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2021 DIGILAW 19 (JK)

Gh. Mohd. v. Manzoor Ahmed

2021-02-10

JAVED IQBAL WANI

body2021
JUDGMENT : (Through Video Conferencing) 1. In the instant petition review of order dated 21.11.2020 passed in OW104 No. 97/2016 by this court is sought by the petitioner on the following grounds:- (I) Because the Order sought to be reviewed, it is humbly submitted, has failed to appreciate the grounds urged by the petitioner vis-a-vis the facts, as available from the records, as such, is liable to be reviewed for the error apparent on the face of record. (II) Because the order sought to be reviewed omits to consider that the bar contained in Order VIII Rule 1 CPC to failure, to file the written statement within ninety days would not operate in the facts situation of the present case, in as much as the period for filing the written statement stood extended by the trial Court by its permission to file the written" statement in its order dated 20-01-2016. This permission to file the written statement has not been challenged by the respondents/plaintiffs, in absence whereof the respondents/plaintiffs cannot urge to play the bar contained in Order VIII Rule 1 CPC. This, therefore, would fall within the ambit of error apparent on the face of the record as the respondents/plaintiffs were estopped from supporting the closure of right to file the written statement. (III) Because, the order dated 10-03-2016 passed by the Learned Trial Court [impugned in the petition OW 104 No. 97/2016] is not passed under Order VIII Rule 1 CPC, and therefore, there was no occasion to uphold the closure of the right of the petitioner to file the written statement by invoking Order VIII Rule 1 CPC. So also the order sought to be reviewed suffers from an error apparent on the face of record. (IV) Because the order impugned dated 10/03/2016 in the petition OW 104 No. 97/2016 closes the right of the petitioner to file the written statement primarily for non-deposition of the costs as directed by order dated 20/01/2016. It was specifically urged that the petitioner had given Rs. 6000/- to his Learned Counsel representing him in the Trial Court for the said purpose as was told by him. The personal presence to pay the costs was not required. The petitioner was therefore under a bonafide belief that his counsel would have deposited the costs. However, by order dated 10/03/2016, the petitioner came to learn that a paltry sum of Rs. The personal presence to pay the costs was not required. The petitioner was therefore under a bonafide belief that his counsel would have deposited the costs. However, by order dated 10/03/2016, the petitioner came to learn that a paltry sum of Rs. 700/- out of Rs. 6000/- was also not deposited by the Learned Counsel. The order sought to be reviewed fails to consider this aspect of the matter in as much as the petitioner has suffered for negligence, intentional or otherwise, of his counsel in all bonafides and not because of any intended omission on the part of the petitioner. The petitioner had also based this submission supported by the case laws cited as AIR 1981SC 1400 and 2012 (2) JKJ 325 [HC]. (V) Because the Hon'ble Apex Court has ruled that the rigors of time contained in Order VIII Rule 1 CPC are only directory and can be relaxed for a cause which is reasonable/sufficient. It is submitted that the reasons submitted by the petitioners/defendants, for seeking to set aside the ex-parte proceedings, have been held by the Trial Court to be disclosing a sufficient cause that prevented the petitioner from joining the proceedings in its order dated 20/01/2016. Finding reasons so submitted by the petitioner to be sufficient reasons for the setting aside of the ex-parte proceedings, the same would come to the rescue of the petitioner for seeking an extension of time in filing the written statement. The order sought to be reviewed, calculating the period of ninety days from the initial service of summons on 11/03/2015 without adverting to the causes for inability to file the written statement, would bring the order sought to be reviewed within the scope of error apparent on the face of record. 2. Before dealing with the grounds detailed out herein above, it would be appropriate to give a brief background of the case here under: - 3. Petitioner herein invoked Supervisory Jurisdiction of this court in OW104 No. 97/2016 supra for quashment of order dated 10.03.2016 passed in file No. 75/ Suit titled as "Manzoor Ahmad and Ors. Vs. Ghulam Ahmad and Ors." by the court of 2nd Additional District and Sessions Judge, Jammu. Petitioner herein invoked Supervisory Jurisdiction of this court in OW104 No. 97/2016 supra for quashment of order dated 10.03.2016 passed in file No. 75/ Suit titled as "Manzoor Ahmad and Ors. Vs. Ghulam Ahmad and Ors." by the court of 2nd Additional District and Sessions Judge, Jammu. In terms of order dated 10.03.2016, supra right to file written statement of the petitioner herein (defendant before the Trial court) came to be closed on account of failure of the petitioner to deposit the costs imposed upon him for setting aside the ex-parte proceedings initiated vide order dated 20.01.2016. 