State Consumer Disputes Redressal Commission
Dilip K Dhanola vs Vihang K Shah on 10 May, 2021
Details DD MM YY
Date of Judgment 10 05 2021
Date of filing 28 04 2021
Duration 12 00 00
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD
COURT NO: 05
Review Application No. 15 of 2021
Dilip K. Dhanola,
52, Samatva Bunglows,
Shela road, near 07 Club,
Shela, Ahmedabad. ...Appellant.
V/s
1 Vihang Kanaiyalal Shah
1, Panch Jyot Society, Nr. Vijaynagar,
Naranpura, Ahmedabad-13,
At present at 401, Malhar Flats,
Nr. Satadhar Bridge,
S.G. Highway, Ahmedabad
2 Vijay Acharya
House no. 683, Block No. 53,
Shrinath Apartments, Nr. Vyaswadi,
Nava Vadaj Ahmedabad - 13
At present at I/403,
Aaryaman Society-Apartments,
New Ranip, Ahmedabad ...Respondent.
BEFORE: Dr. J.G. Mecwan, Presiding Member.
APPEARANCE: Mr. D.K. Dhanola, applicant.
Oral Order: (By Dr. J.G. Mecwan, Presiding Member)
1. The applicant/original opponent no. 01 in CMA No. 352/2020 has filed present Review Application under Section 50 of the Consumer Protection Act, 2019 (herein after referred to as the 'C.P. Act') Page 1 of 12 R.I. DESAI R.A. 15/21 wherein the main relief is prayed in present Review Application are as under:
A. Be pleased to dismiss order dated 10.03.2021 passed in CMA No. 352/20.
B. Be pleased to dismiss the delay condonation by considering written submission dated 24.12.2020.
2. As per Section 50 of the C.P. Act. 2019 any Review Application can be filed within 30 days from such order. The present Review Application has been filed on 22.04.2021 after delay of 13 days without any delay condonation application. However, looking to the guidelines of Hon'ble Supreme Court delay to file the present Review Application is condoned and this Commission has decided to proceed the present Review Application.
3. Read Review Application dated 22.04.2021 of applicant/original opponent no. 01 of CMA No. 352/2020 wherein following points has been raised by the appellant:
A. Applicant has submitted written submission on dated 24.12.2020 but in oral order of CMA no. 352/2020 it has been wrongly mentioned that opponent has not challenged delay condonation application.
B. That the Commission has erred in accepting that the applicant has a prima facie case and it is likely to succeed.
C. That also the Commission has erred in finding that if delay is not condoned, the applicant has to suffer huge loss and will not get justice.
D. The Commission has not mentioned in oral order that on which facts and evidences delay condonation application granted by this Commission.
Page 2 of 12 R.I. DESAI R.A. 15/21Scope of Review:
4. It will be beneficial to refer following provisions of law:
(A) Section 50 of the Act:"The State Commission shall have the power to review any of the order passed by it if there is an error apparent on the face of the record, either of its own motion or on an application made by any of the parties within thirty days of such order."
(B) Order 47 Rule (1) of the CPC, 1908:
"(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(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 of for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."
5. Considering the section 50 of the Act and order 47 Rule (1) of the CPC, 1908 there are three grounds under the order 47 Rule 1, which reads as under:
(i) 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,
(ii) on account of some mistake or error apparent on the face of the record Page 3 of 12 R.I. DESAI R.A. 15/21
(iii) for any other sufficient reason, But as per section 50 of the C.P. Act, 2019 the State Commission have power to review any order on only one ground i.e. if there is an error apparent on the face of record.
6. This Commission come across the following judgments wherein, Hon'ble Supreme Court has laid down ratio on scope of review by the Court.
(A) AIR 1980 Supreme Court 674: Northern India Caterers (India vs. Lt. Governor of Delhi dated 21.12.1979.
8. It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Sajjan Singh v. State of Rajasthan.(1) For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment. G. L. Gupta v. D. N. Mehta.(2) The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. O. N. Mahindroo v. Distt.Judge Delhi &Anr.(2) Power to review its judgments has been conferred on the Supreme Court by Art. 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Art.
145. In a civil proceeding, an application for review is entertained only on a ground mentioned in XLVII rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record. (Order XL rule 1, Supreme Court Rules, 1966). But Page 4 of 12 R.I. DESAI R.A. 15/21 whatever the nature of the proceeding, it is beyond dispute that a 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 reconsidered except "where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility."ChandraKanta v. Sheikh Habib.
