Allahabad High Court
T.P. Singh vs Registrar / Assistant Registrar Firms ... on 16 March, 2018
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reportable Reserved on 16.2.2018 Delivered on 16.3.2018 Case :- WRIT - C No. - 53462 of 2016 Petitioner :- T.P. Singh Respondent :- Registrar / Assistant Registrar Firms And Another Counsel for Petitioner :- Shailendra Counsel for Respondent :- C.S.C.,Kartikeya Saran,Manish Goyal,Ram M. Kaushik Hon'ble Mrs. Sunita Agarwal,J.
Civil Misc. (Review) Application No. 403262 of 2017 Heard Shri Siddharth Nandan, learned counsel holding brief of Shri Shailendra, learned counsel for review-applicant, Shri S.D. Kautilya and Sri Ram Kaushik, learned counsels for the respondents.
The instant review application has been filed seeking review of the judgment and order dated 20.11.2017 passed by this Court on the ground that conclusion drawn by the Court that the challenge made by the petitioner to the resolution dated 17.1.2016 passed by the General Body of the Society touches the merits of the resolution which cannot be examined by the Registrar, Firms, Societies and Chits, Allahabad under Section 4-B of the Societies Registration Act, 1860 (hereinafter referred to as the 'Act 1860') is in ignorance of the material on record.
It is submitted that the objection filed before the Registrar was confined to the procedural anomalies which had been done in passing of the resolution dated 17.1.2016 and the same being in violation of the bye-laws of the Society and needed no adjudication on the merits of the resolution asking parties to lead evidence or examination of witnesses. Submission is that the record before the Registrar was sufficient to examine this aspect of the matter. Even otherwise, the legal situation regarding the jurisdiction of the Registrar under Section 4-B of the Act, 1860 has been settled by the Court in the judgment under review itself. The Court has held that the nature of power being exercised by the Registrar under the aforesaid provision is in the nature of quasi-judicial power which would require an examination in the decision making process. However, in the later part of the judgment under review, while dealing with the plea of the petitioner challenging the resolution of the Executive Committee of the society, the Court has erroneously held that the prayer made by the review-applicant before the Registrar was beyond the scope of enquiry under Section 4-B of the Act. It is contended that this Court has overlooked the objection taken by the petitioner-review applicant in his representation before the Registrar extract of which was reproduced by the Registrar in its order dated 26.8.2017 itself. According to the review applicant, the Court has overlooked the grounds of objections noted in the order passed by the Deputy Registrar Societies as follows:-
1. There was no resolution proposing the cancellation of membership of the petitioner seconded by any member of the Society and a notice which was supposed to be given 7 days prior to the meeting as contemplated under Rules 38(c) and 39(b) of the bye-laws of the Society.
2. The cancellation of membership of the petitioner was not on the Agenda in the meeting dated 17.1.2016 and consequently, it could not have been discussed as per Rule 26 of the bye-laws in the aforesaid meeting.
3. The members raised objection that before taking any action, no show cause notice or opportunity was given to the petitioner whose membership was likely to be cancelled but the Honorary General Secretary rejected the same observing that no opportunity was required and the said fact is transcribed in the minutes.
4. The meeting was chaired by an incompetent person and the entire proceeding stood vitiated as per Rules 23, 49 and 52 of the bye-laws of the Society.
5. The request for voting made by one of the members of the Executive Committee under Rule 25 was neither considered nor adopted which itself vitiate the proceedings.
Submission is that all these objections have been noted by the Assistant Registrar in the order dated 26.8.2017 but he refrained from considering the said grounds of challenge so as to see the correctness of the resolution dated 17.1.2016 because of pendency of the instant Writ Petition No. 53462 of 2016 (T.P. Singh vs. Registrar/Assistant Registrar Firms and another).