4. The order dated 10.03.2016 supra came to be impugned in the above petition by the petitioner on the grounds which are extracted and reproduced here under: - (I) Because the impugned order, passed in the given set of facts and circumstances of the case, is in complete departure to the settled position of law and deserves to be set aside. (II) Because the petitioner is an illiterate person. He reposed his full trusted in his Learned counsel for taking care of the on-going proceedings before the Trial court Jammu. It is submitted that the order dated 10.03.2016 was passed in presence of the counsel of the petitioner, who had a legal obligation and an ethical duty towards his client i.e. the petitioner too at least inform his about the status of his case on each and every date of hearing. Ironical as it is, the learned counsel, in utter disrespect of the standards of professional and moral ethics, did not bother himself to take care of the welfare of his client which has landed the petitioner in this precarious situation. The petitioner has been defrauded by his own counsel, and dragged into unnecessary litigation, for negligence of his counsel, for none of his fault, thus, the order dated 10.03.2016 is liable to be set aside. (III) Because the Hon'ble Apex Court of the country, in its landmark judgement titled Rafiq and another Versus Munshilal and another has held that an innocent litigant cannot be punished for the negligence of his advocate. (III) Because the Hon'ble Apex Court of the country, in its landmark judgement titled Rafiq and another Versus Munshilal and another has held that an innocent litigant cannot be punished for the negligence of his advocate. The relevant portion of the judgement is reproduced as under: - "What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate.......The only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanor of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law.......The costs amounting to Rs. 200/- should be recovered from the advocate who absented himself." Thus, the order impugned deserves to be set aside. Because the learned trial court, in absence of any costs being deposited by the learned counsel for the defendant/petitioner and the filling written statement, in terms of the order dated 10.03.2016, the right of the petitioner to file written statement was closed. It is worthwhile here to bring to the notice of the Hon'ble Court that the order dated 10.03.2016 was passed in presence of the learned counsel for the defendant/petitioner. Fact remains, that the learned counsel did not inform the petitioner herein about the passing of order dated 10.03.2016, Thus, the order impugned deserves to be set aside. Because after the passing of the order dated 20.01.2016, the learned counsel for the petitioner informed him that the learned trial court has imposed a cost of Rs. 6000/- for setting aside ex-parte proceedings and for filing of the written statement, and requested him to pay the same to him. Because after the passing of the order dated 20.01.2016, the learned counsel for the petitioner informed him that the learned trial court has imposed a cost of Rs. 6000/- for setting aside ex-parte proceedings and for filing of the written statement, and requested him to pay the same to him. The innocent petitioner, believing the words of his counsel, paid him the requisite costs of Rs. 6000/- in cash. It is relevant to submit here that neither the costs were deposited before the Hon'ble Court nor the written statement was ever filed by the learned counsel. Thus, the order impugned deserves to be set aside. (IV) Because the order impugned is highly prejudicial to the interest of justice, equity and fair play that too because of the negligence and indifferent attitude of the learned counsel conducting the case on behalf of the petitioner herein. The position of law has been settled by the different High Courts including the Apex Court of the country that for negligence of the counsel the party cannot be put to any disadvantage. (V) Because the advocate engaged by the petitioner was a 'black-sheep' who has not only acted for his own selfish motives and deceived his client but shaken the root foundation of the legal profession by creating a mistrust between the advocate-client relationship, causing manifest failure of justice to the poor litigation like the petitioner. (VI) That the order impugned in the petition has caused failure of justice as such is required to be set aside. 5. After hearing the learned counsel for the parties and upon perusal of the record of the Trial court, the petition supra of the petitioner herein came to be dismissed, vide order dated 21.11.2020 against which the present review petition has been filed. 6. Heard learned counsel for the petitioner and perused the record. 7. Before dealing with the grounds urged in the petition, it would be appropriate and advantageous to appreciate the scope and ambit of the subject of review lucidly dealt with by the Apex court in case titled as "Inderchand Jain Vs. Motilal" reported in 2009 (14) SCC 663 , wherein from Para 7 to 11, it has been noticed as under:- "7. Section 114 of the Code of Civil Procedure (for short "the Code") provides for a substantive power of review by a civil court and consequently by the appellate courts. Motilal" reported in 2009 (14) SCC 663 , wherein from Para 7 to 11, it has been noticed as under:- "7. Section 114 of the Code of Civil Procedure (for short "the Code") provides for a substantive power of review by a civil court and consequently by the appellate courts. The words "subject as aforesaid" occurring in Section 114 of the Code means subject to such conditions and limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in order 47 of the Code must be taken into consideration. Section 114 of the Code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47 of the Code; Rule 1 whereof reads as under: 17. The power of a civil court to review its judgement/decision is traceable in Section 114 CPC. The grounds on which review can be sought are enumerated in Order 47 Rule 1 CPC, which reads as under: "1. Application for review of judgement (1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes. and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgement of the court which passed the decree or made the order". 