Govind Mavji Gorasiya vs Velbai Naran Varsani & ... on 15 February, 2017

[Cites 6, Cited by 0]

Gujarat High Court

Govind Mavji Gorasiya vs Velbai Naran Varsani & ... on 15 February, 2017

HC-NIC Page 1 of 21 Created On Sun Aug 13 16:29:23 IST 2017 C/MCA/1182/2016 JUDGMENT The present application is preferred to review/recall of order dated 16.03.2016 passed in Civil Application No.6510 of 2015 in Civil Application No.4112 of 2015 in Appeal from Order No.8 of 2012.

2 The facts as could be culled out from the order dated 16.03.2016 are that respondent no.1 herein instituted a civil suit being Special Civil Suit No.111 of 2011 in the court of the learned 3rd Additional Senior Civil Judge, Bhuj for quashing of two registered sale deeds dated 17.04.2010 and 12.01.2014 executed by the present applicant and others. Respondent no.1 had also preferred exhibit 5 application for restraining the defendants, which was rejected by the trial court. Against the rejection of exhibit 5 application Appeal from Order No.8 of 2012 is preferred in this court, which is pending. On 6th April 2015 the following order was passed :

"Mr B.Y. Mankad, learned advocate appearing for respondents no.10 to 12 requests for time to file affidavit-in-reply. Hence, S.O. to 18.06.2015. Till then, the parties are directed to maintain status quo with regard to the disputed land.

Direct Service for respondents no.10 to 13 is permitted."

3 Respondent no.1 preferred Civil Application No.6510 of 2015 for taking action against the present applicant and others under Order XXXIX Rule 2A of the Civil Procedure Code for having violated the aforesaid order of the status quo.

4 This Court by order dated 16.03.2016 directed the present applicants to undergo 7 days civil imprisonment and also to pay a fine of Rs.5,000/-. The applicant is seeking Page 2 of 21 HC-NIC Page 2 of 21 Created On Sun Aug 13 16:29:23 IST 2017 C/MCA/1182/2016 JUDGMENT review/recall of this order.

5 I have heard Mr Mehul Shah, learned advocate for the applicant and Mr A.R. Thakker, learned advocate for respondent no.1.

6 The plaintiff has instituted a suit being Special Civil Suit No.111 of 2011 before the court of the learned 3rd Additional Senior Civil Judge, Bhuj inter alia praying for cancellation of the two registered sale deeds i.e. sale deed dated 17.04.2010 and 12.01.2011 executed by the defendants. Former sale deed executed by defendant no. 1 in favour of defendants nos. 5 to 9 and later one by defendants nos. 5 to 9 in favour of defendants nos. 10 to 12. The suit property consists of different survey numbers. It appears that in all the suit property consists of 8 Hectare 61 Are at the periphery of Bhuj. For consideration of this civil application, detailed reference to pleadings is not necessary. The brief list of dates in chronology would give us somewhat idea about the case of the parties.

DATE EVENTS 19/20.12.2012 Appeal from Order No. 8 of 2012 is filed.

25.06.2013 Appeal from Order No.8 of 2012 was ADMITTED.

15.07.2013 The defendant applied for NA permission.

01.09.2014 NA permission granted by the authority.

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HC-NIC Page 3 of 21 Created On Sun Aug 13 16:29:23 IST 2017 C/MCA/1182/2016 JUDGMENT 11.03.2015 Civil Application No.3520 of 2015 was filed alleging that the defendants have tried to overreach the court process by obtaining NA permission. The plaintiff has prayed for interim relief however, no order was passed on this civil application. This civil application is pending.

24.03.2015 Civil Application No. 4112 of 2015 was filed with a prayer that defendants nos.

10 to 12 be restrained from transferring and developing the suit land.

06.04.2015 The order of status-quo came to be passed in Civil Application No. 4112 of 2015.

09.04.2015 The learned trial Court rejected the plaint in Special Civil Suit No. 111 of 2011 under Order 7 Rule 11 of the Code of Civil Procedure.

