Calcutta High Court (Appellete Side)
Messrs Serajuddin & Co vs Union Of India & Ors on 18 July, 2017
Author: Biswanath Somadder
Bench: Biswanath Somadder
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Biswanath Somadder
AND
The Hon'ble Justice Sankar Acharyya
RVW 67 of 2017
with
CAN 4329 of 2017
Messrs Serajuddin & Co.
Vs.
Union of India & Ors.
Mr. S.K. Kapur, Sr. Advocate,
Mr. Jishnu Saha
Mr. D.N. Sharma
Mr. Ratnesh Kumar Rai
Mr. Anunoy Basu
... For the petitioner/appellant.
Mr. Surya Prosad Misra, Ld. Advocate General,
State of Odisha,
Mr. Pravat Kumar Muduli
Ms. Papiya Banerjee (Bihani)
... For the State of Odisha.
Heard on : 18.7.2017.
Judgment on: 18.7.2017.
Biswanath Somadder, J.
Let the affidavit-of-service filed in Court today be taken on record. Let a photocopy of the receipt, indicating payment of costs in terms of the judgment and order dated 16th February, 2017, be also taken on record.
2On 16th February, 2017, this Bench had delivered a judgment on an application taken out by Messrs Serajuddin & Co. seeking recall of an order of dismissal of an appeal dated 21st June, 2001, upon condonation of delay in preferring the same after a period of more than 15 (fifteen) years. The matter was heard at length and the Court proceeded to answer a question as to whether the applicant, i.e., Messrs Serajuddin & Co., being a registered partnership firm, could be allowed benefit of section 5 of the Limitation Act on the basis of the cause shown in the application in the backdrop of the principles of law laid down by the Supreme Court in the judgments referred during the course of hearing. This Court - for reasons stated in the judgment and order dated 16th February, 2017 - proceeded to dismiss the application for recalling of the order dated 21st June, 2001, with costs assessed at 300 G.Ms., which was directed to be deposited with the State Legal Services Authority, West Bengal, for being earmarked for its utilization by the Mediation and Conciliation Committee of the High Court. Now the present application has been filed on 2nd May, 2017, praying for review of the said judgment and order dated 16th February, 2017, with a further prayer for recall of the order and for the restoration application to be set down for hearing.
On behalf of the review-applicant a reference was made - during the course of hearing - to paragraph 14 of the counter-affidavit filed on behalf of the State of Orissa in connection with the recalling application, in order to contend that the statement made therein was not correct. According to the applicant, the judgment and order dated 16th February, 2017, having taken the said paragraph 14 of the counter-affidavit into consideration, tantamounts to an error apparent on the face of the record.
On the other hand, the learned Advocate General of the State of Odisha has referred to the same paragraph 14 of the counter-affidavit as well as certain provisions of the Mines and Minerals (Development and Regulation) Act, 1957, and the relevant provisions of the Mines and Minerals (Other than Atomic and Hydrocarbon Energy Minerals Concession) Rules, 2016, in order to contend that the said paragraph 14 of the counter-affidavit of the State of Orissa was correct on facts.
We are of the view that the issue sought to be raised on behalf of the review-applicant by referring to paragraph 14 of the counter-affidavit of the State of Orissa - or its correctness - is not relevant at all for the purpose of deciding whether a review of the judgment and order dated 16th February, 2017, is called for in the instant case.
3
The principles applicable for review of a judgment and order - in the facts and circumstances of the instant case - would be attracted only if there is an error apparent on the face of the record. Although this Court while delivering the judgment and order dated 16th February, 2017, referred to paragraph 14 of the counter-affidavit filed on behalf of the State of Orissa, the same was done only in the context of the overall question which the Court posed unto itself and that is, whether the applicant, Messrs Serajuddin & Co., being a registered partnership firm, could be allowed benefit of section 5 of the Limitation Act on the basis of the cause shown in the application seeking recall of an order of dismissal of an appeal dated 21st June, 2001, upon condonation of delay in preferring the same after a period of more than 15 (fifteen) years in the backdrop of the principles of law laid down by the Supreme Court in the judgments referred during the course of hearing of that application. It was in such circumstances that this Court proceeded to deliver the judgment and order dated 16th February, 2017, with the following observations: -
"The facts of the instant case, as discussed hereinbefore, do not bring forth even an iota of justifiable reason as to why the Court should use its discretion on the basis of cause shown by the litigant - in the instant case, a registered partnership firm - in order to come to a finding that "sufficient cause" has been palpably shown for the purpose of condoning the delay of over
15 years in filing of the application seeking recall of the order dated 21st June, 2001. As observed earlier, we do not even hesitate to add that the instant application practically borders on abuse of process of Court by a litigant, being a registered 4 partnership firm, which chose to file it after 15 (fifteen) years simply because of the existence of section 5 of the Limitation Act, 1963, in the statute book and its liberal interpretation, particularly in respect of the phrase, "sufficient cause", being construed as such.
Before parting with the matter, we quote the following lines from the judgment of the Supreme Court render in Esha Bhattacharjee (supra):
"31. Neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice.
32. The plea of lack of knowledge in the present case really lacks bona fides. ..."
No expression could be more apt while considering the facts of the instant case.
For reasons stated above, the application for recalling of the order dated 21st June, 2001, upon condonation of delay of more than 15 (fifteen) years, is liable to be dismissed with exemplary costs and is accordingly dismissed with costs assessed at 300 G.Ms. to be deposited with the State Legal Services Authority, West Bengal, for being earmarked for its utilisation by the Mediation and Conciliation Committee of the High Court.
5
Let this matter appear a fortnight hence only for the purpose of ensuring compliance of the above direction for depositing costs."
As such, we do not find any error apparent on the face of the record for reviewing the judgment and order dated 16th February, 2017. The review application and the connected application, being CAN 4329 of 2017, are liable to be dismissed and stand accordingly dismissed.
(Biswanath Somadder, J.) I agree.
(Sankar Acharyya, J.) ap