Calcutta High Court
Lakshman Bhowmick vs Satya Narayan Chakraborty on 21 September, 1995
Equivalent citations: (1996)1CALLT323(HC)
JUDGMENT Samir Kumar Mookherjee, J.
1. This is an application for review, directed against an order of a Division Bench to which I was a party and whereby a second appeal had been dismissed under Order 41, Rule 11 of the Code of Civil Procedure on the ground, inter alia, that it did not raise any substantial question of law. The appeal was at the instance of the defendants, who are the applicants for review before me.
2. Mr. Roy Chowdhury, appearing in support of the application has emphasised that the impugned order of the Division Bench deserves to be reviewed and recalled because of existence of error apparent on the face of the records. In support of his submission, Mr. Roy Chowdhury, has pointed out that before the Trial Court to the report of the Commissioner, an objection was preferred by his clients. The said report, inter alia, stated that there was encroachment by the defendant/appellant and on the basis of such statement plaintiffs prayer for amendment of the plaint asking for a relief by way of recovery of possession had been allowed subject to the condition that in case the objection to the Commissioner's report succeeded, the order allowing amendment will stand recalled Mr. Roy Chowdhury, pointed out that the objection was actually taken up along with final hearing of the suit and the acceptance thereof by the learned Trial Judge had the effect of depriving his clients of an opportunity to file any additional written statement or to counter the evidenciary value of the Commissioner's report by appropriate evidence. This, according to Mr. Roy Chowdhury, could be said to be error apparent on the face of the record as mere perusal of the order sheets would pin point the prejudicial irregularity in the procedure followed by the learned Trial Judge.
3. Mr. Sakti, Nath Mukherree, opposing the prayer for review, placed strong reliance on the principle judicially settled to the effect that where a review required a detailed process of reasonings for finding out an error, such error could not be said to be an error apparent on the face of the record. In the instant case, the Judgment of the Court of appeal below which was a judgment of affirmance embodied categorical findings of the said Court about the correctness of the approach by the Trial Judge in accepting and relying upon the Commissioner's report which had been marked as an exhibit on admission and the failure of the defendants failed to demolish the correctness of which report even after thorough cross-examination of the Commissioner. According to Mr. Mukherjee, the objection could be said to have been waived by participation of the defendants in the Trial without asking for an opportunity to file additional written statement at the appropriate stage apart from the finality of the findings of the Trial Court about the untenability of the objections of the defendant to the Commissioner's report by specific approval by the Appeal Court of the reasons recorded by it. The restricted scope of review according to Mr. Mukherjee, even assuming that the dismissal of the appeal under Order 41 Rule 11 of the Code of Civil Procedure was vitiated by error of law, did not authorise this Court to undertake a re-appraisal of the materials as a Court of appeal. The review application, therefore, according to Mr. Mukherjee, deserves rejection.
4. I have bestowed serious consideration on the submissions made by the respective Counsel in the context of the facts as noted by me hereinabove. It is well settled that an error can be said to be one apparent on the face of the records only when such error is patent and can be located without any elaborate argument without any scope for any controversy with regard to such error which as if at a glance stares at the face (Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh, ). In that decision, the Court accepted a distinction between an erroneous decision and an error apparent and laid down that a process of review could not by any means be an appeal in disguise so as to allow correction of such an error upon a re-hearing. The scope of the said ratio laid down by the Apex Court was further clarified-., and extended by a two Judges' Bench of that Court in the case of Meera Banerjee v. Smt. N. K. Chowdhury, and Md. Ashraf Ali v. Debraj Wadhera, reported in 1995 Supp. (2) SCC 654 where it was held that the terms of Order 47 Rule 1 of the Code of Civil Procedure were strict and arena of facts which were outside the scope of a second appeal could not be transgressed by Court by way of a review Court arising from such second appeal. Even construction of document in second appeal and a finding that the said was a Deed of Settlement could not be altered on review and could not be found to be a will and not a Deed of Settledment [Vide Davaraju Pillai v. Sellayya Pillai, ]. In the instant case the Judgment under second appeal is a Judgment of affirmance, the Court considered the acceptability of the Commissioner's report in the background of written objections of the defendants and the statements of the Commissioner in cross-examination. The defendants participated in the trial, argued on their objection's as regards the Commissioner's report, and did not ask for any opportunity to file an additional written statement, even in the Appeal Court, the findings of the Trial Court on the points of objection to the Commissioner's report had been mentioned by assailed but such challenge the Appeal Court did not accept. The report of the Commissioner was marked as an exhibit on admission and in terms of the principles laid in the case of P.O. Purushothama Reddiar v. S. Purumal, , the contents of the admitted document constituted relevant evidence though the some might not be conclusive evidence and could very well have been rebutted by contrary evidence. The failure on the part of the defendents/appellants to ask for opportunity to file additional written statement and the manner of their participation in the trial can be said to have resulted in waiver of whatever right they might have had. The allegedly patent errors lost-all their impacts in the facts of the present case and it is not now open to the defendants/appellants/applicants to embark upon a process of reasoning to bring out and demonstrate the legal flaws allegedly committed in dismissing the second appeal. The criterion, relied upon by the applicants to sustain their prayer for relief under Order 47, Rule 1 of the Code of Civil Procedure cannot be said to have been satisfied and the application for review must, therefore, fail and, is accordingly, rejected. There will be no order as to costs.
S.N. Chakrabarty, J.
5. I agree