Gujarat High Court
Rasilaben Dhirubhai Hirpara vs Nitinkumar Rameshbhai Dave on 6 July, 2022
Author: Gita Gopi
Bench: Gita Gopi
C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4483 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RASILABEN DHIRUBHAI HIRPARA
Versus
NITINKUMAR RAMESHBHAI DAVE
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Appearance:
NISHIT A BHALODI(9597) for the Petitioner(s) No. 1
MR PALAK H THAKKAR(3455) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 06/07/2022
ORAL JUDGMENT
1. Rule. Mr. Palak H.Thakkar, learned advocate waives service of notice of rule on behalf of respondent no.2. With the consent of the parties, the matter is heard finally today. Though served, none appeared on behalf Page 1 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 respondent nos.1 and 3.
2. The present petition has been filed under Articles 226 and 227 of the Constitution of India praying to quash and set aside the order dated 16.09.2021 passed by the Motor Accident Claims Tribunal, Dhari in Civil Review Application No.1/2020 and for direction to the Tribunal to consider the disability certificate produced at Exhibit-78 in MACP No.280/2018 (Old No.188/2015) and for modification of the compensation granted to the petitioner.
3. Mr. Nishit A.Bhalodi, learned advocate for the petitioner submits that the petitioner is before this Court since Civil Review Application No.1/2020, which was moved in MACP No.280/2018 (Old No.188/2015), was rejected on 16.09.2021 by Motor Accident Claims Tribunal, Dhari.
4. Mr. Bhalodi, learned advocate submits that, it was brought to the notice of the Tribunal concerned that the Disability Certificates of the claimant was produced on record vide Exhibit-78 and Exhibit-92. He submits that Exhibit-78 is a disability certificate by Doctor Bhavesh S.Dave, M.S. Artho, showing the permanent physical disability. Mr. Bhalodi submits that necessary endorsement of the Insurance Company is on Exhibit-78, Page 2 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 where they have consented to consider the physical disability of 8% for the body as a whole. Mr. Bhalodi submits that Exhibit-92 shows the neurological disability of the claimant whereupon too, the Insurance Company had consented by placing endorsement of 10% disability.
4.1 Mr. Bhalodi submits that it was brought to the notice of the Tribunal concerned that Exhibit-78 was not considered by the Tribunal, which resulted in error on the face of the record and thus request was made by way of Review Application to consider Exhibit-78 and accordingly to assess the permanent physical disability of the claimant. Mr. Bhalodi submits that the Tribunal after hearing the parties had observed that the predecessor Judge has disposed the petition on merits and therefore had come to the conclusion that the application does not fall within Order 47 Rule 1 of the Civil Procedure Code and on that ground has rejected the application.
5. Mr. Palak H.Thakkar, learned advocate for the respondent no.2 - Insurance Company submits that the award so passed is in accordance to the evidence on record. The learned Tribunal has recorded both the documents in MACP No.280/2018, page-11 of the judgment, which itself suggests that it was not out of mind of the concerned Court while declaring the judgment.
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6. Heard learned advocates appearing for both the sides and perused the material produced on record. It appears that both the documents Exhibit-78 and Exhibit- 92 were placed on record by the claimant by way of list. The list was shown to the contesting Insurance Company. The Advocate on record of the Insurance Company had made an endorsement of their consensus to grant the disability accordingly. The certificate of disability on record relates to physical disability and another is for neurological disability. It appears that the trial Court had referred both the documents in the judgment at page-11, while listing the documents exhibited on the record in the trial. The Tribunal has referred to Exhibit-92 and relied on the Disability Certificate issued by Doctor Rajendra B.Trivedi, who is a neurosurgeon of Raj Neurosurgeon Hospital and Trauma Center. The learned Tribunal has discussed about the facts regarding disablement in paragraph-13 of the judgment and the judgment shows that the learned Tribunal has relied only on Exhibit-92, while no reference has been made of Exhibit-78, which has led to rejection of claimant's right of substantial justice, the failure of appreciation of Exhibit-78, appears to be an error apparent on the record. It appears that the learned Tribunal was almost oblivious of the presence of Exhibit-78 on record.
