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8. Review Application Dismissed

(8)

REVIEW APPLICATION DISMISSED

MATTER NO. 297 OF 1985
Constitutional Writ
(ORIGINAL SIDE)

BIMAL CHANDRA BASAK
June 21 85.
Chandmal Chopra & Anr.
-Vs-
The State of West Bengal.

Two papers were moved before me.  One is an application for condonation of delay in the submission of the review application and another is stated to be an application for review of my Judgment dated 17th May, 1985, but which is actually a memorandum of review.  By the said Judgment I have dismissed the Writ petition directed against Koran in limine.  Thereafter these two �applications� have been filed.

So far as the condonation of delay is concerned, the time for making an application for review is 30 days.  There is only one day's delay.  It might be felt that only one day's delay may be condoned but the condonation of delay is not a matter of course.  The petitioner must give proper explanation of even one day's delay.  In this case in the petition the delay is sought to be explained by making the following averments:

�That the applicant got hurt in the palm of his right hand on 13th June, 1985, got a stitch and a bandage and was advised not to move his right hand for some days.  A medical certificate is enclosed marked as annexure �A�.�

The said annexure �A� reads as follows:

�Shree Vishudhanand Hospital & Research Institute. 
35 & 37, Burtolla Street, Calcutta - 7 
General Outdoor Deptt. (EMERGENCY)
Dr. H. Poddar

18 June 1985
No. 20139

Name - Chandmal Chopra, Age - 53 Yrs.

This is to certify that Sri Chandmal Chopra aged 53 yrs. had got injured on 15-6-85 on the right little finger.  One stitch and bandage was done on 16.6.85. He is advised to take rest for 4 days from that very day.

Sd/- Illegible.�

It will be seen that there are inconsistencies between the averments in the petition and the medical certificate.  In the petition it is stated that the applicant got hurt in the palm of his right hand whereas in the medical certificate it has been stated that he had got injured on the right little finger.  In the petition the averment is that he is advised not to move his right hand for some days.  In the medical certificate it is stated that he is advised to take rest for four days from that very day, i.e, 15th June, 1985.  Therefore, I cannot accept such statement.  Moreover it is to be seen that from 15th June, 1985, four days mean upto 19th June, 1985.  Therefore, according to such alleged advice, he was to take rest upto 19th June, 1985.  Accordingly he could not have moved such application before 20th June if such medical advice was correct.  But this application was moved on 18th June, 1985, by the petitioner in person.  In my opinion, this is not a genuine ground.  Further I am not satisfied that such a small injury could have prevented the petitioner from filing the application in Court on 17th i.e., the last day of limitation.  On the 18th inst. he appeared in Court and moved the application in person.  From my personal observation also, I am satisfied that there was no injury which could disable him from moving any such application on 17th instant.

So far as the �application� for review is concerned actually it is a memorandum of review.  It is to be pointed out that there is no application in support of the said memorandum.  The only application filed along with the memorandum is that application for condonation of delay.  There is no prayer therein for issuing a rule or for any order directing the hearing of the application for review.  There is no averment in the said application also so far as review is concerned.  Though it is stated in the memorandum of review that it is an application for review, there is in fact no such application.

The power of review is to be exercised very sparingly.  This court in its writ jurisdiction has undoubtedly got the power to review its judgment.  But there are limits to the exercise of such power.

The petitioner seeks to invoke the power of review based on Order 47 Rule 1 (1) of the Code of Civil Procedure.  The said Rule is set out hereinbelow:

�1 (1) Any person considering himself aggrieved

(a) by a decision on reference from a Court of Small Causes from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed,

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review for a review of judgment to the Court which passed the decree or made the order.�

Such power may not be exercised on the ground that the decision was erroneous on merits.  That would be the province of a Court of Appeal.  A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by Trial Court.  Reference may be made in this connection to the decision in the case of A. T. Sharma -vs- A.P. Sharma reported in A.I.R. 1979 S.C. 1047.

In the case of Thungabhadra Industries - vs - The Government of Andhra Pradesh reported in A.I.R. 1964 S.C. 1372 it was pointed out that there was a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by error apparent.  A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.  Where without any elaborate argument one could point to the error and say here is a substantial point of law which stared one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.

It has to be pointed out that in the present case in the memorandum of review altogether eight grounds have been taken.  Out of that ground nos. 1 to 5 and ground nos. 7 and 8 are the grounds challenging the correctness of my decision.  This may or may not be ground for appeal but not a ground for review.  So far as the ground no. 6 is concerned, there is no merit in the same.  There is no question of error apparent involved.  Further whatever point was raised on behalf of the petitioner was recorded by me and dealt with by me.

In my opinion no case has been made out by the petitioner for exercise of such power.  There is no mistake apparent from the judgment for the purpose of review.  It is stated that it is also being filed due to the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the person seeking the review or could not be produced by the applicant at the time when the matter was heard.  As I have stated, no application for review has been made stating the alleged new and important matter and alleged exercise of diligence.  As I have already stated there is no other application excepting one application for condonation and another being a memorandum of review though described as an application for review.

For the aforesaid reasons these applications/memorandum are misconceived and they are rejected in limine.

It may be recorded that today a written submission has been placed before me which may be kept in the records.

Sd/-
(B.C. Basak)