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2013 DIGILAW 26 (CAL)

Ashim Kumar Banerjee v. Swapan Kumar Mallick

2013-01-17

Prasenjit Mandal

body2013
JUDGMENT Prasenjit Mandal, J.: This application for review is directed against the Judgment dated May 19, 2011 passed by this Bench in C.O. No.2358 of 2008. 2. The petitioner is one of the substituted legal heirs of the deceased plaintiff no.5. In 1967, the original plaintiffs filed a suit for partition being Title Suit No.168 of 1967 for partition and the said suit was decreed on compromise on March 13, 1968 wherein the share of one Lila Debi had been declared to the extent of 1/10th in the suit property as described in the schedule to the plaint. Then an application under Section 4 of the Partition Act being converted into Misc. Case No.8 of 1988 was filed in the year 1988. The said misc. case was dismissed for default and thereafter, it was restored again and notice of the said misc. case was served upon Radha Rani Mallick who had been described as outsider and purchased 1/25th undivided share. The said misc. case was allowed ex parte on March 14, 1992. 3. A Commissioner appointed in the suit submitted his report and the suit was decreed in final form in 1995. The share of Lila Debi was declared and she also obtained the property by way of pre-emption. Then the execution case being Title Execution Case No.7 of 1995 was instituted for delivery of possession to Lila Debi and others and the delivery of possession was given with the help of police and Radha Rani Mallick was dispossessed from her purchased portion of the suit property by due process of law. 4. Thereafter, Radha Rani Mallick filed three misc. cases and one of them, the Misc. Case No.40 of 1996 subsequently, renumbered as Misc. Case No.24 of 1997 and then again re-numbered as Misc. Case No.22 of 1998 against the pre-emption decree obtained in Misc. Case No.8 of 1988. 5. Radha Rani Mallick obtained an ex parte order in Misc. Case No.22 of 1998 and it is contended that Lila Debi did not get any notice of summons of the said misc. case. The order passed in the Misc. Case No.22 of 1998 on November 21, 1998 was under challenge before the Hon’ble Court in C.O. No.3123 of 1998 and the said order dated November 21, 1998 was confirmed by the Order dated December 15, 1998 by the Hon’ble Court in C.O. No.3123 of 1998. 6. case. The order passed in the Misc. Case No.22 of 1998 on November 21, 1998 was under challenge before the Hon’ble Court in C.O. No.3123 of 1998 and the said order dated November 21, 1998 was confirmed by the Order dated December 15, 1998 by the Hon’ble Court in C.O. No.3123 of 1998. 6. The applicant has contended that he did not receive any notice in the C.O. No.3123 of 1998 and the said revisional case was dismissed behind the back of the Lila Debi and as such, the order of the said civil revision is not binding upon Lila Debi. 7. Subsequently, Radha Rani Mallick filed another Misc. Case No.32 of 1999 for restitution of possession under Section 144(1) of the C.P.C. 8. Lila Debi filed an application under Section 151 of the C.P.C. for recall of an order and to hear the application dated November 20, 1999 again and the said application was rejected on April 25, 2003. Lila Debi filed an application for review being converted into Misc. Case No.10 of 2003. The said Misc. Case No.10 of 2003 (review) was dismissed by the learned Trial Judge on June 16, 2008. 9. In C.O. No.2358 of 1998, the orders dated April 25, 2003 and June 16, 2008 passed by the learned Trial Judge in Misc. Case No.22 of 1998 and Misc. Case No.10 of 2003 respectively were under challenge. This Bench dismissed the C.O. No.2358 of 2008 by the impugned judgment holding that the petitioner had failed to show errors of law in the impugned order and that there was no scope of interference with the order under challenge in the said revision. 10. Being aggrieved by the said judgment in C.O. No.2358 of 2008, this application for review has been preferred. 11. Mr. S.P. Roy Chowdhury, learned Senior Advocate for the applicant has drawn my attention to the impugned order, dated December 15, 1998 in C.O. No. 3123 of 1998 and the orders passed by the learned Trial Judge and thus, he has submitted that Lila Debi was not served with summons in respect of the aforesaid two Misc. Cases and that she was not present at the time of hearing. Thus, he has submitted that the application for review should be allowed. 12. On the other hand, Mr. Cases and that she was not present at the time of hearing. Thus, he has submitted that the application for review should be allowed. 12. On the other hand, Mr. Manik Das, learned Advocate for the O.P. No. 1(a), 1(c), 1(d) & 1(e) has submitted that the application under Section 151 of the C.P.C. filed by Lila Debi has been rejected. The application for review has also rejected. Thereafter, the C.O. No. 2358 of 2008 was also dismissed by this Bench. The record shows that Lila Debi and others had knowledge even in the year 1999 and so, the application is barred by limitation. He has also submitted that the C.O. No. 3123 of 1998 was disposed of at the motion stage. He has also submitted that as per order dated June 16, 2008 in Misc. Case NO. 10 of 2003 the Civil Revision No. 3123 of 1998 was disposed of in the presence of Lila Debi. Mr. Das has also referred to the observation of this Bench in C.O. No. 2358 of 2008 at Page No. 4. Thus, he has supported the impugned judgment passed by this Bench and thus, he has submitted that the application should be dismissed with exemptory cost. 13. Having heard the learned Advocates of both the sides and on perusal of the materials on record, I am of the view that this application for review is nothing but an attempt to prolong the litigation for an unending period. 