Shree Prakash Singh Vs Trishit Dhar

2. This review petition, under Section 114 read with Order XLVII Rule 1 of the CPC and Chapter X of the Gauhati High Court Rules, is preferred by the petitioner for reviewing the order dated 08.11.2024, passed by this Court, in CRP(I/O) No. 212/2024.

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3. It is to be noted here that vide impugned order, dated 08.11.2024, this Court had dismissed the CRP(I/O) No. 212/2024, on the ground of availability of alternative remedy under CPC and also in view of the decision of Hon’ble Supreme Court in the case of Mohamed Ali vs. V. Jaya and Others , reported in (2022) 10 SCC 477 .

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4. Mr. Purkayastha, learned counsel for the review petitioner, submits that in CRP(I/O) No. 212/2024, the petitioner had challenged the order, dated 01.11.2022, passed by the learned Civil Judge No. 1, Cachar, Silchar (trial court hereinafter), in Title Suit No. 113/2022, and also the order dated 24.05.2023, passed in Misc. (J) Case No. 28/2023, along with the order, dated 14.03.2024, passed in Misc. (J) Case No. 288/2023, which were arisen out of Title Suit No. 113/2022.

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4.1. Drawing attention of this Court to the order, dated 01.11.2022, passed by the learned trial court, in Title Suit No. 113/2022, Mr. Purkayastha submits that on 01.11.2022, the petitioner, being the defendant, filed one petition, being No. 186/20, for adjournment for filing written statement. However, the learned trial court had rejected the same and proceeded ex-parte against the petitioner without his written statement, though liberty was granted to the petitioner to participate at the hearing, as per law.

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4.2. Mr. Purkayastha further submits that thereafter, an application, under Order IX Rule 13 read with Section 151 of the CPC was filed for vacating the exparte order, dated 01.11.2022, passed in Title Suit No. 113/2022, and also to allow him to contest the suit by filing written statement, upon which the Misc.(J) Case No. 29/2023 was registered. Mr. Purkayastha also submits that though in the said application, dated 02.02.2023, it has been mentioned that the said

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application was filed under Order IX Rule 13 read with Section 151 of the CPC, yet, the said application was not under the said Order and Rule, as it was filed only to vacate the ex-parte order, dated 01.11.2022. Mr. Purkayastha also submits that as the same was not a decree, the learned counsel for the petitioner, before the learned trial court, had wrongly quoted the same and that it is a well settled proposition of law that misquoting or wrong quoting of Section is not a ground to dismiss a petition, if the learned Court has the power to grant the relief sought for, as held by Hon’ble Supreme Court in the case of Board of Control for Cricket, India and Another vs. Netaji Cricket Club and Others , reported in (2005) 4 SCC 741 .

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4.3. Further submission of Mr. Purkayastha is that on 02.02.2023, the petitioner had filed another application, under Section 5 of the Limitation Act, for condonation of delay of 62 days, in preferring the application under Order IX Rule 13, read with Section 151 of the CPC for setting aside the ex-parte order, dated 01.11.2022, and upon the same, a Misc.(J) Case No. 28/2023 was registered. Thereafter, hearing for both the parties, the learned trial court, vide order dated 24.05.2023, had dismissed the same. Thereafter, another application was filed by the petitioner, on 13.09.2023, under Order IX Rule 7 read with Section 151 of the CPC, for vacating the said ex-parte order and upon which, Misc.(J) Case No. 288/2023 was registered and after hearing both the parties, learned trial court had also dismissed the same, vide order dated 14.03.2024.

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4.4. It is also the submission of Mr. Purkayastha that though the petitions appear to be filed under Order IX Rule 13 of the CPC, yet the order of ex-parte is not an ex-parte judgment and decree and as such, the said provision is wrongly quoted. Mr. Purkayastha further submits that the applications filed by

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the petitioner are interlocutory applications and the orders passed by the learned trial court are interlocutory orders, against which the petition under Article 227 is maintainable and as such, there is sufficient ground for recalling the order dated 08.11.2024, passed by this Court, in CRP(I/O) 212/2024 and therefore, it is contended to allow this review petition.

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5. Per-contra, Mr. Ghosh, learned counsel for the respondent has vehemently opposed this review petition. Mr. Ghosh submits that in the order dated 08.11.2024, passed by this Court, in CRP(I/O) 212/2024, there is no error apparent on the face of the record and also there is no ground for reviewing the same.

