Gauhati High Court
State Of Tripura And Ors. vs Manabendra Das Chowdhury on 22 June, 2001
Equivalent citations: AIR2001GAU178, AIR 2001 GAUHATI 178, (2001) 3 GAU LR 312
Author: H.K.K. Singh
Bench: H.K.K. Singh, D. Biswas
ORDER H.K.K. Singh, J.
1. This application has been filed by the respondents seeking review of the judgment and decree dated 5.5.1999 passed by this court in First Appeal No. 77 of 1998. By the aforesaid judgment, this court set aside arid reversed the decree dated 20.4.1998 passed by the learned Civil Judge, Senior Division, North Tripura dismissing the Title Suit No. 19 of 1997 and the aforesaid suit was decreed with costs.
2. The respondent herein as plaintiff filed a suit in the Court of Civil Judge (Senior Division), North Tripura, Dharmanagar for an amount of Rs. 3,99.982 with interest for the work executed by him in accordance with the terms and conditions of the agreement entered into between himself and the respondent for supply of timber. The petitioners herein as respondents contested the suit and after trial the learned trial court dismissed the suit. But on appeal the judgment of the learned trial court was reversed and the suit was decreed as mentioned above.
3. Mr. U.S. Saha, learned Senior Government Advocate for the review-petitioners has submitted that the suit brought by the plaintiff was one against the State of Tripura and this court on an erroneous approach on point of law that the Forest Department having not been made a party the amount due and payable to the Forest Department could not be adjusted and as such the judgment was passed in favour of the plaintiff. The learned senior Government Advocate also submits that the concerned department may not necessarily be made a party in the suit against the State as the State of Tripura being the respondent superior was the only necessary party under the law.
4. Mr. D.K. Biswas, the learned counsel for the respondent herein opposing the present review petition has submitted that the ground urged in this petition is beyond the scope of review and as such the present review petition is not maintainable. According to Mr. Biswas, unless the ground urged falls within those enumerated in Rule 1 of Order 47 of C.P.C., the review petition has to be rejected. Mr. Biswas also vehemently submits that the ground urged may, at most, amount to a mere error in law which does not amount to error apparent on the face of record or sufficient cause within the meaning of the aforesaid provision of Rule 1 of Order 47 of C.P.C. In support of his contention the learned counsel has cited many decisions. We may refer here some of the decisions cited by Mr, Biswas.
5. In the case of Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and others, reported in AIR 1954 SC, 526 at para 32 it has been held :
"It may allow a review on three specified grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason.
It has been held by the Judicial Committee that the words "any other sufficient reason" must mean "a reason sufficient on grounds, at least analogous to those specified in the rule". This conclusion was reiterated by the Judicial Committee in -'Bisheshwar Pratap Sahi v. Parath Nath, AIR 1934 PC 213 (E) and was adopted by our Federal Court in - Hari Sankarv. Anath Nath, AIR 1949 FO 106 at pp. 110, 11 (F). Learned counsel appearing in support of this appeal recognises the aforesaid limitations and submits that his case conies within the ground of "mistake or error apparent on the face of the record" or same ground analogous thereto."
6. Again in the case of Thungabhadra Industries Ltd. v. The Government of Andra Pradesh represented by the Deputy Commissioner of Commercial Taxes. Anantapur reported in AIR 1964 SC, 1372 the Apex Court held that even a case Involving any substantial question of law may not necessarily be an "error apparent on the face of the record". The Apex Court further held that the fact that on the earlier occasion the court held on an identical state of facts that a substantial question of fact arose would not per se be conclusive for, the earlier order itself might be erroneous. Thus, even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record," for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision "and a decision which could be characterised as vitiated by "error apparent." The aforesaid decision of the Apex Court has been followed consistently by the court in its subsequent decisions. The grounds of review as disclosed in Order 47 Rule 1 of C.P.C. are (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. In the aforesaid decision it has been held that the third ground i.e. "many other sufficient reason" must be one which is analogous to an error on the face of record.
7. Thus, in the light of the aforesaid decision we are to see whether the present petition for review may be entertained. The suit was for money. In the written statement the defendants murmured that some amount had to be realised from the plaintiff's bill as royalty was to be paid to the Forest Department. In the issues framed by the learned trial court there was no issue regarding the amount urged by the defendants as payable to the Forest Department as royalty. This might have been due to the fact that the averment was not properly made in the form set of or counterclaim and even no court fee was also paid. Thus, the amount payable to the plaintiff should not have been deducted on the basis of some demur made in the written statement. Under the common law theory of adversary matter which has been followed in the country even statutorily recognised under the Indian Evidence Act subject to other exception statutorily made, the burden in case of money suit lies squarely on the plaintiff and when amount due to the plaintiff is admitted by the defendant it was for the defendant to discharge the onus of proving their pleaded case. In our present case the defendants never adduced any evidence regarding the specific amount, specific rate of royalty and also total amount deductible from the bill of the plaintiff.
8. The submission of Mr, U.B. Saha, learned Senior Gbvernment Advocate appearing for the respondents regarding impleadment or non-impleadment of Forest Department as a party in the present case is correct. Even Article 300 of Constitution or Section 79 or other provisions of C.P.C. do not require that specific department should be impleaded as a necessary party in a suit filed against the State. Under the principle of respondent superior, Union Government or the respective State Government are liable to the extent as prescribed for under Article 300 and in this regard no law has been made in the Parliament or in the State Legislature as yet. Thus, State or Union Government is liable for the act committed by any officer or official of any department. If it comes within the fold of liabilities to be shouldered by the Union of India or respective State under the law. For that matter, it is not necessary that the Forest Department should be impleaded as party though it may be proper to implead the respective officer/official connected with cause of action to be impleaded in the suit as proper party only.
9. There was a statement in the judgment that Forest Department has not been made a party and as such the amount deductible by the Forest Department cannot be decided. This may, at most, amount to a mere error in point of law which does not per se, amount to error apparent in the face of record. Ground of review is limited and even restrictive. A mere statement of law which does not affect the ultimate decision of this case is not a ground for review. Any ground for appeal is not a ground for review. Even in the judgment itself liberty was given to the Forest Department to proceed against the plaintiff for realisation of any amount due to them by way of royalty etc. In accordance with law. This liberty was granted to the defendant even if the averment made in the written statement regarding amount deductible from the plaintiff is taken as a claim, within the provision of Order 2 Rule 2 of C. P. C.
10. It may be mentioned here that even after closure of the hearing. Mr. D.K. Blswas has stated at the Bar that the Forest Department has even instituted a fresh suit for the purpose.
11. For the aforesaid reasons and conclusion, we find no ground under Order 47 Rule 1 of C.P.C. for the purpose of review of the impugned judgment.
12. The review petition is accordingly rejected.