Mohammad Yousuf Magray vs Haji Ghulam Hassan and Others

Kawoosa, J.—This review petition, seeking recall of order dated 22nd May, 1997, passed by a Division Bench of this Court, has been filed

on 18th June, 1997. We don't feel the need to encumber this order with facts more than necessary; a brief resume of the relevant facts would

suffice.

Civil Original Suit No. 22 of 1974, pertaining to 17 Kanals and 2 Marias of land situated at village Shankerpora of Tehsil Chadoora, was filed

by petitioner, Haji Ghulam Hassan, before the High Court. This suit was partly decreed and partly dismissed vide judgment dated 16-11-1981 by

the learned single Bench. The judgment resulted in filing of two cross appeals, one each by the petitioner and respondent herein, respectively

bearing Nos. CIA No. 6/82 and CIA No. 8/82. These cross appeals were clubbed together by order dated 7-7-1986 passed by the Division

Bench in CIA No. 8/82. Order dated 9-5-1989 passed on CIA No. 6/82 makes mention of the direction of the Apex Court to hear the appeals

together. At a later stage, the appeals seem to have been bifurcated and listed separately, not by any order of the Court. CIA No. 8/82 thus came

to be listed on 6-7-1993. On that day no one appeared on behalf of the appellant in the said appeal, while respondent No. 1 was present in

person. Consequently, the appeal was dismissed in default. CIA No. 6/82, which was surviving, was listed on some other date.

The appellant, MohammadYousufMagray, filed an application for restoration/readmission of the appeal on 13-10-1993 on which date CIA No.

6/82 was listed. The plea taken was that the knowledge of dismissal of CIA No. 8/82 was given to the counsel for appellant in the Court on that

day. Along with the aforesaid application, an application for condonation of delay was also filed. The main objection taken by the other wise to the

applications was that there was no order to club the appeals and no sufficient cause was shown as to why the appeal was not persued by the then

counsel, Mr. B. A. Bashir. No other point was raised in the objections.

The application for re-admission of the appeal along with the application tor condonation of delay was allowed by the Court on 22-5-1997.

This order is sought to be recalled in this review petition , Respondent has filed his objections to the review petition.

Heard learned counsel for the parties at length.

Learned counsel for the petitioner has argued that Section 5 of the J & K Limitation Act does not apply to applications filed under Order 41,

Rule 19 CPC for re-admission of appeals beyond 30 days. According to him, even if the point of limitation was not raised before the Division

Bench, it was incumbent upon the Court to dismiss the application, filed beyond the period of limitation, as envisaged by Section 3 of the Limitation

Act. He has tried to convince us that allowing the application for re-admission of the appeal filed beyond 30 days, hits the jurisdiction of the Court

and it constitutes an error apparent on the face of the record.

Learned counsel for the respondent has argued before us that notwithstanding the application for re-admission of appeal under Order 41, Rule

19 CPC is not embraced by Section 5 of the J & K Limitation Act. no fetters can be put on the Court to prevent gross miscarriage of justice by

exercising its inherent powers u/s 151 Civil Procedure Code. According to him, the Division Bench has obviously exercised that jurisdiction and

allowed the application for condonation of delay. His second contention is that review cannot lie even if the decision on a point of law is erroneous.

We have given our thoughtful consideration to the points raised before us. Since one of us (Kawoosa J.) has been a member of the Division

Bench which passed the order dated 22nd May, 1997, therefore, we would not be facing any difficulty in appreciating the order correctly, and the

points raised in this petition in their right perspective. Before entering upon the arguments on the point as to whether allowing the applica tion for

condonation of delay u/s 5 of J. & K. Limitation Act, which is not applicable, is an error apparent on the face of the record or not, we will have to

fall on the first argument of learned counsel for the respondent that the Court was within its bounds to allow the application for condonation of

delay as well as the application for re-admission of the appeal u/s 151 Civil Procedure Code.

