Kandasamy vs Rathinambal and others

Invoking the review jurisdiction of this Court under Order 47, Rule 1 of Code of Civil Prodedure, the petitioner/appellant in C.M.P. No. 14563

of 1991 in S.A. No. 1659 of 1991 has filed this application to review the order passed by a learned single Judge of this Court, in the above

petition, dated 7-4-1994 on the ground of legal error, grave injustice and apparent mistake.

The applicant is the sixth defendant in the suit, O.S. 137 of 1984 on the file of the First Additional Subordinate Judge, Pondicherry. The first

respondent filed the suit against the respondents 2 to 6, the defendants 1 to 5 and the applicant herein for the relief of specific performance of an

agreement of sale dated 27-4-1977 executed by the 2nd respondent for herself and on behalf of the respondents 3 to 5, agreeing to sell the suit

property for a sum of Rs. 22,500/- in all. An advance of Rs. 13,780/- was received, agreeing to execute the sale deed within a period of six

months from the date of the execution of the said agreement. Though the first respondent/plaintiff was ready and willing always to pay the balance

and get the sale deed executed, respondents 2 to 5 did not comply with the demands, which necessitated the first respondent to file the above suit.

The suit was resisted or; the ground that the said agreement of sale claimed to have been entered into is not a valid one for dearth of legal sanctity

according to the Court of law along with other grounds inter alia. Respondents 2 to 5 who are defendants 1 to 4 in the meanwhile, are claimed to

have sold the suit property to the 5th defendant by name Lakshmi Ammal who in turn, sold the same to the 6th defendant, Kandasamy, who is the

appellant as well as the applicant herein. According to the first respondent herein viz., the plaintiff, the sale deed executed by the respondents 2 to

5 to the 6th respondent and the sale deed executed by the 6th Respondent in favour of the applicant herein are not valid.

The execution of the sale deed in favour of the 6th respondent by respondents 2 to 5 in respect of the suit property was admitted and so also

the transfer of the suit property by the 6th respondent in favour of the applicant herein was admitted. Consequently, the applicant herein initiated

eviction proceedings against the tenant by name Shanmugham Chettiar and got an order of eviction, which was also admitted by respondents. It

was further admitted that the first respondent herein viz., the plaintiff has already purchased one-fourth share in the suit property from one

Vaidyanathan and his legal heirs. However, the validity of the agreement of sale claimed by first respondent/plaintiff was denied and on that ground,

the suit for the relief of specific performance was hotly contested. As no legal sanction was obtained from the Court of law and the claim of the

plaintiff was also barred by the law of Limitation and so on, after full trial, the suit O.S. 137 of 1984 was dismissed in full by the trial Court on 4-1-

1989. An appeal was preferred against the said judgment in A.S. No. 32 of 1989 by the first respondent/plaintiff. The appeal was allowed and

consequently, a decree for specific performance in favour of the first respondent/plaintiff was passed on 23-2-1990.

Aggrieved at this, the 6th defendant in the suit, who is the purchaser of 3/4th of the suit property from the 5th defendant, filed second appeal

along with a petition CM.P. 14563 of 1991 to condone the delay of 335 days u/s 5 of Limitation Act. The applicant/6th defendant purchased the

suit properly under the sale deed dated 23-11-1981 from the 5th defendant, under Ex. B.3, whereas the 5th defendant purchased the property on

13-6-1977 and 30-10-1980 under Exs. B. 2 and 4. As on the date of Ext. B.4th, the 5th respondent was minor, the sale deed has been rectified

on 19-8-1985 under Ex. B.5.

Aggrieved at the judgment rendered by the learned lower appellate Judge in A.S. No. 32 of 1989, the present applicant filed I.A. 199 of 1990

for review of the judgment dated 23-2-1990. However, it was dismissed on 26-3-1991. Thereafter, a Civil Revision Petition was filed on this

