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1999 Supreme(Guj) 57
Gujarat High Court
Judgename :D.C.Srivastava
SUMITRABEN ANILKUMAR SHAH - Appellant
Versus
DIVYABHANUSINGHJI SAJJAN SINGHJI - Respondent
C.A. 162 of 1999
Decided On : 02/19/1999
Headnote:(a) Civil Procedure Code, 1908 - Sec. 151 & Order 47 Rule 1 - Review - Grounds of - Admissible only on three grounds viz (i) discovery of new & important matters or evidence or (ii) mistake or error on the face of record or (iii) any other sufficient reasons - Contention in the instant case that absence of counsel was sufficient cause or reason on which review can be granted held unacceptable - Also provision under Sec. 151 can not be invoked in view of specific provision for the purpose of review under Order 47 Rule 1.
It is well settled that the review proceedings are not by way of an Appeal and have to be srictly confined with in the ambit of Order : 47 Rule : 1 CPC. Order 47, Rule 1: as quoted above permits review only on three grounds, viz. discovery of new and importantt matter or evidence, or (ii) mistake or error on the face of the record, or (iii) any other sufficient reasons.
[Para 8]
Learned Counsel for the petitioner did not argue that this is a case where discovery of new or important matter or evidence has been made after pronouncement of the two judgments.
The Council in the course of his arguments did not point out any mistake or error apparent on the face of the judgment nor did he points out that there is some error apparent on the face of the record due to which the two judgments have been rendered erroneous. Then remains the last gound, viz. any other sufficient reason. For this Mr. Shelat has argued that absence of counsel was sufficient cause and reason on which review can be granted.
[Para 9]
Absence of Counsel or parties or negligence on the part of the party or his pleader is not a ground for granting review as was laid down by the Madras High Court in two cases, the Corporation of Madras vs. Arunachalam, reported in AIR 1947 Mad. 288 and Anthony vs. Anthony reported in AIR 1962 Mad. 304 and also by the Nagpur High Court in Manorath vs. Atma Ram, reported in AIR 1934 Nag. 187. It is thus clear that if the Affidavit of Shri N.S. Sheth is taken into consideration it furnishes the grounds of inadvertance or negligence on his part in not attending the two revisions which were on the Board and this negligence or inadvertance cannot be a ground for granting review.
[Para 10]
Court is however, unable to accept this contention for the obvious reason that if there is a specific provision in the Code of Civil Procedure and the case is not covered under that provision then inherent jurisdiction under Sec. 151 CPC cannot be exercised by a Court to over-ride the express provision of Order 47, R 1 CPC. If there would have been no provision for review in Civil Procedure Code then certainly inherent jurisdiction could be exercised under Sec. 151 CPC but since there is specific provision for review under order: 47, Rule : 1 CPC power and jurisdiction in the nature of inherent jurisdiction can neither be claimed by the petitioners nor can be exercised by this Court.
[Para 13]
(b) Civil Procedure Code, 1908 - Sec. 151 - Inherent Powers of Court - Exercise of - Review is not inherent powers of the Court - Such power should not be exercised unless the statute gives it - Exercising the power of review over-riding the express provisions of Order 47 Rule 1 not in the interest of justice but abuse of process of Court.
The power of review is not inherent power. It must be conferred by the law either specifically or by necessary implication. The review is practically the rehearing of a case by the same Judge who has decided it. Such power should not be exercised unless the statute gives it as for saying that the superior Court should not hear an Appeal from the trial Court unless such power is given to it by the statute. Exercising power of review over-riding the express provision of Order : 47 Rule : 1 CPC would not be in the interest of justice rather it would be permitting the party to abuse the proces of the Court. As such review under Sec. 151 CPC on the facts and circumstances of the case cannot be granted.
[Para 14]
( 1 ) CORAM : MR. JUSTICEThese two Miscellaneous Civil Applications are proposed to be disposed of by a common order.
( 2 ) BRIEF facts on which these applications have been moved are as under :civil Revision Application No. 842 of 1989 was a Civil Revision under Section 115 of the Code of Civil Procedure. This revision was decided on merits on 14. 7. 1998. On that day list was revised twice, but none appeared for the revisionist. As such the impugned order under revision was perused and the learned Counsel for the respondent was heard and Judgment was dictated.
( 3 ) CIVIL Revision Application No. 327/87 was likewise decided on 14. 7. 1998 after hearing the learned Counsel for the revisionist. None-appeared for the respondents in this revision as well.
( 4 ) REVIEW of these two orders is sought in these two Miscellaneous Civil Applications. Shri S. N. Shelat, learned Counsel for the applicants and Shri S. M. Shah, learned Counsel for the opposite party were heard at length. Before applications for review can be granted there are two hurdles before the applicant and it is only on clearing these hurdles that the petitioner can succeed.
( 5 ) THE first hurdle is that the review applications are delayed by 4 months and 3 weeks. Unless sufficient cause is shown for condonation of delay, the delay cannot be condoned on surmises. If the delay cannot be condoned then naturally the review application cannot be heard on merits. If on the other hand the delay is condoned then only review application can be considered on merits. For allowing the review application the Court can grant review under Order : 47, Rule : 1 of the Code of Civil Procedure only on three grounds. The first is discovery of new and important matter or evidence, the second is mistake or error apparent on the face of the record and the third is any other other sufficient reason.
( 6 ) PRAYER (B) in the two applications is for condonation of 4 months and 3 weekss delay in filing the review application. In Para : 6 of the review application the only averment is that the delay may be condoned for the aforementioned reasons. The aforesaid mentioned reasons can be traced in Paras : 4 and 5 of the review petition. From Para : 2 of the review application it appears that the Judgment and order under review was delivered on 14. 7. 1998. Period of limitation for filing review application is 30 days from the date of the order or the Judgment. In Para : 4 of the review application it is said that when execution application was moved in the trial Court the applicant received information on 23. 12. 1998 that some decree was passed for possession against him. He made necessary inquiries in the executing Court. Thereafter he came to know that Civil Revisions aforesaid were decided on or about 24. 12. 1998. This is patently incorrect date. It should be the date of knowledge of dismissal of two revisions. The applicant in Para : 5 has stated that her Advocate also did not know that the revisions were disposed of on 14. 7. 1998, nor any information was sent to the applicant by the Advocate. Thereafter application under Order : 9, Rule : 13 C. P. C. was moved on 29. 12. 1998. The said application has been dismissed as not maintainable today. It is said that because of this review application could not be filed in time.
( 7 ) THE point for consideration is, can this assertion be said to constitute sufficient cause for condonation of delay in filing review application. Affidavit of the Advocate of the petitioner has also been filed for disposal of review application as well as for disposal of application for condonation of delay. It is not a case where the revisionist had no knowledge of the pendency of the revision. Para : 2 of the Affidavit of Shri N. S. Sheth, Advocate, shows that he was not present before the Court on 14. 7. 1998 when the revision was heard and allowed and it escaped from his notice that he had a matter before this Court. From this para it is clear