Learned counsel for the petitioner has relied on a Division Bench authority of this Court Conservator of Forests Vs. Khajur Singh and Others,

We have gone through this authority, it has been held therein that Section 5 of the J. & K. Limitation Act does not apply to applications for re-

admission of appeals dismissed in default and that delay cannot be condoned u/s 5 of the Limitation Act, if such application is filed after the expiry

of the prescribed time. The authority, however, does not rule out the power of the Court in allowing the application for condonation of delay, in

appropriate cases, on sufficient cause shown, even if Section 5 of the Limitation Act is not applicable. It may not be out of place to mention here

that Section 5 of the Indian Limitation Act does not exclude the applications for readmission of appeals filed beyond time, but the J. & K.

Limitation Act specifies only six categories to which Section 5 of the Act is applicable and where delay can be condoned. Admittedly, there is no

room for entertaining an application for condonation of delay for readmission of an appeal dismissed in default. In the authority (supra),

notwithstanding the fact that application of Section 5 of the Limitation Act was held to be excluded, the application for condonation of de- lay was

allowed on the basis that appeal was in continuation of original proceedings. It is a fact that the case before the Court was a writ petition under

Article 226 of the Constitution of India.

In case AIR 1929 185 (Nagpur) the authority relied upon by learned counsel for the petitioner, it has, inter alia, been held that :

An application for review of an order under Order 47, Rule 1, CPC. if found to be barred by limitation, may under appropriate circumstances be

treated as an application u/s 151 if the Court is satisfied that there has been a flagrant abuse of its own process and it is also open to the appellate

Court under similar circumstances to treat a barred application for review, made to the first Court, as one made u/s 151 in order to remove an

apparent injustice done to the applicant and to prevent an abuse of the process of the Court.

No doubt the aforesaid law laid down relates to a review petition, but at the same time the Court has laid stress on exercise of power u/s 151 for

removal of apparent injustice done to a party.

In case ""Rahim v. Karim"" AIR 1967 J&K 93, a Single Bench of this Court, relying on a Privy Council authority, at page 90 of the judgment

has held as under (at page 95) :--

Section 151 of the Civil P.C. is an enabling section. The framers of the Code envisaged the shortcomings of legislation and they were convinced

that there would always be cases and circumstances which would not be covered by the express provisions of the Code. The reason was obvious.

The legislature could foresee only the most natural and ordinary events and not rules or regulations for all time to come so as to make an express

provision against all inconveniences which are infinite in number so that their disposition shall express all the cases that might probably happen. The

second reason for bringing in this provision of law was that rules of procedure may be abused or reduced to a mere formality, the result being of

frustrating rather than facilitating the administration of justice. It was for this very reason that Mahmood J. had to lay down in Narsinghdas's case

ILR (1883) 5 All 163 the rule of law quoted above. The Courts, therefore, have an inherent power under this section to act according to justice,

equity and good conscience especially in India, where every court is aCourt of equity as well as of law. There may be genuine cases in which no

express provision will be made in the Code for certain hardships and which if unremedied would result in abuse of the process of the Court and

defeat the ends of justice. It is to cover such cases that this enabling section was put in the Code. Cases can be envisaged where a dismissal for

default of a revision application may result in substantial injustice. The Court should not feel itself powerless to restore the case to its original

number and then dispose it of according to its merits.

From the above referred cases, it is manifestly clear that powers of the Court are not fettered to prevent the abuse of process of Court or

miscarriage of justice when appropriate circumstances of a case demand so. Section 151 CPC is an enabling provision by virtue of which inherent

powers have been vested with the Court not to feel helpless in such circumstances. But, to administer substantial justice, Court can use its own

inherent power to fill up the lacunae left by the legislature while enacting law or where the legislature is unable to foresee any circumstance which

may arise in a particular case.

Coming to the present case, it may be observed at the very out-set that, while passing the order sought to be reviewed, the Court was aware

of the ndoubts regarding application of Section 5 of the Limitation Act, though this point was not pleaded at all. That is why, the Court, in the

order, did not mention that delay was condoned u/s 5 of the Limitation Act. In view of the peculiar circumstances of the case the Division Bench

took the following circumstances into-consideration while allowing the application for condonation of delay ;

(i) that two cross appeals had been filed against a single judgment which related to the same subject-matter and between the same parties;

(ii) that by virtue of order dated 7-7-1986 the two appeals were ordered to be clubbed together;

(iii) that the Apex Court also directed that appeals be heard together;

(iv) that the two appeals had once been heard together finally by another bench comprising Hon'ble Mr. Justice M. A. Shah and Hon'ble Mr.

