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2025 DIGILAW 789 (GUJ)

Yasin Fakirmohamed Sumbhaniya v. Union Of India

2025-07-18

BHARGAV D.KARIA, GITA GOPI

body2025
ORDER : BHARGAV D. KARIA, J. 1. Heard learned Senior Advocate Mr.B.B.Naik with learned advocate Mr.Premal S. Rachh for the applicant. 2. By this application, the applicant-original petitioner has prayed for the following reliefs : “(A) YOUR LORDSHIPS may be pleased to allow this Misc. Civil Application, in the interest of justice; (B)YOUR LORDSHIPS may be pleased to review the Oral Judgment dtd. 03.02.2023 passed by this Hon'ble Court in Special Civil Application No.6938/2019 and further be pleased to grant reliefs as prayed in Special Civil Application No. 6938/2019; (C) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted.” 3.1. Learned Senior Advocate Mr.B.B.Naik for the applicant submitted that the Judgment and Order dated 3rd February, 2023 passed by this Court (Coram:Hon’ble Ms.Justice Sonia Gokani As Her Ladyship was Then and Hon’ble Ms.Justice Gita Gopi) is required to be recalled in view of the contentions and averments made in the application. 3.2. It was submitted that there has been gross violation of principles of natural justice in the facts of the case as the applicant-original petitioner was not allowed adequate effective opportunity to cross- examine the witnesses and the persons whose statements were relied by the Department in spite written request was made and opportunity of hearing was also defeated by the Adjudicating Authority. It was submitted that such fact was not decided by this Court while passing the impugned Judgment and Order. 3.3. It was further submitted that the petitioner had challenged the Order-in- Original on ground of non-providing the opportunity to cross-examine which would result in breach of principles of natural justice and therefore, the Writ Petition ought to have been held as maintainable, however, by the impugned Judgment and Order, the petitioner is relegated to avail the alternative remedy. 3.4. It was further submitted that this Court has referred to and relied upon the decisions which were not sited by the either parties and therefore, before referring to such decisions, the opportunity ought to have been given to the applicant-original petitioner to distinguish the same. In support of such submissions, reliance was placed on the decision in case of Ashok Hiralal Parikh versus Senior Division Manager & Another rendered in LPA No.2153 of 2007 and other allied matters. 3.5. In support of such submissions, reliance was placed on the decision in case of Ashok Hiralal Parikh versus Senior Division Manager & Another rendered in LPA No.2153 of 2007 and other allied matters. 3.5. It was also submitted by learned Senior Advocate Mr.B.B.Naik that at the relevant time, the issue of challenging the orders passed in connection with the investigation carried out by the DRI and notices issued by the Customs was very much alive and therefore, the petition ought to have been entertained on merits rather than relegating the petitioner to avail the alternative remedies. 4. We have heard learned Senior Advocate Mr.B.B.Naik at length and also perused the impugned Judgment and Order, so as to appreciate the contentions raised by the learned Senior Advocate Mr.B.B.Naik. 5. It is pertinent to note that the power of review or recall is very limited power to rectify the mistake apparent on record. We are of the opinion that none of the contentions and submissions made on behalf of the applicant-original petitioner refers to any mistake apparent on record in the impugned Judgment and Order dated 3rd February, 2023. It is also pertinent to note that this Court while disposing of the bunch of five petitions, has observed as under: “38. With regard to non-availment of opportunity for want of necessary pre- deposit required under section 29E of the Customs Act, the appellate authority could not adjudicate on merits. Therefore, we are of the opinion that the balance needs to be struck by allowing the petitioner to approach the appellate authority by furnishing the amount of pre-deposits of the requisite amount. Resultantly, without making any interference with the OIO, all the petitioners are permitted to approach the appellate authority. Let the amount of pre- deposit be furnished in four weeks’ period and request, if any, comes from the petitioners to the Appellate authority to consider and regard the value of attached properties as adequate security at the time of furnishing pre-deposit, the same may be regarded, if permissible. Once the same is done, the authority concerned shall issue the notice on a dedicated e-mail ID, which shall be furnished or the address which shall be given by sending the communication by way of a Registered Post AD. 39. The representation, if does not come, the appellate authority shall choose to decide the course in accordance with law. Once the same is done, the authority concerned shall issue the notice on a dedicated e-mail ID, which shall be furnished or the address which shall be given by sending the communication by way of a Registered Post AD. 39. The representation, if does not come, the appellate authority shall choose to decide the course in accordance with law. However, when the petitioner represents himself either in person or through the authoritised person, the appeal shall be decided in accordance with law, where appellate Court would be also permitted to relegate/remand the parties to the stage of considering afresh the recordance of evidence, if deemed appropriate. None of the findings and observations made in these petitions shall prejudice the rights of the parties while adjudicating appeals in each case.” 6. Thus, this Court has given enough protection to the petitioner to raise all the contentions before the Appellate Authority relying upon the decision of the Apex Court in case of Phoenix ARC Private Limited Versus Vishwa Bharati Vidya Mandir and Others reported in (2022) 5 SCC 345 wherein, it is held not to entertain the writ petition and to touch the merit when alternative efficacious remedy under the statute is available. 7. Considering the contentions of the respondents, it would be germane to refer to the decision of the Hon’ble Apex Court in case of Lily Thomas Versus Union of India reported in (2000) 6 Supreme Court Cases 224 wherein, it is held as under : “58. Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with Order 47 of the CPC has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal's case. It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal's case. We have also not found any mistake or error apparent on the face of the record requiring a review. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal's case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned Counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words "any-other sufficient reason appearing in Order 47 Rule 1 CPC" must mean "a reason sufficient on grounds at least analogous to those specified in the rule" as was held in Chajju Ram v. Neki and approved by this Court in Moron Mar Baseless Catholics and Anr. v. Most Rev. Mar Poulose Athanasius and Ors. Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v.Ahmad is Hague and Ors. it was held: ...it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error and become art error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. Mr. When does an error cease to be mere error and become art error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, CJ in - "Batuk K Vyas v. Surat Borough Municipality' that no error could be said to be apparent on the face of the record if it was not self- evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. Therefore, it can safely be held that the petitioners have hot made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order 47 Rule 1 of the CPC for reviewing the judgment in Sarla Mudgal's case. The petition is misconceived and bereft of any substance.” 8. This decision was put to the learned Senior Advocate for the applicant and no further comments are made by the learned Senior Advocate to distinguish the decision, as to how the same is not applicable to the facts of the case and hence, the application is not entertained and is accordingly dismissed. No orders as to cost.