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HIGH COURT OF CALCUTTA
Bijayesh Mukherji
TINKARI SEN - Appellant
Versus
DULAL CHANDRA DAS - Respondent
Civil Revn. Case 3802 Of 1964
Decided On : DECEMBER 14, 1966
REVIEW - Grounds - Certificate by Advocate - Absence of - Whether review application barred - Error apparent on the face of the record - Whether Court can review its judgment suo motu - Mistake of law - Whether ground for review.
Fact of the Case:
The petitioners filed an application for review of the judgment passed by the court in a rule obtained by the landlords under Article 227 of the Constitution against an appellate order of affirmance arising out of proceedings for standardization of rent under Section 9 of the West Bengal Premises Tenancy Act, 1950 (the "1950 Act"). The review application was filed on the ground that the court had erred in holding that the petitioners had no locus standi to apply for standardization of rent as their contractual tenancy had been determined by a notice to quit before they filed the application. The petitioners argued that they were still tenants within the meaning of Section 2(11) of the 1950 Act, which includes an ex-tenant who is still in possession of the demised premises.
Finding of the Court:
The court held that the application for review was maintainable despite the absence of a certificate by an advocate that the grounds for review were good grounds, as the rule requiring such a certificate was directory and not mandatory. The court further held that it had erred in its previous judgment in holding that the petitioners had no locus standi to apply for standardization of rent, as the definition of "tenant" in Section 2(11) of the 1950 Act includes an ex-tenant. The court relied on the decision of a Special Bench of the Calcutta High Court in Krishna Prosad Bose v. Sarajubala Dassi, which held that a tenant under the 1950 Act includes an ex-tenant.
Issues: 1. Whether the application for review was barred due to the absence of a certificate by an advocate that the grounds for review were good grounds? 2. Whether the court had erred in its previous judgment in holding that the petitioners had no locus standi to apply for standardization of rent?
Ratio Decidendi: 1. The court held that the rule requiring a certificate by an advocate that the grounds for review were good grounds was directory and not mandatory. The court reasoned that the real intention behind the rule was to ensure that the advocate concerned took responsibility for the grounds drawn up for review, so that frivolous applications might not waste the time of the court. The court further held that the absence of such a certificate could be cured by allowing the advocate to supply the omission by appending a certificate, which would speak from the very date of the application. 2. The court held that it had erred in its previous judgment in holding that the petitioners had no locus standi to apply for standardization of rent. The court relied on the decision of a Special Bench of the Calcutta High Court in Krishna Prosad Bose v. Sarajubala Dassi, which held that a tenant under the 1950 Act includes an ex-tenant. The court reasoned that the petitioners were ex-tenants who were still in possession of the demised premises, and therefore they were tenants within the meaning of Section 2(11) of the 1950 Act.
Final Decision: The court allowed the application for review and made the rule absolute. The court also directed the petitioners' advocate to record the requisite certificate at the foot of the application for review.
( 1 ) THIS in an application "for re view and/or reconsideration" of my two orders one dated June 17, 1966 and the other dated June 22 following.
( 2 ) BY the first such 'order'--really it was a judgment--I made absolute the rule obtained by the landlords under Article 227 of the Constitution against an appellate order of affirmance arising out of proceedings for standardization of rent under Section 9 of the "1950 Act. " So I did, after having heard only Mr. Deb who with Mr. Anil Kumar Mukherjee was appearing in support of the rule. Unfortunately, neither Mr. Murari Mohan Mukherjee nor his pleader. Mr. Apurbadhan Mukherjee, appearing for the opposite party tenants, was present After the judgment was delivered, making the rule absolute, Mr. Apurbadhan Mukherjee mentioned the matter that very day (June 17, 1966), saying that the case was lost sight of. Thereupon I set it down for hearing on June 22, 1959 so that the matter might be heard in presence of both the parties. On June 22, however I did not find Mr. Apurbadhan Mukherjee nor his learned junior. I, therefore, ordered that the judgment I had rendered on June 17 previous would stand. More, I signed the judgment that day too: June 22. This is the second order that is sought to be "reviewed and/or reconsidered. "
( 3 ) MR. Chittatosh Mookerjee, it appears, drew up the review petition, moved it before me on August 23, 1966, and obtained the rule which is for decision now and in support of which he appears, though he appeared at no stage during the carriage of the main rule under Article 227 of the Constitution. (Here hangs a point. More of which hereafter in paragraph 6 et seq. infra.)
( 4 ) OPPOSING the rule, Mr. Deb raises a preliminary point which, he submits, goes to the very root of the matter. The point is: the application for review I am seized of contains no certificate by the advocate that the grounds taken in support thereof are good grounds of review, infracting thereby the mandatory provisions of Rule 2, chapter 10. of the Appellate Side Rules of this Court:"2. Every application for review of judgment shall set forth plainly and concisely the grounds on which a review is sought, and shall contain a certificate by an Advocate of the Court similar, mutatis mutandis, to that prescribed in Appeals from Appellate Decrees (See Chapter V Rule 6)"mr. Deb is right. There is no such certificate. But I am unable to accept his submission that the provisions of the rule are mandatory. The use of the auxiliary verb shall, upon which Mr. Deb relies so much, is not conclusive. Similarly the absence of the imperative is not conclusive either. See Collector of Monghyr v. Keshav Prasad Goenka. I do not, therefore, place the same accent on shall as Mr. Deb does
( 5 ) AGAIN, no universal rule can be laid down for construction of a statute or statutory instrument as directory only or obligatory with an implied nullification for disobedience. Much the best thing to do is to get at the real intention of the maker of the statute or statutory instrument by carefully attending to the whole scope thereof. In saving so. I do no more than adopt, with a little modification, in the context of the case, what has been laid down by Sir Asutosh Mookerjee in Mathura Mohan Saha v Ram Kumar Sana and Chittagong, District Board. (1916) 20 Cal WN 370: (AIR 1916 Cal 136) Such being the test, I find no nullification, express or implied for disobedience of the rule, the real intention behind which appears to be that the advocate concerned should take responsibility for the grounds drawn up by him for review, so that frivolous applications might not waste the time of the court. Say, through oversight--and Mr. Chittatosh Mookerjee does plead oversight --the requisite certificate has not been given. Will the Court then throw out the application as barred in limine: just the view Mr. Deb contends for? Or will the Court allow the advocate to supply the omission by appending a certificate w
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