Justice S. M. Rizvi, and judgment was reserved, but judgment could not be announced on account of the demise of Mr. Justice M. A. Shah, one

of the Hon'ble Judges constituting the Division Bench;

(v) that, thereafter, the two appeals were again listed for hearing together;

(vi) that there was no order passed by any Court for bifurcation of the appeals and their separate listing;

(vii) that on 6-7-1993 only C. A. No, 8/82 had been set for hearing before the Division Bench of this Court by the Registry. On that day, some

incident of beating, which resulted in infliction of injuries to one of the bar members in the High Court premises, had taken place. This incident

resulted in disturbance in the normal working of the Court inasmuch as the lawyers did not appear on that day before the Courts;

(viii) that the two applications, one for re-admission of this appeal and the other for condonation of delay, were filed on 13th October, 1993 on

which date the surviving appeal, CIA No. 6/82, was listed before the Court. The plea taken was that the knowledge about the dismissal of the

appeal on 6-7-1993 was gained by the appellant's counsel through Court only on 13-10-1993. In other words the application for readmission of

the appeal was filed on the very day of knowledge about the order of dismissal.

Under these circumstances, the Division Bench felt that, in the interests of administration of justice, it was necessary to hear both the parties in both

the appeals on merits. So a liberal view was taken to recall the order of dismissal. The operative portion of the order of the Court is quoted

hereunder :--

With a view to administer justice and to give relief to both the parties, we are of the opinion that the real question involved in the matteris required

to be considered by taking a liberal view so that the matter can be heard and disposed of on merits.

In view of the foregoing, this application is allowed. The order made on 6-7-93 is recalled and the delay, if any, is condoned. No order as to

costs. CIA No. 8/82 and CIA No. 6/82 shall be set down for hearing in the first week of July, 1997."" In the order dated 22-5-1997 passed by

the Division Bench, it is nowhere mentioned that the application was considered or allowed u/s 5 of the J. & K. Limitation Act, but it can very well

be construed that the application was dealt with under inherent powers vested in the Court u/s 151 CPC for administration of substantial justice,

though mention of the provision of law had not been made therein. Besides, the consideration which weighed with the Division Bench was that it

would not be in the interests of justice to allow the appeal to be dismissed in default when its cross appeal is pending disposal and is to be heard on

merits. Even if thai be not so, there is no legal impediment to treat the order of the Division Bench as one having been passed u/s 151 Civil

Procedure Code, because the Court was of the opinion that injustice done to the appellant had to be removed.

In Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, the Apex court has laid down that cause of substantial

justice deserves to be preferred when it and the technicalities are pitted against each other. Basically the legislature has conferred the power to

condone delay by enacting Section 5 of the Limilation Act only in order to enable the Courts to do substantial justice to the parties by disposing of

the matters on merits. It is why, while dealing with a similar matter, the Nagpur High Court in the case (supra) has observed that, ""apart from the

highly technical provisions of Order 47, Rule 1 Civil P. C., the present case could very well be considered to have been decided under the salutory

provisions of Section 151 CPC"" The appellant's pleader in the aforesaid case had contended that interference of the Court u/s 151 CPC was not

possible in the case and had cited law in support of his argument.

In the above circumstances, the question of error apparent on the face of the record does not arise.

Let us now deal with the other face of the coin. as put forth by learned counsel for the petitioner before us. Assuming that the order sought to

be reviewed was not passed u/s 151 Civil Procedure Code, or could not be treated as such, but was passed u/s 5 of the Limitation Act, even then

the question arises whether application of Section 5 of the Limitation Act constitutes an error apparent on the face of the record. In other words,

whether a review would lie in such a case. Order 47, Rule 1 CPC recognises ""a mistake or error apparent on the face of the record"" as a ground

for review of an order or judgment. Contention of learned counsel for the petitioner is that in terms of Article 168 of the J. & K. Limitation Act, an

application for readmission of appeal could be filed only within 30 days. Since it was filed beyond 30 days before the Court, therefore, it was liable

to be dismissed because :

(i) the delay caused in filing the application for readmission could not be condoned, since Section 5 of the Limitation Act is not applicable to such

application;

(ii) Section 3 of the Limitation Act enjoins upon the Court to dismiss any such application filed beyond the period of Limilation even if not pleaded.

