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2009 DIGILAW 897 (CAL)

Rekharani Dey v. Deb Bala Dey

2009-12-10

PARTHA SAKHA DATTA

body2009
Judgment :- (1.) The scope and ambit of review under Order 47 Rule 1 C.P.C. has again surfaced in revision application which has been filed connection with the CO. No. 3634 of 2007 which has been disposed of by this Court by the order dated 1st October, 2008. (2.) The defendants are the petitioners, while the opposite parties are the plaintiffs. It was a suit for partition of the ancestral properties of the parties as described in Schedule 1, Schedule 2 and Schedule 3 of the plaint Schedule 2 again consists of six items. One Kalipada Dey migrated from Bankura to Purulia and amassed fortune. He acquired good number of immovable properties, houses and was the founder of a jewellery business. At the time of his death he left sufficient gold and silver ornaments as described in Schedule 3 to the plaint and on his death Mohan Chandra Dey, the eldest son of the owner came into possession of the valuable articles which were kept in an almirah in the residential house as has been described in Schedule 2(a) to the plaint. Allegedly, on the death of Kalipada Dey, his eldest son used to run the jewellery business started by the said Kalipada Dey on behalf of the joint family consisting of four brothers. Kalipada Dey is said to have transferred his jewellery business in the name of his sons and then the said jewellery business was known as "Mohan Chandra Dey and Brothers". Allegedly the eldest son Mohan Chandra Dey removed the almirah full of gold, silver ornaments as described in the Schedule 3 to the plaint, worth of Rs.1,00,47,060/-. The plaintiff and the defendant No. 10 requested the said Mohan Chandra Dey to give due share of the gold and silver ornaments kept in the almirah but he refused. Mohan Chandra Dey after the shifting his residence purchased a room where the said Jewellery shop of Kalipada Dey is situated from one Chitra Rekha Nandi by using the name of his two sons, Ashok Kumar Dey (Defendant No. 4) and Sunirmal Dey (defendant No. 5) by a registered deed of sale dated 26.5.1998 by paying the consideration money out of the ejmal fund of the said jewellery business. Mohan Chandra Dey was running the said jewellery business on behalf of his brothers also. Mohan Chandra Dey was running the said jewellery business on behalf of his brothers also. The said room acquired from land-lady, Chitra Rekha Nandi by the aforesaid Sale deed has been described in Schedule 2(f) below. After the death of the said Mohan Chandra Dey in 2004 his sons are running the said jewellery shop/business on behalf of the plaintiffs and other defendants. The said jewellery shop / business has not yet been partitioned between the parties to this suit. Hence all the properties mentioned hereinbefore and as described in Schedules-2 and 3 are the joint family properties of the aforesaid four sons of the said Kalipada Dey and/or their legal heirs. (3.) The defendant Nos. 1 to 6 and 8 filed a lengthy written statement denying the plaint narrative in exten so. (4.) During the pendency of the suit the plaintiffs filed an application before the learned trial Court praying for appointment of an Advocate for local inspection of the gold and silver ornaments lying in almirah in the custody of the defendants. That petition was contested by the defendants on the ground that Mohan Chandra Dey was not the karta of the alleged joint family business and whatever gold or silver ornaments were in possession of Mohan Chandra Dey they were acquired by Mohan Chandra Dey in his individual capacity as owner of the business and he has been conducting his own business and the gold and silver ornaments as alleged are not the ornaments left by Kalipada Dey. According to the defendants, Kalipada Dey had no business and he sustained loss in the business and became an insolvent. No portion of assets of jewellery belonged to Kalipada. They were the jewelleries of the wives of defendant Nos. 2 to 6 and 8 and 9. (5.) Learned trial Court having allowed the petition the defendants have come up in application to challenge the order. (6.) This Court dismissed the application and confirmed the order of the learned trial Court. (7.) The defendants filed this review application to contend that the order passed by this Court dated 1st October, 2008 affirming the order of the learned trial Court is not in consonance with the principle of review within the meaning of Section 47 of the C.P.C. Mr. (7.) The defendants filed this review application to contend that the order passed by this Court dated 1st October, 2008 affirming the order of the learned trial Court is not in consonance with the principle of review within the meaning of Section 47 of the C.P.C. Mr. Bidyut Kumar Banerjee, learned Senior Advocate submitted that it is not the function of the Court to come to the aid of a party to a suit or proceeding in the matter of collection of evidence, that an Advocate Commissioner cannot be permitted to fish out evidence and that the provision of the Order 39 Rule 7 