Ahsanul Haque vs Union of India and Others

C.V. Sirpurkar, J.—This review petition has been filed in respect of order dated 28.11.2014 passed by this Court in M.C.C. No. 2401/2014 whereby, the application under section 5 of the Limitation Act filed by the applicant (appellant in Second Appeal No. 791/2007) for condonation of delay in filing M.C.C. No. 2401/2014 for restoration of Second Appeal No. 791/2007 was dismissed and consequently M.C.C. No. 2401/2014 also stood dismissed, as being time barred.

The facts giving rise to this review petition may brief be stated thus: The second appeal no. 791 of 2007 filed by applicant Ahsanul Haque was posted before the Court on 26.10.2007 for orders in default of payment of process fee. Since, no one appeared on that date on behalf of the appellant, a peremptory order to the effect was passed that the appellant shall pay P.F. within a period of seven days, failing which the second appeal shall stand dismissed without further reference to the bench. No P.F. was filed during the stipulated period of seven days. Consequently, the second appeal stood dismissed. After a lapse of about seven years, M.C.C. No. 2401/2014 was filed for restoration of the second appeal. An application under section 5 of the Limitation Act for condonation of delay of 2527 days was also filed along with application for restoration of second appeal. The application was dismissed by this Court on 28.11.2014. Consequently, M.C.C. No. 2401/2014 also stood dismissed as time barred.

The application under section 5 of the Limitation Act was dismissed mainly on the grounds that though it is true that section 5 of the Limitation Act should be construed liberally and too pedantic an approach should not be adopted while insisting upon explanation of delay of everyday, the delay of 2527 days was extra-ordinary by any standards and indicated failure not only on the part of the learned counsel for the applicant but also on the part of the appellant himself to diligently prosecute the appeal; therefore, the argument advanced by learned counsel for the applicant that the party should not be penalized for negligence or inaction of the counsel, was not acceptable. In view of the Court, the applicant was an educated person and was expected to be more vigilant prosecuting the appeal. It was further held that during the period of 7 years the rights of the opposite party might have crystallized. Ultimately, the application was dismissed observing that section 5 of the Limitation Act should not be construed so liberally as to render it otiose.

In this review petition, it has been submitted on behalf of the counsel for the applicant/appellant that due to oversight learned counsel for the appellant missed the second appeal No. 791/2007 in the cause list for 26.10.2007; therefore, he could not appear on that date on behalf of the applicant. Since he did not appear before the Court on that date, he was not aware that a peremptory order had been passed. Consequently, no P.F. was filed in compliance with the peremptory order. Learned counsel for the applicant was all the while under the impression that the second appeal is yet to be listed. It was further submitted on behalf of the appellant that he was not negligent in prosecuting the second appeal but he kept contacting his counsel, who assured him that second appeal is still pending. He was given to understand that in the year 2007 the second appeals from the year 1989 were being listed and his second appeal would take another 6-7 years to be listed. Since, the appellant is illiterate; therefore, he could not search out the status of his case on the website of the High Court. On 28.10.2014, learned counsel for the appellant inquired from the Registry regarding the status of second appeal; whereon, he was informed that the second appeal already stood dismissed on 26.10.2007.

It has further been submitted on behalf of the applicant that the second appeal was directed against the judgment of the first appellate Court, whereby the defendants'' appeal against the decree of eviction under Accommodation Control Act, was allowed and the plaintiff/appellant''s suit was dismissed. The findings recorded by the learned first appellate Court were erroneous. Thus, there was no question of crystallization of any right in favour of the tenants/defendants. Therefore, it was prayed that the order dated 28.11.2014 passed in M.C.C. No. 2401/2014 be reviewed and delay in filing the application for restoration be condoned.

This Court heard learned counsel for the applicant in extenso. Before proceeding to adjudicate the matter, it would be appropriate to take a look at the legal position with regard to the scope of review. It has been held in the case of Haridas Das Vs. Smt. Usha Rani Banik and Others, AIR 2006 SC 1634 : (2006) 2 CTC 321 : (2006) 3 JT 526 : (2006) 3 SCALE 287 : (2006) 4 SCC 78 : (2006) AIRSCW 1771 : (2006) 3 Supreme 125 that the parameters for review are prescribed in Order 47 of CPC and permit the applicant to press for rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulates a rehearing of the dispute because a party had not highlighted all the aspects of the case or could not argue them more forcefully or failed to cite binding precedents. In the case of Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, AIR 1964 SC 1372 : (1964) 5 SCR 174 , the Supreme Court observed that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. In the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma and Others, AIR 1979 SC 1047 : (1979) 4 SCC 389 : (1979) 11 UJ 300 , it was held that the power may be exercised where some mistake or error apparent on the fact of the record is found, it may also be exercised on any analogous ground but it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of appeal. Likewise in the case of Board of Control for Cricket, India and Another Vs. Netaji Cricket Club and Others, AIR 2005 SC 592 : (2005) 1 JT 235 : (2005) 4 SCC 741 : (2005) 1 SCR 173 : (2005) 1 UJ 334 , the Supreme Court observed that an application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words ''sufficient reason'' in Order 47 Rule 1 of the Code is wide enough to include a misconception of fact or law by a Court or even an Advocate.