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7. The aggrieved claimant had moved the Review Application No.1/2020 to bring this fact to the notice of the Court and has made a prayer to consider the same under Order XLVII, Rule 1 of the C.P.C. Order XLVII Rule 1 of the C.P.C. is reproduced herein for ready reference:
"1. Application for review of judgment.-
(1) Any person considering himself aggrieved --
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or (C) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to Page 5 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
[Explanation - The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.]"
7.1 The Review Application No.1/2020 was rejected by the Tribunal observing that the application was not falling under the provision of Order XLVII Rule 1 of C.P.C. The review application was moved contending that Exhibit-78, the disability certificate, though exhibited was not considered by the Tribunal in assessing the compensation. The Tribunal declined to accept that Page 6 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 contention and observed that the compensation has been granted on merits.
8. Mr. Nishit A.Bhalodi, learned advocate for the petitioner relied on para-23 of the judgment of Raj Kumar Vs. Ajay Kumar, reported in (2011) 1 SCC 343, which is reproduced hereinbelow:
"23. The Tribunals should realize that a busy Surgeon may be able to save ten lives or perform twenty surgeries in the time he spends to attend the Tribunal to give evidence in one accident case. Many busy Surgeons refuse to treat medico-legal cases out of apprehension that their practice and their current patients will suffer, if they have to spend their days in Tribunals giving evidence about past patients. The solution does not lie in coercing the Doctors to attend the Tribunal to give evidence. The solution lies in recognizing the valuable time of Doctors and accommodating them. Firstly, efforts should be made to record the evidence of the treating Doctors on commission, after ascertaining their convenient timings. Secondly, if the Doctors attend the Tribunal for giving evidence, their evidence may be recorded without delay, ensuring that they are not required to wait.Page 7 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022
C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 Thirdly, the Doctors may be given specific time for attending the Tribunal for giving evidence instead of requiring them to come at 10.30 A.M. or 11.00 A.M. and wait in the Court Hall. Fourthly, in cases where the certificates are not contested by the respondents, they may be marked by consent, thereby dispensing with the oral evidence. These small measures as also any other suitable steps taken to ensure the availability of expert evidence, will ensure assessment of just compensation and will go a long way in demonstrating that Courts/Tribunals show concern for litigants and witnesses."
8.1 The judgment so relied upon by Advocate Mr. Bhalodi, is to explain the situation of a medical doctor who would have to be called upon to prove the certificate/ disability certificate issued by him. The Apex Court has directed the Tribunal to accommodate such doctors who would be attending courts to depose on the certificate issued by them. This would be a small gesture from the Tribunal to respect the work of a medical officer, so that they do not shy away from treating patients in a medico- legal case.
8.2 In cases when the certificate are not contested, and are marked exhibit on consent, thus dispensing the Page 8 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 oral evidence, the Tribunal should consider the disability so mutually consented upon. Exhibit-92 was for neurological disability while Exhibit-78 refers to physical disability. The insurance Company had endorsed about the degree of disability they admit in both exhibits.
8.3 Here, in this case, the petitioner could demonstrate before the concerned Court by the review petition that the document, Exhibit-78, was not referred or considered or appreciated by the Tribunal while passing the judgment and award in MACP No.280/2018. It was an error on the face of the record.
8.4 In the present case, the petitioner could point out that though the document was produced and relevant endorsement was also placed by contesting parties and the same becomes admissible in evidence, the learned Tribunal failed to take the same in consideration and has failed to appreciate the evidence so produced on record. Thus, it is a mistake apparent on the face of the record committed by the concerned Judge of the Tribunal while passing the judgment and award, which has prejudiced the claimant.
9. Section 169 of the M.V. Act lays down the procedures and powers of the claim Tribunal. Section 169 of the M.V. Act, reads as under:
Page 9 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 "169. Procedure and powers of Claims Tribunals.-
(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry.
[(4) For the purpose of enforcement of its award, the Claims Tribunal shall also have all the powers of a Civil Court in the Page 10 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 execution of a decree under the Code of Civil Procedure, 1908 (5 of 1908), as if the award were a decree for the payment of money passed by such court in a civil suit.]"