Court against the order made in the Review Petition and that was also dismissed by this Court. Subsequently the present Second Appeal was

presented in this Court on 29-4-1991. For the delay in filing the second appeal against the judgment of the first Appellate Court dated 23-2-1990,

the reason stated in the affidavit filed along with CM.P. No. 14563 of 1991 was that the application for getting certified copies of judgment and

decree was made on 22-4-1991 and charges were called for on 24-4-1991 and the same was deposited on the same day and copies were made

ready on 26-4-1991 and delivered on the same date and so, the second Appeal was presented on 29-4-1991. As against the disposal of the first

appeal on 23-2-1990, the second Appeal ought to have been filed on or before 24-5-1990, but it was filed only on 29-4-1991. It was stated by

the applicant that the filing of review application in I.A. 199 of 1990 before the lower Appellate Court on 30-3-1990 was within the time only on

the advice that Second Appeal would not lie and that, therefore, the filing of review application, waiting for the disposal of the same and

consequential filing of Civil Revision Petition were all on the advice given by the counsel and the delay till 22-4-1991 was due to the wrong advice

and there were no deliberate or wanton activities or attitutes on the part of the applicant to controvert the condonation of delay. The applicant has

further stated that the moment he was advised properly on 22-4-1991 he filed application for getting certified copies of judgment and decree made

in the First Appellante Court and he took every steps and got the copies on 26-4-1991 and accordingly, on 29-4-1991, he filed the present

Second Appeal, however, with an application to condone the delay, and therefore, in this way, the delay of 335 days in filing the Second Appeal

had happened.

The first respondent who is the plaintiff resisted the said application by contending inter alia that the petition was filed only with the mala fide

intention of dragging on the proceedings for some more time by filing the second Appeal, with a view to cause monetary loss and hardship to this

respondent. Respondents 2 to 5 who are the defendants 1 to 4 failed to prefer any Second Appeal even in the context that the decree passed by

the lower Appellate Court is only against them. The first respondent contended that the present applicant who is the subsequent purchaser to the

utter disregard of the agreement of sale executed in favour of the plaintiff-first respondent herein, cannot have any grievance in this Second Appeal.

It has also been contended by her that the applicant has filed Copy Application No. 5661 of 1990 for getting the certified copies of judgment and

decree of lower Appellate Court and it was furnished to the appellant as early as on 7-9-1990 and the Second Appeal was actually presented

before this Court only on 29-4-1991. The recalcitrant attitude of the appellant has been referred to by stating that even the affidavit to be filed in

support of the petition to condone the delay was absent and that has not been filed along with the petition, but, however, it was presented only on

11-10-1991, pointing out the procedural law laid down under Rule 3-A of Order 41, of Code of Civil Procedure, the suppression of the fact that

certified copies of decree and judgment of the lower Appellate Court in Copy Application No. 5661 of 1990 were obtained on 7-9-1990, has

been emphasised much in opposing the relief being granted to the applicant. In short, therefore, it was contended that there was no adequate

ground or material supplied by the applicant to condone the delay of 335 days.

On hearing both sides, learned single Judge, Swamidurai, J. (as he then was), by passing the impugned order on 7-4-1994 dismissed the

application and consequently, refused to condone the delay. Aggrieved at this, on the ground of want of legal propriety, and error and mistake, this

review application is being canvassed.

I have heard the Bar for and against the impugned order very much involved in the instant case.

Before proceeding further, it has become necessary for me to advert the procedural law laid down under Order 47, R. 1 Code of Civi!

Procedure which is extracted as hereunder:

Rule 1. (1) Any person considering himself aggrieved -

(a) by a decree of 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 of 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 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 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"".

The explanation provided above has been added by Act 104 of 1976. It is clear from a careful reading of the above rule, that a party

aggrieved by a decree or an order from which an appeal is allowed, but no appeal has been preferred, nor any appeal was allowed, shall prefer an

application for review on the discovery of a new important matter or evidence which was not within his knowlege during the course of the exercise

of his due diligence and the decree or order was passed on account of some mistake or error apparent or for any other sufficient reason, to the

Court which passed such an order or decree.

Section 114 of CPC provides like this:--

Subject as aforesaid, any person considering himself aggrieved -

(a) by a decree or order from which an appeal is allowed by this code but from which no appeal has been preferred.

(b) by a decree or order from which no appeal is allowed by this code, or

(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made

the order; and the Court may make such order thereon as it thinks fit.

By reading of the above provision of law, it is also noted that a similar and analogous right vested with a person who is aggrieved by a decree or

order for which an appeal is allowed by the Code, but no appeal has been filed, or no appeal has been allowed is to apply with the same Court for

review of the judgment or order, provided, no (sic) the establishments of the grounds more specifically spelt out under Order 47 of Code of Civil

Procedure.

On the concept of justice and review to be culled out, the Supreme Court in S. Nagaraj and Others Vs. State of Karnataka and Another, , has

spelt out the legal ratio as follows:--

Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court

should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public

Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher Courts is founded on equity and fairness. If the

Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in

fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error.

Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact

or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the

mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its

constitutional and legal obligation to set it right by recalling its order. Here as explained, the Bench of which are of us (R.M. Sahai, J.) was a

member did commit an error in placing all the stipendiary graduates is the scale of First Division Assistants due to State''s failure to bring correct

facts on record. But that obviously cannot stand in the way of the Court correcting its mistake. Such inequitable consequences as have surfaced

now due to vague affidavit filed by the State cannot be permitted to continue.

review literally and even judicially means re-examination or re-consideration. Basic Philosophy inherent in it is the universal acceptance of human

fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made.

Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even then there was no

statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the Courts culled

out such power to avoid abuse of process or miscarriage of justice. In AIR 1941 1 (Federal Court) the Court observed that even though no rules

had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy

Council in Rajunder Narain Rae v. Bijai Govind Singh, 1 Moo PC 117 that an order made by the Court was final and could not be altered.

Nevertheless, if by misprison (sic) in embodying the judgments, by errors have been introduced, these Courts possess, by common law, the same

power which the Courts of record and statute have of (sic) rectifying mistakes made in drawing up its own judgments, and this Court must possess

the same authority. The Lords have, however, gone a step further and have corrected mistake introduced through inadvertence in the details of

judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled

inconsistencies.

Basis for exercise of the power was stated in the same decision as under:--

It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice

being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been

inadvertently made as if the party had been heard."" Rectification of an order thus stems from the fundamental principle that justice is above all. It is

exercised to remove the error and not for disturbing finality. When the Constitution was framed and substantive power to rectify or recall the order

passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to

visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the

Constitution. And Clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be

reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in Civil proceedings on ground

analogous to Order XLVII, Rule 1 of the Civil Procedure Code. The expression, ''for any other sufficient reason'' in the clause has been given an

expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to

exercise the power. Apart from Order XL, Rule 1 of the Surpeme Court Rules this Court has the inherent power to make such orders as may be

necessary in the interest of justice or to prevent the abuse of the process of Court. The Court is thus not precluded from recalling or reviewing its

order if it is satisfied that it is necessary to do so for sake of justice.

From the legal ratio held by the Surpeme Court in the above case law, it is deducible that review though literally and even judicially means re-

examination or reconsideration, but the basic philosophy inherent in it is the universal acceptance of human fallibility and yet in the realm of law, the

Courts as well as the statutes strongly lean in favour of finality of decision and exceptions to them have been carved out to correct accidental

mistakes or miscarriage of justice for which even there was no specific rules or statutory provisions framed by the Court of higher forum to rectify

such mistakes thus the horison of the power of the Court and the law, in order to render proper justice, has been extended by Supreme Court to

an aggrieved person by virtue of a decree or order, on the ground of human fallibility, or a mistake or error of law and to prevent or end the

miscarriage of justice. Though finality is presumed on the rendering of every judgment or order, when it is found with apparent error or mistake of

law or miscarriage of justice, then, the same forum will recitify the same in spite of the fact, that in the realm of law, Courts in this courty and even

the statutes lean strongly in favour of finality of decision legally and properly made. However, exceptions both statutory and judicially have been

carved out to correct accidental mistakes or to prevent miscarriage of justice. This philosophy has been carved out from the the very object of the

statute provided under Order 47, Rule 1 Code of Civil Procedure. It is, therefore, under the circumstances, if any decree or order passed by a

Court is found inherent with apparant error or mistake of law causing miscarriage of justice and for other sufficient reasons by which justice could

not be rendered to the aggrieved person, review of the said order or judgment is possible, but certainly not otherwise. So far as this above legal

proposition is concerned, the Bar for the respective parties in this case, have no dispute or controversy.

Mr. G. Masilamani, learned Senior counsel appearing for the applicant would confine his main throng of attack on the impugned order only by

saying that the impugned order passed by the learned single Judge of this Court is perverse for the reason that learned single Judge has not

considered the reasonings and grounds provided thereof for condoning the delay of 335 days, but however has gone into the merits of the appeal

and as admitted by the other learned single Judge of this Court on identifying the substantial question of law which is a gross mistake and an error

apparent, and that without hearing the parties in the appeal while it is pending for looking into the same, and instead of going into (he merits of the

application to condone the delay, the observation given by the leaarned single Judge is certainly an error of law and the order is inherent with

human fallibility and for the said reason, the order is to be reviewed in accordance with law. On the other hand, Mr. G. Subramanian learned

