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HIGH COURT OF CALCUTTA
B. C. MITRA, S. K. MUKHERJEE
KRISHNA KUMAR KHEMKA - Appellant
Versus
JAGADISH NARAYANA BHAN - Respondent
Company Petn. 408 Of 1969
Decided On : FEBRUARY 19, 1971
CIVIL PROCEDURE CODE - Order 47, Rule 3 - Review - Application for - Delay in making - Condonation of - Sufficient cause - Mistake of law - Whether a ground for condonation of delay.
Fact of the Case:
The petitioner filed an application for review of an order made by consent of parties on July 9, 1970. The application was dismissed on the ground of non-compliance with the provisions of Order 47, Rule 3 of the Civil Procedure Code and Rules 34, 35 and 36 of Chapter XXXI of the Original Side Rules of the Calcutta High Court, as no memorandum of review was presented by the applicant for the purpose of the application. The petitioner then filed a second application for review, along with an application for condonation of delay in making the application. The petitioner contended that he was misled by the conflicting decisions of different High Courts on the issue of whether the time taken in obtaining a certified copy of a decree or order should be excluded in favor of the appellant, even if the application for the certified copy was made after the expiry of the period of limitation. The petitioner also contended that he was entitled to the benefit of Section 17 of the Limitation Act, 1963, as he had made a mistake with regard to the value of the shares.
Finding of the Court:
The Court held that the petitioner was not entitled to condonation of delay in making the application for review. The Court held that the petitioner had failed to show sufficient cause for the delay, as he had not explained the delay from August 14, 1970, up to the date when the Memorandum of Review was presented namely September 29, 1970. The Court also held that the petitioner was not entitled to the benefit of Section 17 of the Limitation Act, 1963, as the mistake alleged by the petitioner was not a mistake of fact but a mistake of law. The Court further held that the allegations made by the petitioner in paragraphs 31, 32 and 33 of the petition that consent was given under coercion and because the Court refused to make an order unless terms of settlement were put in were altogether false and unfounded.
Issues: 1. Whether the petitioner was entitled to condonation of delay in making the application for review. 2. Whether the petitioner was entitled to the benefit of Section 17 of the Limitation Act, 1963.
Ratio Decidendi: 1. The Court held that the petitioner was not entitled to condonation of delay in making the application for review, as he had failed to show sufficient cause for the delay. The Court held that the petitioner had not explained the delay from August 14, 1970, up to the date when the Memorandum of Review was presented namely September 29, 1970. 2. The Court held that the petitioner was not entitled to the benefit of Section 17 of the Limitation Act, 1963, as the mistake alleged by the petitioner was not a mistake of fact but a mistake of law.
Final Decision: The Court dismissed the application for condonation of delay and the application for review.
( 1 ) THIS is an application for condonation of the delay in making an application for review under Order 47 of the Civil Procedure Code, and for an order that the memorandum of Review presented to the Registrar on September 29. 1970, but returned by him, with the endorsement "out of time", be admitted. Before proceeding any further I should note that this is a third of a series of attempts to reopen an order made by consent of parties and on the basis of terms of settlement put in by them on July 9. 1970. The object of the review application is to obtain variation and alteration in the terms agreed upon between the parties by increasing the price of the shares in the capital of a Joint Stock Company known as Associated Industrial Development Co. Private Ltd. The circumstances in which the first application was made by the petitioner has been set out in paragraph 48 of the petition. That application was made on September 15, 1970, and was disposed of on September 28. 1970. The application was dismissed on the ground of non-compliance with the provisions in Order 47. Rule 3 of the Civil Procedure Code and Rules 34, 35 and 36 of Chapter XXXI of the Original Side Rules of this Court, as no memorandum of review was presented by the applicant for the purpose of the application. Counsel for the applicant had asked for leave to withdraw the application with liberty to make a fresh one, in proper form. But this prayer was rejected as we took the view that the application was barred by limitation under Article 124 of the Limitation Act. 1963. It is to be noted here that in that application there was no prayer for condonation of delay in filing the application or for enlargement of the time to present a memorandum of appeal to the Registrar as required by the Rules of this Court mentioned above. To the order dated September 28, 1970. I shall have occasion to refer later in this judgment.
( 2 ) ON September 29. 1970. the petitioner presented a Memorandum of Review to the Registrar, Original - Side of this Court under Rule 36 of Chapter XXXI of the Original Side Rules of this Court. This Memorandum of Review was returned on the ground that it was out of time. I set out below the dates noted by the Registrar in rejecting the Memorandum of Review. Quite apart from other grounds, to which I shall refer later, and on which we find that such an application is incompetent, it appears that the Original Side Rules do not provide for such an application. Rule 34 of Chapter XXXI of those Rules provides that Rules 2 and 3 of that Chapter shall so far as applicable, apply, mutatis mutandis to application for review. Rule 2 deals with the form of the Memorandum of Appeal from the Original Side and prescribes that it shall bo. in Form No. 1 and shall be drawn up in the manner prescribed by Order 41. Rule 1 of the Code. Rule 3 provides for acceptance of the memorandum by the Registrar, if it is duly stamped, and is within the time allowed by the law of limitation. Rule 4 of those Rules provides that when a Memorandum of Appeal is not accepted by the Registrar, he shall endorse thereon the date of its presentation, and return it to the party or attorney by whom it was tendered, and such memorandum may then be presented to the appellate Court for admission. It is to be noticed that Rule 4 has not been made applicable to a Memorandum of Review. That being so a litigant whose Memorandum of Review has been rejected by the Registrar has no right under the Rules to present the same to this Court for admission, as in the case of a Memorandum of Appeal. There is no other provision in the Original Side Rules to enable the petitioner in this application to move this Court for admission of the Memorandum of Review which has been rejected and returned by the Registrar.
( 3 ) IF the question was to be decided only on the basis of the Original Side Rules alone it might be contended with a good deal of force that such an application was not maintaina
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