Calcutta High Court (Appellete Side)
2011 R vs W 33 Of 2 on 28 April, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
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53.
April 28,
2011 R. V. W 33 of 2011
Mr. Ranjan Bachawat
Mr. Suvashis Sengupta
Mrs. Sreya Basu Mallick .....for the petitioner.
Re : CAN 2559 of 2011
This application praying for condonation of delay is considered. It appears from the petition that the petitioner was prevented from filing application within prescribed period of time for justified and reasonable ground. The delay is condoned. The CAN application being CAN 2559 of 2011 is disposed of.
Affidavit of service filed by Mr. Bachawat, learned advocate appearing on behalf of the petitioners in Court today be kept with the record. It appears from the affidavit of service that the notice together with copy of the petition was sent by courier post dispatched on 09-04- 11 and received by Pradhymna Saha on behalf of the opposite party no. 2 1 on April 11, 2011. The service of notice appears to be satisfactory and, as such, is accepted.
Re : R. V. W 33 of 2011 This application for review of the order dated 7.7.10 in C. O. No. 1288 of 2006 is filed at the instance of Indian Roadways Corporation, the petitioner in C. O. 1288 of 2006 arising out of the Money Suit no. 12 of 2001 pending in the Ld. Civil, Judge, 7th Court, Alipore.
The review is sought for mainly on the ground that there is mistake of fact apparent on the face of the judgement and order under challenge.
The short factual reference of this review application is required to be given for better appreciation of the matter.
The Order No. 28 dated 02-03-06 passed by the Ld. Civil Judge at Alipore in money suit No. 12/01 whereby allowing the prayer of the opposite party, Reckitt Benckisor(India) Ltd. & anr. ( plaintiff no. 1 in the money suit) for transposition of the opposite party no. 2( 3 proforma defendant in the money suit) to the category of plaintiff no. 2 from proforma defendant.
The Ld. Civil Judge allowed the prayer on the ground that the opposite party no. 1(plaintiff) executed a letter of subrogation in favour of the proforma defendant and as the proforma defendant became lawful assignee and is entitled to recover the suit value from the original defendant (the petitioner herein) pending disposal of two applications ------ one under Order 6 Rule 7 of the Code of Civil Procedure and another under Order 6 Rule 17 of the Civil Procedure Code. The petitioner herein challenged that order in this Court being C. O. No. 1288 of 2006 which was dismissed by this Court on 07-07-10 accepting the story of subrogation taken place prior to the filing of the suit and categorizing it as a genuine mistake on the part of the plaintiff.
Mr. Bachawat, learned counsel appearing on behalf of the petitioner takes me to the plaint filed by the opposite party no. 1 in the money suit and contends that nowhere within the four corners of the plaint, it has been mentioned that in any point of time such letter of subrogation was issued by the plaintiff in favour of the proforma defendant, the insurance company. He draws attention of this Court to the paragraph 4 of the plaint and contends that the consignment was booked on 17th March, 1998 and the consignment was delivered on 12- 4 04-1998. Therefore, logically and obviously, there cannot be any letter of subrogation prior to the delivery of the damaged consignment. The plaintiff in the petition under Order 1 Rule 10 of the Code filed in the court of the Ld. Civil Judge has not also mentioned the particular date of issuing of letter of subrogation. The paragraph no. 3 of that application shows that the plaintiff kept the space blank. The certified copy of that petition filed today by Mr. Bachawat also shows that in Paragraph 3, the date of issuing of letter of subrogation has been kept blank. He takes me to the petition under Order 6 rule 17 of the Code filed by the plaintiff in the ld. trial court and to the schedule of amendment and contends that the plaintiff mentioned therein that the cause of action arose as on 17-03-98 when the plaintiff no. 1 executed letter subrogation in favour of the plaintiff no. 2.
In the petition under Order 6 Rule 4 of the Code taken out by the client of Mr. Bachawat in the ld. trial court indicates clearly that the plaintiff of the money suit did not disclose how they had dealt with the policy of insurance or recovered any amount on account of loss caused to the suit consignment from the proforma defendant/insurance company . It also emphatically mentioned therein that without disclosure of such material facts and in absence of furnishing better particulars, the issues cannot be framed for determination of the 5 dispute properly and there would not be proper adjudication of the claim.
