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Judgment
Manjula Chellur, Ag. CJ
Writ Appeal No. 1934 of 2011 is filed challenging the dismissal of Review Petition No. 348/2011, wherein the review petitioner had sought review of the judgment in W.P. (c) No. 27272 of 2009 on the following grounds:
(A) There is apparent error on the face of the judgment under review since some of the material points raised by the review petitioner were omitted to be considered by this Hon''ble Court, which are (a) A second writ petition for the very same relief is not maintainable and they have to approach Civil Court for their reliefs. (para 18 of the counter affidavit) (b) There was Quality and quantity dispute in the transaction, which were not taken up in time due to callous inaction and moreover, they even prepared Ext. P13 proceedings in the clandestine deal. (c) Even though Exts. R1(b) to R1(i) were produced along with the counter affidavit based on which and all other documents, the present Board of Directors arrived at a suspicion of shady deal, which caused huge loss to public exchequer and passed Ext. R1(a) resolution requesting the Govt. of Kerala to enquire into the matter, this Hon''ble Court in para 9 held as follows:- "Although it is stated that the contract was shady and that an enquiry was ordered, apart from the bald averments nothing has been placed on record to substantiate these claims". This was happened because Exts. R1(b) to R1(i) were omitted from the consideration of this Hon''ble Court.
B) The judgment under review was rendered without hearing the Standing Counsel or the Sr. Counsel engaged by the review petitioners as they were not aware of the posting of the case on 14.03.2011 because of the fact that no fresh list was issued except endorsing the list dated 11.03.2011 that the list will continue except item No. 502 and 508 and also due to the fact that the same where not attached in the list available in the Internet.
It is not in dispute that writ petition No. 27272/2009 is a second round litigation between the parties pertaining to the same transaction, supply of raw cashew nuts to the appellant/Corporation. The main grievance in the review petition was the posting of the writ petition on 14.03.2011 was not within the knowledge of neither the instructing Counsel nor the Senior Counsel, as no fresh list was published except endorsing the list dated 11.03.2011 that the list will continue excluding S1. Nos. 502 and 508. It is further contended that the continuation of the list was not attached in the list available in the Internet. Therefore, the mistake happened on 20.03.2011 in not representing the appellant/Corporation, when the matter was taken up for disposal. The learned Judge, so far as review petition is concerned, has made the following order dated 02.06.2011 which reads as under:-
This petition is filed seeking review of the judgment in W.P. (c) No. 27272 of 2009. A reading of the grounds (A) and (B) of the review petition discloses that the contention therein were neither pleaded in the counter affidavit nor urged when the case was heard. That apart, the review petitioner''s attempt is only to get the writ petition heard again, which exercise is not permissible.
In the result, the review petition is dismissed.
As a matter of fact, Ground B narrated above was the subsequent development after filing the counter affidavit in the writ petition by the Corporation. Therefore disclosure of this fact in the counter affidavit to the main writ petition would not arise. Even otherwise counter affidavit filed to the writ petition discloses several defences raised by the appellant/Corporation including question of limitation, jurisdiction etc. In that view of the matter, when the appellant/corporation is dealing with the public money, they must be given opportunity to place their case before the learned Single Judge. No prejudice would be caused to the writ petitioner as the matter would be heard on merits and it is left to the learned Single Judge to decide the matter on merits. Ground B could not have been mentioned in the counter affidavit. We are of the opinion, the matter has to be heard afresh, reviewing the judgment dated 14.03.2011. Accordingly the appeal is allowed. We make it clear that the respondent/petitioner is at liberty to seek early disposal of the matter before the learned Single Judge and we direct the appellant/Corporation to see that the matter is heard on merits and disposed of.