According to him, since the Division Bench had condoned the delay u/s 5 of the Limitation Act and not applied the mandate of Section 3 of the

same Act to the application, this constituted an error apparent on the face of the record on account of which the order of the Division Bench

warrants to be recalled on review. On the other hand, the contention of learned counsel for the respondent is that the review petition is not

maintainable, because an erroneous judgment or order on law does not constitute an error apparent on the face of the record.

We have considered the point at its depth. The scope of review is very limited. It cannot be stretched by Courts to reverse any judgment or

finding arrived at, at its will, under the garb of review. If that is allowed, then there is a valid apprehension that there would be no finality in any

judgment. The judicial pronouncements by the apex Court and other High Courts, from time to time, have ruled that review should not be used as

an appellate jurisdiction. While dealing with a case in appeal, an appellate Court has got ample powers to appreciate evidence to deal with the

points of law involved and, in fact, has got the same powers as are vested in the Court of original jurisdiction. The Court, dealing with review

matters, has to be cautious and has to confine itself only to the limited jurisdiction. Review is by no means an appeal where an erroneous decision

on law is reheard and corrected, but it lies only to correct a patent error, an error apparent on the face of the record. An error apparent on the

face of the record means one which appears from a mere glance mid does not require arguments to be made out.

Learned counsel for the petitioner has cited Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, . In this authority, the Apex Court has

observed as under :--

............It has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the

record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions."" The aforesaid

observations were made by the Apex Court while relying on an earlier judgment in Satyanarayan Laxminarayan Hegde and Others Vs. Millikarjun

Bhavanappa Tirumale, wherein Hon'ble Mr. Justice K. C. Das Gupta, speaking for the Court, had made the following observations in connection

with an error apparent on the face of the record at page 141-142 :

An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be

said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be

established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the

powers of the superior Court to issue such a writ.

Argument of the learned counsel is that since the Division Bench had failed to apply Section 3 of the Limitation Act to the application for

readmission of the appeal which was barred by time, it, therefore, is a patent error which needs no arguments to bring forth the error apparent on

face of record. In this connection he has relied on AIR 1929 185 (Nagpur) No doubt, in this authority, the Court has held that under the

mandatory provisions of Section 3 of Limitation Act, the Court is bound to notice the statutory bar of limitation and where it has failed to do so and

passed an order, that is a mistake or error apparent on the face of the record within the meaning of Order 47, Rule 1, sufficient to justify the Court

in granting an application for review and setting aside its previous wrong order. But in the same judgment, the Court has also held :--

In my opinion each of the above cases, as indeed any other reported case u/s 151, CPC, must be considered to have been decided on its own

peculiar facts and therefore, unless the facts of a particular case are on all fouls with those found in the present case, it cannot be regarded as an

authority for its decision.

(Underlining supplied)

We have very minutely gone through this authority. The case is distinguishable on facts and, therefore, not helpful to the petitioner, yet it favours our

view that the application for readmis-sion of the appeal could very well be treated as one u/s 151, Civil Procedure Code. In the case (supra) also

the concerned Court had condoned the delay on one day in presenting the . review application. Contention of the appellant before the High Court

was that the subordinate Court could not have condoned the delay, because Section 5 of the Limitation Act was not applicable in the case. The

High Court held that, ""this was therefore pre-eminently a case in which the inher-ent powers of the Court could be legitimately exercised by

removing the apparent in justice done to Narayan in order to prevent an abuse of its own process."" In the instant case also facts found by the

Court were such as warranted the exercise of its inherent powers u/s 151, Civil Procedure Code.

The next authority cited by learned counsel for the petitioner is Debi Sahai-Gulzari Mal v. BashesharLal Bansi Dhar AIR 1928 Lah 919. In this

authority the Court has held as under :--

Where a Court fails to apply the law to the facts found and when such an error is apparent on the face of the record, it can be made a ground for

a review. Failure of the Court to apply the law of limitation to the facts found is an error apparent on the face of the record."" It may be observed

here that the phrase ""facts found"" used by the Court while holding the above law assume a great importance on account of which the case is

distinguishable vis-a-vis the present case. That apart, we have dealt with this point just a few lines hereinabove.

