Mr. Ankit Prahladka vs M/s. Parimala Mercantitle Pvt. Ltd.

Ashis Kumar Chakraborty, J.—In this application, the petitioner has prayed for review of the order dated August 25, 2015 passed by this Court in C.O. No. 4123 of 2014 (hereinafter referred to as "the said revisional application"). By the said order this Court allowed the said revisional application filed by the plaintiff in Title Suit No. 54 of 2011, pending before the learned 2nd Court, Civil Judge (Senior Division) at Barasat, challenging the order dated November 24, 2014 whereby the learned Court below accepted the written statements in the said title suit filed by the defendant nos. 5 and 6 in the said suit.

Mr. Prabal Mukherjee, learned senior advocate appearing in support of the present review application submitted that inasmuch as Mrs. Sumitra Saha, who was impleaded as the opposite party no. 3 in the said revisional application, had already died before filing of the revisional application, the said order dated August 25, 2015 passed by this Court against a dead person is void and the same is vitiated by an error apparent on the face of the record. The second ground urged by Mr. Mukherjee in support of the review application is that the said order dated August 25, 2015 is vitiated by an error apparent on the face of the record because at that time of passing of the said order, the plaintiff opposite party did not bring it to the notice of this Court that on their prayer, by an order dated December 22, 2014 the learned Court below had impleaded some more defendants in the suit. According to him, the added defendants are entitled to file their written statements and if, the said order dated December 22, 2014 would have been brought to the notice of the Court, instead of allowing the said revisional application this Court would also have upheld the order dated November 24, 2014 passed by the learned Court below accepting the written statement filed by the defendant nos. 5 petitioner. Mr. Mukherjee strenuously urged the above facts of the death of the defendant opposite party no. 3 and the order dated December 22, 2014 passed by the learned Court below impleading more defendants in the suit at the instance of the plaintiff opposite party are all admitted facts and, as such, the plaintiff opposite party no. 1 cannot oppose the present review application. On these grounds he urged that this Court should review the order dated August 25, 2015 and allow the prayer of the defendant no. 5 petitioner for acceptance of his written statement by the learned Court below.

However, Mr. Aniruddha Chatterjee, learned advocate representing the plaintiff opposite party no. 1 strongly contended that the present review application filed by the defendant no. 5 petitioner is not maintainable as the said order dated August 25, 2015 passed by this Court is not vitiated by any error to constitute a ground of review under Order 47, Rule 1 of the Code of Civil Procedure, 1908, hereinafter called "the Code". He submitted that although it is a fact that the opposite party no. 3 in the said revisional application had died before filing of the said revisional application, but the opposite party no. 6, her sole heir was already on record of the suit. Thus, according to him, the contention raised on behalf of the defendant no. 5 petitioner that the said order dated August 25, 2015 is a void order is devoid of any merit. In support of such contention, he relied on the decision of the Supreme Court in the case of Diesel Loco Shed & South Eastern Railway House Building Coop. Society Ltd. v. Attili Appala Swamy reported in (2015) 2 SCC 390. Mr. Chatterjee next contended that one of the grounds recorded in the said order dated August 25, 2015 for allowing the said revisional application by setting aside the order passed by the learned Court below dated November 24, 2014 was the direction contained in the order dated September 29, 2014 passed by the learned Single Judge of this Court in C.O. No. 3182 of 2014 that any application filed by the defendants for extension of time to file their written statement shall be considered by the learned Court below after being satisfied that the grounds under Order 8, Rule 1 of the Code existed. He further submitted that this Court passed the order dated August 25, 2015 after recording in detail the facts that the defendant opposite party no. 5 and some other defendants had obtained repeated extensions of time to file their respective written statement, with an aim to delay the commencement of the trial of the suit and the conduct of the opposite party no. 5 petitioner was not bona fide.

According to Mr. Chatterjee in view of above findings recorded in the said order dated August 25, 2015 for allowing the said revisional application and in effect rejecting the prayer of the defendant no. 5 petitioner to accept the written statement filed belatedly, it cannot be held that the said order is vitiated by any error apparent on the face of the record. Relying on the decisions of the Supreme Court in the case of State of West Bengal v. Kamal Sengupta reported in (2008) 8 SCC 612, Mr. Chatterjee also submitted that a judgment or order of a Court can be reviewed under Order 47, Rule 1 of the Code on the ground of being vitiated by an error apparent on the face of the record, only when such error is evident per se from the record of the case, without requiring detailed examination, scrutiny and elucidation either of the facts or the legal position. He urged that if an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47, Rule 1 of the Code. He further argued that as on the date of passing of the said order dated August 25, 2015 by this Court, the defendant no. 5 applicant was also aware of the order dated December 22, 2014 passed by the learned Court below impleading some more defendants in the suit, but he did not urge the said order before this Court, as a ground for acceptance of his written statement and now he cannot urge the said order passed by the learned Court below, as a ground for review of the said order dated August 25, 2015 passed by this Court. In this regard, he relied on the decision of the Supreme Court in the case of State of Kerala and Ors. v. P.T. Thomas reported in (2005) 12 SCC 347. According to Mr. Chatterjee if the defendant no. 5 petitioner feels aggrieved by the said order dated August 25, 2016 passed by this Court it has to approach the higher forum and review application is not maintainable.

I have considered the facts of the case, the materials on record as well as the submissions made by the learned counsel appearing for the respective parties. In the present case, undisputedly the opposite party no. 5 Netai Chandra Saha the heir and legal representative of the deceased defendant opposite party, Sumitra Saha was already on record in the suit, as well as in the revisional application and, therefore, as held by the Supreme Court in the case of Diesel Loco Shed(supra) question of either the suit having abated as against the deceased defendant, Sumitra Saha cannot arise, nor the said order dated August 25, 2015 can be held to be a void order. Further, the defendant no. 5 applicant was well aware of the said order dated December 22, 2014, but in the said revisional application he did not raise any ground to sustain the order dated November 24, 2014 passed by the learned Court below, on the ground of subsequent impleadment of more defendants. Thus, as held by the Supreme Court in the case of P.T. Thomas (supra), the defendant no. 5 applicant cannot put forth the said order dated December 22, 2014 passed by the learned Court below, as a ground for review of the order dated August 25, 2015 passed by this Court in the said revisional application. From the order dated August 25, 2015 it is evident that by the said order this Court set aside the decision of the learned Court below to accept the written statement on behalf of the defendant no. 5 applicant and the defendant no. 6 after being fully satisfied that the explanation put forth by the defendant no. 5 and the defendant no. 6 to file their respective written statements lacked bona fide and the said defendants had obtained repeated extension of time to file their written statements were nothing but aim to delay the commencement of the trial of the suit, by the defendant no. 5 applicant and such finding on the merit of the said revisional application cannot be held to be vitiated by any error apparent on the face of the record and the case made out by the petitioner does not fulfil the conditions of review of an order laid down by the Supreme Court in the cases of Kamal Sengupta (supra).

Further, in view of the direction of a learned Single Judge of this Court in the said order dated September 29, 2015 in C.O. 3128 of 2014, already quoted above there was no scope for this Court to uphold the said order dated November 24, 2014 passed by the learned Court below even on the ground of subsequent impleadment of more defendants in the suit.

For all the foregoing reasons, I find no merit in the review application. Accordingly, the application being R.V.W. 234 of 2015 stands rejected.

However, there shall be no order as to costs.

Urgent certified server copy of this judgement, if applied for, be supplied to the parties, subject to compliance with all requisite formalities.