The observations made by the Registrar in the penultimate paragraph of the order ^^vr% iz'uxr izdj.k esa fu;ekuqlkj vxzsRrj dk;Zokgh ek0 mPp U;k;ky; }kjk fjV ;kfpdk la0 53462@2016 esa ikfjr fd;s tkus okys vfxze vkns'kksa ds vuqikyu esa lEiUu dhs tk;sxhA^^ have been read over to impress upon the Court that the Assistant Registrar had refused to examine the prayer of the petitioner challenging the validity of the resolution dated 17.1.2016 of the Executive Committee. It is contended that the Writ Petition No. 53462 of 2016 was filed by the petitioner simply for a mandamus commanding the Assistant Registrar to decide the pending objections. The Court has committed manifest error of law in ignoring the grounds of challenge raised by the petitioner to hold that the same was beyond the scope of Section 4-B of the Act, 1860 and could be subject matter of examination in a civil suit, if filed. Submission of the petitioner Sri T.P. Singh is that the petitioner cannot be relegated to avail the long drawn remedy of civil suit when the decision making process leading to passing of the resolution dated 17.1.2016 itself was faulty. The Registrar being the quasi-judicial authority is empowered to look to the records so as to satisfy himself about the correctness of the resolution on the grounds of challenge raised by the petitioner in exercise of powers under Section 4-B of the Act.
Reliance is placed upon the judgment of the Apex Court in Dwarka Nath vs. Income Tax Officer, Special Circle, D Ward, Kanpur1 to submit that under Article 226 of the Constitution of India, the High Court is having wide power to reach injustice wherever it is found. The High Court High Courts can issue directions, orders or writs other than the prerogative writs to mould the reliefs to meet the peculiar and complicated requirements of the matter.
Further a Division Bench judgments of this Court in Lucknow Development Authority, Lucknow vs. Saroj Rani and others2 and Apex Court in Board of Control for Cricket in India and another vs. Netaji Cricket Club and others3 have been placed to submit that the Court has power to review a judgment which is passed due to oversight and inadvertence of the facts placed before it. An error or mistake committed by the Court cannot be allowed to sustain for the benefit of the other party. The judgment which is suffering with apparent mistake on its face can be reviewed as it would not require any rehearing or reopening the issues of contest.
With reference to the judgment in Shri Adarsh Sanskrit Vidyalaya and others vs. C/M Adarsh Sanskrit Vidyalaya, Ambedkar Nagar and others4 passed by the Division Bench of this Court, it is submitted that flaw in the decision making process deserves to be corrected by a writ of certiorari and the party bringing the same before the High Court does not deserve to be relegated to avail the remedy of a suit for this purpose.
With reference to another judgment in Ranveer Singh vs. State of U.P. and others5, it is contended that the quasi-judicial authorities while acting in exercise of statutory power must follow the principles of natural justice, fair procedure of equity.
In the end, it is contended that the instant writ petition was heard by this Court on 7.11.2017 and the matter was posted for orders on 20.11.2017 in the Additional Cause List. During the course of arguments, when it was transpired that a part of the order dated 26.8.2017 passed by the Assistant Registrar regarding the maintainability of the objection under Section 4-B of the Act, 1860 remain unchallenged, the petitioner instructed his counsel to file an amendment application without delay. The amendment application was served upon the counsel for the contesting respondents and was filed in the office on 9.11.2017 much before the date fixed for orders. The said application came up for disposal with the list of applications on 14.11.2017 before the Court which had seized with the matter and was directed to be placed on the record. It is contended that after filing of the amendment application, the petitioner was under the impression that the same will be considered by the Court in reply to the technical objections raised by the respondents. However, the Registry did not place the amendment application on record despite the directions of this Court. As a result of which, while delivering the judgment on 20.11.2017, the amendment application was not given consideration or lacked attention of this Court.
It is, thus, sought to be submitted by the petitioner that the conclusion drawn by the Court that the Assistant Registrar had rejected the objections of the petitioner being beyond the scope of enquiry under Section 4-B of the Act can be moulded so as to grant relief to the petitioner by quashing of the order dated 26.8.2017 passed by the Assistant Registrar as it had failed to examine the grounds of challenge to the resolution dated 17.1.2016 noted in its order. Submission is that there cannot be a dispute to the position that the Deputy Registrar enjoins with the power to see the correctness of the resolution of the General Body of the Society regarding removal of a member when there is no Agenda and the procedure for passing the same as provided under the bye-laws has not been followed.
With these submissions, it is vehemently contended by learned counsel for the petitioner that the review application deserves to be allowed and a direction may be given to the Assistant Registrar to reconsider correctness of the resolution dated 17.1.2016 in the light of the objections raised before him.