Senior counsel appearing for the respondents would controvert the said contention by submitting that the mandatory procedure laid down under

Rule 3A of Order 41, of CPC has not been followed by the applicant/appellant and when the second Appeal was presented, the affidavit to be

accompanied with the petition to condone the delay has not been filed and the petition to condone the delay was rightly rejected by learned single

Judgs and even so, the suppression of the fact of obtaining certified copies on 7-9-1990 would go to the root of the controversy and that

therefore, severe mala fide has been established in the claim of the applicant and so, for the said reason, the review application cannot be

entertained at all. By contending so, the impugned order passed by learned single Judge was justified by learned Senior Counsel appearing for

respondents.

Rule 3A of Order 41, of CPC is as follows:--

(1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported

by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause or not preferring the appeal within

such period.

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the

respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 of Rule as the case may

be.

(3) Where an application has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against

which the appeal is proposed to be filed so long as the Court does not, after hearing under Rule 11, decide to hear the appeal"".

The above procedural law has mainly been relied upon by and on behalf of the respondents. For the reasons that when the Second Appeal

was filed on 29-4-1991, though a petition to condone the dealy was accompanied, but however with no affidavit stating the reasons for the

condonation of the delay and it appears from the case records that the affidavit containing reasons and grounds for condonation of delay was filed

on 11-10-1991, in such circumstances the learned single Judge had held that the application seeking for condonation of delay was not proper. The

explanation offered on behalf of the applicant by the Bar for such delay is that strict compliance of the procedure need not be followed and since

many of the litigants would come at the last moment for filing the Second Appeal or Revision sometimes with delay in filing the appeal or revision as

the case may be, it may not be possible for the party to prepare an affidavit and immediately file it along with the appeal and the application for

condoning the delay and only when the Office returns the papers, the affidavit could be filed at the time of representation. Accepting the said

contention, learned single Judge has given the view in the following words:--

No doubt, on the practical aspect of the case, the submission made by the Mr. G. Masilamani appears to be reasonable and probable also.

According to him, justice should not be defeated on account of technicalities aspecially in this case when the affidavit could not be filed immediately

along with the appeal on 29-4-1991. But assuming without admitting that this argument is correct, but there is no mention about the receipt of

certified copies of judgment and decree on 7-9-1990 as pointed out by the first respondent in bis counter and the appellant has not stated anything

about the receipt of those certified copies of judgment and decree and we are not able to know as to what had happened to these copies obtained

on 7-9-1990"".

Apart from the findings given by the learned single Judge as above referred with regard to the non-filing of affidavit along with the petition as

provided under Rule-3A of Order 41, Code of Civil Prodcedure, I have necessarily to refer to case laws which are the following:--

(1) In Das Gupta Vs. Prakash K. Shah, , it was observed as follows:--

Despite the apparently peremptory language of Rule 3A of Order 41 of the Code the Appeal preferred after the expiry of period of limitation

cannot be dismissed summarily on the ground that the application for condonation of delay does not accompany the memo of appeal. The obvious

object of making such a provision is to see that the appeal will not be heard unless delay in the filing the said appeal is condoned after proper

notice to the respondent. This is evident from the provisions contained in sub-rule (2) of Order 41, Rule 3A of the Code. This sub-rule provides

that when the court does not reject the application for condonation of delay summarily notice of the said application should be issued to the

respondent and it is only after the said application is finally decided that the Court can proceed to dismiss or admit the appeal under the provisions

of Rule 11 or Rule 13 respectively of Order41 of the Code. This must be so because several times it might be the case of the appellant that there is

no delay at all and in such a case after examination of the papers if the Office of the appeal Court finds that there is delay then an application for

condonation of delay may legitimately be presented by the appellant. A proper construction of the procedural rule like this must take into account

contingency such as this.

(2) Maya Devi Vs. M.K. Krishna Bhattathiri and Another, , The Division Bench of Kerala High Court while dealing with the scope of Rule 3A of

Order 41, CPC has observed as follows:--

Rule 3A of Order 41 is intended only to emphasize that if an appeal had been filed out of time before the appeal is taken up for consideration the

question of delay must be considered before any order is passed in the appeal. It is to achieve this object that the Rule provides that the appeal

should be accompanied by a petition to excuse the delay. If the petition to excuse the delay is filed as a consequence of the direction of the Court

to cure the defect, when the defect is cured there is a valid presentation of the appeal.