15.04.2015 Civil Application No. 4894 of 2015 filed by the defendants for vacating the interim relief granted by this Court on 06.04.2015.

04.06.2015 Civil Application No. 6510 of 2015 came to be filed by the applicant wherein the say of the applicant is that despite the order of status quo of this Court the defendants have entered into registered sale transaction and thereby he has violated the order of this Court. Hence, application under Section 39 Rule 2(A) of the Civil Procedure Code.

7 On behalf of the applicants written submissions dated 17.10.2016 and additional written arguments dated 27.12.2016 are submitted wherein it is inter alia contended as Page 4 of 21 HC-NIC Page 4 of 21 Created On Sun Aug 13 16:29:23 IST 2017 C/MCA/1182/2016 JUDGMENT under:

1. The father of opponent No.1 herein had purchased the land on 12.07.1974 and 14.03.1980 by registered sale deed as the suit land is self acquired property of Natha Harji Halai -

father of opponent No.1. Present opponent No.1 has filed Special Civil Suit No.111/2011 on the premise that the uncle of her father has no right in the year 1974 and in the year 1980 to execute sale deed in favour of her father as she had not given any consent. It is pertinent to note that those sale deeds of the year 1974 and 1980 have not been challenged by opponent No.1 herein till date.

2. Thereafter, father of opponent No.1 had executed sale deed in favour of present opponent Nos.6 to 10 on 17.04.2010 and thereafter present opponent Nos.5 to 9 have executed a registered sale deed in favour of present applicant and opponent Nos.11 & 12 on 12.01.2011.

3. That present opponent No.1 has filed suit on 18.07.2011 six months after the execution of the sale deed in favour of the present applicant. That along with the suit, an application for interim injunction was moved but, after bi- parte hearing, the said application came to be rejected on 04.11.2011. Thereafter, present opponent No.1 has filed Appeal from Order No.8/2012 without any application for injunction, but, prayed for injunction in the memo of Appeal from Order. It appears from the record that Appeal from Order was admitted on 25.06.2013 but, no injunction was granted. After a period of 3 years and 4 months, the applicant has moved Civil Application No.4112/2015 before this Hon'ble High Court. When the matter was listed for hearing on 06.04.2015, the advocate appearing on behalf of the present applicant requested for time to file affidavit in Page 5 of 21 HC-NIC Page 5 of 21 Created On Sun Aug 13 16:29:23 IST 2017 C/MCA/1182/2016 JUDGMENT reply. At that time, Hon'ble High Court has been pleased to direct the parties to maintain status-quo with regard to the disputed land by order dated 06.04.2015. Thereafter Civil Application No.6510/2015 came to be filed under Order XXXIX Rule-2A of the Code of Civil Procedure, 1908 alleging breach of the order dated 06.04.2015 passed by the Hon'ble High Court in Civil Application No.4112/2015.

4. Thereafter, on completion of pleadings, all the civil applications along with Appeal from Order, were listed before the Hon'ble High Court for hearing. After extensive hearing, the Hon'ble High Court has been pleased to keep the matters for orders. Thereafter, by CAV Judgment dated 16.03.2016, this Court directed the applicant herein - original opponent No.10 to undergo 7 days' civil imprisonment and shall pay fine of Rs.5000/-.

5. The applicant - original respondent No.10 tendered unconditional apology to this Court and prayed for pardon. He also stated that there is no intention to commit breach of the orders, but, as such, he and his partners were not aware about the passing of the order till 09.04.2015 and the advocate had informed original opponent 11 and 12 only on 09.04.2015. The applicant is a law abiding citizen and never dared to commit breach of the order of any authority much less the order passed by this Court. He tenders unconditional apology with folded hands and also prays to permit him to purge the contempt by cancelling the two sale deeds executed on 08.04.2015 referred to by this Hon'ble High Court in the order. Applicant respectfully says and submits that applicant is ready and willing to cancel those two sale deeds executed on 08.04.2015 for which the consideration have been received on 07.04.2015 after the order is passed Page 6 of 21 HC-NIC Page 6 of 21 Created On Sun Aug 13 16:29:23 IST 2017 C/MCA/1182/2016 JUDGMENT and which are the cause for breach of injunction. Therefore, the applicant humbly pray to permit him to purge the contempt.

