Lulu It Infrabuild Private Limited vs Abm Civil Ventures Pvt Ltd

G.Girish, J

The petitioner in O.P (ATE) No.12 of 2024 has filed this review petition under Order XLVII Rule 1 of the Code of Civil Procedure for the review of the judgment rendered by this Court on 31.05.2024 extending the period fixed for the completion of arbitration procedures for a period of one year from 23.04.2024.

It is stated that with the authoritative pronouncement of law by the Apex Court on 13.05.2024 in S.L.(P) No.10544 of 2024 making it clear that the powers available under Section 29A(4) of the Arbitration and Conciliation Act, 1996 can only be exercised by the court as defined in Section 2(1)(e) of the said Act, which is the Principal Civil Court having original jurisdiction in a District, this Court is having no jurisdiction to extend the period of arbitration by resorting to Section 29A(4) of the Arbitration and Conciliation Act, 1996. For the above reason, it is submitted that the judgment rendered by this Court on 31.05.2024 in O.P (ATE) No.12 of 2024 suffers from an error apparent on the face of the record which would warrant a review.

Heard the learned counsel for the petitioner and the learned counsel for the respondents.

It is true that the scope of review in exercise of the powers conferred under Order XLVII Rule 1 of the Code of Civil Procedure is confined to the situations where all or any of the three grounds envisaged under the aforesaid provision of law requires the court concerned to modify, alter or reverse the earlier decision rendered by the court. The aforesaid three grounds envisaged under Order XLVII Rule 1 of the Code of Civil Procedure are the following:

i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the review petitioner or could not be produced by him at the time when the decree was passed or the order made.

ii) Mistake or error apparent on the face of the record.

iii) Any other sufficient reason.

The term ‘any other sufficient reason’ envisaged under Order XLVII Rule 1 of the Code of Civil Procedure has been held to be a reason analogous to the grounds (i) and (ii) enumerated thereunder. Thus, if there is a ground which is ejusdem generis to the first two grounds of discovery of new and important matter or evidence and error apparent on the face of the record, the court which rendered the judgment or order will be justified in reviewing that judgment or order. Now, the question to be looked into is whether the absence or total lack of jurisdiction to pass an order or judgment would come within the purview of ‘any other sufficient reason’ envisaged under Order XLVII Rule 1 of the Code of Civil Procedure. On that aspect, the observation of the Hon’ble Supreme Court in Board of Control for Cricket in India v. Netaji Cricket Club [(2005) 4 SCC 741], assumes much significance.  It has been held by the Apex Court in paragraph No.90 of the said judgment as follows:

“90…………………………..What would constitute sufficient reason would depend on the facts and circumstances of the case. The words ‘sufficient reason' in Order XLVII Rule 1 of the Code of Civil Procedure are wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine ‘actus curiae neminem gravabit’.”

Thus, going by the dictum laid down by the Apex Court in BCCI (supra) if a decision rendered by a court due to a misconception of fact or law, has rendered prejudice to any of the parties to the proceedings, then it could be taken as a reason coming under the term ‘any other sufficient reason’ envisaged under Order XLVII Rule 1 of the Code of Civil Procedure. As far as the present case is concerned, as rightly pointed out by the learned counsel for the petitioner, review is sought, not on the ground that the decision on a question of law has been reversed or modified by the subsequent decision of a superior court in another case. On the other hand, what is stated is that the law was consistent right from the decision of the Apex Court in the year 2004 in National Aluminium Company Ltd (supra) that the meaning of the term ‘court’ employed under various provisions of the Arbitration and Conciliation Act, 1996 has to be taken as the Principal Civil Court of original jurisdiction as defined under Section 2(1)(e) of the said Act. The law on the above point was only restated and redeclared by the Apex Court in the order dated 13.05.2024 in S.L.P (C) No.10544/2024. That being so, it cannot be said that the present review petition has been filed upon a situation wherein 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 the superior court in another case. On the other hand, it could be said that the review has been sought since there had been a misconception of law with regard to the forum where an application under Section 29A(5) of the Arbitration and Conciliation Act, 1996 could be filed; which eventually resulted in the judgment which is sought to be reviewed. It is also to be noted that unless the said judgment is reviewed, the parties to the arbitration are likely to suffer for no fault of their own. When viewed in the above perspective, the dictum of the Apex Court in BCCI (supra) would be applicable to the facts and circumstances of this case, warranting the invocation of the powers under Order XLVII Rule 1 of the Code of Civil Procedure, upon the principles of ‘actus curiae neminem gravabit’.

The present petition filed by the petitioner, has got significance due to another reason as well. Though the petition is styled as a review petition, and filed under Order XLVII Rule 1 of the Code of Civil Procedure, it is actually one filed for recalling a judgment rendered by this Court, stating the reason that there was total lack of jurisdiction for this Court in rendering such a judgment. Thus, the relief sought for is actually ‘recalling the judgment’ though there is a misnomer as ‘review of the judgment’ in the petition filed. It is well settled that for recalling the judgment or order on the ground of absence of jurisdiction, the court need not delve into the merits of the case. On the other hand, for reviewing a judgment or order, the court has to look into the merits of the case and arrive at the finding that the review is warranted under any of the three grounds envisaged under Order XLVII Rule 1 of the Code of Civil Procedure. As far as the present case is concerned, the relief which the petitioner seeks is an order or declaration from this Court to the effect that the judgment dated 08.04.2024 in O.P (ATE) No.10/2024 has no legal existence in the light of the order dated 13.05.2024 of the Apex Court in S.L.P (C) No.10544/2024 restating and redeclaring the law that the court which is empowered to exercise the powers under Section 29A(4) is the Principal Civil Court of the District as envisaged under Section 2(1)(e) of the Arbitration and Conciliation Act, 1996. The above relief sought, is in fact a prayer for recalling the said judgment and not for a review of the judgment.

In Indian Bank v. Satyam Fibres India Pvt.Ltd [(1996) 5 SCC 550] the Apex Court has held that the courts have inherent power to recall and set aside an order in a case where the court itself commits a mistake which prejudices a party. In Budhia Swaine and Others v. Gopinath Deb and Others [(1999) 4 SCC 596], the Hon’ble Supreme Court has held that a Tribunal or a court may recall an order earlier made by it if the proceedings culminating into an order suffer from inherent lack of jurisdiction, and such lack of jurisdiction is patent.

As far as the present case is concerned, the dictum laid down by the Apex Court on 13.05.2024 in S.L.P (C) No.10544/2024 would make it clear that this Court was having inherent lack of jurisdiction in passing the judgment dated 31.05.2024 in O.P (ATE) No.12/2024 extending the period fixed for the completion of arbitration proceedings. In that view of the matter, the relief sought for in this petition for recalling the said judgment, has to be necessarily allowed.

In the result, the petition stands allowed. The judgment dated 31.05.2024 in O.P (ATE) No.12/2024 is hereby recalled.