Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1213 (ORI)

Dharani Sugar & Chemicals Ltd. v. Co-operative Sugar Industries Ltd.

2017-10-27

A.K.RATH

body2017
ORDER : DR. A.K. RATH, J. 1. This is an application for review of the judgment dated 18.12.2015 passed by this Court in W.P.(C) No.10717 of 2005. 2. The opposite party as plaintiff instituted M.S. No.149 of 2001 in the court of the learned Civil Judge (Sr. Divn.), Bhubaneswar for recovery of Rs.23,76,37,000/-towards outstanding liability impleading the petitioner as defendant. An amount of Rs.71,30,305/-was payable towards court fees. The plaintiff filed an application for exemption of court fees in view of the notification of the Government of Orissa dated 7.6.1994 issued under Sec.35 of the Court Fees Act, 1870. It was stated that the plaintiff-industry sustained heavy loss. The financial condition of the industry was in doldrums. The plaintiff was not in a position to pay the interest on loan incurred from different financial institutions. The industry was closed since 2000-2001. There was no surplus income to pay the court fee. Its annual income was much less than Rs.12,000/-per annum. Learned trial court by order dated 20.11.2002 exempted the plaintiff from payment of court fees. The defendant entered contest and filed a written statement along with counter claim. The defendant filed an application to recall the order dated 20.11.2002. The plaintiff filed objection. By order dated 20.7.2005, learned trial court allowed the application filed by the defendant and directed the plaintiff to pay the court fees. 3. Assailing the order dated 20.7.2005, the plaintiff approached this Court in W.P.(C) No.10717 of 2005. This Court formulated the following questions. “(1) Whether the defendant has any locus standi to challenge the order of the learned Additional District Judge (FTC No.-III), Bhubaneswar exempting the plaintiff from payment of court fees? (2) Whether the word ‘person’ appearing in Clause (vi) of the notification dated 7.6.1994 issued by the Government of Orissa under Section 35 of the Court Fees Act, 1970 includes juridical person? (3) Whether the annual income of the plaintiff exceeds Rs.12,000/-enabling it from exemption of court fees under the aforesaid notification ?” 4. (2) Whether the word ‘person’ appearing in Clause (vi) of the notification dated 7.6.1994 issued by the Government of Orissa under Section 35 of the Court Fees Act, 1970 includes juridical person? (3) Whether the annual income of the plaintiff exceeds Rs.12,000/-enabling it from exemption of court fees under the aforesaid notification ?” 4. Taking a cue from the decisions in the case of Mahasay Ganesh Prasad Ray and another vs. Narendra Nath Sen and others, AIR 1953 SC 431 and Bijay Kumar Sahoo vs. Gokula Bihari Mohanty and others, AIR 2011 Ori.183, this Court held that so long as the error is not one affecting the jurisdiction of the Court to try the suit or entertain the appeal, the defendant is not affected thereby and in suits filed in Court of unlimited pecuniary jurisdiction, the defendant may not be entitled to question the decision on the valuation. But then the question of overvaluation may, however, be different. Admittedly, the pecuniary jurisdiction of the learned Civil Judge (Sr. Divn.) is unlimited. The instant case is not a question of over valuation. Thus, the defendant has no locus standi to challenge the order passed by the learned trial court, whereby and where under, the plaintiff has been exempted from payment of court fees. It was further held that the word ‘person’ appearing in clause (vi) of the notification issued by the State of Orissa takes within its sweep “Juridical Person” as well. The annual income of the plaintiff-industry does not exceed Rs.12,000/-. The petition was dismissed. Thereafter the defendant filed SLP No.2845 of 2016 before the Hon’ble apex Court. The same was dismissed as withdrawn granting liberty to the petitioner to seek review of the judgment dated 18.12.2015. With this factual scenario, the instant petition has been filed. 5. Heard Mr. A.R.L. Sudarsan, learned Senior Advocate and Mr. D.P. Nanda, learned Advocate for the petitioner. 6. Mr. Sudarsan, learned Senior Advocate for the petitioner argued with vehemence that in super-session of the notification dated 7.6.1994, the Government of Orissa issued another notification dated 30.1.2013, Annexure-2, wherein the words “Cases” or “Proceedings” have been clarified to mean and exclude cases which are based upon commercial transaction or activities or upon contracts agreements having nexus with business and profiteering motive. In view of the same, the plaintiff-industry is not exempted from payment of court fees. In view of the same, the plaintiff-industry is not exempted from payment of court fees. The subsequent notification is a vital piece of the document. The same was not brought to the notice of the Court inadvertently. If the subsequent notification is taken into consideration, then the order is liable to be reviewed. Referring to Order 33 Rule 1 C.P.C., he contended that the suit may be instituted by an indigent person. But then, the instant case is not covered under Order 33 Rule 1 C.P.C. He further contended that the plaintiff filed an application assailing the order passed by the court below. Thus the defendant has locus standi to challenge the order. Referring to profit and loss account for the year ended 31.3.2001, he contended that the annual income of the plaintiff was more than Rs.12,000/-. There is error apparent on the face of the judgment warranting review of the judgment. 7. The scope of review of the judgment is well-known. In State of Jammu and Kashmir v. R.K. Zalpuri and others, AIR 2016 SC 3006 , the apex Court held thus:- “16. In this regard, reference to Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma and Others, would also be apt. In the said case, it has been held thus:- “It is true as observed by this Court in Shivdeo Singh v. State of Punjab, ( AIR 1963 SC 1909 ), there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised to the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate Court to correct all manner or errors committed by the subordinate Court.” 17. In M/s. Thungabhadra Industries Ltd. vs. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, this Court while discussing about the concept of review, has ruled that:- “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”. 18. Almost fifty-five years back, in Satyanarayan Laxminarayan Hegde vs. Mallikarjun Bhavanappa Tirumale , it was laid down that:- “an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established by lengthy and complicated arguments and such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.” 8. On the anvil of the decision cited supra, the instant case may be examined. The suit was filed when the notification dated 7.6.1994 issued by the Government of Orissa was in force. The notification dated 30.1.2013 has no retrospective effect. Reliance placed on the notification dated 30.1.2013 is totally misplaced. Further, the contentions raised by the learned Senior Advocate had been dealt with in extenso in the judgment. Resultant conclusions were also recorded. 9. The suit was filed when the notification dated 7.6.1994 issued by the Government of Orissa was in force. The notification dated 30.1.2013 has no retrospective effect. Reliance placed on the notification dated 30.1.2013 is totally misplaced. Further, the contentions raised by the learned Senior Advocate had been dealt with in extenso in the judgment. Resultant conclusions were also recorded. 9. Judged on the touchstone of the judicially recognized grounds of review, this Court is of the unhesitant opinion that present is not a case warranting reconsideration of the judgment dated 18.12.2015 under scrutiny. Not only the contentions raised on behalf of the review applicant in the petition under Article 227 of the Constitution of India had been attended to and dealt with, resultant conclusions were recorded as well. It is a trite law that mere plausibility of different deductions in the same factual and legal setting would not proprio vigore warrant a review the decision rendered. Such an eventuality per se does not tantamount to an error on the face of the record or attest an acknowledged vitiating infirmity to justify review of a judicial verdict. The review jurisdiction is not akin to one of appeal. Having regard to the legally prescribed constrictions of the scope of review, the present petition lacks in merit and is accordingly dismissed.