6. It is also submitted that as such applicant was not in India between 15.12.2014 to 12.4.2015. Applicant departed from Mumbai on 15.12.2014 and reached Dakar Senegal( Africa) on 17.12.2014. He came back to Mumbai on 12.4.2015 and arrived at Bhuj on 13.4.2015. He was not present in India on 6.4.2015 and Sale deed have been executed by power of attorney holder and therefore he may kindly be pardon by Hon'ble Court. That due to communication gap, he could not inform the said fact to his advocate at Bhuj but recently he realized the fact that he was not present in India up to 12.4.2015 and therefore he is praying pardon from the Hon'ble Court.

7. That in affidavit in reply, which was affirmed on 12.07.2015, the applicant has stated about knowledge of order in para-5 to the effect that the advocate had informed local advocate Mr. Yogesh Bhandarkar on 07.04.2015 at about 7.10 p.m. through SMS and also informed him that he will send the e-mail along with the copy of order. Thereafter, he did not send any e-mail and therefore, the local advocate inquired from him about the order on 08.04.2015 as the matter was kept for hearing before the trial court on 09.04.2015. The learned advocate of the High Court informed him about the status-quo order passed by the Hon'ble High Court and thereafter by SMS at 7.15 p.m. on 08.04.2015, informed him to engage some other lawyer as he would not like to continue. Thereafter, the local advocate had taken out the print out of order in the morning of 09.04.2015 from the website of the Hon'ble High Court and Page 7 of 21 HC-NIC Page 7 of 21 Created On Sun Aug 13 16:29:23 IST 2017 C/MCA/1182/2016 JUDGMENT informed me about the same on the same day i.e. 09.04.2015................. That the other sale deeds were executed much prior in point of time as detailed in the chart."

8. It is also pertinent to note that even the copy of the order dated 06.04.2015 of which direct service is taken by the original applicant - opponent No.1 herein, has been served to the original opponents on or after 09.04.2015. That even the public notice was also published in the newspaper on 09.04.2015. Therefore, it is true and correct fact that opponents had come to know about the said order only on 09.04.2015. However, the applicant is ready and willing to purge the contempt by cancelling the sale deed dated 08.04.2015 of which consideration is received on 07.04.2015. The applicant humbly prays that the Hon'ble Court may kindly recall the order of punishment by accepting the unconditional apology and by permitting the applicant to purge the contempt.

10. That as stated earlier, out of 9 sale deeds, consideration of six sale deeds have been received in the months of November and December, 2014 and January, 2015 and in case of two sale deeds, the payment was made on 07.04.2015. That as such, the said purchasers had come from Indore and payment was made on 07.04.2015 otherwise, they had decided to purchase the land long back. It is respectfully submitted that it is highly improbable that after the knowledge of the order immediately the applicant had found out the buyer and execute the sale deed. The applicant respectfully says and submits that by few sale deeds, entire land was not going to be transferred to any third party and by executing few sale deeds the applicant was not going to be benefited or for that matter, opponent No.1 was not going to Page 8 of 21 HC-NIC Page 8 of 21 Created On Sun Aug 13 16:29:23 IST 2017 C/MCA/1182/2016 JUDGMENT be prejudiced. Therefore, in fact the applicant was not aware about the order passed by the Hon'ble High Court and in routine manner those sale deeds have been executed by power of attorney holder. It is pertinent to note that as stated earlier, even opponent No.1 herein - original applicant has also served the copy of the order by direct service on or after 09.04.2015. Therefore, she cannot allege that the original opponents were aware about the passing of the order.