9.1 The claims Tribunal is to substantially follow the procedure prescribed in the Motor Vehicles Act, 1988 and Rules framed thereunder while disposing a claim case. Section 176 of the M.V. Act prescribes power of State Government to make Rules for carrying into effect the provisions of sections 165 to 174 of the M.V. Act. Gujarat Motor Vehicles Rules, 1989 are made to apply in relation to all motor vehicles in the State of Gujarat.
9.2 The Tribunal substantially has to follow the principles of natural justice and shall follow the law made by the Parliament or State legislature while dealing with any subject for which such Tribunal is set up. The Tribunal is not expected to exercise such power which has not been vested on it by law. The power of review of judgment and order is a statutory power. Unless a particular enactment prescribes such power authorizing a Tribunal to exercise such power of 'review', a Tribunal is not ordinarily required to use such powers.Page 11 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022
C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022
10. The High Court of Gauhati (Agartala Bench) in the case of Humayun Kabir Vs. Monoranjan Das and Ors. in CRP No.58 of 2011, in paras-8 held as under:
"8. Section 175 of the M.V. Act bars the jurisdiction of the Civil Courts in respect of the motor accident claims. The intention of the Legislature, thereby, nay be clearly understood that the procedure prescribed for the ordinary Civil Court shall not be applied in the Claims Tribunal while disposing the claim cases. The Tribunal, for fair ends of justice, to arrive at a just decision and to determine a reasonable and equitable compensation shall follow the procedural aspect as prescribed by law and the Tribunal has been authorized to follow the procedures as it may feel necessary for fair ends of justice. Chapter XII in Section 173 of the M.V. Act prescribes procedure of appeals only. The Legislature did not prescribe any provision of review or revision in the Act. It may be presumed that the Legislature left it open for the Tribunal to exercise such power or procedure for fair ends of justice in the course of deciding a claim case. Though no provision is prescribed in the M.V. Act or Rules framed thereunder regarding amendment of pleadings, addition of parties etc. the Page 12 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 Tribunals random allow such amendment etc. in exercise of the powers and the procedures prescribed under CPC or in exercise of such inherent power of a Civil Court.
10.1 The Hon'ble Supreme Court in the case of Rajendra Kumar v. Rambhai and others in Civil Appeal No.2842 of 2002 dated 18.04.2002, held that, 'The limitations on exercise of power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order of which review is sought, suffers from any apparent error on the face of the order, and permitting the error to stand will lead to the failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed."
10.2 Accordingly, the Apex Court in Rajendra Kumar v. Rambhai and others, the above referred judgment, clarifies that, for entertaining a review petition, the first and foremost requirement is that the order sought to be reviewed suffers from any error apparent on the face of the order and permitting the error to stand, will lead to failure of justice.
10.3 The power of review has not been explicitly laid down in the M.V. Act. The Gujarat Motor Vehicles, Rules, Page 13 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 1989 makes it clear that the claim Tribunals are required to exercise the powers of the Civil Court unless and until they are not inconsistent with the provisions of M.V. Act, 1988 and the rules made thereunder. Further, if the Rules does not make any provisions or are insufficient provisions, it further clarifies that the claims Tribunal shall follow the CPC for the trial.
11 In New India Assurance Company Ltd. v. Samar Roy, reported in 2002 (2) GLT 595, delivered by the Gauhati High Court, had held thus:
"Though the provision of review has been contemplated under the Code of Civil Procedure, it has not been incorporated in the M.V. Act yet being a Presiding Officer of Civil Tribunal constituted under the M.V. Act obviously for limited purpose. The learned Member, Tribunal has the power to review his own order if he is satisfied that the order is passed contrary to the provision of law or passed inadvertently having by passed any law and that is barred on the face of the record without taking further evidence. That power of review is implicit in every Court of civil nature regardless of the power expressly provided under the Code of Civil Procedure, of course, in exercising such implicit power of review, the Page 14 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 Court/Tribunal is supposed to follow the procedure prescribed under Order XLVII, Rule (1) of CPC."
