JUDGMENT : Ashoke Kumar Dasadhikari, J. This review application was filed by the petitioners against the judgment and order dated November 20, 2013 passed by His Lordship the Hon'ble Justice Prasenjit Mandal, as His Lordship then was, in C.O. No.3448 of 2013 on the alleged ground that the order impugned is not sustainable since there is error on the face of record. 2. Facts reveal that the opposite party no.1/plaintiff filed a suit for eviction and recovery of khas possession, damages and mesne profit in respect of suit property as described in the schedule in the plaint against the original tenant viz. Ajay Kumar Sadhu, since deceased, before the learned Judge, Senior Division, at Sealdah. The suit was registered as ejectment suit No.1 of 2007. The original defendant, Ajay Kumar Sadhu was duly served with summons. Said Ajay Kumar Sadhu filed an application on 6th December, 2007 questioning the maintainability of the suit before the learned Civil Judge, Senior Division, at Sealdah inter alia, stating that the learned Court has got no jurisdiction to entertain the suit since the defendants/opposite parties have made a claim for damages of Rs.50,000/- which ought not have been included and/or added for variation of the suit and according to him, the learned Civil Judge, Junior Division would have jurisdiction to try and decide the suit. 3. Thereafter another application dated 19th August, 2008 was filed for consideration of non-maintainability of the suit before the learned Court due to subsequent information thereby making a prayer for dismissal of the suit. 4. Both the said applications came up before the learned Judge for hearing on 19th March, 2009 and after hearing the parties, the learned Judge was pleased to pass an order holding that learned Court has jurisdiction to entertain the suit. By the order impugned learned Court disposed of the application of Ajay Kumar Sadhu, since deceased, dated 6th December, 2007. However, the original defendant died and the petitioners/applicants were substituted in that proceeding. Being aggrieved by and dissatisfied with the order impugned dated 19th March, 2009 dismissing the application dated 6th December, 2007 petitioners/applicants filed an application under Section 6 of the West Bengal Land Reforms and Tenancy Tribunal, Salt Lake City, Calcutta and the application was registered as O.A. No.892 of 2009. This was in fact an appeal before the L.R.T.T. under Section 43 of the West Bengal Premises Tenancy Act, 1997.
This was in fact an appeal before the L.R.T.T. under Section 43 of the West Bengal Premises Tenancy Act, 1997. The appeal was admitted by the Tribunal on the prayer of the applicants/petitioners. On their prayer records were called for. It appears that the order dated 19th March, 2009 was accepted by the applicants/petitioners as final order on issue of maintainability and that is why the appeal was filed. Thereafter in view of insertion of Section 43A under West Bengal Premises Tenancy Act, 1997, in short 'Rent Act', the appeal was transferred to the learned District Judge, Sealdah and was registered as Ejectment Appeal No.62 of 2011, since the tenancy tribunal had no jurisdiction to entertain the matter in view of such amendment. Thereafter the said appeal was transferred to the Court of learned Additional District Judge, Sealdah. During pendency of that appeal petitioners/applicants moved an application for permission to withdraw the appeal on the alleged plea that the appellate court has no jurisdiction since the order impugned dated 19th March, 2009 is a revisable order under Article 227 of the Constitution of India. The application for withdrawal was filed on 15th December, 2011. The plaintiff/opposite party no.1 filed written objection against the said application and objected such prayer of withdrawal and filing of revisional application before the appropriate forum i.e. this Hon'ble High Court. The application for withdrawal was heard before the learned Additional District Judge at Sealdah. After hearing the application, the learned Additional District Judge by his order dated 19th July, 2013 rejected the same. 5. Being aggrieved by and dissatisfied with the impugned order dated 19th July, 2013 passed by the learned Additional District Judge, Sealdah, the petitioners/applicants filed the revisional application under Article 227 of the Constitution of India and the revisional application came up for hearing before His Lordship, the Hon'ble Justice Prasenjit Mandal on 7th October, 2013. After hearing both the parties His Lordship was pleased to conclude that order impugned should be sustained and there is no scope to interfere with the impugned order. Accordingly, the revisional application was dismissed on merit. 6.