10 That he has tendered unconditional apology in his affidavit dated 12.07.2015. That after the hearing was over, the matter was kept for pronouncement of orders and therefore, applicant had no opportunity to pray to purge the contempt. Therefore, applicant humbly urges this Hon'ble Court to accept the unconditional apology and pardon the applicant and also praying to permit him to purge the contempt. Therefore, the order of punishment of 7 days' civil imprisonment may kindly be recalled and to that extent the present application may kindly be allowed in the interest of justice and thereby accept the unconditional apology and permit the applicant to purge the contempt in the interest of justice."

8 On behalf of respondent no.1, Mr A.R. Thacker, learned advocate has submitted the written arguments on 18.10.2016wherein it is contended as under:

1 This Court has considered the entire record of the Civil Application No.6510/2015 and thereafter the order dated 16.03.2016 came to be passed. Therefore, it is prayed him not to review or modify the order dated 16.03.2016 in as prayed for by present applicant.

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2. In paragraph 12.1 of the order, this Court has recorded the statement of the advocate of the applicant. The Court has also recorded the submissions of the applicant that, opponents Nos.10 to 12 have committed breach. Thereafter the Hon'ble Court deemed it fit to hold that breach is committed by Opponent No.10 by executing sale deed. Therefore, it is the discretion exercised by the Hon'ble Court in holding opponent No.10 responsible for committing breach of the order and the Hon'ble Court after exercising the discretion, did not hold opponent Nos.11 & 2 guilty for committing the breach of the order. Therefore, the order is not required to be modified as prayed for.

3. That as such, opponent Nos.10 to 12 have tendered unconditional apology and prayed before the Hon'ble Court to pardon them. However, this Court has been pleased to hold opponent No.10 guilty for committing breach. Thereafter, opponent No.10 has also filed MCA No.1182/2016 with an humble prayer to permit him to purge the contempt by cancelling the sale deed dated 08.04.2015 and also prayed to accept the unconditional apology. The said application is pending. therefore, it is humbly prayed to recall the order to an extent of accepting the unconditional apology on behalf of opponent No.10 and permit him to purge the contempt and pardon him. It is respectfully submitted that opponent No.10 is ready and willing to cancel the sale deed executed after the order dated 06.04.2015 or on any other conditions that may be imposed by this Hon'ble Court to purge the contempt. Therefore also no modification or review is required as prayed for by the present applicant in the order dated 16.03.2016 and therefore, the present Misc. Civil Application may kindly be dismissed at its threshold.





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                    C/MCA/1182/2016                                                JUDGMENT

4. Alternatively, it is respectfully submitted that the ultimate purpose of Order XXXIX Rule-2A of CPC is to enforce the order. Opponent Nos.10 to 12 are ready and willing to cancel the sale deeds executed on 08.04.2015. If the Hon'ble Court comes to the conclusion that Opponent Nos.11 & 12 have also committed breach of injunction, then, Opponent Nos.10 to 12 are ready and willing to purge the contempt and also tender unconditional apology and pray to pardon them. That as such, they have no knowledge about the order upto 09.04.2015 and therefore, there is no willful disobedience, if any, on their part."

9 In paragraph 5 of the order under review, the arguments canvassed on behalf of the applicant to resist the contempt proceedings are summarized as under :-

"5. ... The submissions of learned senior advocate may be summarized as under : * Breach of order of complained of by the plaintiff is not the order which is passed after biparte hearing, in the sense that time was sought by the learned advocate for defendants and the Court had while granting time to him has passed the order to maintain status quo. It was submitted that passing of order upon hearing the learned advocates on merits and passing of the order on a request made by the learned advocate for time does not stand on the same footing.

* The plaint as it stand if considered by considering the rival pleadings of the parties, the suit is most likely to fail and this fact should be bear in mind while considering the application.





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            C/MCA/1182/2016                                                   JUDGMENT

* In Special Civil Suit No. 111 of 2011, the Court has not granted exparte adinterim relief to the plaintiff then, after hearing the defendants at Exhibit5, also interim relief was rejected by the learned trial Court.

