Gauhati High Court
Sri Deepa Newar vs Deepak Borthakur And Anr on 29 April, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/5
GAHC010186892018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet. 145/2018
1:SRI DEEPA NEWAR
S/O LATE SHER BAHADUR NEWAR, R/O JAKHALABANDHA TOWN,
MOUZA CHAITAL, P.S. JAKHALABANDHA, DIST. NAGAON, ASSAM.
VERSUS
1:DEEPAK BORTHAKUR AND ANR
S/O LATE BIRENDRA NATH SARMA BORTHAKUR, R/O JAKHALABONDHA
P.S. JAKHALABANDHA, MOUZA CHITAL IN THE DIST. OF NAGAON,
ASSAM.
2:SMTI BINA BORTHAKUR
W/O LATE BIRENDRA NATH BARTHAKUR
R/O JAKHALABANDHA
P.S. JAKHALABANDHA
MOUZA CHITAL IN THE DIST. OF NAGAON
ASSAM
Advocate for the Petitioner : MR. K M MAHANTA
Advocate for the Respondent : MR. D MOZUMDER (R1)
Linked Case : I.A.(Civil) 3300/2018
1:SRI DEEPA NEWAR
S/O LATE SHER BAHADUR NEWAR
R/O JAKHALABANDHA TOWN
MOUZA CHAITAL
P.S. JAKHALABANDHA
DIST. NAGAON
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ASSAM.
VERSUS
1:DEEPAK BORTHAKUR AND ANR
S/O LATE BIRENDRA NATH SARMA BORTHAKUR
R/O JAKHALABONDHA P.S. JAKHALABANDHA
MOUZA CHITAL IN THE DIST. OF NAGAON
ASSAM.
2:SMTI BINA BORTHAKUR
W/O LATE BIRENDRA NATH BARTHAKUR
R/O JAKHALABANDHA
P.S. JAKHALABANDHA
MOUZA CHITAL IN THE DIST. OF NAGAON
ASSAM.
Advocate for the Petitioner : MR. K M MAHANTA
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA
ORDER
Date : 29-04-2019 Heard Mr. K. M. Mahanta learned counsel for the petitioner. Also heard Mr. D. Mazumdar learned Senior Counsel assisted by Mr. A. J.Sarma and Mr. S. K. Ghosh, learned counsel for the opposite parties.
The present petitioner preferred the connected RSA 145/2017 against the present opposite parties challenging the concurrent findings of both the courts below and as per the said finding of the courts below, the suit filed for ejctement of the present petitioner by the opposite parties was decreed. During the pendency of the connected second appeal at the admission stage when the appeal was fixed for admission on 11.8.2017, the learned conducting counsel for the appellant petitioner in presence of conducting counsel for the respondents opposite parties proposed before this court that he has the instruction from the Page No.# 3/5 petitioner that the proposal for an out of the court settlement between the parties as proposed by the opposite parties was accepted by the appellant petitioner.As per the said submission of the then conducting counsel of the present appellant petitioner nine months time from 11.8.2017 was allowed to vacate the tenanted premises the subject matter of the suit and the second appeal and the same was accepted by the appellant petitioner. Failure on the part of the present petitioner to vacate the tenanted premises execution process for ejectment of the present petitioner would be initiated. On the basis of the said submission of the then conducting counsel of the petitioner and in presence of the learned counsel for the opposite parties the second appeal was withdrawn. The said period of 9 months expired on 11.5.2018. Prior to the said expiry, IA(C) 1633/2018 in the RSA 145/2017 (D/O) was filed. The present petitioner sought for further extension of the time period which was allowed vide order dated 11.8.2017. The said petition was disposed of vide order dated 25.3.2018 granting another three months extension w.e.f. 11.5.2018 on the condition that the petitioner shall vacate the premises on his own volition immediately after expiry of said period of extended three months. The subsequent extension period expired on 11.8.2018 and immediately thereafter, on 21.8.2018 this review petition was filed on the ground that order dated 11.8.2017 amounts to a compromise decree without there being any compromise deed signed by the parties and as such the order dated 11.8.2017 is contrary to the mandate of Order 23 Rule 3 CPC as well as decision of the Hon'ble Apex Court. Had the appropriate provisions of law covering the field was pointed out to the court, the order dated 11.8.2017 could not have been passed and as such, it requires to be reviewed the same being contrary to law. In addition to that it is further stated that the order dated 11.8.2017 resulted in mis- carriage of justice inasmuch as the same was contrary to the law.
Mr. Mahanta supported the grounds taken in the review petition and in order to buttress his submission he relies a decision pressed in Gurpreet Singh vs. Chatur Bhuj Goel reported in (1988) 1 SCC 270 .Referring to the said decision Mr. Mahanta submits to a situation wherein the appellant before the Hon'ble Apex Court was required to pay a substantial amount by a bank draft within March 1987 but the respondent therein, before the due date rescind from the proposed compromise saying that it was detrimental to his interest. Under such a situation, the Hon'ble Apex Court held that in absence of an agreement in writing the learned Judges had no other alternative but to direct the appeal to be listed for Page No.# 4/5 hearing on merit .
Mr. Mazumdar countered the submission of learned counsel for the petitioner. It is his contention that the grounds pressed by the petitioner in order to review the order dated 11.8.2017 cannot be termed to be grounds within the ambit and scope of Order 47 CPC. There is no error apparent in the order. As per the conduct of the petitioner he accepted the terms as stated by the counsel and subsequent order of this court and on expiry of the period of 9 months sought for its subsequent extension which was also granted by this court and as such the acceptance of the terms originally passed on the basis of submissions of counsel of the parties to the second appeal were accepted by the petitioner. Subsequent thereto the question of review does not arise at all.
Mr. Mazumdar also submits that on the terms agreed to by the parties the present petitioner was allowed to withdraw the appeal but there was no compromise inasmuch as there was no specific order by the court for drawing up compromise decree. As such Mr. Mazumdar pressed for dismissal of the review petition.
I have given due consideration of the submissions of learned counsel. The decision relied by Mr. Mahanta and the factual matrix in the said decision are not similar to the present case in hand. In the decision relied by Mr. Mahanta it was before the due date the said application was moved and as such it was held that the learned Judges had no other alternative but to direct the appeal to be listed for hearing on merit. In the present case the original period of nine months was enjoyed by the petitioner and subsequent thereto sought for further extension of three months and enjoyed the benefits thereof too. Subsequent thereto this review petition is filed. There was no order passed by this court to draw up compromise decree specifying any terms and condition agreed to by the parties and as such the submission of Mr. Mazumdar that the second appeal was withdrawn has force. The petitioner at the time of withdrawal of the second appeal also did not sought for any leave to reagitate the matter. Under such circumstances the grounds sought for review of the order does not fall within ambit and scope of Order 47 of the CPC. There is no error apparent on the face of the order inasmuch the second appeal was not disposed of on the basis of compromise decree. The second appeal was withdrawn without seeking for any leave and had there been any leave sought for as aforesaid then that would have been a separate issue . Further I disagree on the submission of the learned counsel for the petitioner that the Page No.# 5/5 second appeal was compromised.
Accordingly I do not find any merit in this review petition and same stands dismissed.
JUDGE Comparing Assistant