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Allahabad High Court · body

2011 DIGILAW 135 (ALL)

LT. GEN. M. L. DAR (RETD. ) v. Vikram Singh

2011-01-20

VEDPAL

body2011
JUDGMENT VEDPAL, J Civil Misc. Application No. 105957 of 2010 has been moved by Shri Mohit Kumar (in Person) plaintiff No.2 of Original Suit No. 865 of 1997 with the prayer that the order sated 6.10.2010 rejecting the application 175-C2 be recalled or reviewed. The defendants filed their reply/ Objection C.M. Application No. 110251 of 2010. 2. I have heard Shri Mohit Kumar (in person) plaintiff no.2 and learned counsel for the defendants on the said application and its objection at a considerable length. 3. It has been submitted by Shri Mohit Kumar that he moved an application 175-C2 when the case was pending before learned Additional District Judge, Dehradun for summoning dealing clerk and certain documents which was rejected vide order dated 6.10.2010 on technical grounds. That the said application was disposed of as "rejected" and not as "dismissed" which goes to show that the application was not disposed of on merit because rejection amount disposal of application without going into the merit and it is apparent mistake on record and as such it is necessary to recall or review order dated 6.10.2010. It was further submitted that there was no delay on the part of the plaintiff to move application 175-C2 while it has been rejected on the ground that the application was moved after inordinate delay. It was also submitted that the provisions of Code of Civil Procedure which has been cited by the court in its order dated 6.10.2010 are not applicable in the present case because the object of the plaintiff was not to summon any witness before his evidence but the clerk was to be summoned to produce the papers which contains admitted signature of Swami Ram. He further submitted that by order dated 6.10.2010, the plaintiff will be prejudiced which is one of the ground to recall the order and as such the order dated 6.10.2010 should be reviewed or recalled. 4. Shri Mohit Kumar also relied on ruling of Hon'ble Supreme Court in the case of Budhia Swine and others Vs. Gopinath Day and others reported in 1999(4) SCC 396 wherein it has been held that if by mistake of the court, a party is prejudiced, the court may recall the order. 5. 4. Shri Mohit Kumar also relied on ruling of Hon'ble Supreme Court in the case of Budhia Swine and others Vs. Gopinath Day and others reported in 1999(4) SCC 396 wherein it has been held that if by mistake of the court, a party is prejudiced, the court may recall the order. 5. The defendants raise a preliminary objection that the scope to review the order and to recall the order are quite different and it is not permissible under the law of pleading to claim alternate and ambiguous inconsistent relief in a single application for the same cause of action. It was further submitted that the order dated 6.10.2010 disposing application 175-C2 was passed on merit and was passed after detailed hearing to both the parties and their respective contentions were dealt with by the court and there is no error apparent on the face of record and the only intention of the plaintiff is to delay the proceedings on one or the other pretext. It was further submitted that it is wrong to allege that the witness was only summoned to produce document. It is evident from application 175-C2 that documents were separately summoned and the witness was separately summoned. It was further submitted that it is also wrong to allege that there is any document which contains admitted signature of Shri Swami Ram and in fact the alleged signature was never admitted to be of Swami Ram by defendants hence the question of summoning documents allegedly containing admitted signature of Swami Ram does not arise and application 175- C2 was rightly rejected. It was further submitted that if an application is moved and it is disposed of, it is either allowed or rejected and not dismissed because dismissal entails final closure of the proceedings. Application 175-C2 was rejected after hearing the parties by a detailed order on merit and demerit and by no stretch of imagination, the said application cannot be said to have been rejected technically. It was further submitted that no mistake was committed by the court in rejecting application 175-C2 and as such there was no mistake on the part of the court and thus the ruling cited by Shri Mohit Kumar is not applicable to the facts of the present case and as such the application is liable to be rejected with heavy costs. 6. 6. I have carefully considered the respective submissions made by the parties and perused the record of the case carefully. The scope to review an order and to recall an order are different. As per ruling cited above relied on by Shri Mohit Kumar an order may be recalled under the provisions of Section 151 C.P.C. if the following four conditions exists :- i).The proceeding culminated in the order suffers from inherent lack of jurisdiction. ii).Fraud or collusion has been used to obtain the judgment. iii).There has been a mistake by the court prejudicing the party. iv). The judgment has been rendered in ignorance of the fact that a necessary party has not been served at all or had died and the state was not represented. 