14. As stated above, the suit for partition being Title Suit No.168 of 1967 was decreed in the preliminary form on compromise on March 13, 1968. Thereafter, several steps were taken including pre-emption. Ultimately, the suit was decreed in the final form on December 4, 1995 on compromise. Even the delivery of possession to Lila Debi and others had been given with the help of police dispossessing Radha Rani Mallick in due process of law and then such misc. cases referred to above along with other misc. cases had cropped up. 15. While passing the impugned order, this Bench has clearly observed that while passing the order dated July 11, 1997 in Misc. Case No.22 of 1998, on consent of both the sides, the service of summons upon the opposite party no.s 4 to 10 was dispensed with. cases referred to above along with other misc. cases had cropped up. 15. While passing the impugned order, this Bench has clearly observed that while passing the order dated July 11, 1997 in Misc. Case No.22 of 1998, on consent of both the sides, the service of summons upon the opposite party no.s 4 to 10 was dispensed with. Subsequently, at the time of disposal of the C.O. No.3123 of 1998, this Hon’ble Court has observed that the order was passed in the civil revision case in presence of Lila Debi. Thereafter, the learned Trial Judge has observed that the ground of non-service of summons upon Lila Debi could not be believed. 16. It may be recorded herein that the order dated November 21, 1998 passed by the learned Trial Judge in Misc. Case No.22 of 1998 was under challenge in C.O. No.3123 of 1998 and the said civil revision was disposed of on December 15, 1998 and so, according to the doctrine of merger, in my view, the order dated December 15, 1998 would be effective. There is no scope for setting aside the order dated November 21, 1998 passed in Misc. Case No.22 of 1998. So, the question of not getting enough opportunity to contest the Misc. Case No.22 of 1998 does not stand. So, the contention of the applicant that they came to know the order dated November 21, 1998 only on February 17, 1999 cannot be accepted. 17. As per order of the learned Trial Judge, Lila Debi and others were duly represented before the learned Trial Judge in Misc. Case No.22 of 1998. So far as the application under Section 151 of the C.P.C. is concerned, the Misc. Case No.10 of 2003 for recall of the order dated November 21, 1998 is nothing but an application for review of the said order which had already been merged with the order of the Hon’ble Court in C.O. No.3123 of 1998. 18. An application for review could be entertained, if there is any error apparent on the face of the record or for any other reason as provided under Order 47 Rule 1 of the C.P.C. The applicant is required to prove that his application for review comes within any of the either clauses of Order 47. 19. 18. An application for review could be entertained, if there is any error apparent on the face of the record or for any other reason as provided under Order 47 Rule 1 of the C.P.C. The applicant is required to prove that his application for review comes within any of the either clauses of Order 47. 19. As recorded above, the learned Trial Court has made an elaborate discussion over the entire matter to show that Lila Debi was all along vigilant in the matter and she contested the suit as well as other proceedings referred to above. So, the question of no information or knowledge does not arise at all. An application for review is entertainable only on the ground referred to above and it cannot be described at all as an appeal in the disguise of a revision, re-appreciation of the materials/evidence on record is not permissible in dealing with an application for review. 20. It may be noted herein that the applicant, Ashim Kumar Banerjee has preferred this application for review but the affidavit in support of the application for review has been sworn by one Ajay Mondal by occupation, a student. It does not appear under what capacity Ajay Mondal has sworn the affidavit and how the statements made in paragraph nos. 1 to 16 of the affidavit are true to his knowledge. Thus, I find that the affidavit has not come from the appropriate person but in a casual manner from a student, namely, Ajay Mondal. 21. This Bench delivered the judgment on May 19, 2011 and the application for review was filed on July 1, 2011, that is, beyond the period of limitation and the record does not show that the delay has been condoned in preferring the application for review. For that reason, the application for review is not maintainable at all being time barred. It is, therefore, liable to be dismissed on law point also. 22. In that view of the matter, I am of the opinion that the application for review does not fulfil any of the conditions referred to in Order 47 Rule 1 of the C.P.C. There is no material to show that there are some mistakes or errors apparent on the face of the record or for any other sufficient reason for which this application for review is entertainable. Therefore, there is no scope of review of the impugned judgment. Moreover, the application for review is not maintainable at all on the ground of limitation. 23. The application is, therefore, dismissed. 24. Considering the circumstances, there will be no order as to costs. 25. The C.A.N. No. 6358 of 2011 dated July 01, 2011 is for modification of the order dated December 15, 1998 passed in C.O. No. 3123 of 1998. The application is barred by limitation. For the reasons stated above and the ground of limitation, this application stands rejected. 26. The other C.A.N. application being numbered 6009 of 2012 relating to modification and/or clarification of the C.A.N. No. 6358 of 2011 in C.O. No. 3123 of 1998 for addition or substitution etc., in my view, cannot be entertained in view of the reasons recorded above. The applicant is at liberty to take the appropriate steps before the Learned Trial Judge in accordance with law. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.