The other authorities cited and relied upon by learned counsel for the petitioner are :--

i) Dineshbhai A. Parikh Vs. Kripalu Co-operative Housing Society, Nagarvel, Ahmedabad and Others,

ii) AIR 1968 J&K 39

iii) AIR 1992 KANT 93

iv) Sami Ullah and Others Vs. Board of Revenue, Uttar Pradesh, Allahabad and Others,

v) P.R. Seetharaman Vs. Government of Tamil Nadu and Others,

vi) Mahboob Pasha Vs. Syed Zaheeruddin and Others, We have gone through these authorities as well. We are of the opinion that each case,

where such questions arise, has to be decided on its own merits and facts. The cases cited (supra) are distinguishable on facts vis-a-vis the present

case.

Learned counsel for the petitioner lastly presented before us a photo copy of judgment passed by the Division Bench of this Court in Review

Petition No. 12 of 1998 titled Ghulam Rasool Kar v. Ghulam Muhammad Dar dated 9-2-1998. Again this case has been decided by a bench of

which one of us (Kawoosa, J.) was a member. We have gone through this authority. The Review petition was allowed on the ground that there

was an error apparent on the face of the record. At the very outset it may be observed that in that case an appeal had been preferred against an

interlocutory order passed by trial Court (single Bench) and did not determine the rights of parties finally on merits. The case emanated from a suit

filed by plaintiff based on a few documents. The document was produced before framing of issues and the only objection at that lime taken was

that the document was not stamped. The learned single Bench ordered that the document should be properly stamped u/s 35 of the Stamp Act.

This order was challenged in Letters Patent Appeal. The Division Bench was given a different briefing, that the document was produced by witness

of the plaintiff when he was being examined. A question was raised that the document was produced after the issues through witness without

assigning reasons as to why it was not produced before issues were framed. The Division Bench set-aside the order of learned single Judge on the

wrong assumption of facts, as put forth by learned counsel for the appellant. The Division Bench in review recalled the order on the basis :--

i) that the earlier Division Bench had decided the LPA on wrong assumption of facts;

ii) that the Division Bench also found it a fact that the document had been produced before framing of issues and not by any witness after the

framing of issues;

iii) the point of admissibility of the document was left open as a separate issue had been framed in the suit in this connection;

iv) that basically, the Letters Patent Appeal had been filed against an interlocutory order which did not, in any case, determine the rights of the

parties finally;

v) that the recalling of the order, in view of the facts found by the Court, did not prejudice the parties or either of them. We are, therefore, of the

opinion that this case is quite distinguishable from the case at hand and, as such, is of no assistance to learned counsel for the petitioner.

Learned counsel for the respondent, on the other hand, has relied on number of decided cases, including Jana v. Ghulam Nabi AIR 1952 J&

K 12. We have gone through the judgment. The point involved was that certain amendments to the Tenancy Law had been made and were in

force when the case was heard by the Board. No question based on such amendment was argued. The Court held that it is too late to entertain

absolutely a new ground on which the decree of the High Court is sought to be reversed in review. The Court held :--

.........The second question which is said to be one of law is that certain amendments to the Tenancy Law have since been made. It is contended

that the amendments were in force at the time when the case was heard by the Board. No question based on such amendment was argued.

Whether the contention of the learned counsel has any substance or not, need not be considered as the matter might and ought to have been raised

at the time when the appeal was heard by the Board. It is too late to entertain an absolutely new ground on which the decree of the High Court is

sought to be reversed. In these circumstances the application of review has no force and the Board humbly advise His Highness to reject it.

Similarly, in Dayanand Badrinarayan v. Laxmidas Gopalji Gujrathi AIR 1938 Nag 41, it was held that :--

Omission to raise a point of law is not a sufficient ground for a review. Further, a party who had an opportunity of raising a question, but did not

raise it, cannot ordinarily be allowed to agitate the question in review.

In Babboo alias Kalyandas and Others Vs. State of Madhya Pradesh, , the Apex Court has held at page 1048 :--

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 the province of a Court of appeal. A power of review is

not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate

Court.

