Anjan Bhattacharya vs Latika Arpita Bhattacharya

Heard on I.A. No 01 i.e. application for condonation of delay for filing review petition.

The averments in the application would show that there is delay of 233 days excluding the lock down period. The delay during the lock down period was condoned by order of Hon'ble Supreme Court.

Learned counsel for the petitioner would submit that this court by its order dated 30.07.2019, at para 22 has directed for payment of permanent alimony to the tune of Rs. 10 Lakhs by the husband to the wife in four installments. He would further submit that the amount so granted is not based on any evidence on record and without any rhyme and reason the amount of permanent alimony has been ordered. He further submits that in SLP No. 9503/2018 and Criminal Appeal No. 730/ 2020 (Rajnesh Vs. Neha), hon'ble Supreme Court has held that in order to fix the permanent alimony the maintenance award should be reasonable and realistic and the income of the parties should be considered. Therefore, he prays that the part of order of permanent alimony requires review, as there is apparent wrong on the face of it.

We have perused the case file of the first appeal and the documents attached with this petition. Perusal of order dated 30.07.2019, would show that there is delay of 233 days excluding the lock down period. Though, it has been stated that the husband do not have any means to pay the amount of permanent alimony but nothing has been placed on record, prima facie, to form an opinion. Even otherwise, if the petitioner was aggrieved by order dated 30.07.2019 granting permanent alimony then the same would not be covered by the principle of review.

The Supreme Court in the recent judgment dated 03.11.2020 in Civil Appeal No. 3601 of 2020 in case of Shri Ram Sahu (Dead) Through LRs V. Vinod Kumar Rawat and Ors, had laid down that the judgment should be open to review inter alia if there is a mistake apparent on the fact 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 fact of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. However, held that in exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be 'reheard and corrected'. It is further held that there is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'.

Applying the aforesaid principle, it is observed that if the petitioner was sanguine of the fact that the order is erroneous, he could have availed other remedy available to him under the law. It appears that till today no amount has been paid and still averments are being made to arrest the operation of such permanent alimony. The record of first appeal of High court would show that the wife was represented through legal aid counsel meaning thereby she do not have any sustainable source of income. Having considered the totality of the facts and the reasons assigned in the application under Section 5 of Limitation Act and also the reasons assigned in the application for review, we are not inclined to entertain this petition.

Accordingly, the petition is dismissed.