C.P.C. cannot be used to delegate judicial function to an Advocate Commissioner. Mr. Banerjee first took me to the decision in Sir Hari Sankar Pal and Anr. v. Anath Nath Mitter and Ors., reported in AIR (36) 1949 Federal Court 106 where it was held as follows:- "That a decision is erroneous in law is certainly no ground for ordering review. If the Court has decided a point and decided it erroneously, the error could not be one apparent on the face of the record or even analogous to it. When , however, the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order 47 Rule 1 C.P.C." (8.) Mr. Banerjee referred to a decision in The Owners and Parties interested in the Vessel M. V. "Baltic Confidence" v. The State Trading Corporation of India Ltd. and Anr., reported in AIR 2000 Calcutta 91, where in was held that the provision of Order 39 Rule 7 C.P.C. cannot be taken recourse to for the purpose of collection of evidence in a suit (Paragraph-15). (9.) In the Institution of Engineers (India) and Anr. v. Bishnu Pada Bag and Anr., reported in AIR 1978 Calcutta 296 the same principle has been reiterated. It was a case of counting of ballot papers. Relying on the decision in Padam Singh and Anr. (9.) In the Institution of Engineers (India) and Anr. v. Bishnu Pada Bag and Anr., reported in AIR 1978 Calcutta 296 the same principle has been reiterated. It was a case of counting of ballot papers. Relying on the decision in Padam Singh and Anr. v. State ofU.R, reported in AIR 1961 SC 218 , this Court held that commission should not be issued for making inventories relating to ballot papers by ex parte orders without proper verification as to the essential requirements of such a step even in a case where Order 39 Rule 7 C.P.C. is otherwise applicable. Thus, no commission can be issued for the purpose of collecting evidence in a suit. (10.) Mr. Banerjee further referred to Jute Corporation of India Ltd. v. Sudera Enterprises Pvt. Ltd., reported in AIR 2000 Calcutta 152 where this Court held as follows:- "It is now well settled principles of law that a Court cannot delegate its judicial function to any other authority. On its own showing the appellant is bound by its contention that the quantum of rent is to be fixed by the Court. Such a judicial power cannot be delegated to a Valuer either in terms of Order 39, Rule 7 of the Code of Civil Procedure or Order 26, Rule 9 thereof. In State of Bihar v. Rani Sonabati Kumari, reported in AIR 1961 SC 221 , the Apex Court inter alia, held that Commissioner cannot be appointed for the purpose of seizure of documents. For the purpose of collection of evidence on behalf of the parties also no commissioner can be appointed. In re: P. Moosa Kutty, reported in AIR 1953 Madras 717, and Sasanka Sekhar v. Dinanath Goraia, reported in AIR 1952 Patna 217, it has been held that adjudication on the basis of evidence adduced by the parties is a judicial function and such judicial function cannot be delegated in terms of Order 26 Rule 9 or Order 37 Rule 7 of the Code of Civil Procedure." (11.) Mr. Banerjee referred to the decision in S. Nagaraj and Ors. v. State of Karnatakaand Anr, reported in 1993 Supp (4) SCC 595, where the Supreme Court said as follows:- "Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. v. State of Karnatakaand Anr, reported in 1993 Supp (4) SCC 595, where the Supreme Court said as follows:- "Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before Justice. Entire concept of writ jurisdiction exercised by the higher Courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. Here as explained, the Bench of which one of us (Sahai, J.) was a member did commit an error in placing all the stipendiary graduates in the scale of First Division Assistant due to States failure to bring correct facts on record. But that obviously cannot stand in the way of the Court correcting its mistake. Such inequitable consequences as have surfaced now due to vague affidavit filed by the State cannot be permitted to continue. Review literally and even judicially means re-examination or re-consideration, Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts - and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Yet in the realm of law the Courts - and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest Courts indicating the circumstances in . which it could rectify its order the Courts culled out such power to avoid abuse or process or miscarriage of justice." (12.) Mr. Banerjee further referred to Lily Thomas and Ors. v. Union of India and Ors., reported in 2000 (6) SCC 224 where the Supreme Court referred to S. Nagaraj (supra) and Mr. Banerjee relied upon Paragraph-52 and 53 wherein S. Nagaraj has been quoted and this decision has been cited in support of Mr. Banerjees submission that if the attention of the Court is not drawn to a material statutory provision during the original hearing the Court will review its judgment and; review is also possible when a manifest wrong has been done and it is necessary to pass an order to full and effective justice. (13.) Lily Thomas (supra) has also been relied on by Mr. Hironmoy Bhattacharjee, learned Advocate appearing for the opposite parties / plaintiffs where the Supreme Court held as follows:- "It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view such power can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated the law an appeal in disguise. The mere possibility of two views on the subject is not a ground for review." (14.) Mr. Banerjee again referred to M/s. Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, reported in AIR 1980 SC 674 where the scope and ambit of Order 47 Rule 1 C.P.C. has been explained saying that to overcome judicial fallibility to correct glaring omission or patent mistake or grave error review is entertainable. (15.) Mr. Banerjee again referred to M/s. Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, reported in AIR 1980 SC 674 where the scope and ambit of Order 47 Rule 1 C.P.C. has been explained saying that to overcome judicial fallibility to correct glaring omission or patent mistake or grave error review is entertainable. (15.) Mr. Banerjee argued that it is not the function of the commissioner or for the Court to say whether the ornaments belonged to Kalipada Dey or to the defendants; nor is it for the commissioner or for the Court to say how the ornaments were acquired...........either by Kalipada out of his business or by Mohan Chandra Dey the eldest son of Kalipada. The trial Court committed an error in allowing commission and this Court perhaps did not consider the above judicial pronouncements that clearly explained the scope and ambit of Order 47 Rule 1 C.P.C. (16.) Mr. Hironmoy Bhattacharya, learned Advocate appearing for the opposite parties/plaintiffs also relied on Lily Thomas to argue that Mr. Banerjee did not complete the reading the essential paragraphs of the decision and Paragraph-56 clearly points out that an appeal in the guise of review is not maintainable. Mr. Banerjee referred to Parison Devi and Ors. Sumitri Devi and Ors., reported in 1997 (8) SCC 715 to argue that the judgment may be opened to review if there is a mistake or an error apparent on the face of the record and an error which is not self evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record, justifying the Court to exercise its power of review under Order 47 Rule 1... C.P.C. The decision in T Thimmaiah v. Venkatachala Raju, reported in 2008 (11) SCC 107 has been cited where it was held that the High Court completely ignored the principles laid down under Order 47 Rule 1 C.P.C. by reviewing the facts one again and dismissing the suit. (17.) Mr. Bhattacharya referred to Guru Pada Haider v. Upendra Nath Mukherjee, reported in 34 CWN 696 where it was held that an erroneous view of evidence or of law is no ground of review and grounds which are good ground of an appeal may not support an application for review. (17.) Mr. Bhattacharya referred to Guru Pada Haider v. Upendra Nath Mukherjee, reported in 34 CWN 696 where it was held that an erroneous view of evidence or of law is no ground of review and grounds which are good ground of an appeal may not support an application for review. (18.) Also has been referred to Smt. Mira Bhanja v. Smt Nirmala Kumari Chowdhury, AIR 1995 SC 455 where it has again been said that review means correction of an error that strikes one on mere looking on record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. (19.) Both Mr. Banerjee and Mr. Bhattacharjya relied on Padam Singh andAnr. v. State of U.P, AIR 1961 SC218. It was a case where it was held that Court has no inherent power under Section 15.1 Cr. P.C. to appoint a commissioner to search account books in the possession of the plaintiff upon an application by the defendant that he has apprehension that they would be tampered with. (20.) Having thus understood the scope and ambit of Order 47 Rule 1 C.P.C. let me see how far the order of this Court dated 1st October, 2008 suffers from error apparent on the face of the record or error committed in overlooking the philosophy of review. It will not be irrelevant to reproduce what this Court said in the order under review:-"Upon hearing the learned Advocates for the parties it is to be placed on record at the outset that whether the ornaments described in Schedule 3 to the plaint or the ornaments said to be lying in the almirah in the custody of the defendants were the ornaments left by Kalipada Dey or they are the ornaments acquired by the defendants out of their own income or fund has to be decided at the trial. Inventory of ornaments will not amount to prove that they were the ornaments left by Kalipada Dey. Again, whether Kalipada Dey was declared insolvent or at what point of time such declaration was made cannot be examined by this Court upon the application under Article 227 of the Constitution of India. Again whether the alleged ornaments were acquired by the defendant Nos.1 to 6 cannot be examined by the Commissioner. Again, whether Kalipada Dey was declared insolvent or at what point of time such declaration was made cannot be examined by this Court upon the application under Article 227 of the Constitution of India. Again whether the alleged