8. An application for review would lie inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. In Rajendra Kumar V. Rambai this court held: (SCC P. 514, para 6) "6. The limitation on exercise of the power of review are well settled. An application for review would lie inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. In Rajendra Kumar V. Rambai this court held: (SCC P. 514, para 6) "6. The limitation on exercise of the power of review are well settled. 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 permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgement/order cannot be disturbed." 9. The power of review can also be exercised by the court in the event discovery of new and important matter or evidence takes place which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was made. An application for review would also lie if the order has been passed on account of some mistake. Furthermore, an application for review shall also lie for any other sufficient reason. 10. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgement is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order. 11. Review is not appeal in disguise. In Lily Thomas V. Union of India this court held : (SCC P. 251, para 56): "56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise". 8. Perusal of the order impugned dated 21.11.2020 reveals that same came to be passed after taking into account the ambit and scope of Supervisory jurisdiction of this court as enunciated by the Hon'ble Supreme Court in cases titled as Shalini Shayam Shetty & Anr. Vs. The review cannot be treated like an appeal in disguise". 8. Perusal of the order impugned dated 21.11.2020 reveals that same came to be passed after taking into account the ambit and scope of Supervisory jurisdiction of this court as enunciated by the Hon'ble Supreme Court in cases titled as Shalini Shayam Shetty & Anr. Vs. Rajendra Shankar Pati, reported in 2010 (8) SCC 329 and Surya Dev Rai vs. Ram Chander Rai and Ors., reported in 2003 (6) SCC 675 , wherein it has been laid down that the orders of the Civil court are not amenable to the writ jurisdiction under Article 226 but could be interfered with under Article 227 of the Constitution in the event the case falls within the parameters laid down in the judgements supra where under it is provided that power of Superintendence/Supervisory jurisdiction is to be exercised sparingly only in appropriate cases for the purpose of keeping the Subordinate courts and Tribunals within the bounds of their authorities and that the power is not available for correcting mere errors of law and fact. 9. This court while passing the order under review had noticed that right to file written statement of the petitioner had been closed by the Trail court on account of failure of the petitioner to deposit the costs imposed upon him while setting aside the ex-parte proceedings. Upon perusal of the record of the Trial court it also had been noticed that otherwise as well, the petitioner failed to file the written statement well within the period prescribed and stipulated under Order VIII of the Code of Civil Procedure notwithstanding the amendment carried out in Order VIII of the Code of Civil Procedure w.e.f. 13.12.2018. 10. The grounds for review of the order in question urged in the instant petition firstly alleges failure to appreciate the grounds urged by the petitioner viz-a-viz the facts as available from the record. The said grounds fundamentally relate to the alleged negligence of the counsel for the petitioner before the Trial court. The said alleged negligence per-se cannot said to be a ground which would have warranted exercise of Supervisory jurisdiction of this court in the matter in the light of the law laid down in Shalini Shayam Shetty & Anr. Vs. The said grounds fundamentally relate to the alleged negligence of the counsel for the petitioner before the Trial court. The said alleged negligence per-se cannot said to be a ground which would have warranted exercise of Supervisory jurisdiction of this court in the matter in the light of the law laid down in Shalini Shayam Shetty & Anr. Vs. Rajendra Shankar Pati, and Surya Dev Rai vs. Ram Chander Rai and Ors., supra cases, as in legal profession an advocate acts as an agent of the party and there is no absolute rule that party can put entire blame upon the advocate while trying to make out as if, the party was totally unaware of the nature or significance of the proceedings. 11. Perusal of the further grounds urged in the petition relate to the time stipulation of 90 days provided under Order VIII of CPC for filing of written statement. The said grounds are not available to the petitioner for seeking review of the order in question as upon perusal of record of the Trial court in exercise of Supervisory jurisdiction, the petitioner was found to have otherwise failed to file the written statement within the period stipulated under Order VIII CPC. This fact could not be overlooked in the matter by this court. Taking notice of the said fact and making observations thereof in the order under question do not by any sense of imagination in law constitute any ground for review of the order in question. 12. Further ground urged in the petition that rigor of time contained in Order VIII Rule 1 CPC is directory and can be relaxed for a cause which is reasonable/sufficient. The said ground in essence amounts to conversion of review into appeal which in law is not permissible. Further a view taken by this court in the matter in this regard is sought to be projected as a mistake to be corrected by substituting the said view which as well is not permissible under law. 13. For all what has been observed and discussed hereinabove inasmuch as while keeping in mind the aforesaid propositions and principles laid down by the Apex court in Inderchand's case supra, the petition in hand does not call for review of order dated 21.11.2020 and entails dismissal, as such is, accordingly dismissed, along with all connected CM(s).