Delhi District Court
District Judge (C)-16: Delhi vs Bihari Lal Shri Krishna on 18 December, 2010
1
IN THE COURT OF SH. SUNIL KR. AGGARWAL, ADDL.
DISTRICT JUDGE (C)-16: DELHI.
M-25/08
Sh. D. V. Singh
VERSUS
Sh. Pritam Singh Taneja
18.12.2010
ORDER
By this order I propose to dispose off an application dated 04.11.2008 U/s 14 read with Order 47 of CPC. The essential facts are that plaintiff/applicant offended by the remarks of defendant, both of whom are the members of Swatantra Cooperative House Building Society Ltd., Kalindi Colony, New Delhi inter-alia in adjudication proceedings before Registrar of Cooperative Society as also through an unsigned letter received by him on 26.09.2006, filed suit for recovery of damages amounting to Rs. 19,95,000/- After filing the written statement, the defendant preferred an application U/o 7 Rule 11 CPC on 28.05.2008. On that day itself issues were settled by the Court because the pleadings were complete. Vide impugned Order dated 06.10.2008, the application of defendant was allowed and the plaint was rejected as barred by Law and bereft of cause of action. The plaintiff has sought review of the Order on the ground that the Court could not have taken into account the pleas of defendant in the written statement while considering the matter U/o 7 Rule 11 CPC. The observations of Court in the impugned Order thus, are contrary to legal proposition on the subject. The assessment that letter received by plaintiff on 26.09.2006 cannot be linked to defendant also is pre-matured as plaintiff has been deprived of the opportunity of establishing the link by leading 2 evidence.
The Court while passing the impugned Order could not have examined the strength and weaknesses of plaintiff's case. The observation about contents of reply filed before the Registrar of Cooperative Society amounted to privilege communication, is also exaggerated and against the settled legal principles. The Law cited by the defendant did not apply to the facts of this case but the Court in its zeal went on with it. Having already framed the issues the Court should have given opportunity to the parties to substantiate their version by leading evidence instead of pre-judging the dispute in the words that this litigation is doomed to fail. The pleadings of defendant are abusive in nature and deserved to be struck off U/o 6 Rule 16 CPC but the point was not considered by Ld. Predecessor. It is thus, contended that there is apparent error or mistake on the face of impugned order which is liable to be reviewed, otherwise, great harm and injury would occur to the plaintiff.
In his reply, the defendant has taken preliminary objections that the application is devoid of substance in as much as it does not even fulfill the ingredients of Order 47 and Section 114 of CPC. No manifest error on the face of Order has been pointed out. The plaintiff is basically rearguing his case which is not permissible under review jurisdiction. On merits, the defendant has supported the impugned Order and the approach of Court. The judgment relied upon him was squarely applicable to the facts of case and has appropriately been relied upon by the Court. As per the own case of plaintiff, the statements termed to be defamatory, were made during the judicial proceedings and thus was privileged. It is contended that the provision of Order 7 Rule 11 CPC can be invoked at any point of time during the proceedings. It cannot be insisted that after framing of issues, the suit has to be necessarily decided after taking evidence of parties.
3No error or mistake has specifically been pointed out in the entire application. The same therefore, deserves dismissal.
Arguments on behalf of parties have been heard. In addition to the judgment already cited in the impugned Order, the plaintiff has referred to the ratio in Shri Krishan Banwari Lal Vs. Bihari Lal Shri Krishna, AIR 1964 Allahabad 516 where it was held that omission to consider the entire contents of an exhibit which was a material document which was an error apparent on the face of record. Failure to take into account the entries in defendant's Account Books while deciding question of their liability towards plaintiff is sufficient reason within the meaning of Order 47 Rule 1 CPC.
He has next placed reliance upon Rajender Singh Vs. Lt. Governor, Andaman & Nicobar Islands, AIR 2006 SC 75 where it was laid that Order passed without deciding many important issues and by ignoring material on record. It is a clear case of an error apparent on the face of record and non consideration of relevant documents.
The defendant on the other hand, cited following judgments -
(1) Chand Mall Chopra Vs. State of West Bengal AIR 1986 Calcutta 111 - power of review may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manners of errors committed by the Trial Court. (2) Chandrakant Jagannath Manjrekar Vs. Shripad Vakunthnath AIR 1989 Bombay 1991 - review of judgment was sought on the ground that certain observations made by the Court were erroneous as it was against some earlier decisions. The judgment however, was on an interlocutory application and did not finally determine the rights of parties and all the more the Order 4 was not solely based on the observations. Held - review application was not maintainable.
(3) Indo Gulf Explosives Ltd. Vs. UPSIDC, 79(1999) DLT 554 (DB) - review cannot be granted on the ground that the decision is erroneous on merits. In the case Law was correctly interpreted. Its wrong application to facts and circumstances of the case cannot be a ground for review.