* Against rejection of the interim relief application by the learned trial Court (Exhibit5), Appeal from Order No. 8 of 2012 came to be filed by the plaintiff wherein the order of Admitting appeal was passed only in June, 2013. In Appeal from Order, neither at the stage of notice or at the stage of Admitting the appeal, interim relief was granted to the plaintiff.

* In the affidavit filed by defendant no. 10, he has explained when he was served and/or informed about the order passed by this Court dated 06.04.2015. This also explains how, meanwhile sale deeds came to be executed on 09.04.2015. The defendants tenderes unconditionally apology in the affidavit. * The sale deed executed on 09.04.2015, were executed by defendants nos.10 to 12 in the capacity of the Director of the Company and not in their individual capacity. That being so and as the Company has distinct and separate entity from defendants nos. 10 to 12 defendants nos. 10 to 12 ought not to held guilty for committing breach. The Company has the distinct entity from individual and from its Director. The alleged breach assuming it to be there, the Court should also consider whether such breach is willful o not. In the facts and circumstances of the present case, the breach is at all not willful.





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                   C/MCA/1182/2016                                                  JUDGMENT



              •        The learned senior advocate has inter alia drawn attention

to the decision of the Apex Court in the case of Anil Panjwani reported in (2003) 7 SCC 375. Drawing attention to paragraph nos. 5 to 9, it was urged that the merits of the matter are also to be looked into by the Court while considering such application. It is not rule of law that unless contemner purges the fact that he should be heard. It is only the rule of practice. I proceed to consider case of parties."

10 The present applicant had filed his affidavit-in-reply. In paragraph 11 the following conclusions were recorded:

"* Civil Application No. 4112 of 2015 was taken up for hearing by this Court on 06.04.2015.

* Learned advocate appearing for the opponent / defendant has sought time and the Court had granted time. * While granting time, the Court has also passed the order to maintain statusquo till the next date of hearing. * This order was said to have been communicated by learned advocate for the defendant appearing before this Court to his counter part at Bhuj on 07.04.2015 at evening at about 07:10 p.m., by SMS.

* It is alleged that the advocate appearing before the High Court had also informed that he is forwarding the order by Email. However, no such Email was ever received by the learned advocate at Bhuj.

* On 08.04.2015, learned advocate at Bhuj had contacted learned advocate appearing before the High Court that since Special Civil Suit No. 111 of 2011 was posted on 09.04.2015.

* Learned advocate appearing before the High Court had Page 13 of 21 HC-NIC Page 13 of 21 Created On Sun Aug 13 16:29:23 IST 2017 C/MCA/1182/2016 JUDGMENT said to have informed him that statusquo order is passed by the High Court., * It is alleged that he also said to the learned advocate at Bhuj that he would not like to continue as advocate and the party may engage another advocate.

* Thereafter, learned advocate at Bhuj, has taken print out from High Court website on 09.04.2015 and had said to have informed the parties.

* It is alleged that defendants nos. 10 to 12 came to know about the order passed by the High Court on 09.04.2015. * The sale deed came to be executed on 07.04.2015 and 08.04.2015.

* It is alleged by defendant no. 10 that 9 sale deeds were executed on 07.04.2015 and 08.04.205.

* Of these 9 sale deeds, consideration of 6 sale deeds were received way back in December, 2014 and In January, 2015.

* After 08.04.2015, no sale deed have been executed by defendants nos. 10 to 12 nor any construction work is carried by them."

11 In the present application also the appellant reiterated that he had no knowledge of the order dated 6.04.2015 whereby the parties were directed to maintain status quo with regard to the disputed land as he was not present in India between 15.12.2014 and 12.04.2015. This submission of the appellant did not find favour with this Court and it is recorded by this Court that breach of order dated 6.4.2015 is committed by the present applicant.

