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Judgment
A.L. Dave, J.—Rule. Learned Advocate, Mr. Barot, waives service on behalf of opponent No. 1 and learned Advocate, Mr. A.V. Trivedi, waives service on behalf of opponents No. 3/1 to 3/5. Notice of Rule in respect of rest of the opponents is dispensed with in view of the fact that in the main Appeal from Order also, they were not represented, though served.
This review application is preferred mainly on the ground that, when the order was passed by this Court, a consensus was arrived at on the basis of some mistake of fact on the part of learned advocate for the appellants-applicants arising out of his impaired hearing and, therefore, the said order may either be modified or recalled.
This Court has heard learned Senior Advocate, Mr. Zaveri, appearing with Mr. Desai, learned Advocates, Mr. Barot and Mr. Trivedi.
Attention of this Court is drawn towards the case of Mullins v. Howell of Chancery Division Volume XI, page 763, Yusuf I. A. Lalji v. Abdullabhoy Lalji ( No. 1) 32 BLR 665 and Muktar Steels (P) Ltd. Company v. Hindu Ro-Rolling Industries Ltd. (2005) 11 SCC 399.
The principle that emerges from these judgments can be broadly stated thus:
That a review application may be entertained on account of any misconception of law or fact by the Court or by an advocate.
In the instant case, it is submitted that on account of impairment in hearing on the part of the learned advocate for the appellants, the terms of agreement, as recorded by this Court, were agreed to. In fact, what was intended by the party was different. Learned advocate for the applicants-original appellants has also indicated that, by the order passed by consensus, the appellants would gain no benefit and may also be put to economic hardships and no prudent man would agree to this. Therefore, the order may be reviewed and modified by replacing words ''obtaining necessary bank guarantee'' with words ''obtaining loans from the bank''in paragraph 5 of the order.
In the alternative, it is also submitted that the order may be recalled, the applicants-appellants may be freed from the undertaking and the appellants may also be permitted to withdraw the appeal.
Learned Advocate for opponent No. 1, Mr. Barot, has opposed this application. According to him, the scope for review is very limited and the mistake cannot be accepted to have crept in or even if it is said to have crept in, it ought to have been rectified immediately, as the order was dictated in the open Court. He relied on decision of the Apex Court in the case of Muktar Steels (supra).
This Court has taken into consideration rival side contentions. In light of the decision of the Apex Court in Muktar Steels (supra) and in light of a specific averment made in the application about the mistake having crept in on account of a misunderstanding of fact by learned advocate for the applicants-appellants because of his physical impairment, in the opinion of this Court, the order, though passed in open Court, calls for review. The impairment is in hearing and that impairment played its role while the learned advocate took instructions from his clients and may have played role while the order was dictated in the open Court. This Court is of the view, therefore, that in the larger interest of justice, the order passed in Appeal from Order No. 341 of 2005 deserves to be recalled and the same is recalled. As a result, the appeal would be restored to file at its original number and original stage. Rule is made absolute accordingly with no order as to costs.
Learned Senior Advocate, Mr. Zaveri, states that the applicants have, in writing, instructed the learned advocate on record to withdraw the appeal if, ultimately, the order is recalled and the appeal is restored. Appeal from Order to be notified before appropriate Bench in the next week.