I have carefully gone through the order under challenge in this review application. It is true that this Court while confirming of the order of the Ld. Civil Judge, taken the fact for granted that the letter of subrogation was issued prior to the institution of the suit. In fact, that is a mistake on the part of this Court while accepting the factual aspect which was nowhere stated. It also appears that the petition under Order 1 Rule 10 of the Code filed by the plaintiff in the ld. trial court does not disclose that there was genuine mistake on their part not to make the proforma defendant a plaintiff in the suit.
This Court while passing the impugned order observed that there was a bona fide mistake on the part of the plaintiff to make the opposite party no. 2, insurance company as proforma defendant in the suit instead co-plaintiff.
The question is whether the order impugned requires to be reviewed as sought for.
Scope of an application for review is much more restricted than that of an appeal. The court of review has only a limited 6 jurisdiction, circumscribed by the definite limits fixed by the language used his Order XLVII, Rule - I. It may allow a review on three specified grounds, namely, (1) discovery of new and important matter or evidence which after exercise of due diligence, within the applicants' knowledge or could not be produced by him at the time when this order was passed, (2) mistake or error apparent on the face of the record, (3) for any other reason.
The foremost requirement is that the order of which review is sought suffers from any error apparent on the face of the order and permitting the order stand would lead to failure of justice.
According to the applicant, at no point of time, the opposite party disclosed that alleged subrogation was done prior to institution of the suit and that there was genuine mistake on its part not to arrayed the insurance company as a co-plaintiff. But, the ld. trial court as well as this court passed the order in favour of the opposite party taking it for granted that alleged subrogation was done prior to filing of the suit and there was genuine mistake on the part of the opposite party not to implead the insurance company as a plaintiff in place of proforma defendant. Therefore, there was error apparent on the face of orders necessitating review.
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In Board of Control of Cricket of India -Vs- Netaji Cricket Club reported in A. I. R 2005 592, it was held by the Apex Court that the word "sufficient reason" in clause © of sub-rule (1) of Rule 1 Order XLVII is wide enough to include a misconception of fact by court or even an advocate. An application for review may be necessitated by way of invoking a doctrine "actus curiae neminem gravabit".
The word 'subrogation' means substitution of one person in place of another with reference to a lawful claim, demand or right, so that he who is substituted succeeds the right of others in relation to the debt or claim and its rights, remedies or securities. The right of one who has paid an obligation which another should have paid indemnified by the other. It is a device adopted by equity to compel ultimate discharge of an obligation by him, who in good conscience ought to pay it.
There is no wrong in issuing letter of subrogation on the part of the plaintiff in favour of the proforma defendant and, no doubt, on that ground only, the proforma defendant can well be transposed in the category of plaintiff when the plaintiff subrogated his right and claim over the issue in its favour. But, the Ld. Civil Judge(Junior Division ) did not at all inquire into the matter as to when and how the insurance company indemnified the obligation. Whether or not any such letter of subrogation was actually issued appears to be a question 8 which neither this Court nor the trial court had taken into consideration.
Be that as it may, the fact that the latter of subrogation was issued prior to the initiation of the suit has nowhere been mentioned save and except in the application under Order 6 Rule 17 of the Code filed by the plaintiff in the trial court . In that petition also, the date is given as 17th March, 1998 which appears to be wrong because according to the plaint case, 17th March, 12998 is the date when consignment was booked. The consignment was delivered only on 12- 04-1998. No doubt, there is a mistake or error of fact apparent on the face of the judgement impugned. Accordingly, it requires to be reviewed as sought for. As the same time, it is to be kept in mind that if the plaintiff subrogated his right and claim over the issue in favour of the proforma defendant/insurance company, a duty cast on the trial court to array the insurance company as plaintiff in the suit.
Accordingly, the review application being R. V. W 33 of 2001 is allowed on the ground of error of fact apparent on the face of the order. The order no. 28 dated 2.3.06 passed by the Ld. Civil Judge, 7th Court at Alipore in Money Suit No. 12/01 is also set aside with a direction that the ld. trial court taking the application under Order 1 Rule 10(2) of the Civil Procedure Code filed by the plaintiff for hearing 9 afresh after disposing of the petition under Order 6 Rule 4 of the Code filed by the defendant, Indian Roadways Corporation Ltd.
No order as to costs is passed.
Re : CAN 2560 of 2011 In view of the fact that the review application itself has been disposed of, no order of stay is required to be passed. Accordingly, the stay application being CAN 2560 of 2011 is disposed of.
Urgent xerox certified copy, if applied for, be given to the learned counsel for the petitioner upon compliance of necessary formalities.
( Kanchan Chakraborty, J. )