7. The only ground taken by Shri Mohit Kumar for recalling the order passed by this court is that by impugned order, he stand prejudiced. This ground could be pressed into service only when by mistake of the court a party stand prejudiced. If on merit, an order goes against a party, he will certainly adversely effected there from and it in itself is no ground to recall the order unless the mistake has been committed by the court itself in deciding the matter. There appears no sufficient ground to recall the impugned order dated 6.10.2010. Thus the ruling cited by Shri Mohit Kumar is of no help to him in the facts of the present case. Furthermore, under the law of pleading alternative and ambiguous relief in a single application is not permissible for the same cause of action. 8. In so far as the review of order dated 6.10.2010 is concerned, there are certain limitations for entertaining a review petition Under Section 114 read with O.47 R.1 of the Code of Civil Procedure, 1908. The Review Application has a very narrow compass and is allowed only if there is an error apparent on the fact of the record or if some new fact is discovered after due diligence, which were not available at the time when the case was argued. The Court cannot consider fresh grounds and fresh arguments in review. It has been laid down by the Honourable Apex Court in Ajit Kumar Rath Vs. The Court cannot consider fresh grounds and fresh arguments in review. It has been laid down by the Honourable Apex Court in Ajit Kumar Rath Vs. State of Orissa and others, (1999) SCC 596 that: "A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it", 9. The Court cannot review its order unless the error is plain and apparent. The Honourable Supreme Court has further held in the aforesaid case that "Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Court under the code to review its judgment". Similarly, in Devaraju Pillai Vs. Sellayya Pillai, AIR 1987 SC 1160 , the Hon'ble Apex Court held that if a party is aggrieved of a judgment by a Court, the proper remedy for such party is to file an appeal against that judgment. A remedy by way of an application for review is entirely misconceived and if a Court entertained the application for review then it has totally exceeded its jurisdiction in allowing the review merely because it takes a different view in construction of the document. In Delhi Administration Vs. Gurdip Singh Uban & Ors., AIR 2000 SC 3737 , the Hon'ble Apex Court deprecated the practice of filing review application observing that review, by no means, is an appeal in disguise and it cannot be entertained even if application has been filed for clarification, modification or review of the judgment and order finally passed for the reason that a party cannot be permitted to circumvent or bye-pass the procedure prescribed for hearing a review application. The Court also rejected the argument that review application should be entertained to do justice in the case, observing as under:- "The words 'justice' and 'injustice', in our view,. are sometimes loosely used and have different meanings to different persons, particularly to those arrayed on opposite sides..... Justice Cardozo said, 'The Web is tangled and obscure, shot through with a multitude of shades and colours, the skeins irregular and broken. are sometimes loosely used and have different meanings to different persons, particularly to those arrayed on opposite sides..... Justice Cardozo said, 'The Web is tangled and obscure, shot through with a multitude of shades and colours, the skeins irregular and broken. Many hues that seems to be simple, are found, when analysed, to be complex and uncertain blend. Justice itself, which we are wont to appeal to as a test as well as an ideal, may mean different things to different minds and at different times. Attempts to objectify its standards or even to describe them, have never wholly succeeded." In M/s. Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, AIR 1964 SC 1372 , the Hon'ble Apex Court held as under:- "A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out." In Subhash Vs. State of Maharashtra & Anr., AIR 2002 SC 2537 , the Hon'ble Apex Court emphasised that Court should not be misguided and should not lightly entertain the review application unless there are circumstances falling within the prescribed limits for that as the Courts and Tribunal should not proceed to re-examine the matter as if it was an original application before it for the reason that it cannot be a scope of review. In Zahira Habibullah Sheikh Vs. State of Gujarat, (2004) 5 SCC 353 , the Apex Court referred to its earlier judgments in P.N. Eswara Iyer etc. Vs. Registrar Supreme Court of India, (1980) 4 SCC 680 ; Suthendraraja Vs. State, (1999) 9 SCC 323 ; Ramdeo Chauhan Vs. State of Assam, AIR 2001 SC 2231 ; and Devender Pal Singh Vs. State of Gujarat, (2004) 5 SCC 353 , the Apex Court referred to its earlier judgments in P.N. Eswara Iyer etc. Vs. Registrar Supreme Court of India, (1980) 4 SCC 680 ; Suthendraraja