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2019 DIGILAW 180 (UTT)

Bharat Construction v. State of Uttarakhand

2019-03-08

ALOK SINGH, RAMESH RANGANATHAN

body2019
JUDGMENT : RAMESH RANGANATHAN, J. 1. This application (M.C.C. No.1654/2019) is filed seeking review of the order passed by us in Special Appeal No.945 of 2018 dated 28.11.2018. 2. The applicants herein are the appellants in Special Appeal No.945 of 2018 which was preferred against the order passed by learned Single Judge in Writ Petition (M/S) No.3116 of 2018 dated 12.10.2018 relegating the appellants to the remedy of arbitration. The appellant had contended before the Division Bench that the arbitration clause of the agreement could only be invoked, if there is a dispute; despite the liability not being in dispute the respondent officials were not paying the amount due; and the remedy of arbitration was therefore not available. 3. We had, relying on several judgments of the Supreme Court, held that while the jurisdiction of this Court, even to entertain non-statutory contractual disputes, was not barred, it would, ordinarily, refrain from exercising its extra-ordinary powers under Article 226 of the Constitution to entertain writ petitions involving disputes in the contractual realm, as these matters are more suited for adjudication either before an Arbitrator (if the agreement contains an arbitration clause) or before the competent civil court before which evidence could be adduced by both the parties, and the liscan be adjudicated. We had also taken note of the other Division Bench judgment in M/s S. M. Construction (judgment in Special Appeal No.742 of 2018 dated 30.10.2018), and had observed that, unlike in M/s S. M. Construction, Writ Petition (M/S) No.3116 of 2018 was dismissed in limine; neither was the said writ petition admitted, nor were the respondents called upon to file their counter affidavits; and, while the appellants may claim that there is no dispute regarding the amounts payable to them, this assertion of the appellants could only have been disputed by the respondents, if the learned Single Judge had chosen to entertain the writ petition, and had called upon the respondents to file their counter affidavit. 4. We had also noted that the scope of an intra-court appeal was extremely limited, and the judgment under appeal could not be faulted on the ground that an alternative view, which might commend itself to the appellate court, has not been accepted by the learned Single Judge. 4. We had also noted that the scope of an intra-court appeal was extremely limited, and the judgment under appeal could not be faulted on the ground that an alternative view, which might commend itself to the appellate court, has not been accepted by the learned Single Judge. We had held that the order of learned Single Judge does not suffer from a patent error or illegality necessitating interference in an intra-court appeal, as the learned Single Judge has exercised his discretion not to entertain the writ petition and had dismissed it in limine. We had made it clear that neither the order under appeal, nor the order passed in the appeal, would disable the appellants from availing their remedy of invoking the arbitration clause in the agreement (if such a remedy was available), and, if not, from availing their remedy of filing a suit. 5. Shri. Devesh Bishnoi, learned counsel for the review applicants-appellants, would submit that the order of the Division Bench in Special Appeal No.945 of 2018 dated 28.11.2018 suffers from an error apparent; the amount due and payable to the applicants was not in dispute; the applicant had perforce to invoke the jurisdiction of this Court, since the admitted amount was not paid to them; since the Division Bench, in M/s S. M. Construction, had entertained the writ petition and had directed the respondents to make payment, a subsequent Division Bench could not have taken a different view; and, at best, it could have referred the matter to a Larger Bench. 6. The jurisdiction, which the High Court exercises under Article 226 of the Constitution, is discretionary. In the present case, the learned Single Judge had exercised his discretion not to entertain the writ petition, and instead to relegate the applicants to the remedy of arbitration. The Division Bench chose not to entertain the appeal, or to examine the applicants’ claim on its merits, and had affirmed the order of the learned Single Judge leaving it open to the applicant to avail the remedy of the arbitration clause in the agreement, and, if such a clause was inapplicable, to then avail the remedy of filing a civil suit. Refusal to exercise discretion to entertain the writ petition, and in relegating the applicant to avail the remedy of arbitration, or by filing a civil suit, does not suffer from an error apparent warranting review of the said order. The Division Bench, the order passed in which review is sought, took note of the Division Bench judgment in M/s S.M. Constructions and held that, unlike in that case, the writ petition in the present case had been dismissed in limine; and consequently, the respondents were not even called upon to state as to whether the factual assertions in the writ petition were admitted or not. As the order under review was passed after taking note of the earlier Division Bench judgment, in M/s S.M. Constructions, and a view different therefrom was not taken, and it was held that the said judgment had no application to the facts of the present case, the contention that the matter should have been referred to a Larger Bench does not merit acceptance. 7. A review is not an appeal in disguise nor is a re-hearing of the lispermissible in such proceedings. In review proceedings the contentions, urged on merits, are, ordinarily, not examined as these are all matters within the purview of an appellate Court. There are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matters or evidence which, after the exercise of due diligence, was not within the knowledge of the person seeking 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. A power of review is not to be confused with the appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court. [Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and others : AIR 1979 SC 1047 ; Shivdeo Singh and others vs. State of Punjab and other : AIR 1963 SC 1909 ; Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhury : AIR 1995 SC 455 ]. [Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and others : AIR 1979 SC 1047 ; Shivdeo Singh and others vs. State of Punjab and other : AIR 1963 SC 1909 ; Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhury : AIR 1995 SC 455 ]. Review proceedings are not by way of an appeal, and should be strictly confined to the scope and ambit of Order 47 Rule 1 C.P.C. (Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhury : AIR 1995 SC 455 ). 8. A party is not entitled to seek review of a judgment merely for the purpose of a rehearing and a fresh decision of the case. [Sajjan Singh vs. State of Rajasthan : AIR 1965 SC 845 ; M/s Northern India Caterers (India) Ltd. vs. Lt. Governor of Delhi : (1980) 2 SCC 167 ]. A review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except “where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.” [Sow Chandra Kante & another vs. Sheikh Habib : (1975) 1 SCC 674 ; M/s Northern India Caterers (India) Ltd. vs. Lt. Governor of Delhi : (1980) 2 SCC 167 ]. In review proceedings, this Court would interfere only if the order under review suffers from an error apparent on the face of the record. We are satisfied that the said order does not suffer from any such infirmity. The review application is, therefore, dismissed. No costs.