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2017 DIGILAW 968 (CAL)

Partha Pratim Hazra v. Gita Law

2017-12-12

DEBI PROSAD DEY, JYOTIRMAY BHATTACHARYA

body2017
JUDGMENT : Debi Prosad Dey, J. 1. The plaintiff/petitioner has filed this review petition being aggrieved by the decision delivered by this Division Bench in first appeal no. 18 of 2011. 2. The plaintiff/petitioner filed a suit with the following prayer: “For a decree directing the defendant no.1 to execute and register the said Lease dated 24th day of December, 1977 in respect of the suit property in terms of the Agreement dated 24th day of November, 1977 as modified by the supplementary Agreement dated 26th day of December, 1977 within a specified date (Annexures ‘A and ‘B’ of the plaint) and in case the deft no.1 fails to execute and register the said lease then to have the same executed and registered by the registrar or by other competent officer of the Court after modification consequent on the death of the original owner of the suit property Smt. Kamal Kumari Law with whom the agreement for lease took place, according to the provisions of Order 21 rule 34 of the Code of Civil Procedure 1908 as amended by C. P. C. Amendment Act of 1976. 3. Decree for declaration that the Lease deed dated 19th November, 1979 in respect of premises no. 43, Kailash Bose Street, Calcutta, executed and registered by Sekhar Chandra Law, Executor to the Estate of Smt. Kamal Kumari Law(deceased) the defendant/opposite party no.1 in favour of Mahesh Properties Private Limited, the defendant/opposite party No.2 is void, illegal, in-operative and not binding upon the petitioner. 4. A permanent injunction restraining the defendants from encroaching upon the suit property and from interfering with the plaintiff’s peaceful possession thereof. 5. Mandatory injunction, demolishing any forcible and illegal constructions made by the defendants or their men, agents etc. as the suit premises and inside it, if the defendants succeeds in making such constructions in the suit premises during the pendency of the suit and a Mandatory Decree to that effect, at the cost of the defendants or in default, at the costs of the plaintiff to be recovered from the defendants. 6. Injunction upon the defendant no.2 restraining it from proceeding with the Money suit No. 512/1982 of the City Civil Court at Calcutta or obtaining a Decree for the same in favour of defendant no.2 till the disposal of the suit. 7. Leave under order 11 Rule 2 of the Code of Civil Procedure. Receiver. 6. Injunction upon the defendant no.2 restraining it from proceeding with the Money suit No. 512/1982 of the City Civil Court at Calcutta or obtaining a Decree for the same in favour of defendant no.2 till the disposal of the suit. 7. Leave under order 11 Rule 2 of the Code of Civil Procedure. Receiver. Injunction Costs Further or other reliefs to which the plaintiff may be entitled to in law and in equity. The suit was registered as title suit no. 2339 of 1982 and was disposed of by learned Judge, 3rd Bench, City Civil Court holding inter-alia that the suit is barred by law of limitation, that the plaintiff has not paid proper Court fees in respect of his claim to the properties described in the schedule of the plaint, that the schedule given in the plaint is vague and indefinite and that the plaintiff is not entitled to get any relief in terms of his claim in view of execution of a registered deed of lease by defendant no.1 in favour of defendant no.2. 8. The first appeal was dismissed by this bench. 9. Being aggrieved by and dissatisfied with such judgment and decree passed by this Bench this review application has been filed by the plaintiff/petitioner on amongst other grounds that the judgment of the Division bench is vitiated by erroneous findings of law and fact and that the judgment of the Division Bench has been suffering from an error apparent from the face of the record in as much as this Court committed mistake in relying upon the statements of the defendant/ respondent only and that the judgment of the Division bench suffers from error apparent on the face of the record for not considering actual impact of concurrent lease and the agreement of lease etc. The further ground for review is that the point of limitation has not been properly considered by the Division Bench and that the lease granted in favour of defendant no.2 ought to have been cancelled on the ground of concurrent lease. 