Mrs. Smita Sandip Keni and Mrs. Neeta Pandurang alias Rajan Gaitonde vs Mr. Vallabh Vinayak Juvarkar, ''Zeet'' Building, 3rd floor, Airport Road, Chicalim, Vasco-da-Gama, Goa and Others

N.A. Britto, J.—The applicants seek review of Order dated 10-4-2008, dismissing their application dated 30-7-2007 for recall of a Consent Order dated 24-5-2006. It is not necessary to refer to the facts which are otherwise enumerated in Order dated 10-4-2008.

Shri S. D. Lotlikar, learned Senior Counsel, on behalf of the applicants, submits that at the time of passing the Order dated 10-4-2008, this Court did not take into consideration their submission that this Court could not have given directions to the trial Court to dispose of the inventory proceedings, pending before that Court, in terms of the said Consent Terms/Order, in view of the fact that the applicants who were the interested parties, were not parties to the appeal and to the Consent Terms. It is submitted that it was not the concern of the appellants and the respondents in the said appeal as to what they had agreed between them but what was objectionable to them was the direction of the Court that the said inventory proceedings be disposed of as per the terms which the appellants and the respondents had arrived at, in proceedings to which the applicants were not parties and the parties to the Appeal from Order No.73/2004 had played a fraud on the Court by obtaining such an order in the absence of the appellants who were interested parties in the said inventory proceedings. In other words, the contention is that the parties to the said appeal by themselves could not have agreed to dispose of the assets without the presence of other parties. Learned Senior Counsel further submits that the finding given by this Court in para 19 of the Order under review ought to have been left out to be given by the trial Court and it would suffice in this case if the Court observes that the said observations would not come in the way of the learned trial Court in deciding the inventory proceedings on merits. Learned Senior Counsel further submits that the principal grievance of the applicants was clause no.8 of the said Consent Terms and the minimum which ought to have been said by this Court is that the said agreement was not binding on the applicants. Learned Senior Counsel submits that the present application is filed in the light of the Judgment of Mohd. Akram Ansari v. Chief Election Officer and others (2008 ALL SCR 352) wherein the Apex Court has held that in case the petitioner contends that a particular point was pressed by the petitioner and was not dealt in the Judgment it is open for him to file an application before the same learned Judge which delivered the Judgment and if he satisfies the Court that the other points were in fact pressed, but were not dealt with in the impugned Judgment, it was open to the concerned Court to pass appropriate orders, including an order of review.

Shri M.S. Usgaonkar, learned Senior Counsel on behalf of respondent nos. 1 and 2, on the other hand, contends that the present application for review is not maintainable, and further submits that the applicants'' case in application dated 30-7-2007 was entirely based on fraud and that is evident from paras 11 and 12 of the said application dated 30-7-2007 and that the finding rendered by the Court in the Order under review is that there was no fraud. Learned Senior Counsel further submits that the submission made on behalf of the applicants does not follow from the fraud earlier alleged and argued inasmuch as the submission made is irrelevant to displace the allegations of fraud. Learned Senior Counsel further submits that the applicants could have succeeded only in case they were able to establish the case pleaded by them of fraud and not otherwise. Learned Senior Counsel has placed reliance on Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, wherein the Apex Court has stated that there is a distinction which is real, though it might not always be capable of exposition between a mere erroneous decision and a decision which could be characterized as vitiated by "error apparent". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error and that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out. Reliance has also been placed on the case of Jamun Poddar Vs. State of Bihar and Others, wherein a Division Bench of that Court has held that the power of review cannot be invoked for reconsideration of the Judgment on merits and/or for rehearing or fresh decision of the case and/or a routine review but a serious step only to be resorted to in very exceptional cases.

Shri F.J. Colaco, learned Counsel on behalf of the remaining respondents, has submitted that the present application is nothing but an appeal in disguise and ought not to be entertained; he has also referred to Article 1372 of the Civil Procedure Code, 1939 to contend that ex parte proceedings are also contemplated in inventory proceedings besides the Civil Procedure Code, 1908.

Admittedly, the inventory proceedings came to be concluded on 5-9-2006 after the Order of this Court dated 24-5-2006. The applicants approached this Court first on or about 30-7-2002 to set aside/recall the Order dated 24-5-2006 and during the pendency of the application dated 30-7-2007 (M.C.A. No. 583/2007) approached the trial Court to recall/set aside the Order dated 5-9-2006. In fact at one stage an option was given to the applicants to pursue the application before the trial Court first, but the applicants chose to pursue the application before this Court, first. I am afraid the Order dated 10-4-2008 cannot be displaced nor reshaped, in the facts and circumstances of this case. The tenor of the case of the applicants in the application dated 30-7-2007 was that the respondents committed fraud by colluding and getting the suit property excluded from the inventory proceedings and suppressed from the Court that the applicants and other sisters were interested in the inventory proceedings while obtaining the said Order dated 24-5-2006. The submissions made on behalf of the applicants are reproduced in para 16 of the Order dated 10-4-2008, regarding which there is no grievance made. There is nothing new in the submission/s now made which has not been considered by this Court whilst passing the impugned Order dated 10-4-2008 and even if there is something new which has not been considered, in my view, the impugned Order cannot be reviewed as it is based on various other reasons, as well. The application dated 30-7-2007 was rejected on ground of non joinder of necessary parties (para 17); that the applicants were well aware of the proceedings (para 21) and that the application was speculative and was based on suppressed facts (para 24). Another shade of fraud pleaded by the applicants in para 14 of the application dated 30-7-2007 and regarding which the applicants even sought the removal of the mother (R3) as guardian of minors(Respondent Nos. 4 and 5) and sought a Court Officer to be appointed as their guardian, has been dealt with by Order dated 11-10-2007 and para 18 of the Order dated 10-4-2008. This is nothing but an attempt to open the controversy de novo which is otherwise concluded with Order dated 10-4-2008. In the light of the above, I find there is no merit in the application which needs to be rejected and is hereby rejected, with costs.