Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1959 Supreme(Cal) 188

HIGH COURT OF CALCUTTA
S. P. MITRA, J.
Benoy Krishna Rohatgi
Versus
Surajbali Misra
Suit No. 1213 of 1951
Decided On : 21-08-1959

Advocates:
Chandan Banerjee, for Applicant; Sambhu C. Ghose, for Respondents.

A mistake or error in the printing of a party's solicitor's name in the Peremptory List, which leads to the party's non-appearance and an ex parte decree, can be a ground for review under Order 47 Rule 1 of the Code of Civil Procedure, as it is a mistake or error apparent on the face of the record or a ground analogous thereto.

Headnote:
REVIEW - MISTAKE OR ERROR APPARENT ON THE FACE OF THE RECORD - SUIT DISMISSED FOR NON-APPEARANCE OF DEFENDANT - MISTAKE IN PRINTING OF DEFENDANTS SOLICITORS NAME IN PEREMPTORY LIST - WHETHER GROUND FOR REVIEW - O. 47 R. 1, C. P. C.
Fact of the Case:

In a suit for possession of land, an ex parte decree was passed against the defendants due to a mistake in printing the name of their solicitor in the Peremptory List. The defendants' solicitor, relying on the incorrect information, did not appear on the date of hearing, leading to the ex parte decree.
Finding of the Court:

The court held that the mistake in printing the defendants' solicitor's name in the Peremptory List was a mistake or error apparent on the face of the record, or at least a ground analogous thereto, and thus a sufficient reason for review under Order 47 Rule 1 of the Code of Civil Procedure.
Issues: Whether the mistake in printing the defendants' solicitor's name in the Peremptory List constituted a mistake or error apparent on the face of the record, or a ground analogous thereto, sufficient for review under Order 47 Rule 1 of the Code of Civil Procedure.
Ratio Decidendi: The court relied on the following principles in reaching its decision: * The term "any other sufficient reason" in Order 47 Rule 1 of the Code of Civil Procedure should be construed as meaning a reason sufficient on grounds at least analogous to those specified immediately previously, such as mistake or error apparent on the face of the record. * The mistake in printing the defendants' solicitor's name in the Peremptory List was a mistake or error apparent on the face of the record, or at least a ground analogous thereto, as it deprived the defendants of their right to be heard and defend the suit. * The fact that the defendants' solicitor could have been more diligent in scrutinizing the lists to find out the suit's status was not a bar to the review application, as the mistake in the Peremptory List was positively misleading.
Final Decision: The court set aside the ex parte decree and directed the suit to appear at the top of the appropriate Prospective List for early hearing.

JUDGMENT : - This is an application for review under the provisions of O. 47 R. 1 of the Code of Civil Procedure. On 13th March, 1951 the plaintiff instituted this suit, inter alia, for the recovery of possession of the land at premises No. 12/1/1A, Khangraputty Street, in Calcutta. The suit appeared in the appropriate Prospective List C on the 17th November, 1956. Mr. M. R. Bose, a Solicitor of this Court was appearing on behalf of the defendants but in the Prospective List the name of Messrs. Mitter and Bural appeared as the defendants attorneys. On the 12th February, 1952 the suit appeared in my Warning List. Here, again, Messrs. Mitter and Bural were stated to be the defendants solicitors. The suit was placed in my Peremptory List on the 14th February 1958. The same mistake was committed in the Peremptory List as well. On the 14th February, 1958 the suit was passed over twice and on the third occasion an ex parte decree in favour of the plaintiffs was made by me. On the 9th January 1959 Mr. M. R. Bose, Solicitor for the defendants, wrote to the plaintiffs Solicitor asking for inspection of the document disclosed by the plaintiffs. The plaintiffs Solicitor replied that an ex parte decree had already been passed on the 14th February, 1958. On January 12, 1959 the defendants Solicitor furnished requisition to the Registrar for inspection of the records of this suit. On the 21st January, 1959 inspection was given to him. A Notice of Motion was taken out by the defendants Solicitor on the 28th January, 1959 for setting aside the ex parte decree. The application was heard by me on the 3rd March 1959 when I dismissed the same on the ground of limitation. On the 19th March 1959 the defendants Solicitor obtained a certified copy of the decree. He took out a Notice of Motion for condonation of the delay in making an application for review and leave to file memorandum of review on the 25th March 1959. I heard this application on the 2nd June 1959 and without prejudice to the respondents contention that an application for review did not lie. I made an order, inter alia, condoning the delay and granting leave to the defendants to file their memorandum of review on or before the 6th June 1959. A Rule was issued on the 10th June 1959 calling upon the plaintiffs to show cause why the application for review should not be granted and the suit set down for re-hearing. The Rule was made returnable four weeks from date.

2. At the hearing of this application Mr. Banerjee on behalf of the petitioners has urged that the judgment and decree passed by me on the 14th February 1958 should be reviewed on account of mistake or error apparent on the face of the record or on grounds analogous thereto inasmuch as in the Warning List the name of Messrs. Mitter and Bural was printed or published as attorneys for the defendants and the name of Mr. M. R. Bose, the defendants solicitor, was not at all printed or published in my Peremptory List of the 14th February, 1958.

3. A decree may be reviewed under O. 47, R. 1 either on the ground of discovery of new and important matter or evidence or on account of some mistake or error apparent on the face of the record or "for any other sufficient reason". In Chhajju Ram v. Neki, 49 Ind App 144 : (AIR 1922 PC 112) their Lordships of the Judicial Committee construed the expression "any other sufficient reason" as meaning a reason sufficient on grounds at least analogous to those specified immediately previously. The same view was taken by the Privy Council in Bisheshwar Pratap v. Parath Nath, 61 Ind App 378: (AIR 1934 PC 213). This view was also adopted in Hari Shankar v. Anath Nath, AIR 1949 FC 106 at pp. 110 and 111 and in M. M. B. Catholics v. M. B. Athanasi us, AIR 1954 SC 526 at p. 538. Learned counsel for the petitioners has submitted to me that the mistake or error in the Prospective List, the Warning List and the Peremptory List referred to above is at least analogous to mistake or error apparent on the face of t

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1959 Supreme(Cal) 188

HIGH COURT OF CALCUTTAS. P. MITRA, J.Benoy Krishna RohatgiVersusSurajbali MisraSuit No. 1213 of 1951Decided On : 21-08-1959

HIGH COURT OF CALCUTTA
S. P. MITRA, J.
Benoy Krishna Rohatgi
Versus
Surajbali Misra
Suit No. 1213 of 1951
Decided On : 21-08-1959