Lastly, attention of the Court is invited to the supplementary affidavit dated 9.11.2016 to place the application filed by Sri T.P. Singh the petitioner, before the Assistant Registrar, Firms, Societies and Chits, Allahabad and the copy of the last application dated 26.10.2016 to submit that both these objections are pending and had not been adjudicated.
Learned counsel for the respondents, on the other hand, vehemently objected to the maintainability of the review application. The first ground of objection is that the review application is not properly drafted and presented before the Court in accordance with the procedure as contained in Chapter IX Rule 14 of the High Court Rules as it is not accompanying with the affidavit of the review-applicant himself. Even otherwise, the review application is not in accordance with Order XLVII, Rule 1 of the Code of Civil Procedure, 1908. The application is not drafted as per Rule 3 of Order XLVII of Code of Civil Procedure clearly stating the grounds of review. The review-applicant has tried to impress upon the Court that it was required to take cognizance of the amendment application before delivering the order, however, the said amendment application was not pressed on the date of delivery of order i.e. on 20.11.2017. Moreover, no prayer seeking time for filing amendment application was made before the Court on 7.11.2017 when the matter was heard finally and posted for orders on 20.11.2017. For the first time, the amendment application has been pressed in the review application in order to contend that the Court has wrongly relegated him to civil suit on the ground that there was no challenge to the merits of the order of the Assistant Registrar.
On merits of the review application, it is submitted that no ingredients of review is available in the review petition inasmuch as no ground has been formulated by the review-applicant which discloses any error apparent on the face of the judgment and order of the Court. There is nothing to indicate that permitting the judgment to stand will lead to failure of justice. In fact by means of the review petition, the petitioner seeks to re-argue the matter as an appeal in disguise.
Lastly, it is contended that the only basis of review was averments made in paragraphs '37' and '38' of the review application which do not constitute grounds of review. The submission of review-applicant regarding there being no Agenda of the meeting of the General body was not part of the objection to challenge the validity thereof. The pleadings by way of amendment cannot be seen at the stage of review.
Reliance is placed upon the judgment of the Apex Court in Kamlesh Verma vs. Mayawati and others6, Sasi (D) Through Lrs. vs. Aravindakshan Nari and others7, Lily Thomas and others vs. Union of India and others8, Parsion Devi and others vs. Sumitri Devi and others9 and Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma and others10 to submit that under Order XLVII, Rule 1 of the Civil Procedure Code, the Court cannot act as an appellate court. Order XLVII, Rule 1 C.P.C. though inheres in every Court of plenary jurisdiction a power of review to prevent miscarriage of justice or to correct grave and palpable errors committed by it but there are definitive limits to the exercise of the power of review. The review can be exercised only on the grounds enumerated under Order XLVII, Rule 1 C.P.C. It may be exercised where mistake or an error apparent on the face of the record is found or it may also be exercised on any analogous ground. But an error which is not self-evident 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 XLVII, Rule 1 C.P.C. In exercising the jurisdiction under Order XLVII, Rule 1 C.P.C., it is not permissible for an erroneous decision to be 're-heard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'.
Submission is that the review-applicant/petitioner is trying to reopen the issue asking the Court to rehear as a Court of appeal to correct a decision which according to the review-applicant is an erroneous decision. The only course open for the review-applicant is to file a Special Appeal so as to correct the error committed by this Court, according to him. The review application deserves to be dismissed as such.
Heard learned counsel for the parties and perused the record. Before dealing with the rival contentions, the legal position with regard to the maintainability, the scope of review as held by the Apex Court may be adverted to.
The Apex Court in the case of Sow Chandra Kante and another vs. Sheikh Habib11 considering earlier decisions of the Apex Court has held that a party is not entitled to seek a review of a judgment delivered by the Court merely for the purpose of rehearing and a fresh decision of the case. It can only be entertained only if there is an error apparent on the face of the record. A mere repetition, through a different counsel, of old and over-ruled arguments, a second trip over ineffectually covered grounds or minor mistake of inconsequential import are obviously insufficient. The Apex Court has held that review of a judgment is a serious step and reluctant resort to it is proper. The review proceeding cannot be equated with the original hearing of the case and the finality of the judgment delivered by the Court will not be considered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. If the view adopted by the Court in the original judgment is a possible view having regard to what the records states, it is difficult to hold that there is an error apparent on the face of the record.
