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Judgment
S. Usha, J
The applicant has filed a Review Petition in Diary No. 4284/10 against the order of this Appellate Board dated 26th May 2010 dismissing the
request for cross examination. The Registry of this Board has placed the matter before us to decide the issue of maintainability of this Review Petition
under Diary No. 4284/10. The miscellaneous petition No. 257/10 is for condoning the delay in filing this Review Petition.
The Petitioner had filed the review petition under the provision of Order 47 Rule 1 Code of Civil Procedure Code. The cause of action for filing an
application for cross examination arose only after 2009 so the finding of this Board is an error on the fact of records. In another matter, this Board has
referred to a larger Bench for deciding the issue of cross examination. That order by the larger Bench would be binding on this Board and would be
relevant to decide this matter too . Without that order by the larger Bench, this matter cannot be decided. The orders in that another matter was
reserved in the month of October 2009 and orders were pronounced in July 2010 and referred to the larger Bench as there was a dissenting order. In
such case this present matter be stayed till the outcome of the order by the larger Bench.
The Petitioner has stated that the impugned order dated 26.05.2010 was received on the 16th June 2010. They were contemplating to file a writ
petition challenging the order. As there was a dissenting order by this Appellate Board in another matter, the petition has filed this Review Petition
before this Board instead of approaching the High Court.
The Petitioner has admitted that there has been a delay of one month in filing this Review Petition. The petition made is bonafide in the interest of
justice. The Petitioner will suffer irreparable loss if this miscellaneous petition is not allowed whereas the Respondent will no suffer if this petition is
allowed.
The miscellaneous petition was posted for hearing for deciding the issue of maintainability of the Review Petition as this Appellate Board has held in
number of matters that the powers of Review were not vested with the Appellate Board. The learned Counsel for the Petitioner appeared and
submitted that he adopts the arguments advanced by the counsel appearing in another Review Petition against the order passed by this Appellate
Board in ORA/42 & 43/07 where there was a dissenting order. The delay has been because of the dissenting order in the other matter.
We have heard and considered the arguments we first take the miscellaneous petition for coronation of delay in filing the Review Petition before
deciding the issue of maintainability. The only reason given is that there are been a dissenting order in another similar application and hence decided to
file the Review Petition instead of approaching the higher forum which is an after thought in our view. If such a reason is to accepted and condoned,
we do not think there will be an end to any litigation. We are bound by the orders and settled principles of the Apex Court and the High Courts in
condonation of delay where sufficient cause is to be given for condoning the delay. That apart, we are also of the view that adopting of arguments
advanced in another matter can not be considered for deciding the issue of maintainability as the matters are to be decided based on the facts of each
case which is the observation of the Apex Court. The arguments advanced in another matter can be considered when the facts are similar and not
when the issues are similar. In the instant case we do not find any sufficient reason given for the delay and therefore the miscellaneous petition is
dismissed.
In view of the dismissal of the miscellaneous petition, we are not going into the merits on the issue of the maintainability of the Review Petition and
is therefore dismissed. No costs.