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2011 Supreme(Kar) 119
2001(3) KCCR 353
High Court of Karnataka
THE HONOURABLE MR. JUSTICE ASHOK B. HINCHIGERI
A.A. Enterprises Represented by its Partner S.S. Ashok
Versus
Tektronix (India) Pvt. Ltd., Authroized Representative and Business Controller Mohan Ramanujam
Review Petition No. 475 of 2009
Decided on : 14-02-2011
For the Petitioner:Abhinav R and Ms. Ujwala for Kumar & Kumar, Advocates.
For the Respondent:Vamshi Krishna, Advocate.
The judgment emphasizes the limited scope for reviewing an order, the doctrine of merger, and the requirement for an error to be apparent on the face of the record for permissibility of review.
Headnote:
Review Petition - Delay in filing review petition - Order 47 Rule 1(a) - CPC - Section 114 r/w Order XLVII Rule 1 - Doctrine of Merger
Fact of the Case:
The petitioner sought review of the order dated 15.09.2009 passed by the Court, which confirmed the Trail Court’s order refusing to grant permission to file the written statement. The petitioner claimed delay in filing the review petition due to the time taken to decide whether to file the review petition or S.L.P, and the need to compute the amounts regarding the entitle/liability of the parties.
Finding of the Court:
The Court deemed it just to condone the delay of 4 days in filing the review petition. However, the Court dismissed the review petition on the grounds of maintainability and merits.
Issues: Delay in filing review petition, maintainability of the review petition, and the doctrine of merger.
Ratio Decidendi: The Court's decision was influenced by the limited scope for reviewing an order under Section 114 r/w Order XLVII Rule 1 of CPC, the doctrine of merger, and the principles established in various judgments, including the need for an error to be apparent on the face of the record for permissibility of review.
Final Decision: The Court dismissed the review petition on the grounds of maintainability and merits.
1. Ms.Ujwala, the learned counsel for the petitioner submits that the delay of 4 days in filing this review petition is on account of the time taken to decide as to whether the review petition is to be filed of S.L.P is to be filed. She further submits that the paper were also sent to her counter-part in Delhi.
2. Sri Vamshi Krishna, the learned counsel for the respondent submits that the delay of 4 days in filing this review petition is not properly and cogently explained.
3. Appreciating the explanation offered, this Court deems it just to condone the delay of 4days in filing this review petition. Accordingly Misc.Cvl.7798/10 is allowed.
4. The petitioner has sought the review of the order, dated 15.09.2009 passed by this Court W.P.No.24816/09. The Trail Court’s order, dated 15.4.2009 refusing to grant permission to file the written statement was impugned in the said writ petition. Not finding bonafide reasons for the two years’ delay in filing the written statement, this Court confirmed the Trail Court’s order and dismissed the writ petition.
5. Ms. Ujwala, the learned counsel for the petitioner submits that there have been multiple documents arising form voluminous transactions. To cull out the information and compute the amounts regarding the entitle/ liability of the parties herein, the petitioner took little more time. She submits that this aspect of the matte was not clearly brought out in the course of the arguments. She fairly submits that though there is no error on the face of the order, the lapse on the part of the counsel should not put the party to any prejudice or injustice.
6. According to the learned counsel, this review petition is maintainable, as the same is filed before the filing of the S.L.P. To advance this submission, She relied on paragraph No.38 of the Hon’ble Supreme Court’s judgement in the case of KUNHAYAMMED AND OTHERS v. STATE OF KERALA AND ANOTHER, reported in JT 2000 (9) SCC 110. The same is extracted herein below:
“38. The review can be filed even after SLP is dismissed is clear from the language of Order 47 Rule 1 (a). Thus the words “no appeal has been preferred” in Order 47 Rule 1(a) would also mean a situation where special leave is not granted. Till then there is no appeal in the eye of law before the superior court. Therefore, the review can be preferred in High Court before special leave is granted, but not after it is granted. The reason is obvious. Once special leave is granted the jurisdiction to consider the validity of the High Court’s order vests in the Supreme Court and the High Court cannot entertain a review thereafter, unless such a review application was preferred in the High Court before special leave was granted.”
7. The learned counsel further submits that the Trial Court did not give any opportunity to the petitioner to cross-examine the respondent (PW1).
8. Sri Vamshi Krishna, the learned counsel for the respondent has raised a threshold bar to the very maintainability of the review petition. He submits that the petitioner had challenged this Court’s order, dated 15.9.2009 in SLP No. 29872/09 before the Hon’ble Supreme Court of India. The said SLP was dismissed by the Hon’ble Apex Court, by its order, dated 4.12.2009. He submits that on the confirmation of this Court’s order by the Hon’ble Supreme Court, the petitioner cannot seek the review of this Court’s order. He submits that this Court’s order, dated 15.9.2009 is merged in the Supreme Court’s order, dated 04.12.2009. According to him, if any review petition is to be filed, it has to be only in the Hon’ble Supreme Court of India.
9. The learned counsel for the respondent further submits that the ground, which is being urged in support of the review petition was urged in the course of the arguments in the writ petition itself.
10. Ms. Ujwala, in the course of her rejoinder, submits that the doctrine of merger has no application, as the review petition was filed on 10.11.2009 and the SLP was listed fo
