Delhi High Court - Orders
Girish Chander Pal vs Bank Of India & Anr on 23 August, 2022
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
$~44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4997/2014
GIRISH CHANDER PAL ..... Petitioner
Through: Mr. Yugal Kishore Prasad, Advocate
versus
BANK OF INDIA & ANR ..... Respondents
Through: Mr. Rajat Arora and Mr. Niraj
Kumar, Advocates
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
% 23.08.2022 CM APPL. 36466/2022 Exemption allowed subject to just exceptions.
The application stands disposed of.
REVIEW PET. 200/2022 & CM APPL. 36467/2022
1. The present review petition along with an application for condonation of delay under Section 14 of the Limitation Act, 1963, has been filed by the applicant-petitioner against the order dated 22nd April 2015 passed by a co- ordinate bench of this court in W.P. (C) No. 4997 of 2014, by which the writ petition was dismissed.
2. The applicant-petitioner has prayed to set aside the aforesaid order dated 22nd April 2015, which reads as under:-
"1. After arguments, the writ petition is not pressed on merits.
2. Petition is disposed of accordingly. "Signature Not Verified Digitally Signed By:GAURAV SHARMA W.P.(C) 4997/2014 Page 1 of 9 Signing Date:25.08.2022 17:26:58
3. The father of the applicant-petitioner passed away on 10th January 2010, and terminal dues were paid by the employer to the family of the deceased and even ex-gratia amount to the tune to Rs.3,95,480/- was paid to the family of the deceased. His representation seeking compassionate appointment, dated 12th May 2012, was rejected by the employer.
4. Pursuant to this rejection, the applicant-petitioner had filed a writ petition which was dismissed vide order dated 22 nd April 2015, as withdrawn, and not pressed on merits. The applicant-petitioner claimed that a restoration application was filed in the year 2016, however, there is nothing on record to substantiate his claim.
5. After this, in the year 2019 the applicant-petitioner filed a restoration application, for restoration of the order dated 22nd April 2015 and to decide the writ petition on merits. A co-ordinate bench of this court vide order dated 1st May 2019 dismissed the restoration application as the delay of 1432 days was not properly explained. Order dated 1st May 2019 has been reproduced below: -
"In the present application, the delay of 1432 days has not been properly explained, therefore, there is no ground to condone the delay in filing the restoration application.
The application is, accordingly, dismissed. Consequently, CM APPL. 20416/2019 IS also dismissed as infructuous."
6. Hence, this review petition has been filed.
7. With regard to the application for condonation of delay under Section 14 of the Limitation Act, 1963, learned counsel appearing on behalf of the Signature Not Verified Digitally Signed By:GAURAV SHARMA W.P.(C) 4997/2014 Page 2 of 9 Signing Date:25.08.2022 17:26:58 applicant-petitioner has contended that the petitioner is a very poor person, and he was permanently residing at Uttar Pradesh in a rural area. Now the petitioner is the only elder male member of his family to look after the dependant legal heirs of the deceased. Now, the petitioner was continuously in Hospital at Pratapgarh, Uttar Pradesh for treatment of his old mother from 01.06.2019 to 15.01.2020.
8. Further, he has submitted that during the period of 5th February 2020 to June 2021, the wife of the petitioner was also in a hospital because she was suffering from serious gynanae disease, and the wife of the petitioner got her stomach operated. Therefore, the wife of the petitioner became very weak, and the burden of the small children was also on the shoulder of the petitioner.
9. With regard to the Review Petition, learned counsel on behalf of the applicant-petitioner has submitted that the Coordinate Bench failed to appreciate that the mother of the petitioner had filed the representation letter to the respondents seeking compassionate appointment of her elder son within the limitation period after death of the deceased, but the respondents had malafide intention to get the thumb impression of the mother of the petitioner and to withdraw the said representation application, as assurance for appointment of her elder son.
10. Further, he has argued that the appellant could not approach their counsel and was under the impression that the said writ petition has been pending adjudication. It is only when the petitioner came to Delhi in the year 2016, he came to know that the writ petition has been disposed of without hearing on the merits.
Signature Not Verified Digitally Signed By:GAURAV SHARMA W.P.(C) 4997/2014 Page 3 of 9 Signing Date:25.08.2022 17:26:5811. He has also contended that, the respondent had deliberately, and with a mala-fide intention paid the ex-gratia amount to the mother of the petitioner in place of compassionate appointment.
12. Lastly, the learned counsel has contended that the writ petition was not heard on merits and the petitioner has suffered irreparable loss and injury due to which the life of the petitioner has been ruined and the Coordinate Bench of this Court has failed to appreciate that the respondents had paid the ex-gratia amount of Rs. 3,95,480/- which is less than 60% of last drawn gross salary of the deceased.
13. As noted, the applicant-petitioner had on earlier occasion filed a restoration application numbered as CM APPL. 20417 of 2019 in Writ Petition (Civil) No. 4997 of 2014, which was dismissed by a Coordinate Bench of this Court. On appeal to a Division bench of this Court in LPA 79/2022, the application met the same fate and was termed as non- maintainable. The Division Bench noted that: -
"6......Otherwise also, once W.P.(C) No.4997/2014 was withdrawn on 22.04.2015 by the Appellant, without pressing the same on merits, a review application could have been filed by the Appellant and the restoration application filed by the Appellant was not maintainable."