Vs. State, (1999) 9 SCC 323 ; Ramdeo Chauhan Vs. State of Assam, AIR 2001 SC 2231 ; and Devender Pal Singh Vs. State of NCT of Delhi, AIR 2003 SC 3365 ; and observed that review applications "are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with a great sense of responsibility as well". In Bhagwati Singh Vs. Deputy Director of Consolidation & Anr., AIR 1977 All. 163 , this Court rejected the review application filed on a ground which had not been argued earlier because the counsel, at initial stage, had committed mistake in not relying on and arguing those points, observing as under:- "It is not possible to review a judgment only to give the petitioner a fresh inning. It is not for the litigant to judge of counsel's wisdom after the case has been decided. It is for the counsel to argue the case in the manner he thinks t should be argued. Once the case has been finally argued on merit and decided on merit, no application for review lies on the ground that the case should have been differently argued." 10. More so, the expression "discovery of new and important matter of evidence" contained in the provisions of O. 47 R. 1 CPC means, discovery of an evidence or any material which may be adduced in evidence. It cannot take it in its ambit an argument which could have been advanced by the counsel. 11. The power of review is to be exercised within the definitive limits. More so, a person who seeks equity must do equity and he should approach the Court with clean hands, clean mind and with clean objective. The perception of justice varies from person to person, and a litigant who succeeds in Court, claims that justice has been done with him but the litigant who looses, though may not have a case at all, raises grievance that justice has not been done with him. 12. The perception of justice varies from person to person, and a litigant who succeeds in Court, claims that justice has been done with him but the litigant who looses, though may not have a case at all, raises grievance that justice has not been done with him. 12. In view of the above discussion, the law of review can be summarised that it lies only on the grounds mentioned in O. 47 R. 1 CPC. The party must satisfy the Court that the matter or evidence discovered by it at a subsequent stage could not be discovered or produced at the initial stage though it had acted with due diligence. Under the garb of review, a party cannot be permitted to re-open the case and to gain a full-fledged inning for making submissions, nor review lies merely on the ground that it may be possible for the Court to take a view contrary to what had been taken earlier. If a case has been decided after full consideration of arguments made by a counsel, he cannot be permitted, even under the garb of doing justice or substantial justice, to engage the court again to decide the controversy already decided. If a party is aggrieved of a judgment, it must approach the Higher Court but entertaining a review to re-consider the case would amount to exceeding its jurisdiction, conferred under the limited jurisdiction for the purpose of review. Justice, as explained above, connotes different meaning to different persons in different contexts, therefore, courts cannot be persuaded to entertain a review application to do justice unless the grounds for the same as stated above exist. 13. In the instant case, the parties were heard at length. Their submissions were duly considered and reasons for the conclusion were also been given in the order. The order dated 6.10.2010 is not an exparte order but was passed after hearing the parties at length and is based on merit and demerit of the case. The ground for review in the present case is also not made out. The sole purpose of plaintiff in moving this application appears to delay the proceedings, therefore the application is liable to be rejected with costs. Accordingly, the application is hereby rejected with costs of Rs.2,000/- which shall be paid to the defendants, within ten days. 14. The ground for review in the present case is also not made out. The sole purpose of plaintiff in moving this application appears to delay the proceedings, therefore the application is liable to be rejected with costs. Accordingly, the application is hereby rejected with costs of Rs.2,000/- which shall be paid to the defendants, within ten days. 14. Since the issue has already been framed in the Original Suit and already it has been fixed for final hearing also and no other application is now pending in the suit for disposal, therefore, the suit is fixed on 4.2.2011 at 2.00 p.m. for final hearing. The plaintiff shall produce his evidence on the date fixed positively failing which action in accordance with law shall be taken in the matter, for non production of evidence. 15. After pronouncement of order, Shri Mohit Kumar, plaintiff no.2 (in person) submits that the case be fixed for 10.2.2011 in stead of 4.2.2011 as he has to appear in a suit at Delhi on 4.2.2011 to which learned counsel for the defendants has no objection. 16. Therefore, on the joint request of both the parties, the suit is fixed for 10.2.2011 at 2.00 p.m. for final hearing.