Messrs Serajuddin & Co. vs Union of India & Ors.

Let the affidavit-of-service filed in Court today be taken on record.

Let a photocopy of the receipt, indicating payment of costs in terms of the judgment and order dated

16th February, 2017, be also taken on record.

On 16th February, 2017, this Bench had delivered a judgment on an application taken out by Messrs

Serajuddin & Co. seeking recall of an order of dismissal of an appeal dated 21st June, 2001, upon condonation

of delay in preferring the same after a period of more than 15 (fifteen) years. The matter was heard at length

and the Court proceeded to answer a question as to whether the applicant, i.e., Messrs Serajuddin & Co.,

being a registered partnership firm, could be allowed benefit of section 5 of the Limitation Act on the basis of

the cause shown in the application in the backdrop of the principles of law laid down by the Supreme Court

in the judgments referred during the course of hearing. This Court - for reasons stated in the judgment and

order dated 16th February, 2017 - proceeded to dismiss the application for recalling of the order dated 21st

June, 2001, with costs assessed at 300 G.Ms., which was directed to be deposited with the State Legal

Services Authority, West Bengal, for being earmarked for its utilization by the Mediation and Conciliation

Committee of the High Court. Now the present application has been filed on 2nd May, 2017,

praying for review of the said judgment and order dated 16th February, 2017, with a further prayer for recall

of the order and for the restoration application to be set down for hearing.

On behalf of the review-applicant a reference was made - during the course of hearing - to paragraph

14 of the counter-affidavit filed on behalf of the State of Orissa in connection with the recalling application,

in order to contend that the statement made therein was not correct. According to the applicant, the judgment

and order dated 16th February, 2017, having taken the said paragraph 14 of the counter-affidavit into

consideration, tantamounts to an error apparent on the face of the record.

On the other hand, the learned Advocate General of the State of Odisha has referred to the same

paragraph 14 of the counter-affidavit as well as certain provisions of the Mines and Minerals (Development

and Regulation) Act, 1957, and the relevant provisions of the Mines and Minerals (Other than Atomic and

Hydrocarbon Energy Minerals Concession) Rules, 2016, in order to contend that the said paragraph 14 of the

counter-affidavit of the State of Orissa was correct on facts.

We are of the view that the issue sought to be raised on behalf of the review-applicant by referring to

paragraph 14 of the counter-affidavit of the State of Orissa - or its correctness - is not relevant at all for the

purpose of deciding whether a review of the judgment and order dated 16th February, 2017, is called for in the

instant case.

The principles applicable for review of a judgment and order - in the facts and

circumstances of the instant case - would be attracted only if there is an error apparent on

the face of the record. Although this Court while delivering the judgment and order dated

16th February, 2017, referred to paragraph 14 of the counter-affidavit filed on behalf of the

State of Orissa, the same was done only in the context of the overall question which the

Court posed unto itself and that is, whether the applicant, Messrs Serajuddin & Co., being a

registered partnership firm, could be allowed benefit of section 5 of the Limitation Act on

the basis of the cause shown in the application seeking recall of an order of dismissal of an

appeal dated 21st June, 2001, upon condonation of delay in preferring the same after a

period of more than 15 (fifteen) years in the backdrop of the principles of law laid down by

the Supreme Court in the judgments referred during the course of hearing of that

application. It was in such circumstances that this Court proceeded to deliver the judgment

and order dated 16th February, 2017, with the following observations: -

"The facts of the instant case, as discussed hereinbefore, do

not bring forth even an iota of justifiable reason as to why the

Court should use its discretion on the basis of cause shown by

the litigant - in the instant case, a registered partnership firm -

in order to come to a finding that "sufficient cause" has been

palpably shown for the purpose of condoning the delay of over

15 years in filing of the application seeking recall of the order

dated 21st June, 2001. As observed earlier, we do not even

hesitate to add that the instant application practically borders

on abuse of process of Court by a litigant, being a registered

partnership firm, which chose to file it after 15 (fifteen) years

simply because of the existence of section 5 of the Limitation

Act, 1963, in the statute book and its liberal interpretation,

particularly in respect of the phrase, "sufficient cause", being

construed as such.

Before parting with the matter, we quote the following lines

from the judgment of the Supreme Court render in Esha

Bhattacharjee (supra):

"31. Neither leisure nor pleasure has any room while one

moves an application seeking condonation of delay of almost

seven years on the ground of lack of knowledge or failure of

justice.

The plea of lack of knowledge in the present case really

lacks bona fides. ..."

No expression could be more apt while considering the facts

of the instant case.

For reasons stated above, the application for recalling of the order dated 21st

June, 2001, upon condonation of delay of more than 15 (fifteen) years, is

liable to be dismissed with exemplary costs and is accordingly dismissed with

costs assessed at 300 G.Ms. to be deposited with the State Legal Services

Authority, West Bengal, for being earmarked for its utilisation by the

Mediation and Conciliation Committee of the High Court.

Let this matter appear a fortnight hence only for the purpose

of ensuring compliance of the above direction for depositing

costs."

As such, we do not find any error apparent on the face of the record for reviewing

the judgment and order dated 16th February, 2017. The review application and the

connected application, being CAN 4329 of 2017, are liable to be dismissed and stand

accordingly dismissed.