(Underlining supplied)

In Batuk K. Vyas Vs. Surat Borough Municipality and Others, their Lordships have held

The mere fact that two views are possible on a question of law does not make the decision of a Tribunal with jurisdiction bad on the ground that it

has erred in law and the error is apparent on the face of the record. Only that error will be corrected by the High Court which is clearly apparent

on the face of the record and which does not become apparent only by a process of examination or argument.

In Raj Kumar Ramavtar Chourasia Vs. Mathew Charian Christian, , it has been made clear that a decision erroneous in law is certainly no ground

for ordering a review, and that, error of law does not afford sufficient ground for review. The Court has held at page 460 :--

An error apparent on the face of the record exists if of two or more views canvassed on the point it is possible to hold 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.

A Full Bench of the Himachal Pradesh High Court in the The Nalagarh Dehati Co-operative Transport Society Ltd., Nalagarh Vs. Beli Ram

etc., has also taken into consideration that even if there arc subsequent decisions of the Supreme Court or a larger Bench of the same Court taking

a contrary view on the point covered by the judgment, it does not amount to a mistake or error apparent on the face of the record.

We have considered all the authorities of the Apex Court and of other High Courts. We have reached to a conclusion to hold as follows :--

i) an error apparent on the face of the record must be such a patent error which in one glance can be detected without advancing long drawn

arguments on either side;

ii) where there are two possible views regarding the interpretation or application of law vis-avis the particular facts of a case, taking one view, even

if it is erroneous, cannot be said to be an error apparent on the face of the record;

iii) even if a decision or order is erroneous in law or on merits, it cannot be accepted that it is an error apparent on the face of the record;

iv) no hard and fast rule can be laid down to declare or to point out a certain error to be an error apparent on the face of the record. The exercise

of power under review will depend upon the peculiar facts of each case.

Much emphasis was laid by learned counsel for the petitioner firstly on the point that no sufficient cause was shown for allowing the application

for condonation of delay and on the duty of the Court to dismiss an application barred by time u/s 3 of the J & K Limitation Act. As to the

sufficiency of the cause shown, it needs to be observed that we cannot assume the jurisdiction of an appellate Court and examine the question

afresh whether there was sufficient cause or not. The Division Bench has already made an exercise on it and come to a definite finding which

cannot be gone into by us afresh while exercising the power of review.

With regard to the point relating to the duty of the Court cast u/s 3 of the Limitation Act, it needs to be reiterated that knowledge about the

dismissal of the appeal by the counsel for respondent was shown as on 13-10-1993 and the application for readmission was filed on the same day.

The Court did not decide the application on the very first day, but issued a notice to the petitioner herein. He had enough opportunity to take all

objections and points to contest the applications. He was represented by a senior counsel at the hearing. In these circumstances, once the

petitioner failed to raise such a point at the relevant time, he cannot now take the plea that it was for the Court to dismiss the application, not the

duty of the paity or his counsel to take the plea and seek a decision of the Court on the point. In any case, failure to raise a plea, of whatever

nature, does not constitute an error apparent on the face of the record, or a ground for review.

Applying the tests, set above, to the present case we are of the opinion that the order which is sought to be recalled on the ground of error

apparent on the face of the record is to be viewed from the angle that even if Section 5 of me Limitation Act will not apply, this order can still

sustain u/s 151, Civil Procedure Code. The language used in the order sufficiently shows that, in fact, the Court has dealt with the application under

the inherent powers vested with it u/s 151, Civil Procedure Code. Therefore, we find that there has been no error which could be said to be

constituting 'an error apparent on the face of the record'. Considering the facts and circumstances, it is more than clear that, the earlier Division

Bench has rather done substantial justice in the case and has readmitted the appeal so as to enable the Court to hear and decide the matter

involved in two cross appeals on merits. Application for delay has been accepted when it is in continuation of the original proceedings and

pertained to the readmission of appeal dismissed in default. Matter would have certainly been different if the claim for money or for property by

way of suit or appeal would have been filed beyond the period of limitation. Here the appeal has been filed well in time and the Division Bench has

dealt with condonation of delay pertaining to application for readmission of appeal. Even if the order is erroneous, it cannot be treated as a patent

error on the face of the record due to special circumstances of this case. Further, the order sought to be recalled has not prejudiced the parties or

either of them, because the case has been left open to be decided on merits.

For these reasons, this review petition is dismissed. The two appeals be listed early.

No order as to costs.