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HIGH COURT OF CALCUTTA
N. C. Talukdar
DEWAN SINGH - Appellant
Versus
GOLAP SINGH - Respondent
Civil Revn 2285 Of 1972
Decided On : JANUARY 30, 1973
REVIEW - LIMITATION - CONDONATION OF DELAY - SUFFICIENT REASON - ERROR OF LAW - NOT A SUFFICIENT REASON - MISTAKE OR ERROR APPARENT ON THE FACE OF THE RECORD - ERRONEOUS VIEW OF THE LAW - NOT A MISTAKE OR ERROR APPARENT ON THE FACE OF THE RECORD - DISCOVERY OF NEW AND IMPORTANT MATTER OR EVIDENCE - DISCOVERY BY THE COURT NOT SUFFICIENT - ORDER 47, RULE 1, CIVIL PROCEDURE CODE.
Fact of the Case:
Petitioner filed an application for review of an order passed by the High Court on 25th August 1971. The application was filed on 20th December 1971, beyond the 30-day limitation period prescribed under Article 124 of the Limitation Act. Petitioner also filed an application under Section 5 of the Limitation Act on 13th January 1972, seeking condonation of the delay.
Finding of the Court:
The court held that the petitioner had not provided sufficient reasons for the delay in filing the review application and that the error of law alleged by the petitioner did not constitute a sufficient reason for condonation of the delay. The court also held that the discovery of new and important matter or evidence referred to in Order 47, Rule 1, Civil Procedure Code, must be by the party and not by the court.
Issues: 1. Whether the delay in filing the review application was sufficiently explained? 2. Whether the error of law alleged by the petitioner constituted a sufficient reason for condonation of the delay? 3. Whether the discovery of new and important matter or evidence referred to in Order 47, Rule 1, Civil Procedure Code, must be by the party or by the court?
Ratio Decidendi: 1. The court held that the petitioner had not provided sufficient reasons for the delay in filing the review application. The court observed that the petitioner had not explained the delay of more than three months between the date of knowledge of the impugned order and the filing of the review application. 2. The court held that the error of law alleged by the petitioner did not constitute a sufficient reason for condonation of the delay. The court observed that an erroneous view of the law on a debatable point or wrong exposition of the law or a wrong application of the law cannot be considered to be a mistake or an error apparent on the face of the record. 3. The court held that the discovery of new and important matter or evidence referred to in Order 47, Rule 1, Civil Procedure Code, must be by the party and not by the court.
Final Decision: The court discharged both the review application (C.R. No. 859 (R) of 1972) and the application for stay of the suit proceedings (C.R. No. 2285 (R) of 1972) without costs.
( 1 ) THESE two Rules are taken up together for disposal as they are interconnected. C. R. No. 2285 (R) of 1972 is ancillary to C. R. No. 859 (R) of 1972, depending on the same for an ultimate decision.
( 2 ) C. R. No. 859 R of 1972 at the instance of the Petitioner Dewan Singh is for review and the prayer is as to why the order dated 25-8-1971 passed by K. K. Mitra, J. , in C. R. 2595 of 1969 should not be reviewed. As the review application was out of time, an application under Section 5 of the Indian Limitation Act was filed on the 13th January, 1972 and the Rule was issued by A. K. Sinha, J. , on the 15th March, 1972. The connected Rule viz. , C. R. 2285 R of 1972 is also at the instance of the petitioner, Dewan Singh, praying that the hearing of the suit in the court below may be stayed till the disposal of the earlier Rule issued for review. An ad interim stay was also granted on terms when the Rule was issued by my learned Brother, A. K. Sinha, J. , on the 6th July, 1972.
( 3 ) MR. Bhupendra Nath Mitra appearing on behalf of the petitioner in both the Rules made a twofold submission--firstly that there is sufficient reason under Section 5 of the Indian Limitation Act for a condonation of the delay in filing the application for review and secondly on merits. In this context, he urged that there should be a review of the order passed on the 25th August, 1971, when nobody appeared on behalf of the petitioner, and which is based on an error of law, as is apparent from the imprimatur of judicial decisions on the point. Mr. Panda joined issue and submitted that there should be no condonation of delay as (a) under Article 124 of the Limitation Act the period of limitation for review is only 30 days and not 90 days as previously provided for and Section 5 of the Indian Limitation Act is not applicable to a review application and (b) even if Section 5 was applicable there has been no explanation for each day's delay in filing the relevant application either under Order 47, Rule 1, Civil Procedure Code or under Section 5 of the Limitation Act. Mr. Panda next contended that on merits also the prayer for review is unwarranted and untenable and the Rules should be discharged.
( 4 ) MR. Panda did not ultimately press the first branch of his objection to the (applicability) of Section 5 to an application under Order 47, Rule 1, Civil Procedure Code because of the amendment of the Indian Limitation Act and the uniform decisions on the point thereafter in favour of such an application. He however pressed his second branch of objection that there has been no explanation of each day's delay in filing both the petitions on behalf of the Petitioner for review and condonation. The relevant dates will appear from the averments made in the affidavits. The date of the petitioner's knowledge is the 17th December. 1971 and it is stated that he could not instruct his learned Advocate in the High Court before the 19th December, 1971. It appears also from the records that the application for review was filed on the 20th December, 1971 on being affirmed by a tadbirkar; and that subsequently on the 13th January, 1972 an application under Section 5 of the Limitation Act was filed, being affirmed by the petitioner himself. There is much force behind the contentions of Mr. Panda that the application filed for review is a belated one inasmuch as the impugned order was passed as far back as on the 25th August, 1971. No sufficient explanation has been given as to why the said application could not be filed earlier than the 20th December, 1971. Mr. Mitra's explanation again for the delay in filing the application under Section 5 of the Limitation Act is not tenable. The only reason urged is that when he moved the application for review, it was pointed out by the Court that an application under Section 5 would be necessary because of the delay that had already ensued and accordingly the application under Section 5 was filed on affirmati
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