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IN THE HIGH COURT AT CALCUTTA
Samaresh Banerjea and Arunava Barua, J.
Sree Sree Iswar Sreedhar Jew – Appellant
Versus
Kamala Bala Mustaphy & Anr. – Respondents
G.A. No. 1051 of 2001, A.P.O. No. 781 of 1993 With C.S. No. 222 of 1958
Decided on: 17th March, 2003
None
Fact of the Case:
This case pertains to an application for the review of a judgment and order passed by a Division Bench of the Calcutta High Court on July 26, 2000. The application was filed on March 5, 2001, well beyond the prescribed limitation period.
Finding of the Court:
The court found that the explanation provided for the delay in filing the review application was not satisfactory and that the pendency of a Special Leave Petition before the Supreme Court did not constitute a bar for filing the review application.
Issues: 1. Whether the delay in filing the review application was satisfactorily explained. 2. Whether the pendency of a Special Leave Petition before the Supreme Court prevented the petitioner from filing the review application.
Ratio Decidendi: 1. The court held that the explanation offered for the delay in filing the review application was not tenable and wholly misconceived. 2. The court held that the pendency of a Special Leave Petition cannot be a bar for preferring an application for review.
Final Decision: The court rejected the application for review as time-barred.
This is an application made for review of the judgment and order dated 26th of July, 2000 passed by the Division Bench comprising of Justice Vinod Kumar Gupta (as His Lordship then was) and my learned brother the Hon'ble Justice Arunava Barua in Appeal No. 781 of 1993.
2. The application has now been assigned to us. Admittedly the order was passed of which the review is sought for on July 26, 2000 and it appears that the application for review has been filed on 5th March, 2001, that is long after the expiry of the period of limitation.
3. In the application although a prayer has been made for condonation of delay after going through the application we do not find any satisfactory explanation as to such delay in preferring the application beyond the prescribed period of limitation.
4. The explanation which has been sought to be offered by the applicant is that after the impugned order was passed, a Special Leave Petition was filed before the Hon'ble Supreme Court in January, 2001. It has been pleaded in Paragraph 37 of the application when the Special Leave Petition came up before the Hon'ble Supreme Court for hearing the Hon'ble Supreme Court was of the view that instead of preferring the Special Leave Petition an application for review of the impugned judgment and order ought to have been preferred and, accordingly, the learned Counsel for the petitioner was asked to withdraw the said appeal with instruction to file an application for review before this Hon'ble Court. It has been pleaded further in Paragraph-38 of the application after receipt of the copy of the said order of the Hon'ble Supreme Court in January 2001 along with a copy of the forwarding letter of the learned Advocate, the review application has been filed.
5. It has been further pleaded that during the pendency of the Special Leave Petition in the Hon'ble Supreme Court the petitioner was reasonably prevented from filing the said application for review.
6. The explanation which has been offered for the delay in filing the application for review not only is tenable at all but is wholly misconceived.
7. The pendency of a Special Leave Petition cannot be a bar for preferring an application for review. Therefore, it cannot be said that as the Special Leave Petition was pending, the petitioner was reasonably prevented from filing the review application.
8. That apart, although it has been stated that the application was withdrawn as the Supreme Court was of the view that the proper course of action would be for the petitioner to apply for review before this High Court. It does not appear from the copy of the order of the Hon'ble Supreme Court annexed to the affidavit-in-reply that any such observation was made by the Hon'ble Supreme Court, on the contrary it appears from the order of the Hon'ble Supreme Court passed in the Special Leave Petition that the petitioner himself after arguing the matter for some time withdrew the petition and, accordingly, the Supreme Court dismissed the Special Leave Petition as withdrawn. The order of Supreme Court dated 2nd January, 2001 is quoted hereunder :-
Item No. 21 Court No 7 Section XVI
SUPREME COURT OF INDIA RECORD OF PROCEEDINGS 469446
Petitions for Special Leave to Appeal (Civil) No. 20299/2000 (From the judgment and order dated 26.7.2000 in APO 781 of 1993, of the High Court of Calcutta)
Sri Sri Iswar Sridhar Jew & Anr.
Kamala Bala Mustaphy.
(With prayer for interim relief)
(With Appln(s) for exemption from filing of the impugned judgment)
Date: 02/01/2001. This petition was application for hearing today.
CORAM: Hon'ble Mr. Justice S. Rajendra Babu
Hon'ble Mr. Justice Balakrishna
For Petitioners Dr. Sumant Bharadwaj, Advocate
Ms. Mridula Ray Bharadwaj, Advocate
Upon hearing Counsel the Court made the following
ORDER
After arguing the matter for some time learned Counsel for the petitioners seeks leave of the Court to withdraw the petition. The Special Leave Petition is dismissed as withdrawn.
Charanjit (Meena Trikha)
Court Ma
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