10. It may be mentioned that learned Advocate Mr. Aniruddha Chatterjee has argued only on the following points in support of the maintainability of such review application. Mr. 10. It may be mentioned that learned Advocate Mr. Aniruddha Chatterjee has argued only on the following points in support of the maintainability of such review application. Mr. Chatterjee contended that the lease granted in favour of defendant no.2/opposite party no.2 ought to have been cancelled by the Court only on the ground that the rent receiving interest of the plaintiff/petitioner cannot be assigned to the opposite party no.2 during pendency of the tenancy of the plaintiff/petitioner. It is further submitted that the agreement for lease was duly proved and produced before the Court below yet the said agreement for lease was not taken into consideration by this bench at the time of disposal of the first appeal. Mr. Chatterjee further argued that when the point of limitation was disposed of by learned Court below as preliminary issue, such point of limitation ought not to have considered again at the time of final decision of the suit. The Division Bench while disposing the first appeal did not look into the matter and thereby came to an erroneous finding with regard to the point of limitation. Mr. Chatterjee further argued that opposite party no.2 has been simply added only because the erst-while owner of the property had executed a lease in favour of opposite party no.2 during the subsistence of the tenancy of the petitioner. Mr. Chatterjee has also taken us through the evidence as well as the respective portions of the plaint and written statement in order to justify his submissions with regard to aforesaid grounds of review. Mr. Chatterjee has also relied on following decisions in support of his contentions that review of the judgment delivered by this Division Bench is maintainable. i. AIR 1954 SCC 526( Moran Mar Basselios Catholicos & Anr. Vs. Most Rev. Mar Poulose Athanasius & Ors.) ii. (2005) 4 SCC 741 (Board of control for Cricket, India & Anr. Vs. Netaji Cricket Club and ors.) iii. AIR 1967 (Cal) 518 (Tinkari Sen & Ors. Vs. Dulal Chandra Das & Ors.) 11. Mr. i. AIR 1954 SCC 526( Moran Mar Basselios Catholicos & Anr. Vs. Most Rev. Mar Poulose Athanasius & Ors.) ii. (2005) 4 SCC 741 (Board of control for Cricket, India & Anr. Vs. Netaji Cricket Club and ors.) iii. AIR 1967 (Cal) 518 (Tinkari Sen & Ors. Vs. Dulal Chandra Das & Ors.) 11. Mr. Chatterjee by referring to the aforesaid decisions contended that even a mis-conception of law and fact of the Court of records created by the concessional submissions made by advocate appearing before the Court leading to arriving at an erroneous finding is good ground for review and there is no reason to construe the word (record) in a very restricted sense and include within that term only the document which initiates the proceedings, the pleadings and the adjudication and exclude the evidence and other parts of the record. It has been observed in AIR 1954 SC 526 (Supra) that the judgment delivered by the Judges on the basis of the misleading admission of learned Advocate himself due to his mis-conception of law and fact, the said judgment is obviously liable to be reviewed within the meaning of order 47 Rule 1 of the Code of Civil Procedure. In short, the Court accepted that concession given to an advocate resulting in misleading the Judges may be a ground for review. The Hon’ble Apex Court has also observed in the decision reported in 2005(4) SCC 741 (Supra) at para 89 and 90 as follows: “89. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. 90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would constitute sufficient reason would depend on the facts and circumstances of the case. 90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words ‘sufficient reason’ in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine “actus curiae neminem gravabit”. 12. Mr. Chatterjee vehemently contended that the Hon’ble Apex Court has virtually made the review application under Order 47 Rule 1 of the Code of Civil Procedure maintainable to include a misconception of fact or law by a Court or even by an Advocate. In the decision reported in AIR 1967 Cal 518 (Supra) the review application was allowed by the Court holding inter-alia that the judgment was passed on the basis of misconception of law. 13. It would not be out of place to mention that we have considered all the points taken in the review application and we have also considered the points argued by Mr. Chatterjee by delving deep into the judgment delivered by us. 14. Mr. Chatterjee has taken us through the entire judgment by pointing out very many errors, as per the perception of Mr. Chatterjee, to establish that the entire judgment is a result of misconception of law and fact and that this bench did not consider the evidences on record in its true perspective and accordingly the entire judgment is vitiated by erroneous findings of law and fact. 15. Mr. Roy Chowdhury learned senior Advocate appearing on behalf of opposite party no.2 contended that the review application is not maintainable in view of the fact that in the name of review the petitioner/plaintiff has vehemently reargued the appeal afresh. Mr. Roy Chowdhury further contended that in the name of review rehearing of the appeal is not permissible under law and the plaintiff/petitioner has tried to reargue the appeal in the name of review. 