After hearing both the parties His Lordship was pleased to conclude that order impugned should be sustained and there is no scope to interfere with the impugned order. Accordingly, the revisional application was dismissed on merit. 6. It is alleged in the review application that after withdrawal of the certified copy of the order, the petitioners/applicants found that there are certain apparent mistakes and error in the said finding and observation of His Lordship's order, which according to them, required to be reviewed and according to them, the revisional application dismissed on 20th November, 2013 ought to have been allowed by His Lordship for the ends of justice. Hence this review application was moved. 7. Mr. S.P. Roychowdhury, learned Senior Counsel appearing for the petitioners/applicants submitted that the impugned order dated 19th March, 2009 passed by the learned Additional District Judge, Sealdah is not a final order and no appeal lies against the order impugned. 8. Mr. Roychowdhury contended that petitioners/applicants have no fault on their own. Due to wrong advice for selection of forum the petitioners/applicants filed the said Ejectment Appeal before the learned Tribunal instead of moving a revisional application under Article 227 of the Constitution of India before this Hon'ble Court. 9. Mr. Roychowdhury submitted that petitioners/applicants after coming to know about choosing the wrong forum moved the application before the learned Court below which was rejected without looking the provisions relevant for consideration of that application. 10. Mr. Roychowdhury submitted this Hon'ble Court also, while hearing the revisional application, did not consider the relevant provisions under the Rent Act specially sub-Section (1) of Section 6 of the Rent Act. 11. Mr. Roychowdhury pointed out the original provisions although contained that the issue would be decided before the Rent Controller but by way of amendment dated 19th March, 2005 the authority 'Rent Controller' was removed by the other 'Additional Civil Judge'. 12. Mr. Roychowdhury submitted that in view of such amendment the provisions under the Civil Procedure Code would apply. According to him, since the order passed by the learned Civil Judge, Senior Division, is not a final order the revision would lie before this Court but not an appeal before any forum. 13. Mr. Roychowdhury submitted that under the Code of Civil Procedure there are specific provisions for preparing an appeal. 14. Mr.
According to him, since the order passed by the learned Civil Judge, Senior Division, is not a final order the revision would lie before this Court but not an appeal before any forum. 13. Mr. Roychowdhury submitted that under the Code of Civil Procedure there are specific provisions for preparing an appeal. 14. Mr. Roychowdhury referred Sections 95, 104 and also the provisions under Order 43 of the Code of Civil Procedure. 15. Mr. Roychowdhury also referred to the provisions under Section 2(2) of the Code of Civil Procedure defining 'decree'. 16. Mr. Roychowdhury then drew attention of this Court as regards the provisions under Order 14 which relates to settlement of issues and determination of suit on issues of law or on issues agreed upon. 17. Mr. Roychowdhury submitted in case of rejection of application on the issue of maintainability is not an appealable order under Order 43 C.P.C. 18. Mr. Roychowdhury reiterated that rejection of the issue of maintainability is not an appealable order. He submitted that nowhere from the provisions under Order 43 C.P.C. it would appear that any order under Order 14 on the ground of dismissal on maintainability, appeal is maintainable. 19. Mr. Roychowdhury submitted that in case or in the event application for rejection of suit on the ground of maintainability if allowed, then there would be finality of the proceeding and definitely an appeal would lie. 20. Mr. Roychowdhury submitted originally Section 43 of the West Bengal Premises Tenancy Act was there. As per provisions before amendment from final order appellate authority was Land Revenue Tribunal. However, there were divergent views of this Hon'ble Court on a point whether appeal would lie before the Civil Court or before the Land Tribunal. Ultimately, by an amendment dated 28th October, 2010 a new provision under Section 43A was brought in wherein appeal from an order of learned Civil Judge would be maintained before the appellate court in terms of provisions under the Code of Civil Procedure. In case of revision or review against any decree or final order of Civil Judge the provisions of Code of Civil Procedure was mutatis and mutandis applied. 21. Mr.