ornaments were acquired by the defendant Nos.1 to 6 cannot be examined by the Commissioner. The plaintiffs allege the ornaments to be the ancestral ornaments left by Kalipada Dey, while the defendant Nos.1 to 6 deny the same. Since this is a suit for partition the plaintiffs are entitled to share in the property both movable and immovable provided the movable including the gold and silver ornaments are ancestral properties of the parties. Unless they are ancestral properties left by Kalipada Dey there cannot be any question of allotment of share of those properties to the plaintiffs; but there cannot be any objection to the inventory of ornaments which the plaintiffs allege to be the ornaments left by Kalipada Dey and by making such inventory the petitioners cannot be said to have been put to prejudice. Plaintiffs produced before the learned trial Court an information slip issued by Puruliai Municipality where from it appears that licences were issued in the year 1975-76 in the name of Mohan Chandra Dey and Brothers and this was issued after the death of Kalipada. It is the allegation of the plaintiffs that Mohan Chandra Dey was the karta of the joint family and was the custodian of the ornaments of the joint family kept in almirah at the time of shifting his residence. It is not the stage where it can be said that Kalipada Dey had not acquired any gold or silver ornaments out of his business nor can it be said conclusively that they are the ornaments of Mohan Chandra Dey alone. In the circumstances, mere inventory of ornaments will not be per se illegal and by allowing inventory there will be no order for keeping the ornaments away from the custody of the defendant Nos.1 to 6. Mr. Chatterjee referred to the decision in Rajinder and Co. v. Union of India and Ors., 2000 (6) SCC 506 . It has been held by their Lordships that it would be open to the parties to substantiate their respective contentions before the trial Court regarding tenability or untenability of the commissioners report and its conclusion. Mr. Chatterjee referred to the decision in Rajinder and Co. v. Union of India and Ors., 2000 (6) SCC 506 . It has been held by their Lordships that it would be open to the parties to substantiate their respective contentions before the trial Court regarding tenability or untenability of the commissioners report and its conclusion. In the written statement it has been alleged by the defendants that the items of ornaments and other articles described in Schedule No. 3 of the plaint alleged to had been left by Kalipada Dey at the time of his death is imaginary and fictitious because besides the two iron safe Kalipada Dey had not a single farthing. As said earlier, whether the ornaments were left by Kalipada or they were acquired by the defendants is a matter to be decided at the trial." (21.) Mr. Banerjee submitted that the schedule of ornaments is imaginary not derived from any ancient document or paper. Mr. Bhattacharjee submitted that the schedule is very exhaustive one. (22.) As has been clearly held by this Court whether the ornaments referred to in Schedule-3 said to be lying in the almirah allegedly in the custody of the defendants were the ornaments led by Kalipada or are the ornaments of the defendants acquired by the defendants out of their own income is a matter to be decided at the trial. Neither the Court nor the commissioner will help any of the parties in ascertaining whether the ornaments were of the joint family or not. It is the specific case of the plaintiffs that ornaments described in Schedule-3 to the plaint are in the almirah which is in the custody of the defendants and what is prayed for is an inventory of the documents. I cannot be unmindful of the fact that this was a suit for suit of partition both immovable and movable properties. It is not for the Court or the commissioner to search out ornaments. The commissioner will make an inventory only with reference to the list as is given in the Schedule-3 to the plaint and not beyond that. The commissioner will not search out the house. The commissioner will not have to exercise the power of a police in search of a stolen property. The commissioner will make an inventory only with reference to the list as is given in the Schedule-3 to the plaint and not beyond that. The commissioner will not search out the house. The commissioner will not have to exercise the power of a police in search of a stolen property. It is the plaint case that the ornaments allegedly belonging to the joint family are in the almirah which is in the custody of the defendants. In such circumstances, I am unable to find out any grave or apparent error on the face of the record. Plethora of decisions cited by the learned Advocate for each of the parties are all fact oriented but all of them have laid down the scope and ambit of review and I think that I have followed the decisions. (23.) Accordingly, I find no point in review. Subject to what I have said above, the application is dismissed. Urgent xerox certified copies of this judgment, if applied for, be given to the parties as expeditiously as possible.