12 The applicant has, in the present review application, submitted that he was not aware of the order dated 6.4.2015 Page 14 of 21 HC-NIC Page 14 of 21 Created On Sun Aug 13 16:29:23 IST 2017 C/MCA/1182/2016 JUDGMENT as he was not in India and came back to Bhuj only on 13.04.2015 and this fact was not brought to the notice of the court. In this connection, reliance is placed on the decision of the Supreme Court in the case of Syed Abdul Razack v. Matadin Agarwal, (1994) 4 SCC 673 to submit that when certain facts which were not brought to the notice of the court earlier can be made a basis to request the Court to recall its order passed under Order 39 Rule 2A(1) of the Civil Procedure Code as it is held in the said decision in paragraph 5 that the order which the court could pass under Order 39 Rule 2A(1) includes an order of recall since it can suspend the detention of the defaulter and direct his release. It is, therefore, the submission on behalf of the applicant that the present review application is mandatory and power to recall the order is inherent in Order 39 Rule 2A(1) of the Civil Procedure Code.

13 The applicability of the decision of the Supreme Court needs to be examined in light of the facts. It appears that in the said case before the Supreme Court the appellant was ordered to be detained in civil prison for three months for evading the service of injunction order and indulged in hide and seek game. The appellant pleaded before the Court that he was not aware about the injunction order as the endorsement of 'refusal' recorded by the businessman was wrong. This explanation was found acceptable by the court and therefore, the appellant was released from detention and instead attachment of Rs.75,000/- which was the price of the sale property was ordered. The order of the learned Single Judge was upset by the Division Bench in Letters Patent Appeal as the Division Bench was of the opinion that the Page 15 of 21 HC-NIC Page 15 of 21 Created On Sun Aug 13 16:29:23 IST 2017 C/MCA/1182/2016 JUDGMENT modification of the order was not permissible under the guise of review. In the backdrop of these facts, the Supreme Court after referring to the provisions of Order 39 Rule 2A(1) as it is provided therein and it may also order such person to be detained in civil prison for a term not exceeding three months unless in the meantime directs his release. Therefore, before being detained the appellant appeared before the learned Single Judge and explained that in fact the endorsement of refusal made by the post man was incorrect, which, the learned Single Judge found acceptable and therefore, modified his order by releasing the applicant from detention and substituting the order by attachment of Rs.75,000 which the sold property had fetched.

14 In view of the above factual distinction between the facts of the case before the Supreme Court and the present case, where the appellant who was represented by an advocate for reasons best known to him did not plead that he was not in India when order dated 6.4.2015 was passed and as a consequence was not aware of the same and therefore, this being a fresh ground the present revision application is maintainable. Under the provisions of Order 39 Rule 2A(1) of the Code the Court, as the bare reading would suggest, has inherent power to direct otherwise in the meantime after a person is detained in civil prison. Such an eventuality can arise when after being detained in civil prison the person can demonstrate that he was not aware of the prohibitory order which was passed against him or he purges the contempt. Therefore, in the present case the sale deeds which are, admittedly executed after the status quo order was passed by this Court are cancelled though the applicant has expressed Page 16 of 21 HC-NIC Page 16 of 21 Created On Sun Aug 13 16:29:23 IST 2017 C/MCA/1182/2016 JUDGMENT his intention to do so if the Court so directs. The reliance is placed on the decision of the Supreme Court in the case of Anton Francies v. Tukaram & Ors. (2005) 10 SCC 345 to contend that this Court by order dated 6.4.2015 has only directed the parties to maintain status quo with regard to the disputed land. It is therefore the contention of the applicant that by executing the sale deed per se would not amount to making any changes in the disputed lland because, it had remained as it is even after execution of the sale deed. This decision of the Supreme Court would not help the applicant because, it appears that the status quo order regarding the possession of the truck was passed. Despite this order, the appellant sold the truck and therefore, it was contended that he violated the status quo order. There was neither any allegation nor evidence to show that the appellant had parted the possession of the truck though he had sold it. Therefore, in the background of these facts, the Supreme Court found that though the truck was sold the possession had remained with the applicant and therefore it cannot be said that he had violated the status quo order whereas in the case on hand though after the plot being sold by the appellant they have remained in possession of the land, but the ownership by virtue of a registered sale deed has changed and therefore, it cannot be contended that as the condition of land has not changed, the applicant cannot be said to have violated the status quo order.