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5.1. Mr. Ghosh further submits that while filing the application for setting aside the ex-parte order, dated 01.11.2022, the petitioner had not enclosed the written statement along with the application and that the learned trial court had rightly exercised its discretion in refusing to vacate the said order. Mr. Ghosh also submits that there is lack of diligence on the part of the petitioner and the same is apparent from the subsequent applications also, and under such circumstances, Mr. Ghosh has contended to dismiss this review petition.

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6. Notably, when a question was put to Mr. Purkayastha, learned counsel for the review petitioner, as to whether the petitioner had enclosed his written statement with the application or not, he fairly submits that written statement was not enclosed with the application though in such cases it should have been.

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7. Having heard the submissions of the learned Advocates of both sides, I have carefully gone through the petition as well as the documents placed on record and also perused the impugned order dated 08.11.2024, passed by this Court, in CRP(I/O) No. 212/2024 and also the orders, passed by the learned trial

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court, dated 01.11.2022, in Title Suit No. 113/2022; dated 24.05.2023, in Misc. (J) Case No. 28/2023; and dated 14.03.2024, in Misc. (J) Case No. 288/2023.

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8. The principles, on which review is permissible, is well settled in catena of decisions of Hon’ble Supreme Court. In the case of Kamlesh Verma v. Mayawati, reported in (2013) 8 SCC 320, Hon’ble Supreme Court had summarized the principles as under:-

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“ Summary of the principles

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20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

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20.1. When the review will be maintainable:

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( i ) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

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( ii ) Mistake or error apparent on the face of the record;

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( iii ) Any other sufficient reason.

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The words “any other sufficient reason” have been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144: (1922) 16 LW 37: AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC 337 : JT (2013) 8 SC 275]

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20.2. When the review will not be maintainable:

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( i ) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

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( ii ) Minor mistakes of inconsequential import.

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( iii ) Review proceedings cannot be equated with the original hearing of the case.

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( iv ) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

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( v ) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

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( vi ) The mere possibility of two views on the subject cannot be a ground for review.

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( vii ) The error apparent on the face of the record should not be an error which has to be fished out and searched.

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( viii ) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

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( ix ) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”

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9. In the case of Netaji Cricket Club (Supra) , Hon’ble Supreme Court in paragraph Nos. 88 & 89, has been held as under:-

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“ 88. Order 47, Rule 1 of the Code provides for filing

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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.

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89. 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’.”

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10. Keeping the above principles in mind, now an endeavour will be made to find out if there is any discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; if there is any mistake or error apparent on the face of the record; or if there is any other sufficient reason.

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11. It is not in dispute that the order under review, dated 01.11.2022, is an interlocutory order, passed under Order 8 Rule 10 of the CPC and against an order passed in an interlocutory application, and the same is not an appealable order. And as such, against such an order, only revision under Article 227 of the Constitution of India would lie.

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12. Thus, there appears to be sufficient force in the submission of Mr. Purkayastha, learned counsel for the review petitioner. He has successfully

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demonstrated that there exists ‘sufficient reason’ to review the order passed by this Court, on 08.11.2024, in CRP(I/O) No. 212/2024.

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13. Though, Mr. Ghosh, learned counsel for the respondent submits that while filing the application for vacating the ex-parte order, dated 01.11.2022, the petitioner had not enclosed the written statement and the learned trial court had rightly rejected the same, yet this Court is of the view that such a point can be adjudicated only in CRP(I/O), not in this review petition. As has been held in the case of Kamlesh Verma (supra) and also in Netaji Cricket Club (Supra) , in review petition the Court has to see three things only, which are - ( i ) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; ( ii ) Mistake or error apparent on the face of the record; ( iii ) Any other sufficient reason.

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14. In the result, this Court finds sufficient merit in this petition and accordingly, the same stands allowed leaving the parties to bear their own costs. The order, dated 08.11.2024, passed by this Court, in CRP(I/O) No. 212/2024, therefore, stands reviewed and recalled.

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15. In view of recalling of the order dated 08.11.2024, now the registry shall list the CRP(I/O) No. 212/2024 before the Court on a date to be fixed by it.

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Shree Prakash Singh v. Trishit Dhar

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Shree Prakash Singh v. Trishit Dhar

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