In case of revision or review against any decree or final order of Civil Judge the provisions of Code of Civil Procedure was mutatis and mutandis applied. 21. Mr. Roychowdhury submitted that procedure for filing an appeal against decree or final order of Civil Judge and the power to be exercised as per procedure to be followed in admitting and dealing with such appeal shall be the same as in case of appeal under the Code of Civil Procedure. 22. However, Mr. Roychowdhury strenuously argued that in view of amendment of sub-Section (1) of Section 6 of Rent Act the order of the learned Civil Judge, Senior Division not being a final order in nature is not at all an appealable order, rather a revision under Article 227 of the Constitution of India would lie before this Hon'ble Court. 23. Mr. Roychowdhury submitted that the aforementioned provisions being the provisions under the Rent Act as well as the provisions under the Civil Procedure Code was not considered by the learned Judge at the time of disposal of the revisional application. 24. Mr. Roychowdhury contended that the Hon'ble Judge while deciding the revisional application erroneously held that appeal before the Tribunal was filed by the petitioners/applicants against an order dated March 19, 2009 is maintainable and the finding of the learned Court about permissibility of preferring appeal as per the existing law in March, 2009 as recorded by the Hon'ble High Court in the order dated November 20, 2013 is also erroneous and not sustainable. 25. Mr. Roychowdhury submitted that the amended provisions, the deeming clause under Section 4 of the West Bengal Premises Tenancy (Amendment) Act, 2010 in respect of the saving of any act done or action taken, is of no application in the instant case. 26. Mr. Roychowdhury submitted that all findings and the conclusions arrived at by His Lordship at the time of disposal of this revisional application are not correct in view of the aforementioned provisions which are placed now before this Hon'ble Court. 27. Mr. Roychowdhury submitted in case this Hon'ble Court finds substance in his argument then the question would come whether this Hon'ble Court should interfere with the order impugned dated November 20, 2013 in review. 28. Mr.
27. Mr. Roychowdhury submitted in case this Hon'ble Court finds substance in his argument then the question would come whether this Hon'ble Court should interfere with the order impugned dated November 20, 2013 in review. 28. Mr. Roychowdhury submitted there are errors on the face of record and therefore, review of the order impugned is permissible as per provisions under Order 47, Rule 1 . According to him, if mistake and error is apparent on the face of the order then the order impugned would be revisable and in the instant case it is apparent from the order itself that there is error on the face of records and the Hon'ble High Court being a Court of original record have all power and jurisdiction to review the order passed. 29. Mr. Roychowdhury to support his contention as regards maintainability of the review application cited two Hon'ble Supreme Court's decision. The first judgment cited by Mr. Roychowdhury is reported in (M.K. Venkatachalam, I.T.O. and anr. v. Bombay Dyeing and Mfg. Co. Ltd.), the second judgment cited by Mr. Roychowdhury is reported in (2000) 1 S.C.C. 666 (M.M. Thomas v. State of Kerala and anr.). 30. Mr. Roychowdhury submitted in both the aforementioned judgements it is held, even a mistake of law which is glaring and obvious can be reviewed by this Court. 31. Mr. Roychowdhury submitted that a High Court being a court of record is competent to keep all its record correctly and in accordance with law. 32. Mr. Roychowdhury submitted if there is any apparent error noticed by the High Court in respect of any order passed by it, the High Court has not only the power but a duty to correct it. 33. Mr. Roychowdhury then submitted that the findings of the learned Court is erroneous and not sustainable in view of the provisions under the Rent Act as well as the Code of Civil Procedure. He submitted that the order impugned should be reviewed and this Hon'ble Court should allow the application of the petitioners/applicants to withdraw the appeal and a leave be granted to file a revisional application before the Hon'ble High Court. 34. Mr. Probal Kumar Mukherjee, learned Senior Counsel representing the opposite party/plaintiff no.1 on the contrary submitted that the review application is not an appeal disguise. 35. Mr. Mukherjee submitted that the arguments so advanced by Mr.
34. Mr. Probal Kumar Mukherjee, learned Senior Counsel representing the opposite party/plaintiff no.1 on the contrary submitted that the review application is not an appeal disguise. 35. Mr. Mukherjee submitted that the arguments so advanced by Mr. Rouchowdhury on the other side is in fact a challenge to the order passed by this Hon'ble Court while disposing of the revisional application on 20th November, 2013. 36. Mr. Mukherjee submitted that a very eminent lawyer appeared on behalf of the petitioners/applicants and argued the matter and upon hearing both sides the Hon'ble Judge taking note of the relevant provisions both under the Rent Act as well under the Civil Procedure Code have held that preferring an appeal was permissible as per the then existing law in March, 2009. The learned Court also considered the provisions under Section 4 of the West Bengal Premises Tenancy (Amendment) Act, 2010 in respect of saving of anything done or any action taken or purported to have been taken or done under the principal Act for the period from July 10, 2001 to September 1, 2001. 37. Mr. Mukherjee submitted during pendency of this proceeding the suit has made much progress. The suit is at the concluding stage. In view of the pendency of the pending application, judgment could not be delivered. 38. Mr. Mukherjee submitted that in case the arguments so advanced by Mr. Roychowdhury questioning the order under review is accepted, it would be in effect definitely sitting in appeal against the judgment of the Hon'ble Judge of this Hon'ble Court. 39. Mr. Mukherjee submitted that if the petitioners are really aggrieved against the order they have remedy before the higher forum but instead of availing the same they have filed the review application and reiterated the arguments advanced at the time of hearing of the revisional application. 40. Mr. Mukherjee submitted that a review is not maintainable when an error is not self-evident. He also submitted if an error is to be detected by a process of reasoning or by a process of consideration of the provisions of law can hardly be said to be apparent on the face of the record justifying the court to exercise its power of review. He submitted review jurisdiction is not available for rehearing or correcting an erroneous decision. 41. Mr.
