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IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)
Utpalendu Bikas Saha, J.
Chitta Ranjan Kar
Vs.
State of Tripura and Ors.
Decided On : 27.03.2009
Review Petition - Jurisdiction of Court - Order 41, Rule 19, Order 47, Rule 1 - The judgment discusses the maintainability of a review petition under Order 47, Rule 1 read with Section 151, CPC when there is a provision for readmission of appeal under Order 41, Rule 19, CPC. The court analyzes the legal principles and precedents related to the power of review, the scope of Section 114, CPC, and the concept of 'actus curiae neminem gravabit'. The court ultimately allows the review petition and restores the appeal for hearing on merit.
Fact of the Case:
The appellant petitioner filed a review petition under Section 114 read with Order 47 of the CPC for review of the judgment and decree dismissing the appeal of the appellant petitioner on merit in absence of the learned Counsel for the parties. The appellant petitioner's claim was rejected by the learned Civil Judge, Senior Division, Court No. 1, West Tripura, Agartala in Money Suit No. 25 of 2000.
Finding of the Court:
The Court found that the order of dismissal on merit in absence of the learned Counsel for the parties was without jurisdiction and should be treated as an order of dismissal in default. The Court held that the review petition was maintainable and allowed the review petition, setting aside the impugned order and restoring the appeal for hearing on merit.
Issues: The main issue was the maintainability of the review petition under Order 47, Rule 1 read with Section 151, CPC when there is a provision for readmission of appeal under Order 41, Rule 19, CPC.
Ratio Decidendi: The Court held that an order of dismissal of an appeal on merit in absence of the learned Counsel of the appellant is to be treated as dismissal for default, not on merit. The Court concluded that the aggrieved party is entitled to file an application for re-admission of the appeal under Order 47, Rule 19, CPC, and the remedy lies under Order 47, Rule 1 for review. The Court also emphasized the principle of 'actus curiae neminem gravabit' and the duty of the Court to do justice and prevent from doing any injustice.
Final Decision: The review petition was allowed, and the impugned order of the Court was set aside. The appeal was restored to its original file for hearing on merit.
U.B. Saha, J.
1. This petition under Section 114 read with Order 47 of the CPC is filed for review of the judgment and decree dated 4-12-2006 passed in R. F. A. 39 of 2001 dismissing the appeal of the appellant petitioner on merit in absence of the learned Counsel for the parties, preferred under Section 96 read with Order 41 of the CPC against the judgment and decree dated 25-9-2001 passed by the learned Civil Judge, Senior Division, Court No. 1, West Tripura, Agartala in Money Suit No. 25 of 2000, whereby, the claim of the appellant petitioner was rejected.
2. Aggrieved by, the appellant petitioner filed special leave petition before the Hon'ble Supreme Court seeking special leave to Appeal (Civil) No. 6149 of 2007 which was also dismissed on withdrawal. The order of the Apex Court reads as follows:
Learned Counsel for the petitioner wants to withdraw this petition stating that she will move the High Court.
The Special Leave Petition is dismissed as withdrawn.
3. The case of the appellant petitioner was that he was issued work order for the work of construction of Sale Hall at Sundar Tilla Market under Mohanpur (Sidhal) vide No. F. 4(14) Agri/EE/W/85-86/3406-11 dated 7-3-1986 and for the work of construction of Sale Hall Development Market (Block I & II) at Hapania under Sadar, West Tripura vide work order No. 4(36) Agr/EE/W/89-90/1082 dated 2-8-1989 and Work Order No. 4(36)-Agri/EE/W/89-90/12-06-1209 dated 9-8-1989. According to the appellant petitioner, during construction of the said work, he was asked to execute some extra works. Accordingly, after completion of the works, final bill was prepared, but he was not paid in full of the final bill. Consequently, he filed a suit in the Court of Civil Judge, Senior Division No. 1, West Tripura, Agartala praying for a money decree against the defendant respondents towards recovery of the cost incurred for execution of the said works.
4. On pleading of the parties, learned Court below framed the following issues:
A. Is the suit maintainable and has the plaintiff cause of action for the present suit?
B. Has the plaintiff completed the work as per terms and condition of work order? If so, what is the cost of the work?
C. Is the plaintiff entitled to get money decree in this suit with interest and cost, as prayed for?
D. What other relief/reliefs the parties are entitled to get?
5. The appellant petitioner examined himself as P.W. 1 by exhibiting as many as 25 documents as exhibits and the defendants respondents examined only one witness, namely, Dipak Ghosh, as D.W. 1 and placed on records as many as 17 exhibits (Ext. A to Ext. Q).
6. After considering the materials as well as evidences on record, the learned Civil Judge analyzed each issue for adjudication and by judgment dated 25-9-2001 dismissed the suit rejecting the claim of the appellant petitioner.
7. Dissatisfied with the said judgment, the appellant petitioner preferred R.F.A. No. 39 of 2001 before this Court and this Court after going through the impugned judgment as well as materials on records, dismissed the appeal on merit in absence of the learned Counsel of both the parties. The observation recorded in Para-1, 10 and 11 of the judgment is reproduced hereinbelow:
1. None appears either on behalf of the appellant or on behalf of the respondents. This regular first appeal is being disposed of on the materials available on record.
10. I have gone through the impugned judgment, the materials on records, the evidences as well as the statements of the witnesses produced for and on behalf of the appellant/plaintiff as well as by the respondents/defendants. I find that the appellant/plaintiff could not prove his claim on the basis of the exhibits produced by the appellant/plaintiff and materials on record. The appellant/plaintiff has already been paid the amount due to him for execution of the work and nothing was on the record to reveal that he was directed to execute some extra work orally or in writing. On analysis of the evidence a
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