In the backdrop of aforesaid legal position, this Court would consider the arguments advanced in support of the review petition on behalf of the applicant. It may be noted that learned counsel for the applicant has relied mainly upon following four grounds:

(i) that a party should not be penalised for the mistakes or negligence of his counsel;

(ii) that no rights in favour of the respondent/tenant had crystallized and

(iii) that section 5 of the Limitation Act should be construed liberally.

None of the aforesaid arguments are relevant for the purpose of application for review. Another argument is that the Court erroneously assumed that the appellant was educated. He may not be so but the fact remains that he is a city dweller and is savvy enough to rent his property to Union of India besides being able to sign fluently in English. So this cannot be considered to be an error apparent on the face of the order.

The applicant has filed an elaborate affidavit rebutting point by point the grounds for dismissal of application for condonation of delay, recorded in order dated 28.11.2014 by the Court. As many as six authorities have been cited in support of the review application. Nearly all of them relate to the merits of the application under section 5 of the Limitation Act or application for restoration. However, be it noted that this review petition is not an appeal against the order passed by this Court. The application under section 5 of the Limitation Act was argued with vigour by learned counsel for the applicant/appellant and it was dismissed on merits citing reasons for refusal to condone the delay of as many as 2527 days. This Court does not propose to re-visit the arguments advanced by learned counsel for applicant and the reasons cited in the order for rejection of those arguments. Suffice it would be to say that the applicant has not been able to point out an error apparent on the face of record, which would persuade the Court to revise its opinion regarding condonation of delay nor any other analogous reason has been brought forth to compel the Court to review the order passed after extensively hearing the appellant and giving elaborate reasons.

Learned counsel for the applicant has invited attention of the Court to the judgments rendered in the cases of Rafiq and Another Vs. Munshilal and Another, AIR 1981 SC 1400 : (1981) 2 SCC 788 : (1981) 3 SCR 509 : (1981) 13 UJ 505 , N. Balakrishnan Vs. M. Krishnamurthy, (1998) 6 AD 465 : AIR 1998 SC 3222 : (1998) 2 CTC 533 : (2008) 228 ELT 162 : (1998) 6 JT 242 : (1999) 121 PLR 462 : (1998) 5 SCALE 105 : (1998) 7 SCC 123 : (1998) 1 SCR 403 Supp : (1998) AIRSCW 3139 : (1998) 7 Supreme 209 Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, AIR 1987 SC 1353 : (1987) 13 ECC 27 : (1988) 19 ECR 565 : (1987) 28 ELT 185 : (1987) 167 ITR 471 : (1987) 1 JT 537 : (1987) 1 LLJ 500 : (1987) 1 SCALE 413 : (1987) 2 SCC 107 : (1987) 2 SCR 387 : (1987) 66 STC 228 : (1987) 2 UJ 29 and Shakuntala Devi Jain Vs. Kuntal Kumari and Others, AIR 1969 SC 575 : (1969) 1 SCR 1006 . All but one of the aforesaid authorities relates to section 5 of the Limitation Act or restoration of a dismissed appeal. The Court cannot revisit those grounds, because no case has been made out for review. The last authority, State of Madhya Pradesh and another Vs. Jaswantpuri and others, (1988) MPLJ 712 , though relates to the exercise of jurisdiction under Order 47 Rule 1 of the Code of Civil Procedure, is not at all applicable to the facts of the case at hand and; therefore, does not, in any manner, advanced the cause of the applicant.

On the basis of the aforesaid discussion, in the opinion of this Court, no case is made out for reviewing the order dated 28.11.2014 passed by this Court in M.C.C. No. 2401/2014 dismissing the application under section 5 of the Limitation Act and also consequently dismissing the application for restoration, as time barred.

In the result, this review petition is dismissed.