11.1 In the case of Board of Cricket Control Vs. Netaji Cricket Club, reported in AIR 2005 Supreme Court 592, it was observed that application under Order 47 Rule 1 for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
12. The Gujarat Motor Vehicles Rules, 1989 provides for applicability of the Code of Civil Procedure. The M.V. Act, does not make provisions of the review, yet the Tribunal as per the Gujarat Motor Vehicles Rules, 1989 are required to exercise all powers of the Civil Court and in exercising such powers the claim Tribunals shall follow the procedure laid down in Code of Civil Procedure. Hence, the Tribunal would have the power to review its own order. While drawing the power from C.P.C., it is required that the Tribunal follow the procedure prescribed under Order XLVII Rule 1 of C.P.C.
12.1 In case of Kamlesh Verma Vs. Mayawati & Ors., reported in (2013) 8 SCC 320, the Hon'ble Apex Page 15 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 Court has held that the review proceedings are not by way of an appeal. It has to be strictly confined within the scope and ambit of Order 47 Rule 1 of CPC. It had been held that in review jurisdiction mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered that, the parties are not entitled to challenge the impugned judgment in the guise that alternate view is possible under the review jurisdiction.
12.2 The Apex Court thereafter has summarized the principles for review jurisdiction, which are reproduced hereinbelow:
"Summary of the Principles:
20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
20.1 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"
Page 16 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 have 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 [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 & Iron Ores Ltd. (2013) 8 SCC 337.
20.2 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.
(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 reheard 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 Page 17 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 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."
13. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed is ultra-vires, illegal and without jurisdiction. The power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. The jurisdiction of review can be derived only from the statute and thus, any order of review in absence of any statutory provision for the same is nullity being without jurisdiction.
14. Rule 213 of the Gujarat Motor Vehicles Rules, 1989, prescribes for exercise of powers of civil Court, Page 18 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 which provides that, the claims Tribunal may exercise all the powers of a Civil Court save in so far as the same are not inconsistent with the provisions of the Motor Vehicle Act, 1988 and the rules made thereunder. Rule 229 of the said rules prescribes for the applicability of Code of Civil Procedure and accordingly in so far as rules make no provision or make insufficient provision, the Claims Tribunal shall follow the procedure laid down in the Code of Civil Procedure, 1908 (V of 1908) for the trial of suits.
15. Thus, now it is well settled that power of review is not an inherent power. It has to be conferred by law either specifically or by necessary implications. Order XLVII Rule 1 of CPC provides for filing of an application for review. Perusal of Order XLVII Rule 1 shows that the review of a judgment could be sought; if,
(a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant;
(b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and
(c) on account of some mistake or error apparent on the face of record or any other Page 19 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 sufficient reason;
16. A tribunal constituted under the M.V. Act ought to keep in mind the benevolent purpose of the Act. The claimant here in the present case, was relying on both the disability certificates for the assessment of the compensation. Both the documents bear the endorsement of the Insurance Company, to admit the level of disability. Through review application, the claimant could show that the error on the record has direct bearing on the amount of compensation required to be assessed. It was not a case of any new evidence, but a document was already placed on record with the requisite procedure adopted for its admissibility. As set down in Raj Kumar Vs. Ajay Kumar (supra), relied upon by Advocate Mr. Bhalodi, in case of difficulties faced by injured claimants in securing presence of surgeons and treating doctors, practice is adopted by the parties, to give a consensual percentage of disability in connection to the disability certificate, following Raj Kumar Vs. Ajay Kumar (supra), where the certificates are marked by consent, dispensing the oral evidence the same is read as evidence. The tribunal while rejecting the review application failed to consider the aspect that when Exhibit-92 was read in evidence, there was no reason not to read Exhibit-78, which had been admitted in evidence by consent. It was not a case of any fraud played with the Court, the apparent error on the face of the record was brought to the notice of Court for Page 20 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 reviewal. Fraud on court, is unpardonable act.
17. A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. A fraudulent misrepresentation is called deceit and consists in leading in a man into damage by willfully or recklessly causing him to believe, and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on Court is always viewed seriously. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence.
17.1 In the case of Ram Chandra Singh Vs. Savitri Devi and others, [2004 (13) AIC 233 (S.C.)], the Hon'ble Supreme Court has expressed its views that, commission of fraud on court affects solemnity, regularity and orderliness of proceedings of Court; it amounts to Page 21 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 abuse of process of Court and Courts have an inherent right/power to set aside an order obtained by practicing fraud upon the Court. It had been expressed that, where the Court is misled by a party or Court itself commits a mistake which prejudices a party, Court has inherent power to recall its order.