He submitted review jurisdiction is not available for rehearing or correcting an erroneous decision. 41. Mr. Mukherjee cited three Hon'ble Apex Court's judgments reported in (1997) 8 S.C.C. 715 (Parsion Devi and ors. v. Sumitri Devi and ors.). Next judgment cited is reported in (2013) 8 S.C.C. 337 (Union of India v. Sandur Manganese and Iron Ores Ltd. and ors.) and the third one is reported in (2015) 2 C.H.N. (SC) 29 (Manik Chandra Sasmal v. Rabindra Nath De). 42. Mr. Mukherjee submitted in view of ratio of the aforementioned three judgments the application for review is not maintainable since all arguments were advanced on merit at the time of disposal of revisional application and further since no mistake or error apparent on the face of record. 43. Mr. Mukherjee submitted that the point of maintainability could be even taken in appeal. He submitted in case the suit is dismissed then the defendants would not be worried at all. In case the suit is allowed, the point of maintainability could be taken in the appeal to be preferred questioning the judgment and decree of the learned Trial Court. Therefore, according to Mr. Mukherjee taking note of the progress and final stage of the suit this Court should not also interfere with the order passed by this Court. 44. Mr. Mukherjee further submitted that at this stage if the order is interfered with then serious prejudice would be inflicted upon the plaintiff/opposite party. He further submitted that Section 43 was introduced by way of amendment only in 2010 but before 2010 the order impugned was passed by the learned appellate court on 19th March, 2009 and the petitioners/applicants took the order as final on the ground of maintainability and preferred appeal and the appeal continued for a period of time within which the appeal was admitted, records were called for but there was no such application either before the Tribunal for withdrawal alleging the plea of having no jurisdiction of the Tribunal. 45. Mr. Mukherjee submitted the amendment was brought in 1st October, 2010 whereas the application for granting leave to withdraw on the alleged plea of having no jurisdiction was filed one year thereafter. 46. Mr. Mukherjee submitted there is no explanation whatsoever.
45. Mr. Mukherjee submitted the amendment was brought in 1st October, 2010 whereas the application for granting leave to withdraw on the alleged plea of having no jurisdiction was filed one year thereafter. 46. Mr. Mukherjee submitted there is no explanation whatsoever. Today when the revisional application was disposed of by the Hon'ble Court upon hearing both sides a plea of wrong advice and ignorance is being taken which is not at all acceptable. 47. Mr. Mukherjee submitted that considering the facts and circumstances of this case and also the progress of the original suit before the learned Court below, also taking note of the aforementioned decisions cited by him on the point of maintainability of the review application this Hon'ble Court should reject the review application. 48. This Court very carefully consider the arguments advanced by both the learned Senior Counsel representing both sides as well as the order impugned passed by the learned Judge disposing of the revisional application on November 20, 2013 after hearing learned Counsel representing the parties on that occasion. The first point which comes for determination whether this review application filed by the petitioners/applicants is maintainable in view of the law laid down by the Hon'ble Apex Court it would not be out of place to mention that argument so advanced by Mr. Roychowdhury is really on merit of the revisional application which was reargued showing the provisions, which, according to him, is relevant and in fact, Mr. Roychowdhury wanted this Court to interpret the provisions in the light of his argument and to see whether the order passed by this Court on 20th November, 2013 is correct or not. Mr. Roychowdhury's argument is really on the merit of the revisional application. This Court has got power to review an order when there is an error apparent on the face of the record. There is no scope to entertain a review application where the error is not self-evident and the error is to be detected by a process of reasoning and reconsideration of the entire matter as well as the provisions applicable can hardly be said to be an error on the face of it. 49. In the instant case on a plain reading of the order there is practically nothing to show that the error is self-evident. In fact, Mr.