16. We have minutely gone through our judgment and found that all the points raised by Mr. Chatterjee were dealt with by this bench in the judgment under reference. 16. We have minutely gone through our judgment and found that all the points raised by Mr. Chatterjee were dealt with by this bench in the judgment under reference. The point of limitation can well be considered by the appeal court afresh irrespective of the findings arrived at by this Trial Court either at stage of hearing the said issue as preliminary issue or at the stage of final hearing of this suit and we have accordingly dealt with the point of limitation afresh after going through the materials on record and the evidence on record. We have also decided the impact of concurrent lease on the basis of the materials on record and evidence on record. It is apparent from our judgment that alleged agreement for lease has also been dealt with. 17. Mr. Chatterjee further contended that the second agreement is not a new lease agreement but the same is the extension of the earlier one. In fact all the points taken at the time of hearing of the appeal have been adopted in the name of error apparent on the face of the record or mistake committed by this bench. Mr. Roy Chowdhury learned senior Advocate on the other hand has relied on the following decisions in support of his contention that a review is by no means an appeal in disguise whereby an erroneous decision is reheared and corrected but lies only for patent error. Mr. Roy Chowdhury learned senior Advocate further contended that the judgment may be erroneous but the proper procedure of correcting any such erroneous judgment is to prefer an appeal before the higher forum. Mr. Roy Chowdhury further contended that the plaintiff/petitioner has already filed a special leave application before the Hon’ble Supreme Court challenging the judgment of this bench and accordingly, the plaintiff/petitioner cannot argue that the judgment is vitiated by erroneous findings of law and fact and accordingly the review application is not maintainable in law. i. AIR 1995 SC 455 (Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury.) ii. 2014(5) SCC 75 ( Dr. Subramanian Swamy Vs. State of Tamil Nadu & Ors.) iii. (2015) 2 SCC 390 (D. R. Somayajulu, Secretary, Diesel Loco Shed and South Eastern Railway House Building Cooperative Society Limited, Visakhapatnam & Ors. Vs. Attili Appala Swamy & Ors.) iv. (2017) 4 SCC 692 (Sasi (dead) through legal representative Vs. Smt. Nirmala Kumari Choudhury.) ii. 2014(5) SCC 75 ( Dr. Subramanian Swamy Vs. State of Tamil Nadu & Ors.) iii. (2015) 2 SCC 390 (D. R. Somayajulu, Secretary, Diesel Loco Shed and South Eastern Railway House Building Cooperative Society Limited, Visakhapatnam & Ors. Vs. Attili Appala Swamy & Ors.) iv. (2017) 4 SCC 692 (Sasi (dead) through legal representative Vs. Aravindakshan Nair & ors) v. AIR 1964 SC 1372 (Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh.) 18. Mr. Roy Chowdhury learned Senior Advocate vehemently contended that error apparent on the fact of the record means an error which strikes one on mere looking at record and would not require any long drawn process of reasoning on points where there may be conceivably two opinions. Mr. Roy Chowdhury learned senior Advocate further contended that the plaintiff/petitioner has virtually challenged the judgment delivered by this Court on very many points and marathon hearing was conducted to dispose of such review application, which clearly reveal that the application for review under Order 47 Rule 1 is not maintainable. It has been observed in AIR 1995 SC 455 (Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury) relying on a decision reported in AIR 1960 SC 137 (Satyanarayan Laxminarayan Hegde Vs. Millikarjun Bhavanappa Tirumale) that an error which has to be established by a long drawn process of reasoning of points cannot be said to be mistake apparent on the face of the record:- “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, 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.” 19. It has been observed in (1997) 8 SCC 715 (Parsion Devi & Ors. Vs. Sumitri Devi & Ors.) as follows:- “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. It has been observed in (1997) 8 SCC 715 (Parsion Devi & Ors. Vs. Sumitri Devi & Ors.) as follows:- “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”. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be “an appeal in disguise”. 20. It has been observed by the Apex Court in (2014) 5 SCC 75 (Dr. Subramanian Swamy Vs. State of Tamil Nadu & Ors.) as follows:- “In view of the Explanation to Rule 1 Order 47 CPC also, even an erroneous decision cannot be a ground for the court to undertake review, as the first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and in absence of any such error, finality attached to the judgment/order cannot be disturbed. The ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. “The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.” 21. The Hon’ble Supreme Court observed as follows in the decision reported in (2015) 2 SCC 390 (D. R. Somayajulu, Secretary, Diesel Loco Shed & South Eastern Railway House Building Cooperative Society Ltd, Visakhapatnam & Ors. Vs. The Hon’ble Supreme Court observed as follows in the decision reported in (2015) 2 SCC 390 (D. R. Somayajulu, Secretary, Diesel Loco Shed & South Eastern Railway House Building Cooperative Society Ltd, Visakhapatnam & Ors. Vs. Attili Appala Swamy & Ors.) (para 20) “In the review petition, in our view, the High Court ignored the sequence of events and the full participation of sons, daughters and the grand children including the first respondent before the competent authority. Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in Order 47 Rule 1 CPC. It may allow a review on three specified grounds, namely : (i) Discovery of new and important matter or evidence, which after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed or order was made; (ii) Mistake or error apparent on the face of the record; or (iii) for any other sufficient reason. 22. Application for review on the ground of discovery of new material should be considered with great caution and should not be granted very lightly.” 23. Finally, in a latest decision reported in (2017) 4 SCC 692 (Sasi(dead) through Legal Representatives Vs. Aravindakshan Nair & Ors.) it has been candidly observed by the Hon’ble Supreme Court relying on AIR 1964 SC 1372 (Supra) that a review is by no means an appeal in disguise whereby erroneous decision is reheared and corrected, but lies only for correction of patent error and that under Order 47 Rule 1 of the Code of Civil Procedure, 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 deducted 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 of Code of Civil Procedure. In exercise of the jurisdiction under Order 47 Rule 1 of the Code of Civil Procedure it is not permissible for an erroneous decision to be reheared and corrected. A review petition, must be numbered, has a limited purpose cannot be allowed to be an appeal in disguise. In exercise of the jurisdiction under Order 47 Rule 1 of the Code of Civil Procedure it is not permissible for an erroneous decision to be reheared and corrected. A review petition, must be numbered, has a limited purpose cannot be allowed to be an appeal in disguise. It is therefore apparent that the plaintiff/petitioner has virtually challenged the decision delivered by this Court on very many counts as if we are hearing the appeal against our own judgment. The review application has been proceeded with as if we are hearing the appeal against our own judgments. The principle of law as enunciated in the aforementioned decisions in respect of an application under Order 47 Rule 1 of the Code of Civil Procedure clearly reveals that the instant application under Order 47 Rule 1 of Code of Civil Procedure is not maintainable in law. 24. Mr. Chatterjee learned Advocate appearing on behalf of the petitioner/plaintiff has taken us through the evidence and documents of record in order to justify that there was mistake apparent on the face of the record. In case of accepting such arguments it would amount to rehearing of the appeal and such argument in any view of the matter would not come within the purview of Order 47 Rule 1 of the Code of Civil Procedure. Order 47 Rule 1 of the Code of Civil Procedure does not permit rehearing of the appeal. In the premises set forth above we are of considered view that the application under Order 47 Rule 1 of Code of Civil Procedure is not maintainable. 25. The procedure established by law does not permit us to entertain such application under Order 47 Rule 1 of Code of Civil Procedure. The plaintiff/petitioner has already preferred an appeal and filed special leave petition before the Hon’ble Supreme Court to test the veracity of the judgment delivered by this bench and in our view that is the only forum to challenge the legality of the judgment delivered by us. In the premises set forth above the review application is dismissed without cost. All the CAN applications are also dismissed. 26. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.