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1985 Supreme(Cal) 249

CALCUTTA HIGH COURT
BIMAL CHANDRA BASAK, J.
CHANDMALL CHOPRA AND ANOTHER
VERSUS
STATE OF WEST BENGAL
Matter No. 297 of 1985,
Decided On : 21 -6 -1985

The power of review is to be exercised very sparingly and may not be exercised on the ground that the decision was erroneous on merits.

Headnote:

REVIEW APPLICATION - CONDONATION OF DELAY - O. 47 R. 1(1) OF THE CIVIL P.C. - SUMMARY

Fact of the Case:

The petitioner filed an application for condonation of delay in the submission of a review application and a memorandum of review of the court's judgment dated 17th May 1985. The court had dismissed the petitioner's writ petition against Koran in limine.

Finding of the Court:

The court found that the petitioner had not provided a proper explanation for the one-day delay in filing the review application. The court also found that the petitioner had not filed an application for review in support of the memorandum of review and that the grounds raised in the memorandum of review were not grounds for review but rather grounds for appeal.

Issues: 1. Whether the petitioner had provided a proper explanation for the one-day delay in filing the review application. 2. Whether the petitioner had filed an application for review in support of the memorandum of review. 3. Whether the grounds raised in the memorandum of review were grounds for review or grounds for appeal.

Ratio Decidendi: 1. The court held that the petitioner had not provided a proper explanation for the one-day delay in filing the review application. The court noted that the petitioner's medical certificate stated that he was advised to take rest for four days from 15th June 1985, but that he had filed the review application on 18th June 1985. The court also noted that the petitioner had appeared in court in person on 18th June 1985, which indicated that he was not disabled from filing the application on 17th June 1985. 2. The court held that the petitioner had not filed an application for review in support of the memorandum of review. The court noted that there was no prayer in the application for condonation of delay for issuing a rule or for any order directing the hearing of the application for review. The court also noted that there was no averment in the application regarding the review. 3. The court held that the grounds raised in the memorandum of review were not grounds for review but rather grounds for appeal. The court noted that grounds Nos. 1 to 5 and grounds Nos. 7 and 8 challenged the correctness of the court's decision, which were grounds for appeal but not grounds for review. The court also noted that ground No. 6 did not involve any error apparent.

Final Decision: The court dismissed the petitioner's applications/memorandum in limine.

JUDGEMENT

The two papers were moved before me. One is an application for condonation of delay in the submissions of the review application and another is stated to be an application for review of my judgment dated 17th May, 1985 (reported in AIR 1986 Cal 104), but which is actually a memorandum of review. By the said judgment I have dismissed the writ petition directed against Koran in limine. Thereafter these two "applications" have been filed.

2. So far as the condonation of delay is concerned, the time for making an application for review is 30 days. There is only one day's delay. It might be felt that only one day's delay may be condoned but the condonation of delay is not a matter of course. The petitioner must give proper explanation of even one day's delay. In this case in the petition the delay is sought to be explained by making the following averments : -

"That the applicant got hurt in the palm of his right hand on 13th June, 1985, got a stitch and a bandage and was advised not to move his right hand for some days. A medical certificate is enclosed marked as annexure 'A'".

The said annexure 'A' reads as follows : -

"Shree Vishudhanand Hospital and Research Institute 35 and 37, Burtolla Street. Calcutta 7 General Outdoor Deptt. (EMERGENCY)

Dr. H. Poddar.

18 June 1985.

No. 20139

Name - Chandmal Chopra - Age - 53 Yrs.

This is to certify that Sri Chandmal Chopra aged 53 yrs. had got injured on 13-6-85 on the right little finger. One stitch and bandage was done on 13-6-85. He is advised to take rest for 4 days from that very day.

Sd/- Illegible,

17-6-85." It will be seen that there are inconsistencies between the averments in the petition and the medical certificate. In the petition it is stated that the applicant got hurt in the palm of his right hand whereas in the medical certificate it has been stated that he had got injured on the right little finger. In the petition the averment is that he is advised not to move his right hand for some days. In the medical certificate it is stated that he is advised to take rest for four days from that very day i.e., 15th June, 1985. Therefore, 1 cannot accept such statement. Moreover, it is to be seen that from 15 th June, 1985, four days mean up to 19th June, 1985. Therefore, according to such alleged advice, he was to take rest up to 19th June, 1985. Accordingly he could not have moved such application before 20th June if such medical advice was correct. But this application was moved on 18th June, 1985, by the petitioner in person. In my opinion, this is not a genuine ground. Further I am not satisfied that such a small injury could have prevented the petitioner from filing the application in Court on 17th i.e. the last day of limitation. On the 18th instant he appeared in Court and moved the application in person. From my personal observation also, 1 am satisfied that there was no injury which could disable him from moving any such application on 17th instant.

3. So far as the "application" for review is concerned actually it is a memorandum of review. It is to be pointed out that there is no application in support of the said memorandum. The only application filed along with the memorandum is the application for condonation of delay. There is no prayer therein for issuing a rule or for any order directing the hearing of the application for review. There is no averment in the said application also so far as review is concerned. Though it is stated in the memorandum of review that it is an application for review, there is in fact no such application.

4. The power of review is to be exercised very sparingly. This Court in its writ jurisdiction has undoubtedly got the power to review its judgment, but there are limits to the exercise of such power.

5. The petitioner seeks to invoke the power of review based on O. 47 R. 1(1) of the Civil P.C. The said Rule is set out hereinbelow : -

" 1(1) Any person considering himself aggrieved -

(a) by a decision on reference from a Court of Small Causes fro









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