Calcutta High Court (Appellete Side)
Bengal Ambuja Hosing Development Ltd. ... vs Pramila Sanfui And Others on 21 November, 2014
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
Sl. 17
21.11.2014.
S.d. RVW No. 78 of 2013
in
C. O. 709 of 2010
Bengal Ambuja Hosing Development Ltd. and anr.
-versus-
Pramila Sanfui and others..
Mr. Anindya Kumar Mitra
Mr. Pratap Chatterjee
Mr. Sourav Ghosh
Mr. Prithiraj Sinha
Mr. Arnab Basu Mallick
....for the petitioners.
Ms. Hasnuhana Chakrabarty
Ms. Shoni Chakraborty
Mr. Ranjit Kumar Basu
..for the O. P Nos. 70 and 74.
Mr. M. Mallick
...for the respondent nos. 73.
Mr. Amal Kumar Mukhopadhaya Ms. Anamika Das ...for the respondent nos. 1(b) & 2(g).
Mr. Debasish Roy Mr. Gopal Pahari .....for the Receiver.
Mr. Tapan Chakraborty Mr. Abdul Alim ...for the private respondent.
Mr. Anit Kumar Rakshit 2 Ms. Amrita Sinha ..for the respondent no. 1(e).
The petitioners seek review of a judgment and order of December 19, 2012 by which a petition under Article 227 of the Constitution was dismissed upon the court refusing to interfere with the order or orders impugned therein.
The petitioners insist that a review is called for since there are errors apparent on the face of the order and that mistaken facts appear therein, which have materially affected the outcome of the petition.
According to the petitioners, in a partition suit instituted in the year 1956, parties and immovable properties were added for a considerable period of time, including a person by the name of Gangadas Pal. Gangadas Pal was impleaded in the suit in 1957. He died shortly thereafter in 1958. Gangadas Pal apparently owned an area of land measuring 20.184 acre.
The petitioners claim that though the fact that Gangadas Pal was the owner of such land measuring 20.184 acre is recorded in the second page of the judgment under review, it would be 3 evident from the manner of recording thereof that it was presumed that along with Gangadas Pal being impleaded as a party to Title Suit No 43 of 1956,such land owned by Gangadas Pal was also contemporaneously included as part of the suit properties. The petitioners suggest that the land measuring 20.184 acre that was originally owned by Gangadas Pal was sought to be included as part of the suit properties only in the year 2006.
The petitioners next refer to the submission made on their behalf as recorded in the judgment under review that the suit had abated upon the heirs or legal representatives of the originally deceased defendants not being brought on record and that an application under Order XXII Rule 9 of the Code had been dismissed.
The petitioners say that the sequitur to such submission was that there was no legally valid action that was subsisting for any interlocutory order to be passed therein at a subsequent stage; but the legal effect of the submission was not taken into account in assessing the matter, resulting in an error apparent on the face of the order.
4
According to the petitioners, though the judgment under review placed much emphasis on an order passed by consent of the parties to the suit, the court failed to recognise that at the time that the consent order was passed, the land measuring 20.184 acre had not been included as part of the suit properties. The petitioners suggest that the judgment under review proceeded on the erroneous basis of the trial court not having committed any error of jurisdiction though the facts, if they were seen in perspective, were eloquent as to the erroneous exercise of jurisdiction by the trial court and the perverse exercise of discretion.
The petitioners say that in deciding the matter, the court had also erroneously proceeded on the basis that prior leave was necessary to invoke Article 227 of the Constitution since a receiver had been impleaded as one of the parties to the relevant petition before this court. The petitioners contend that, in any event, a subsequent application was filed for leave and it is well established that leave to sue a receiver (which principle may not have been applicable in this case) can be obtained subsequent to the action being initiated.
The grounds urged by the petitioners relate to what the petitioners may perceive to be the erroneous exercise of jurisdiction 5 or misappreciation of facts or erroneous judgment; but such matters do not constitute grounds warranting a review of the judgment of December 19, 2012. It cannot also be missed that the judgment was rendered by a judge who is no longer available in this court and the liberty that a judge has to correct himself upon his mistake being brought to his notice, is not available to another judge hearing the review in the absence of the original judge.
In the final analysis, it appears that the view taken in the judgment and order of December 19, 2012 was that the authority available under Article 227 of the Constitution ought to be sparingly exercised, unless there is an error of jurisdiction or manifest miscarriage of justice. The judgment under review has referred to a decision reported at (2010) 8 SCC 329 where the Supreme Court had occasion to observe that while Article 226 of the Constitution may be invoked for the purpose of enforcing the fundamental rights of citizens, the authority under Article 227 of the Constitution should be exercised only to ensure the purity of the judicial system.
The order impugned does not call for any revisit at this level, particularly in the light of the grounds that have been urged. 6
In any event, no serious prejudice has been occasioned to the petitioners as it is open to the petitioners to approach the trial court without the apprehension that the trial court may be unduly uninfluenced by the observations contained in the judgment and order of December 19, 2012.
RVW No. 78 of 2013 is not entertained as the grounds urged do not call for a review of the relevant judgment and order.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Sanjib Banerjee, J.) 7