49. In the instant case on a plain reading of the order there is practically nothing to show that the error is self-evident. In fact, Mr. Roychowdhury argued the matter afresh and this Court has no power and jurisdiction to rehear the revisional application which was disposed of on consideration of the provisions as well as the argument so advanced by both the learned Senior Counsel at that relevant point of time when the revisional application was being argued on 20th November, 2013. The Hon'ble Apex Court judgment delivered in case of Parsion Devi and ors. (supra) is quite specific and clear on the point of review thereby giving a guideline under what circumstances a judgment may be open to review. Paragraph 9 of the aforementioned judgment is quoted hereunder :- "9. Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition, it must be remembered has a limited purpose and cannot be allowed to be 'an appeal in disguise'. 50. Following the aforementioned decision the Hon'ble Division Bench in case of Union of India v. Sandur Manganese and Iron Ores Limited and others (supra) held that the review proceedings are not by way of an appeal. Paragraphs 23 and 24 read as follows :- "23. It has been time and again held that the power of review jurisdiction can be exercised for the correction of a mistake and not to substitute a view. In Parsion Devi v. Sumitri Devi, this Court held as under : 9. Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record.
In Parsion Devi v. Sumitri Devi, this Court held as under : 9. Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition, it must be remembered has a limited purpose and cannot be allowed to be 'an appeal in disguise.' 24. This Court, on numerous occasions, had deliberated upon the very same issue, arriving at the conclusion that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 CPC." The same view was expressed in case of Manik Chandra Sasmal v. Rabindra Nath De (supra). 51. Therefore, review is not an appeal in disguise. The error contemplated in the judgment is not one which is apparent on the face of the record rather the dispute is wholly founded on the point of the interpretation and applicability of the provisions under the Rent Act as well as Code of Civil Procedure as pointed out hereinbefore. In review jurisdiction the Court can interfere only when there is glaring omission or blatant mistake or when a grave error as crept in the impugned judgment which this Court failed to notice in the present case. In the present case learned Counsel appearing for the petitioners/applicants in fact advanced arguments against the judgment delivered by the learned Single Judge of this Hon'ble High Court on merit. Accordingly, this Court is of the view that this review application is not maintainable. Otherwise also the suit is at its advance stage and in case of unsuccess the petitioners/applicants can take the point of maintainability at the appellate stage in the event they are unsuccessful before the learned Single Judge. 52.
Accordingly, this Court is of the view that this review application is not maintainable. Otherwise also the suit is at its advance stage and in case of unsuccess the petitioners/applicants can take the point of maintainability at the appellate stage in the event they are unsuccessful before the learned Single Judge. 52. The judgement cited by the learned Counsel appearing fore the petitioners/applicants in case of M.K. Venkatachalam, I.T.O. (supra), the matter relates to effect of retrospective operation of provisions proviso to Section 18-A(5) under the Income Tax Act and credit for interest on advance tax given in accordance with Section 18-A(5) before amendment and the power to rectify the mistake under Section 35 was involved. 53. The facts and circumstances of that case dealing with a mistake of fact apparent from the record of the assessment order and its correction was involved, therefore, the ratio of the judgments have no manner of application in the instant case. The other case cited by the learned Counsel i.e. (M.M. Thomas v. State of Kerala and another) (supra) it appears that appellant sought for exemption under a particular section in respect of vesting of private forests in the State and in that case High Court Division Bench allowed the petition on the basis of another section even though no claim made thereunder by the appellant, no evidence laid and on that score this case was decided. However, those facts are not similar to the facts involved in this case. Therefore, the ratio of that judgment is also not at all relevant and applicable in the facts and circumstances of the present case. On that score the submissions made by Mr. Roychowdhury are not unacceptable. Therefore, the submissions made on that basis are of no substance. 54. For all these aforementioned reasons this review application is not maintainable. The review application is, thus, dismissed. There would be no order as to costs. 55. In view of dismissal of the review application connected application being C.A.N. 3832 of 2014 is also disposed of. 56. Learned Trial Court is directed to dispose of the Ejectment Suit being No.1 of 2007 as early as possible. 57. Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on usual undertakings.