14. The applicant-petitioner claimed that a restoration application was filed in the year 2016, however, there is nothing on record to substantiate his claim. The fact remains that the restoration application was preferred by the applicant-petitioner with a delay of 1432 days.
15. In the present case, it is not disputed that the review petition has been filed after a delay of 2670 days. The grounds raised by the applicant-
Signature Not Verified Digitally Signed By:GAURAV SHARMA W.P.(C) 4997/2014 Page 4 of 9 Signing Date:25.08.2022 17:26:58petitioner are not sufficient to condone the extra-ordinary delay in the filing of the review petition. The applicant-petitioner has failed to properly explain the delay in the filing of the review petition.
16. Even otherwise, the applicant-petitioner has argued that there is 632 days' delay in the filing of the review petition and has filed an application under Section 14 of the Limitation Act, 1963 for the condonation of delay. In my opinion, the application is misconceived and misplaced as the petitioner cannot seek to exclude the period during which his restoration application was pending before a Co-ordinate Bench of this Court as well as before a Division Bench of this Court, as it cannot be said to be prosecuted with due diligence. For the sake of clarification, Section 14(2) has been delineated below: -
"14. Exclusion of time of proceeding bona fide in court without jurisdiction: -
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it."
17. It is crystal clear from the impugned order dated 22 nd April 2015, that the writ petition was dismissed as withdrawn without being pressed on merits. This has also been noted by a Division Bench of this Court, while terming the restoration application as non-maintainable. Therefore, the Signature Not Verified Digitally Signed By:GAURAV SHARMA W.P.(C) 4997/2014 Page 5 of 9 Signing Date:25.08.2022 17:26:58 requirement of due diligence to invoke Section 14 has not been satisfied in the facts and circumstances of the present case.
18. Even assuming that the delay of 632 days has been properly explained by the applicant-petitioner, the review petition will meet the same fate, because he has failed to properly explain the delay between the period ensuing from the dismissal of the writ petition to the filing of the restoration application, i.e., from 22nd April 2015 to 22nd April 2019. Therefore, the CM APPL. 36467 of 2022, seeking condonation of delay is dismissed.
19. With respect to the extent and scope of review jurisdiction, it has been explained by the Hon'ble Supreme Court by various decisions which have been discussed below.
20. In Aribam Tuleshwar Sharma Vs. Aibam Pishak Sharma & Ors., (1979) 4 SCC 389, the Hon'ble Supreme Court has held as under:
"3. ......... It is true as observed by this Court in Shivdeo Singh v. State of Punjab that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But it may not be exercised on the ground that the decision was erroneous on merits. That would be court the Signature Not Verified Digitally Signed By:GAURAV SHARMA W.P.(C) 4997/2014 Page 6 of 9 Signing Date:25.08.2022 17:26:58 province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate."
21. In Parsion Devi and others Vs. Sumitri Devi & Ors., (1997) 8 SCC 715, the Hon'ble Supreme Court has held that:
"9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise"
22. In Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526, the three-Judge Bench referred to the provisions of the Travancore Code of Civil Procedure, which was similar to Order 47 Rule 1 CPC and observed:
"32. ... It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on Signature Not Verified Digitally Signed By:GAURAV SHARMA W.P.(C) 4997/2014 Page 7 of 9 Signing Date:25.08.2022 17:26:58 three specified grounds, namely, (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record, and (iii) for any other sufficient reason...."
23. So, it transpires that review is available on very limited grounds, namely:
i. discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed.
ii. mistake or error apparent on the face of the record. iii. for any other sufficient reason.
24. It is not the case of petitioner that there has been discovery of new and important matter or there has been mistake apparent on the face of record. On the contrary, the petitioner is delving into the process of reasoning and arguments to give weight to his averments in the review petition. The arguments of malafide cannot be delved into in the exercise of the review jurisdiction. The powers of review are not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate. A review petition has a limited purpose and cannot be allowed to be an appeal in disguise.
25. Due to the abovementioned observations, the review petition is not sustainable in law and is liable to be dismissed as being barred by limitation. However, even on merits, as the applicant-petitioner had not pressed the writ Signature Not Verified Digitally Signed By:GAURAV SHARMA W.P.(C) 4997/2014 Page 8 of 9 Signing Date:25.08.2022 17:26:58 petition on merits before a Co-ordinate Bench of this Court, therefore, as per the principles of review jurisdiction, the arguments raised in the review petition cannot be a ground for review as per the law laid down by the Hon'ble Supreme Court.
26. Accordingly, the instant review petition is dismissed.
CHANDRA DHARI SINGH, J AUGUST 23, 2022 Dy/mg Signature Not Verified Digitally Signed By:GAURAV SHARMA W.P.(C) 4997/2014 Page 9 of 9 Signing Date:25.08.2022 17:26:58