9. Now, besides the fact that most of the legal material so assiduously collected and placed before us by the learned Additional Solicitor General, who has now been entrusted to appear for the respondent, was never brought to our attention when the appeals were heard, we may also examine whether the judgment suffers from an error apparent on the face of the record. Such an error exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record.
(B) In Lilly Thomas v. Union of India and others reported in AIR 2000 SC 1650, the Hon'ble Apex Court has held that the power of review can be exercised for correction of mistake and not to substitute views. The relevant portion of the said decision is usefully extracted hereunder:-
"55. It follows, therefore, that the power of review can be exercised for correction of a mistake and 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 an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of Page 5 of 12 R.I. DESAI R.A. 15/21 following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 orArticle 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment.
(C)The Hon'ble Supreme Court in KamleshVerma v. Mayawati and Others reported in 2013 (4) CTC 882 has held that the review proceedings are not by way of an Appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 of CPC. The relevant portion of the said decision is usefully extracted hereunder:
"15.Review proceedings are not by way of an Appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 of CPC. In Review jurisdiction, mere disagreement with the view of the Judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned Judgment in the guise that an alternative view is possible under the Review Jurisdiction."
(D) The Hon'ble Supreme Court in the Case of Asstt. Commissioner of Income Tax, vs. Saurashtra Kutch Stock Exchange Ltd, reported in 2008 (230) E.L.T. 385 (S.C.), held that "In our judgment, therefore, a patent, manifest and self- evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected Page 6 of 12 R.I. DESAI R.A. 15/21 while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need long-drawn-out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no Court would permit it to remain on record. If the view accepted by the Court in the original judgment is one of the possible views, the case cannot be said to be covered by an error."
From the above observation of Hon'ble Apex Courts, it is crystal clear that the review petition cannot be an appeal remedy as the scope of review is very limited.
Merits of the case
7. In the present Review Application it is the main contention of the applicant that his written submission has not taken into consideration by this Commission in CMA no. 352/2020.
8. Original applicant of CMA No. 352/2020 Mr. V.K. Shah has submitted the reasons for the delay in his delay condonation application which is reproduced below :-
I. "The applicant submits that the opponent no. 01 has sent mail to the applicant on 26.02.2020 and at that point of time, the applicant came to know about the judgment. Hence he approached his Advocate and after verifying about the said case, as per advice given by the Advocate, the applicant has applied for certified copy of the entire case record on 27.02.2020 and he has received some copy Page 7 of 12 R.I. DESAI R.A. 15/21 on 03.03.2020. That the applicant has not been given the entire record of the case, hence he has again applied for the remaining record on 06.03.2020 and thereafter due to lockdown, could not get copy immediately, but received on 01.07.2020 but rojkam and other documents are not received, hence again submitted an application and received copy on 21.07.2020.
II. That after receiving the certified copy of order and other papers, the applicant has contacted his Advocate and gave papers. That after perused the record and judgment and after discussing the matter, the applicant has contacted the opponent No. 02 and tried to get the copy of at least photographs, which has been given to the opponent no. 01, which he has received only on 02.10.2020 and thereafter the applicant has instructed his advocate to prepare an appeal and accordingly the present appeal is filed today, for which delay of 442 days has been occurred and therefore the present application is filed."
III. It is submitted that there is no intentional delay in preferring the present appeal with this delay application or any deliberate negligence or inaction or any mala fide intention on the part of the applicant. That the applicant has good case on merits and would be put to grave prejudice in an irreparable situation, if the matter is dismissed at the threshold without adjudication. That on other hand, no prejudice would be caused to the other side, since the opponent No. 02 had already given photos and video to the opponent No. 01.
9. Written submission of opponent No. 01/Review applicant dated 24.12.2020 is on record wherein it has been accepted on page no. 04 that on 26.02.2020 through E-mail original applicant of CMA No. 352/2020 Mr. V.K. Shah was informed about judgment.
Page 8 of 12 R.I. DESAI R.A. 15/2110. I have gone through the E-mail dated 26.02.2020 which is on record of CMA no. 352/2020 at page no. 01. Therefore on the basis of the delay condonation application written submission of opponent No. 01 and E-mail dated 26.02.2020 this Commission has observed as under :-
On 26.02.2020 applicant came to know about the judgment and therefore as per C.P. Act, 2019, the appeal was required to be filed upto 25.03.2020 but it has been filed on 14.10.2020. As per circular of CDRC, Ahmedabad period from 15.03.2020 to 15.07.2020 was excluded due to lockdown in Covid-19 situation and hence by calculating period from 16.07.2020 to 14.10.2020 there was delay of 88 days in filing the appeal. Therefore this Commission has mentioned in oral order that after considering lockdown period there is a delay of lesser days to file an appeal and this Commission has decided to condone the delay with a condition that opponent should be compensated and therefore it was ordered that applicant shall pay Rs. 2000/- (Rupees Two Thousand Only) to opponent as cost within one month from the date of the said oral order.