Once the Court returns the same for representation after supplying the deficiency or curing the defect it must mean that permission is granted by the

Court for that purpose and once that is complied with it should be deemed to have been presented on the day it was originally filed. This is on the

same principle as is provided for in Section 149 CPC and Section 5 of the Court-fees Act.

It is therefore, under the circumstances, if the above views of the Courts, referred to in the above case laws, are imported to the facts of the

case, it is noticed that on the date of filing the Second appeal on 29-4-1991, it was filed along with a petition for condonation of delay but,

however without any affidavit. According to the learned single Judge, the affidavit in support of the application was sworn on 29-9-1991 and it

was presented in this Court on 11-10-1991. It is, therefore, under the circumstances, noticed that the second appeal was presented on 29-4-1991

with as petition for condoning the delay viz., C.M.P. No. 14563 of 1991, however with no affidavit, but the affidavit was contemplated was sworn

on 29-9-1991 and the same was filed in the Court on 11-10-1991. The case records are silent about the facts that only on the returns to cure or

comply with the defects, the sworn affidavit was filed on 11-10-1991. There was no evidence or finding in this regard. However, it is seen that the

sworn affidavit as well as the petition to condone the delay as contemplated under Rule 3A of Order 41, CPC have been filed and accepted by

this Court and numbered as C. M. P. No. 14563 of 1991 for which a counter-affidavit has also been filed. There was no finding given by the

learned Judge as to whether on the above given facts, the petition filed seeking for condonation of delay is a defective one or is liable to be

rejected. But instead, learned single Judge with great respect has proceeded to give the following findings:--

I have carefully gone through the material records and the judgments of the Courts below. The Trial Court dismissed the suit on the sole ground

that the first defendant-mother without getting permission of the Court for selling shares of the minors, cannot execute an agreement of sale in

favour of the plaintiff. The lower appellate Court found that the very same defendants 1 to 4 without getting any permission from the Court for

selling the shares of the defendants 3 to 4, have sold the property to the 5th defendant for valid ..... consideration and the 5th defendant in turn sold

the property to the 6th defendant. Unfortunately, in this case, neither the defendants 1 to 4 nor the defendants 5 and 6 have come forward to repay

the advance amount of Rs. 13,780/- paid by the plaintiff on 27-4-1977. It appears that defendants 1 to 4 and also defendants 5 and 6 have tried

to cheat the poor woman, the plaintiff herein, without at least offering to repay the huge advance amount of Rs. 13,780/- paid by her as early as on

27-4-1977. We have to think about the value of such huge money paid by the plaintiff on 27-4-1977 and we have to think about the present value

of the money and the rise in price of immovable property after a period of 16 years from 1977. Defendants 1 to 4 have not contested the suit in the

Trial Court even though they have filed Written Statement. The Plaintiff''s husband was examined as P.W. 1 and the 6th defendant was examined

as D.W. 1. Defendants 1 to 4 have not let in any oral evidence, regarding the truth and part of sale consideration received by them. Defendants 1

to 4 have sold the property to the 5th defendant without getting permission from the Court.

The 6th defendant had purchased the suit property from the 5th defendant. No doubt the suit agreement dated 27-4-1977 is a registered one and

if defendants 5 and 6 have looked into the encumbrance in respect of the suit property, they would have found out the registered agreement of sale

dated 27-4-1977 in favour of the plaintiff and at least they could have asked the plaintiff whether the agreement in his favour has been discharged

or not and whether the plaintiff was reimbursed of his advance amount. Defendants 5 and 6 do not appear to be bona fide purchasers for value

without notice after enquiry of any encumbrance in respect of the suit property. The suit agreement is a registered one and defendants 5 and 6 have

purchased litigations knowing about the registered agreement in favour of the plaintiff. There is no equity at all in favour of the appellant and the

defendants 1 to 6 have attempted to deceive the plaintiff and to cause her loss and hardship. In the circumstance, I do not find that there is just and

sufficient cause for condoning the delay. The delay is more than 335 days, if we take into account the date of receipt of the certified copies of

judgment and decree of the lower appellate Court as on 7-9-1990. It appears that there is an order of this Court dated 14-11-1991 which runs as

follows:--

Let the Second Appeal be listed for hearing under Order 41, Rule 11, C.P.C. and accordingly number the Second Appeal and put up along with

this petition for condonation of delay"".