An error which is itself not self-evident 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.
The Court in Parsion Devi (supra) has held that there is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher Forum, latter only can be corrected by exercise of the review jurisdiction. The mistake or an error apparent on the face of the record should not be of such a nature, which has to be detected by a long drawn process of reasons. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error." The power of review can be exercised for correction of a mistake but not to substitute a view.
In Kamlesh Verma (supra), it is held that in a review petition, it is not open for the Court to re-appreciate evidence and reach at a different conclusion, even if that is possible. Conclusion arrived by it on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. The words "any other sufficient reason" appearing in Order XLVII, Rule 1 C.P.C. has been held to mean "a reason sufficient on grounds at least analogous to those specified in the rules" as in Chajju Ram vs. Neki12 and approved by the Apex Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius13.
It is held that an error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law.
Lastly, the principles laying down the grounds of review as stipulated by the Statute summarised in Kamlesh Verma (supra) are relevant to be quoted:-
"20.1 When the review will be maintainable:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the Petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" has been interpreted in Chhajju Ram v. Neki : AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius and Ors. : AIR 1954 SC 526, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese and Iron Ores Ltd. and Ors. : 2013 (8) SCC 337.
20.2 When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."
Keeping the above principles in mind, the Court has to find out as to whether a case has been made out by the review-applicant for interference exercising review jurisdiction. To reach at a conclusion on the maintainability of the instant petition, it is relevant to note that the arguments being raised in the review petition to assail the resolution dated 17.1.2016 being passed in absence of Agenda or it being a minority decision were not the grounds raised by the learned counsel for the petitioner at the time of hearing of the writ petition.
The writ petition admittedly was heard on 7.11.2017 when Sri G.K. Singh, learned Senior Advocate assisted by Sri Sankalp Narayan and Sri Siddharth Nandan, learned counsels for the petitioners had argued it for final disposal. Sri G.K. Singh, learned Senior Counsel confined his argument to the prayer for mandamus made in Writ Petition No. 53462 of 2016 and urged that the dispute raised by the petitioner Sri T.P. Singh had not been adjudicated. No prayer was made by him seeking time from the Court to file amendment application adding prayer to challenge the order dated 26.8.2017 passed by the Assistant Registrar.
The grounds of objection to the resolution dated 17.1.2016 as narrated in the application under Section 4 of Act, 1860 filed by Sri T.P. Singh as also the prayer made therein have been taken note of in the judgment and order dated 20.11.2017 to conclude that the questions sought to be raised by the petitioner/review-applicant are necessarily beyond the scope of jurisdiction of the Assistant Registrar under Section 4-B of the Act, 1860 and can only be adjudicated in a civil suit. The arguments of the review-applicant based on the observation made by the Assistant Registrar in the order dated 26.8.2017 regarding the resolution dated 17.1.2016 being without Agenda and it being a minority decision did not skip attention of the Court rather they were not urged during the course of hearing. The arguments which are not placed before the Court at the time of original hearing cannot be agitated in a review application so as to play a second inning.
The amendment application was filed after the matter was heard finally on 7.11.2017 and a date was fixed for orders. Neither any prayer was made nor any permission was taken from the Court by the counsel for the petitioner to file amendment application. In case any such request would have been made, the matter would have been adjourned granting time to file amendment application. The amendment application filed by the petitioner after the matter was heard finally and posted for orders, therefore, cannot be made basis for seeking review of the judgment of this Court. The order passed on the amendment application to place it with the records, therefore, is of no consequence.
The arguments made by the review-applicant may establish that the judgment passed by this Court is an erroneous decision on re-appreciation of evidence on record but the same cannot be taken to mean that there is an error apparent on the face of the record justifying the Court to exercise its power of review. The instant case does not fall within the four corners of Order XLVII, Rule 1 of the Code of Civil Procedure, 1908.
The review application is dismissed as such. No order as to costs.
Order Date :- 16.3.2018
Brijesh (Sunita Agarwal, J.)