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IN THE HIGH COURT OF CALCUTTA
Amrita Sinha, J.
Kelvin Jute Company Ltd - Appellant
Versus
Krishna Kumar Agarwal - Respondent
R.V.W.O. No. 38 of 2018, 39 of 2018; General Application No. 3152 of 2018, 3153 of 2018; Writ Petition No. 4312 of 1993, 4312 of 1993
Decided On : 06-02-2020
Review - Jurisdiction of Single Judge to entertain review applications - Fraud on court - M/s. Trend Vyapaar Ltd. - WP No. 4312 of 1993 - [WP 4312 of 1993] - The judgment discusses the maintainability of review applications before the Single Judge in a case where fraud on the court is alleged. The court interprets the order of the Supreme Court and holds that the review will be maintainable before the Single Judge, as the issue of fraud was never agitated before either the Trial Court or the Appellate Court. The judgment emphasizes that fraud vitiates every order passed by the court and must be raised before the Trial Judge. The court rejects the contention that the review should be heard by the Division Bench to avoid conflict of decisions, stating that the matter has to be examined and decided independently only on the ground of fraud. The judgment also distinguishes the present case from other cases and concludes that the review applications shall be maintainable before the learned Single Judge.
Fact of the Case:
Two review applications filed for review of the judgment dated 15th March, 2002 passed in WP No. 4312 of 1993. The primary ground for filing the applications for review is that the order complained of was obtained by the writ petitioner by practising fraud on the Court and by misleading the Court. The respondents contended that the Single Judge does not have the jurisdiction to entertain the application for review.
Finding of the Court:
The court held that the review applications shall be maintainable before the learned Single Judge, as the issue of fraud was never agitated before either the Trial Court or before the Appellate Court. The court emphasized that fraud vitiates every order passed by the court and must be raised before the Trial Judge. The court rejected the contention that the review should be heard by the Division Bench to avoid conflict of decisions, stating that the matter has to be examined and decided independently only on the ground of fraud.
Issues: Jurisdiction of Single Judge to entertain review applications, maintainability of review applications before the Single Judge, and whether the review should be heard by the Division Bench to avoid conflict of decisions.
Ratio Decidendi: Fraud vitiates every order passed by the court and must be raised before the Trial Judge. The review applications shall be maintainable before the learned Single Judge, as the issue of fraud was never agitated before either the Trial Court or before the Appellate Court.
Final Decision: The court found no merit in the objection raised by the respondents with regard to the maintainability of the applications for review before the Single Judge and held that the review applications shall be maintainable before the learned Single Judge.
JUDGMENT
Amrita Sinha, J. - Two applications for review have been filed for review of the judgment dated 15th March, 2002 passed in WP No. 4312 of 1993.
2. Review Application No. 38 of 2018 has been filed by Kelvin Jute Company Ltd. Workers' Provident Fund, the respondent no. 1 of the writ petition and Review Application No. 39 of 2018 has been filed by M/s. Trend Vyapaar Ltd., being the Company which subsequently took over the Kelvin Jute Company Ltd by merger under a Scheme framed by BIFR.
3. For the sake of convenience both the matters were taken up for consideration together and a common order is being passed herein below.
4. The primary ground for filing the applications for review is that the order complained of was obtained by the writ petitioner by practising fraud on the Court and by misleading the Court.
5. The brief background of the case is as follows:
6. The writ petition filed by the petitioners was allowed by the judgment dated 15th March, 2002 to the extent as mentioned in the said judgment. Being aggrieved by the judgment passed by the learned Single Judge the respondent No.1 in the writ petition preferred an appeal before the Hon'ble Division Bench.
7. The Hon'ble Division Bench by a judgment dated 16th February, 2006 dismissed the said appeal. A special leave petition was filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court by an order dated 21st January, 2016 dismissed the appeal and passed necessary orders therein.
8. The petitioners herein i.e, the applicants before the Supreme Court filed separate miscellaneous applications for modification of the order dated 21st January, 2016. The Hon'ble Supreme Court by a judgment dated 25th October, 2018 was pleased to dismiss the said applications. The Supreme Court was of the view that
"Having regard to the judgment dated 15.03.2002 passed by the learned Single Judge of the High Court in Writ Petition No. 4312 of 1993, which has been affirmed by the Division Bench of the Calcutta High Court and by this Court in the judgment dated 21.01.2016, we are afraid any application for recall/modification which has the effect of reviewing the original judgment in the Writ Petition cannot be entertained by this Court. The main contention of the applicants seem to be that writ petitioners had played fraud on Court and that the basis of the judgment of the High Court has been obtained by misleading that Court. If that be the position, nothing prevents the applicants from approaching the High Court and seeking a review of the judgment. We make it clear that in the event of such a review being filed on the ground of fraud, the High Court will be free to examine the same and the judgment of this Court dated 21.01.2016 shall not stand in any way of the High Court looking into that aspect of the matter".
9. The instant application for review has been filed pursuant to the liberty granted by the Hon'ble Supreme Court to seek review of the judgment passed by the High Court in the writ petition.
10. The petitioners herein strenuously submit that the judgment dated 15th March, 2002 was obtained by practising fraud on court. The court was misled to pass the impugned judgment. The fraud perpetrated all along during the entire proceeding. It was only after the Regional Provident Fund Commissioner on 26th August, 2016 submitted the report before the Hon'ble Supreme Court, as per its direction in 2016, the fraud was unearthed.
11. A point of demurrer has been taken by the respondents in the instant application. It has been submitted that the Single Judge of this court does not have the jurisdiction to entertain the application for review. It has been contended that as the Hon'ble Supreme Court did not specify the strength of the Bench to decide the issue, accordingly, the application for review shall be maintainable only before the Hon'ble Division Bench and not before the learned Single Judge. It has been vociferously contended that according to settled principles of law, it is
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