Gujarat High Court
M/S Daimler Chrysler India Private ... vs M/S Kloeckner Desma Machinery Pvt Ltd on 6 March, 2020
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/CRA/403/2016 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2019
In R/CIVIL REVISION APPLICATION NO. 403 of 2016
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M/S DAIMLER CHRYSLER INDIA PRIVATE LIMITED (NOW MERCEDES BENZ Versus M/S KLOECKNER DESMA MACHINERY PVT LTD ========================================================== Appearance:
J SAGAR ASSOCIATES for the PETITIONER(s) No. for the RESPONDENT(s) No. MR JF MEHTA for the RESPONDENT(s) No. MR ZUBIN F BHARDA for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MR.JUSTICE ASHUTOSH J. SHASTRI Date : 06/03/2020 IA ORDER
1. The present Misc. Civil Application has been filed for the purpose of recalling and/or reviewing the order dated 11.10.2019 passed in Civil Revision Application No.403 of 2016.
2. The case, in substance, of the applicant is that on the basis of undisputed facts and the chronology of events, the proceedings which have been initiated are beyond the period of limitation and as such, the said view which has been taken deserves to be reconsidered and recalled.
3. I have heard Mr.Siddharth Sethi, learned counsel with Mr. Tabish Samdani, learned counsel for the applicant and Mr.J.F.Mehta, learned counsel for the respondent. Having considered the material on record, it appears that these written arguments which were pressed into service have been considered at length by this Court and substantial point Page 1 of 6 Downloaded on : Sun Mar 08 00:53:53 IST 2020 C/CRA/403/2016 IA ORDER involved in the main Civil Revision Application was about limitation only and these dates were very much projected before the Court at the time when main Civil Revision Application was heard by the Court and after that, an order came to be passed on the basis of available material and the submissions.
4. Mr.Siddharth Sethi, learned counsel, has pointed out the circumstance under which the review application is submitted, more particularly it has been emphasized that irrespective of benefit whether available or not, under Sections 5 and 14 of the Limitation Act, the civil suit is apparently barred by limitation.
Even in view of Section 113 of the Limitation Act also, a request is made to recall the order passed in main Civil Revision Application. Learned counsel has submitted that this sequence of dates are not disputed. As a result of this, on the basis of undisputed fact, the main proceedings are beyond the period of limitation and as such, the disposal of the main Civil Revision Application is not just which requires reconsideration and for that, the present application deserve to be allowed.
4.1 In support of his case, learned counsel for the applicant has relied upon following decisions:
(1) The Nalagarh Dehati Cooperative Transport Society Ltd., Nalagarh v. Beli Ram etc., reported in AIR 1981 HP 1.
(2) Rajender Singh v. Lt. Governor, Andaman & Nicobar Island & Anr., reported in (2005) 13 SCC 289.
(3) Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by LRs., 2019 SCC OnLine SC 372.Page 2 of 6 Downloaded on : Sun Mar 08 00:53:53 IST 2020
C/CRA/403/2016 IA ORDER
5. As against this, Mr.J.F.Mehta, learned counsel for the respondent has submitted that these were the very points which were canvassed on earlier occasion when the main Civil Revision Application was heard. Further, these dates were very much considered by the Court and upon overall analysis of material, a particular view is taken and, therefore, looking to the scope contained under the review jurisdiction, no rehearing be permitted at this stage of the proceedings. On the contrary, the applicant is required to cooperate with the main proceedings which are ordered to be disposed of as expeditiously as possible.
To substantiate his submission, a recent decision of the Apex Court in the case of Perry Kansagra v. Smriti Madan kansagra, reported in 2019 (0) AIJELSC 63646 is pressed into service and requested the Court not to entertain the review application.
6. Having heard the learned counsel appearing for the respective parties and having gone through the contents of the review application, in addition to the written chronology which has been tendered on earlier occasion, this Court is of the opinion that these very points were agitated at the time when main Civil Revision Application came to be disposed of. Nothing new is brought before the Court which can permit the Court to construe the same an error apparent.
7. Keeping in view the aforesaid decisions relied upon by both the sides and keeping in view the scope of review petition, this Court is of the considered opinion that since the entire controversy is entangled on the issue of limitation and the same was very much agitated and considered by this Court, no fresh Page 3 of 6 Downloaded on : Sun Mar 08 00:53:53 IST 2020 C/CRA/403/2016 IA ORDER hearing be given looking to the scope of review petition. Under the guise of review application, it is not permissible for the Court to substitute the view in its entirety and the review cannot be resorted for that purpose. So, considering the scope and the relevant judgments which have been brought before the Court, this Court is of the opinion that application being devoid of merits, deserves to be dismissed.
8. The recent judgment on the scope of review which has been delivered by the Apex Court on 15.2.2019. The relevant observations contained in Para.13 and 14 since considered, the Court deems it proper to reproduce the same hereinafter:
"13. The issues that arise for our consideration can broadly be put under two heads:
a) Whether the High Court was justified in exercising review jurisdiction and setting aside the earlier judgment and
b) Whether the High Court was correct in holding that the reports of the Mediator and the Counsellor in this case were part of confidential proceedings and no party could be permitted to use the same in any court proceedings or could place any reliance on such reports.
14. As regards the first issue, relying on the decisions of this Court in Inderchand Jain (dead) through Lrs. vs. Motilal (dead) through Lrs. 2, Ajit Kumar Rath vs. State of Orissa and others 3 and Parsion Devi and others vs. Sumitri Devi and others4, it was submitted by the appellant that the exercise of review jurisdiction was not warranted at all. In Inderchand Jain it was observed in paras 10, 11 and 33 are as under: "10. It is beyond any doubt or dispute that the review Page 4 of 6 Downloaded on : Sun Mar 08 00:53:53 IST 2020 C/CRA/403/2016 IA ORDER court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.
11. Review is not appeal in disguise. In Lily Thomas v. Union of India this Court held: (SCC p. 251, para 56) "56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise." ..............................
33. The High Court had rightly noticed the review jurisdiction of the court, which is as under: "The law on the subject--exercise of power of review, as propounded by the Apex Court and various other High Courts may be summarised as hereunder:
(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
(ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the 5 (2000) 6 SCC 224 record and would not require any longdrawn process of reasoning on the points where there may conceivably be two opinions.
(iii) Power of review may not be exercised on the ground that the decision was erroneous on merits.
(iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate.
(v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem Page 5 of 6 Downloaded on : Sun Mar 08 00:53:53 IST 2020 C/CRA/403/2016 IA ORDER gravabit." In our opinion, the principles of law enumerated by it, in the facts of this case, have wrongly been applied." In Ajit Kumar Rath3, it was observed: "29. In review proceedings, the Tribunal deviated from the principles laid down above which, we must say, is wholly unjustified and exhibits a tendency to rewrite a judgment by which the controversy had been finally decided. This, we are constrained to say, is not the scope of review under Section 22(3)(f) of the Administrative Tribunals Act, 1985............"
Similarly, in Parsion Devi the principles were summarized as under:
"9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not selfevident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".
9. In view of this peculiar background of fact, the decisions which have been submitted by learned counsels, on close scrutiny, the Court is unable to substitute the view on the limitation issue which has already been taken in the main proceedings by resorting to aforesaid judgments. Accordingly, no case is made out to review the decision. Accordingly, the review application lacks merit and is dismissed hereby.
(ASHUTOSH J. SHASTRI, J) V.J. SATWARA Page 6 of 6 Downloaded on : Sun Mar 08 00:53:53 IST 2020