17.2 The case of United India Insurance Company v. Rajendra Singh, reported in (2000) 3 SCC 581, observes the facts that the Insurance Company filed a review application before the Tribunal alleging that the claimants secured compensation from Motor Accidents Claims Tribunal practicing fraud. The Tribunal dismissed the petition on ground of want of power to review its own award. High Court, on a writ petition also refused to interfere. The observation of the Apex Court in the said case quotes, which reads thus:
"If a party complaining of fraud having been practiced on him, as well as on the Court by another party resulting in a decree, cannot avail himself of the remedy of review or even the writ jurisdiction of the High Court, what else is the alternative remedy available to him ?"
17.3 In the above referred case of United India Insurance Company v. Rajendra Singh (Supra), the Apex Court has observed that, the awards of compensation Page 22 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 secured by claimants from Motor Accident Claims Tribunal was by practising fraud and insurance company paid the amounts awarded to the claimants, but subsequently when the insurance company came to know about the fraud, it moved petitions purportedly under Sections 151, 152 and 153 CPC for recalling of the awards. However, the Tribunal dismissed the petitions on the ground of want of power to review its own awards and High Court also erred in refusing to go into the matter. In paragraph-15 and 16, the Apex Court observed as under:
"15. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.
16. The allegation made by the appellant Insurance Company, that claimants were not involved in the accident which they described in the claim petitions, cannot be brushed aside without further probe into the matter, Page 23 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 for, the said allegation has not been specifically denied by the claimants when they were called upon to file objections to the applications for recalling of the awards. Claimants then confined their resistance to the plea that the application for recall is not legally maintainable. Therefore, we strongly feel that the claim must be allowed to be resisted, on the ground of fraud now alleged by the Insurance Company. If we fail to afford to the Insurance Company an opportunity to substantiate their contentions it might certainly lead to serious miscarriage of justice."
18. By a combined reading of the provision of Order XLVII Rule 1 and Section 151 of Civil Procedure Code it cannot be said that when the Court recalls an order or judgment or decree, in exercise of inherent powers, such exercise of power will not be in conflict with the power under Order XLVII Rule 1 of CPC, rather it adds or supplements to the said power. Inherent jurisdiction of the Court to make order exdebito Justitiae is undoubtedly affirmed by Section 151, but that jurisdiction cannot be exercised so as to nullify the provision of the Code, where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. However, it is to be noted that Page 24 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022 C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 commission of fraud on Court vitiates all kind of proceedings and relief granted in consequence thereof, no Court will allow a parties to keep an advantage he has obtained by fraud. No judgment of a court can be allowed to stand if it has been obtained by fraud.
19. The Apex Court in case of Indian Bank v. Satyam Fibres (India) Pvt. Ltd., [(1996) 5 SCC 550], in para-22, held as under:
"22. The judiciary in India also possesses inherent power, specially under Section 151 C.P.C., to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the court's business."Page 25 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022
C/SCA/4483/2022 JUDGMENT DATED: 06/07/2022 19.1 Generally, a review must always be heard by same Judge or by same Court/Tribunal, but there are situations in which the same judicial officer is not available, then it is well settled that any other court of competent jurisdiction can hear the case.
20. Considering the above propositions of law, the order dated 16.09.2021 passed by the Motor Accident Claims Tribunal, Dhari in Civil Review Application No.1/2020 is quashed and set aside. The learned Motor Accident Claims Tribunal is thus directed to reconsider the disablement on both certificates and on fresh computation, compensation amount be declared within a period of three months from the date of this order. During the said exercise, the learned Tribunal may take the assistance of advocates on record of both the sides.
21. In view of the above, the petition is allowed in the aforesaid terms. Rule is made absolute to the above terms.
22. Record and Proceedings, if any, be sent back to the concerned Court forthwith.
(GITA GOPI, J.) Pankaj Page 26 of 26 Downloaded on : Sun Jul 24 23:36:43 IST 2022