the present petitioners that the Court passed the order by which the Court allowed the defendants to deposit the entire arrears of rent under section 17 (1) of the West Bengal Premises Tenancy Act though in the application the prayer was made for depositing the amount of rent from Kartick 1409 to jaistha 1413. On the basis of the same Mr. Banerjee contended that the said portion of the judgment is required to be reviewed/modified and accordingly the review application has been filed. Mr. Banerjee refuted the charges of Mr. Roychowdhury that the instant application for review is in the disguise of an appeal. It was the further contention of Mr. Banerjee that under the provision of Order 47 Rule 1 Civil Procedure Code, the Court has enough power to review/modify the order and accordingly, the application should be allowed. (17.) IT is true that the defendants/opposite parties (in this review application) filed application for condonation of delay for the period Kartick 1409 to Jaistha 1413. The Court while passing the order in the C. O. considered all the pleas which were raised at the time of hearing. The Court after due consideration of the fact that the defendants deposited the rent under section 17 (1) of the West Bengal Premises Tenancy Act for a continuous period of 21 years allowed the application under article 227 of the constitution of India and directed the defendants to deposit the period as mentioned in the application and also directed payment of the entire arrears of rent together with statutory interest. The Court further directed payment of Rs. The Court further directed payment of Rs. 5,000/- as cost which was duly deposited as it is apparent from the order which is made annexure to the affidavit-in-opposition. (18.) WE must keep it in mind that the moment the delay in depositing the arrears of rent from Kartick 1409 to Jaistha 1413 was allowed by this Court it would be corollary that the defendants were entitled to deposit the subsequent rent after Jaistha 1413. (19.) MR. Roychowdhury in course of his argument contended that as their application for condonation of delay was rejected by the trial Court, the question of depositing the rent under section 17 (1) of the West Bengal premises Tenancy Act before the Trial Court subsequent to Jaistha 1413 never arose. It was his further contention that this Court rightly allowed the defendants to deposit the rent not only for the period Kartick 1409 to Jaistha 1413 but also allowed the defendants to deposit the subsequent arrears of rent after Jaistha 1413. (20.) IN dealing with such situation I am of clear opinion that approach of the Court should be pragmatic as the defendants will have no other alternative but to file application after application for condonation of delay if speaking order is not passed. (21.) LET us now consider the cases which were relied upon by Mr. Banerjee in support of his contention. (22.) IN the case between Grindlays Bank Ltd. v. Central Government industrial Tribunal and others reported in AIR 1981 SC 606 the Honble Court dealt with the provisions of procedural review. The relevant paragraph is 13, which runs as follows: "we are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review. The decision in Narshi Thakershiv. Pradyuman singh ji, AIR 1970 SC 1273 is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub sections (1) and (3) of section 1. The decision in Narshi Thakershiv. Pradyuman singh ji, AIR 1970 SC 1273 is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub sections (1) and (3) of section 1. 1 of the Act themselves make a distinction between procedure and powers of the tribunal under the Act, while the procedure is left to be devised by the tribunal to suit carrying out its functions under the Act, the powers of civil Court conferred upon it are clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in section 11. The answer to the question is, therefore, to be found in sub-section (1) of section 11 and not in sub-section (3) of section 11. Furthermore, different considerations arise on review. The expression review is used in two distinct senses, namely (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be correct is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Narshi Thakershis case held that no review lies on merits unless a statute specifically provides for it, obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every Court or Tribunal. " (23.) I give emphasis upon the following sentences -The expression review is used in two distinct senses, namely (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is therefore, clear that to consider a procedural review there should be palpable erroneous order passed under a mis-apprehension by it and a review on merits when error sought to be corrected is one of law and is apparent on the face of the record. (24.) IN view of my discussion earlier I am of clear opinion that this case will not help Mr. Banerjees client. (25.) THE attention of the Court was drawn to paragraph 18 of the case reported in (2006) 1 WBLR (Calcutta) 914 Arun Kumar Roy v. Praful Tayal and anr. The relevant paragraph runs as follows: "the various decisions cited by Mr. Basu lay down the well-settled principle that the Court on review cannot act like a Court of appeal and re-appreciate the matter on merit. There is no dispute with such proposition of law. In this case, however, the applicant has not prayed for review on merit but has sought intervention of the Court on the ground of default on the part of the Court in issuing the notice of appeal which has been described as "procedural review" by the Apex Court in the case of Grindlays Bank Ltd. v. The Central Government Industrial Tribunal and Ors. reported in AIR 9981 sc 606 which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it. In that decision, the Supreme Court in paragraph 10 of the Judgment in clear language held that if there was no service in accordance with law, the order is a void order and once attention of the Court is drawn to such fact, it is the duty of the Court to recall the ex-parte order even if there is no statutory provision of review. " (26.) IN that case the Division Bench of this Court also discussed the case reported in AIR 1981 SC 606 . (27.) IN view of the fact of this case I am also of clear opinion that the said case law which relied upon the case as referred earlier is of no help to the present petitioners. " (26.) IN that case the Division Bench of this Court also discussed the case reported in AIR 1981 SC 606 . (27.) IN view of the fact of this case I am also of clear opinion that the said case law which relied upon the case as referred earlier is of no help to the present petitioners. (28.) IN view of the said position and also considering the materials on record, I am of clear opinion that this is not a fit case where Court should invoke its power for review as per order 47 Rule 1 Civil Procedure Code and accordingly the instant review application is dismissed with cost which is assessed at Rs. 1,000/ -. The cost is to be paid before the Court below within one month from the date of this order. Interim order, if any, be vacated. Review Application dismissed.