(4) Bairagi Charan Sethy Vs. Kangali Behara, AIR 2000 Orissa 83 - Court cannot review its earlier decision merely because interpretation of a particular document is not in its proper perspective.
(5) Dolat Industries, Gonal Vs. Krishna Oil Industries, AIR 2002 Gujarat 91 - Review not permissible on ground that Court has proceed on wrong proposition of Law and also on the ground that decision is erroneous on merits.
(6) Ghanshyam Sahoo Vs. Kendrapara Municipality, AIR 2006 Orissa 69 - Mere possibility of two views on the subject is not a ground for review.
(7) Chandrakanta Vs. Sheikh Habib, AIR 1975 SC 1500
- Review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A second trip over ineffectually covered ground, or minor mistake of inconsequential import are obviously insufficient. (8) Lily Thomas Vs. Union of India, AIR 2000 SC 1650
- The power of review can be exercised for correction of a mistake and not to substitute a view. The review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. "Mistake apparent on face of record" cannot mean error which has to be fished out and searched. "Any other sufficient reason" means a reason sufficient on grounds atleast analogous to those specified in the Rule.5
Let us assess the worth of application in the light of defined parameters of review jurisdiction. It is true that the defence of defendant in his written statement could not have been seen while perusing the matter U/o 7 Rule 11 CPC as has been held in 60 (1995) DLT 271 (DB). The communication running into 4 pages written in first person purportedly by defendant is addressed to all residents of Kalindi Colony i.e., the members of Swantantra Cooperative House Building Society Ltd., MCD and also the Court. The Author has tried to explain the various phases of allotment of land for the society, working out its layout plan, difficulties faced at different stages which were eventually overcome. Ultimately, it was directed in respect of the pending litigations inter-se the members of society or the member and the society. He/she has resented that due to the carrying of matter on communal line by the plaintiff, the plan for construction of a club had to be shelved. The plot for proposed club was ultimately acquired by the National School in the middle of colony of which existence has vitiated the atmosphere of quiet and peaceful residential society. He has blamed plaintiff for the melee. He/she has also resented the plaintiff and others pursuing litigation against the society.
The communication claimed to have been received by the plaintiff on 26.09.2006 i.e., during pendency of litigation before the Registrar, Cooperative Societies, New Delhi, who has control over the matter, only shows the concern of Author as to how various facilities for the colony were secured by the various Managing Committees by taking up the matter at different forums but few other facilities although planned yet had to be dropped due to objections raised by some members. The opportunity was grabbed by outsiders who have started a middle school there thereby, disturbing the peace and ambiance of a residential locality. The accusation against the plaintiff thus, is directed only 6 for the better management of the affairs of the society and cannot be perceived in respect of his personal character.
The plaintiff does not claim that the communication was received by other members of the society or any member or outsider had specifically brought it to his notice. The contents of communication have to be read in entirety to discern its impact. One cannot dig out a word, sentence or even an isolated para to convass his proposition.
Above reveals that the Ld. Predecessor had reached the obvious conclusion about the letter received by the plaintiff on 26.09.2006 even if examined without the aid of written statement. The impugned order thus, cannot be assailed for review.
The precedent relied upon by the plaintiff pertained to different situations and thus, were not directly applicable to the facts of given case whereas the judgment in Punjabi Bagh Cooperative Housing Society Ltd. Vs. K. L. Kishwar, 95 (2002) DLT 573 was rendered in respect of identical fact situation where the Court relying upon the ratio in Hebditch Vs. Mcllwaine, (1894) 2 Q. B. 54; Stuart Vs. Bell (1891) 2 Q. B. 354; Smythson Vs. Cramp, (1943) 1 ALL E. R. 326 (CA); Pandey Surender Nath Singh Vs. Bageshwari Prasad, AIR 1961 Patna 164 and Bhanumathi Rajah Vs. MSP Rajesh, 1986 L. W. (Cr.) 16 (Madras) held that if a person who makes the statement had an interest or duty legal, social or moral to make it to person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it, such statements commands a privilege and cannot be made the basis of an action for defamation. If a member of society makes a complaint regarding the affairs of society and in the process makes some defamatory statements only in regard to conduct while holding such position in the society, the accusation does not constitute defamation.
7In the impugned Order Ld. Predecessor has taken into account all the issues raised in the application and reply thereof, by the plaintiff. Neither any glaring mistake nor manifest error on the face of Order dated 06.10.2008 has specifically been pointed out. There is no other sufficient reason or ground calling for review of Order. The plaintiff thus, cannot have a second chance to re-examine the matter afresh nor can the matter be heard alike an appeal.
No ground for review thus, could be made out. The application of plaintiff, as such, dismissed.
Main suit file is released. Miscellaneous file be also consigned to Record Room to be tagged with main file.
(Sunil Kr. Aggarwal) Addl. District Judge (Central)-16 18.12.2010/Delhi