There is another order of this Court dated 21-11-1991 as follows :--

For the reasons stated in the affidavit, the delay is condoned for the present, subject to the objections, if any of the respondents.

Mr. S. Subramanian, learned Senior counsel for the first respondent contended that the delay was condoned for the present subject to objections if

any by the respondents and it does not mean that the delay has been condoned once and for all and the Second Appeal was directed to be

registered. It is not the case of the appellant that the delay has been condoned once and for all. It is only an interim order made possibly for

registering the Second Appeal in view of (he urgency then shown by the appellant for obtaining an interim order in the Second Appeal. The delay

was condoned for the present subject to the objections if any by the respondents. After hearing both parties at length and after considering the

materials available on record, I am of the view that there is no just and sufficient cause for condoning the delay. Accordingly, C.M.P. No. 14563

of 1991 is dismissed.

From a very casual reading of the above findings of the learned single Judge, with great constraint and respect, I may observe, that the same

does not curtail the adjudication of the matter involved in this case viz., the reason for condonation of the deiay of 335 days. It is worthwhile to

note that while the learned single Judge accepted the contention of the learned Senior counsel in respect of not complying with the procedural law,

we can apply the same logic with regard to the reasonings given for condonation of delay of 335 days, to be accepted or rejected, According to

learned Senior Counsel for the Applicant/appellant, if the delay is calculated properly, it would come to only 301 days, not 335 days. Having thus

considered the very gamut of the impugned order, without going through the merits of the Second Appeal, it is manifest that there was no iota of

finding or observation given by learned Judge with regard to the availability of grounds to grant or to reject the relief of condonation of delay in

filing the Second Appeal, which in the eye of law is a mistake or error apparent, happened due to judicial infallibility. It is also noticed at this

juncture, that every gist and scope of Order 47, Rule I, CPC has been well identified when some reasonings and grounds for seeking condonation

of delay have not been scrapped out, but, however, the merits of the Second Appeal pending before this Court, have been taken into and

considered without hearing the parties. On that scope, I may observe with great respect, that there was total deviation in exercising the judicial

power in its proper perspective, while passing the impugned order.

Mr. G. Subramanian, learned Senior Counsel has placed reliance upon a catena of case laws rendered by various High Courts and Supreme

Court, amongst which, the one relevant for the purpose is extracted :--

Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, , the Supreme Court in this regard has observed as follows:--

party is not entitled to seek a review of a judgment delivered by the Supreme Court merely for the purpose of a rehearing and a fresh decision of

the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when

circumstances of a substantial and compelling character make it necessary to do so.

Power to review its Judgments has been conferred on the Supreme Court by Art, 137 of the Constitution and that power is subject to the

provisions of, any law made by Parliament or the rules made under Art. 145. In a Civil Proceeding, an application for review is entertained only on

a ground mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure, and in a Criminal Proceeding on the ground of an error apparent on

the face of the record. But, whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the

original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or

patent mistake or like grave error has crept in earlier by judicial infallibility.

An error apparent on the face of the record exists if of two or more views canvassed on the point it is possible to held that the controversy can be

said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record

states, it is difficult to hold that there is an error apparent on the face of the record.

It is thus seen that there is not controversy among the Bar or/and on behalf of parties that if a patent error or mistake of law causing total

miscarriage of justice in a judgment or order passed by a Court of law is well identified and for other sufficient reasonings clearly spelt out, under

Order 47, Rule 1 of the Code of Civil Procedure, an aggrieved party can seek the relief of review of the said impugned order of judgment and for

that there cannot be any dispute. For all the said ingredients having been found and well identified in the instant case, in the context that there is no

quarrel or dispute by learned Senior counsel on behalf of the respondents with regard to the case laws, so many in numbers, on the facts of the

instant case and for the foregoing reasonings, I do not propose to traverse into each and every case laws for the sake of avoiding repetition.

Accordingly, under the circumstances, I am constrained to hold that this is a fit case liable to be reviewed and accordingly, the impugned order

passed by the learned single Judge in C.M.P. No. 14563 of 1991 dated 7-4-1994 is hereby set aside.

In the result, for all the foregoing reasons, the review application is allowed and the Order in C.M.T. No. 14563 of 1991 dated 7-4-1994 is

set aside. Post the case for further hearing under Order 47, Rule 8 Code of Civil Procedure. However, under the circumstances, there will to no

order as to costs for either of the parties.

Application allowed.