Delhi High Court
The National Small Industries ... vs M/S Industrial Textile Products (P) ... on 7 November, 2000
Equivalent citations: 2001(60)DRJ144, 2001 A I H C 4673, (2001) 60 DRJ 144
Author: Vikramajit Sen
Bench: Vikramajit Sen
ORDER Vikramajit Sen, J.
1. The Defendants had filed two applications for the passing of a decree under Order XXIII Rule 3, both of which were dismissed on 19.8.1999. On that date there was no representation on their behalf and I was persuaded to reject the applications also for the reason that they were unilateral actions of the Defendants/Applicants. Dates of Trial had already been fixed and evidence was accordingly led by the Plaintiff on 7.12.1999; on the previous date i.e. 6.12.1999, the matter had been adjourned on the request of the Plaintiff. The present application was filed by the Defendants on 7.12.1999.
I.A. No. 12353/1999.
2. This application under Section 5 of the Limitation Act is for condoning the delay in filing the accompanying application for Review (I.A. 12340/1999.) The reason ascribed by the Defendants/Applicants for not being present on 19.8.1999 is that when they appeared before Court on 5.4.1999 they in advertently and due to bone fide mistake' did not note the next date of 19.8.1999 and consequently appeared on 6.12.1999 which had been previously fixed. Knowledge of the dismissal of the compromise application was gained only on 6.12.1999 and the Review and its condensation were filed the next day.
3. Although it discloses negligence on the part of the Defendants, I accept this version and reason for non-appearance on 19.8.1999 and the consequent delay in filing the Review. The application is allowed, subject to costs of Rs.750/-.
I.A.No. 12340/1999.
4. Learned Counsel for the plaintiff firstly assailed the application on the preliminary ground that it was not maintainable under the relevant provisions of the C.P.C., that is Section 114 and Order XLVII. As the provisions of the Order must perforce take their colour from the Section, the latter is reproduced below:
Review : "114. Subject as aforesaid, any persons considering himself aggrieved:-
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed by this Court, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit."
5. A scrutiny of Order XLVIII will reveal that the rejection of application under Order XXIII is not appealable, but such as an order can be assailed if an appeal against the judgment is filed, as envisaged in Rule 1-A of Order XLIII. This provision was introduced by the CPC (Amendment) Act 1976. This being the position Section 114 would indicate that once a Review is maintainable on either of the contingencies covered by sub-sections (a) or (b) " the Court may make such order thereon as it thinks fit." I am however unable to agree with the submission of Learned Senior Counsel for the Defendants/Applicants that the Court is invested with total discretion. Keeping in .view the provisions or Order XLIII Rule 1A, it would appear to be inappropriate for the Court to Pass any orders in the present case, since the Defendant is expected to assail the Order only if an appeal against the judgment is filed.
6. The next question that would arise is whether a Review is to be entertained when the relevant order has been passed ex parte. It appears beyond debate that such a petition cannot be employed to seek a rehearing of the matter. The difference between these actions has been clarified in Grindlays Bank Ltd. Vs. The Central Government Industrial Tribunal and Others, , where again it was emphasised that in a Review the Court mast only consider the propriety of the order . In Avtar Singh Vs. Union of India, , the Court had cautioned against this provision being treated in a routine manner. The Court had enjoined that only if an error which is manifest on the face of the record, undermines the soundness of the order or results in miscarriage of justice, should the Review be entertained.
7. The matter was argued on both sides of the Bar without reference to the newly introduced Rule 1A of Order XLIII. as mentioned above, it was contended that the words such order as it thinks fit' conferees untrammelled is creation on the Court. when Order XLVII is perused, similar phrasally has apparently been employed in the words "or for any other reason" found in Rule 1. But it has been held by the Privy Council in Chajju Ram Vs. Neki, ALR 1922 Privy Council 112 that these grounds should be construed as analogous to those which precede it. In all these years the only qualification to this decision is that these words must be construed ejuden generis to the other grounds.
8. In my view therefore, where a compromise is either refused or allowed, this cannot be assailed in Review and the aggrieved party should question and challleged it only once a judgment is pronounced. Secondly, it is an abuse of the judicial process to file a Review where an order has been passed ex parte even if another view, unadvocated because of the absence of the party, is possible. This is expressed in another manner where there is an insistence that the error must be apparent on the face of the record. In the present case, the arguments which were advanced for sustaining the Review are already prohibited at this stage by virtue of Order LXIII Rule 1A. Even if this provision is ignored, the Review does not disclose any important matter or evidence which after due diligence was not within the knowledge or could not be produced by the applicant.
9. Since the facts were discussed in detail, I shall briefly deal with them, even though the Review is liable to be rejected for the above considerations. The argument of the Defendant/Applicant is that once the tendered sum of Rupees Two lakhs was accepted by the Petitioner, the Court was bound to treat the claim as satisfied. Reliance was placed on Tata Oil Mills Co. Ltd. Vs. Lokenath Chemical Works, . The applicant must show that the terms of compromise was that on the payment of Rs.2 lakhs extinguished the liability of the Defendants/ Applicants (as they were the guarantors) and these terms were accepted by the Plaintiff. The compromise offer of Applicants/Defendants 2, 3, and 4 was contained in their letter dated 23.5.1997, the relevant portions whereof read as follows:
In the light of the above discussions we had with you we agree to pay an amount of Rs. 2.00 Lacs in consideration for NSIC releasing/absolving us (Respondents 2, 3 and 4) from the personal guarantees given by them. This amount will be held as interest bearing security deposit by NSIC to be adjusted against the amount that may be decreed by the Court in favor of NSIC in the above mentioned suit.
The liability of defendants 2, 3 and 4 shall be limited to the short fall between the decreed amount and the amount recovered from respondents 1, 5 and 6 or Rs. 2.00 lacs plus accrued interest thereron, which ever is lower and the balance amount will be refunded back to the defendants 2 , and 4 within 30 days of the recovery of the amount by NSIC.
10. The language is far from clear and since I am unable to under stand it to state that the offer of Rs.2 lakhs was in full settlement of the Applicants liability, I cannot hold that the Plaintiffs are bound to the version advocated on behalf of the Defendants.
11. The Plaintiffs have not given up Defendant No.1, 5 and 6 who appear to be the principal debtors and are in fact proceedings in the suit, and therefore taking reasonable steps to effect recovery from these Defendants. Plaintiffs however accepted the payment/tender of Rs. 2 lakhs "without prejudice to NSIC rights and contentions in the subject suit" in terms of its letter dated 25.7.1997, which was received by the Applicants on 29.5.1997. They ought to have demurred and demanded a return of their cheque or stopped its payment. Having not done so they must be held to have acquiesced to the plaintiff terms.
12. The application is without merit and it dismissed even on merits. Since two applications seeking similar relief have already been dismissed, exemplary costs are called for. The Defendants/Applicants shall pay costs of Rs.5000/- for the present application.