15 Mr Mehul Shah, learned advocate for the applicant submits that the order under review was a reserved order and therefore, the applicant had no opportunity to purge the contempt by cancelling the sale deeds which were executed Page 17 of 21 HC-NIC Page 17 of 21 Created On Sun Aug 13 16:29:23 IST 2017 C/MCA/1182/2016 JUDGMENT after the status quo order dated 6.4.2015. This submission, though at first blush seems attractive, has no merit because reserved orders/judgments are always pronounced in the presence of the learned advocates. Further, the operative part of the order under review reveals that a request was made on behalf of the applicant and other opponents for stay of the operation of the order. Accordingly, it was stayed for a period of eight weeks. The learned advocate for the applicant could as well sought an opportunity to purge the contempt.

16 Mr Shah has also contended that the order dated 6.4.2015 is 'status quo' order which cannot be said to be clear and unambiguous and unequivocal and therefore, any inadvertent violation thereof would not come within the dragnet of contempt of court in view of the decision of the Supreme Court in the case of T.C. Gupta v. Bimal Kumar Dutta & Ors., (2014) 14 SCC 446. I am not inclined to accept this submission. The order dated 6.4.2015, in my opinion, cannot be labelled as an ambiguous or unequivocal as the parties are in clear terms directed to maintain status quo in respect of the subject land. At the cost of repetition, it must be stated that though the land remained open even after its being sold by registered sale deed, because of the sale deed its ownership has exchanged and therefore, it cannot be said that the land has remained the same. In view of the above, the ground raised by the applicant for recalling or review of the order dated 16.03.2016 were very much placed for consideration of the court and by improving and giving additional details, which were available with the applicant and could have been brought to the notice of the court, the order cannot be sought to be modified or reviewed.



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                 C/MCA/1182/2016                                           JUDGMENT

17 if the present application is considered as an application for review, the it would be covered by Order 47 Rule 1 of the Civil Procedure Code. The Supreme Court in the case of Kamlesh Verma v. Mayavati, AIR 2013 SC 3301 has in paragraph 16 culled the following grounds on which review application can be maintained:

"16. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

(A) When the review will be maintainable-:-

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason" has been interpreted in Chhajju Ram v. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius and Ors., (1955) 1 SCR 520 : (AIR 1954 SC 526), to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese and Iron Ores Ltd. and Ors., JT 2013 (8) SC 275 : (2013 AIR SCW 2905).

(B) When the review will not be maintainable:-

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import. Page 19 of 21

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(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

Thus, it is clear from the above that essentially a review would be maintainable on discovery of new material which could not be produced before the court despite exercise of due diligence or there is an error or mistake apparent on the face of the record. Therefore, in absence of any evidence on the part of the applicant to show that despite due diligence the fact that he was not available in India when the order dated 6.4.2015 was passed and was not served him could not be brought to the notice of the Court despite due diligence or there was error apparent on the face of the record, I am of the view that the present application if considerd as review application cannot be entertained.




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                  C/MCA/1182/2016                                          JUDGMENT




         18     For the foregoing reasons, the present application fails
         and is hereby rejected.


         19     At this stage, Mr Mehul Shah, learned advocate for the

applicant requests the court that the operation of this order may be kept in abeyance for a period of eight weeks so as to approach the higher forum. Mr Thacker, learned advocate for the other side objects to the request made by Mr Shah for suspension of operation of this order. However, considering the nature of dispute and the issue involved in the present proceedings, I am of the view that the implementation and operation of this order as well as order dated 16.03.2016 passed in Civil Application No.6510 of 2015, which has been extended from time to time, is further required to be suspended and accordingly the same is suspended till 31st May 2017.

Sd/-

(A.G.URAIZEE, J.) mohd Page 21 of 21 HC-NIC Page 21 of 21 Created On Sun Aug 13 16:29:23 IST 2017

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