Gujarat High Court
Vaishnav vs General on 22 September, 2011
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
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MCA/1038/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR REVIEW No. 1038 of 2011
In
SPECIAL
CIVIL APPLICATION No. 2404 of 2011
=========================================
VAISHNAV
PANKAJ HARIPRASAD
Versus
GENERAL
MANAGER & 2
=========================================
Appearance :
MR. SURESH M.
SHAH, LD. COUNSEL with MS SHALINI S MAIR for
Applicant(s) : 1,
None for Opponent(s) : 1 -
3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 22/09/2011
ORAL
ORDER
The present Misc. Civil Application has been filed for a review on the ground stated in the Application that the order passed by this Court in Special Civil Application No. 2404 of 2011 may be recalled.
It is contended that sufficient documentary evidence regarding the claim made by the Applicant / Original Petitioner specifically indicate that the claim made by the Applicant for payment of professional fees is admitted by the Opponents. It is also contended that on perusing the correspondence between the Applicant and the Opponents made before the filing of the first Petition (vide which the Respondents / Opponents were given direction by this Court) Opponetns / Respondents positively asserted the claim of the Applicant / Petitioner.
Heard learned Counsel Mr. Suresh M.Shah for learned Advocate Ms. Shalini Mair for the Applicant. Learned Counsel Mr. Shah has submitted that the Petition was filed by the Applicant / Original Petitioner for claiming the professional fees and schedule of fees is fixed for such professional fees. Learned Counsel Mr. Shah has referred to the order passed in Special Civil Application No. 11388 of 2010 dated 29.9.2010 by this Court (Coram: H.K.Rathod,J) (as he then was) and submitted that it has been observed by the Court on the basis of the correspondence, and therefore, the claim has been made by the Applicant / Original Petitioner which is not in dispute. Learned Counsel Mr. Shah further submitted that the schedule of fees is provided, and in the order passed by this Court, it has also been observed referring to the schedule, and therefore, the order passed by this Court in Special Civil Application No. 2404 of 2011 dismissing the Petition on the ground that it involves disputed questions of facts, which require examination of evidence and rival claims. Learned Counsel Mr. Shah tried to submit that there is no disputed questions of facts involved when there is a schedule of fees, which is fixed, and the correspondence between the parties, which according to him, has been admitted, for which he referred to the correspondence. Learned Counsel Mr. Shah therefore submitted that according to the provisions of the Contract Act, prorata amount has to be paid if the work is not done 100%. He therefore submitted that in the present case also, if the Applicant, who is an Advocate has not done complete work, but for whatever work for the stage, up to which he has worked, he is entitled to fees as per the schedule of fees, and therefore, the order may be recalled. Learned Counsel Mr. Shah has referred to Sections 65 and 67 of the Contract Act to emphasize his submission with regard to void and voidable contract. Though he has made this submission, he has not referred to the scope of review under Section 114 of CPC read with Order 47. Therefore, it is required to be considered whether such Misc. Civil Application could be entertained or not.
Before the issue involved referring to the scope of review is discussed, few facts are required to be highlighted and mentioned that the claim is with regard to the professional fees from the Opponent - Corporation and the correspondence which has been referred to in this Misc. Civil Application only refers to the earlier part of the correspondence and infact the letters / communication dated 19.4.2010 and 24.9.2008 which have been referred are inter se communications by the Opponents, but the correspondence and specific reply given by the Opponent - Corporation which has been produced at Annexure-B in the main matter, including the reply given by the Corporation to the Applicant dated 4.12.2010 and 8.11.2010, specifically refers to the fact that it was agreed that no fees shall be payable if the briefs are returned in the midst of the matter. Infact there has been reference with regard to the manner in which the cases have been conducted. Therefore, considering the rival claims this Court while passing the order in Special Civil Application No. 2404 of 2011 dated 3.3.2011 has observed:
"Whereas in the facts of the present case, as stated above, on the contrary, correspondences make it very clear that not only document is admitted, but issues have been joined, not only for the amount for which the bills have been placed referring to the other advocates. But even issues have been raised with regard to manner in which matters have been conducted. It is also stated that even when the cases are at half way no fees shall be payable and it is specifically stated that the petitioner is not entitled to claim any amount."
Therefore, further it has been observed:
"Under these circumstances it is required to be mention that the detailed examination of facts based on evidence with regard to number of matters, scheduled of fees, the mode of payment prescribed in the schedule has to be considered and based on such evidence, the issue regarding the outstanding dues could be decided.
Therefore, it would not be proper to exercise discretion under Article 226 of the Constitution of India where there are disputed questions of facts are involved which are required to be decided on the basis of scrutiny of the evidence as stated above. Moreover, when there is an alternative remedy available to the petitioner by way of filing the suit where such issued based on evidence could be decided, the petition would not be maintainable. Therefore, the Court is not inclined to entertain the present petition, accordingly, the present petition stands dismissed in limine."
It is in these background, now the submission made by learned Counsel Mr. Shah that the schedule of fees has been fixed or referring to the provisions of Contract Act that atleast pro rata fees could be paid, is required to be appreciated. It is a disputed question of fact when the other side has claimed that no such amount is payable. Therefore, the ground, which has been raised in this Misc. Civil Application is that, to file the Civil Suit would be arduous and lengthy exercise specially for the matter like this, where the fundamental claim made by the Applicant can be resolved by issuing notice to the Opponents and asking explanation for retaining the professional fees of the Applicant is misconceived. This is to say the least, is twisting the facts, and in any view of the matter it would be rehearing or reconsideration of the entire matter, which is not permissible under review.
The scope of the review under Order 47 is very well settled by catena of judicial pronouncements. The Hon'ble Apex Court has clearly laid down that the review of judgment can be made on the grounds:
(i) Discovery of new and important matter or evidence; or
(ii) Mistake or error apparent on the face of the record; or
(iii) Any other sufficient reason.
There is no such mistake or error apparent on the face of the record, which can be said to have been pointed out. There is no further material or evidence placed on record though it is said that it has been admitted. The facts are otherwise as discussed while passing the order, which is sought to be recalled.
Therefore, considering the settled legal position with regard to the scope of review, the present Misc. Civil Application cannot be entertained, as it would amount to reconsideration or fresh hearing of the entire main matter.
A useful reference can also be made to the observations made by the Hon'ble Apex Court in case of Northern Indian Caterers Ltd. v. Lt. Governor of Delhi, AIR 1980 SC 674, wherein it has been observed:
"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."
Therefore, in light of this clear observations with regard to the scope of review, the present Misc. Civil Application cannot be entertained and deserves to be dismissed and accordingly stands dismissed.
(Rajesh H. Shukla,J) Jayanti* Top