11. Looking to the above it is crystal clear that this Commission has considered the written submission of opponent No. 01, E-mail dated 26.02.2020 and delay condonation application and thereafter passed the oral order. However in the oral order it has been mentioned that opponent has not challenged reasons of delay condonation application. The sentence "opponent has not challenged reason for delay condonation application" is in singular form and in that sentence meaning of word "opponent" is "opponent No. 02" and Page 9 of 12 R.I. DESAI R.A. 15/21 therefore to avoid ambiguity the word "opponent" should be replaced by opponent No. 02.
12. As per Section 50 of C.P. Act, 2019, the State Commission shall have the power to review any of the order passed by it if there is an error apparent on the face of the record, either of its own motion or on an application made by any of the parties within thirty days of such order. Therefore in the oral order dated 10.03.2021 this is an error apparent on the face of record and therefore this Commission now rectify the said mistake and hence in the oral order dated 10.03.2021 in para 04 instead of "સામાવાળા તરફે વવલંબના કારણોને પડ્કારવામા આવેલ નથી." It is rectify as under :-
"સામાવાળા નં. ૦૨ તરફે વવલંબના કારણોને પડ્કારવામા આવેલ નથી."
13. This Commission has passed oral order on dated 10.03.2021 in CMA no. 352/2020 after considering written submission of opponent No. 01, evidence produced in this matter and reasons given in delay condonation application and therefore the above error does not affect the oral order dated 10.03.2021 and hence the request of opponent No. 01/review applicant to set aside the oral order dated 10.03.2021 cannot be accepted.
14. In the Review Application opponent No. 01/Review applicant has raised following points :
A. That the Commission has erred in accepting that the applicant has a prima facie case and it is likely to succeed.
B. That also the Commission has erred in finding that if delay is not condoned, the applicant has to suffer huge loss and will not get justice.Page 10 of 12 R.I. DESAI R.A. 15/21
C. The Commission has not mentioned in oral order that on which facts and evidences delay condonation application granted by this Commission.
However, the above points are only disagreement with the oral order of CMA no. 352/2020 but in review jurisdiction mere disagreement that the view of the judgment cannot be the ground for invoking the same and the review cannot be treated as appeal in disguise and therefore, the above points can be taken in appeal jurisdiction.
15. At this juncture it is pertinent to note that as per the judgment of Hon'ble Supreme Court dated 08.03.2021 in Suo Moto Writ Petition no. 03/2020 which was received to this Commission after pronouncement of oral order dated 10.03.2021 in CMA 352/2020 wherein it has been specifically mentioned that in computation of the period of limitation for filing the suit/appeal/application/proceeding the period from 15.03.2020 to 14.03.2021 shall stand excluded and therefore in the light of this judgment of Hon'ble Supreme Court period from 25.03.2020 to 14.10.2020 for filing appeal to be excluded and as a resultant in CMA no. 352/2020 now there is no delay for filing appeal.
16. In view of the above discussion in depth this Commission found that para 04 of the oral order dated 10.03.2021 of this Commission is required to be rectify and as per Section 50 of C.P. Act, 2019 it can be done by the Commission on its own motion. This is a minor correction in the oral order and therefore it does not affect the merit of the oral order of CMA 352/2020 as it was already passed after considering written submission of opponent No. 01, E-
Page 11 of 12 R.I. DESAI R.A. 15/21mail dated 26.02.2020 and reasons of delay given in delay condonation application and hence the following final order is passed.
ORDER
1. Review application 15/21 is hereby dismissed.
2. Oral order dated 10.03.2021 passed in the CMA No. 352/2020 is hereby confirmed.
3. It is ordered that in para 04 of the oral order dated 10.03.2021 of CMA No. 352/2020 instead of sentence "સામાવાળા તરફે વવલંબના કારણોને પડ્કારવામા આવેલ નથી." It is rectify that "સામાવાળા નં. ૦૨ તરફે વવલંબના કારણોને પડ્કારવામા આવેલ નથી".
4. The said correction should be carried out in the original oral order dated 10.03.2021 of CMA No. 352/2020.
5. No order as to cost.
6. Office is directed to forward a free of cost certified copy of this order to the respective parties.
Pronounced in the open Court today on 10th May, 2021.
[Dr. J.G. Mecwan] Presiding Member Page 12 of 12 R.I. DESAI R.A. 15/21