Sagar Automobiles vs Kailash Chandra Sudarshan

Ashok B. Hinchigeri, J.—The petitioner is seeking the review of the judgment, dated 23.04.2014 passed in RFA No. 1935/2013 on the ground that the I.A. No. 2/2015 filed for production of additional evidence invoking Order 41 Rule 27 of CPC was not considered at the time of disposal of the main matter.

Sri K.M. Nataraj, learned Senior Counsel appearing for Sri Vasanth Madhav for the petitioner submits that the Apex Court in the case of Hakam Singh Vs. State of Haryana and Others, AIR 2008 SC 2990 : (2008) 7 JT 490 : (2008) 6 SCALE 127 : (2008) 12 SCC 762 : (2008) AIRSCW 5042 : (2008) 4 Supreme 605 has held that the appellate Court is required to consider the application made for acceptance of additional evidence while disposing of the appeal. Paras 4 and 5 of the said decision read out by him, is as follows:

"4. Without going into the facts in detail, these appeals can be disposed of on a very short point. It is an admitted position that an application under Order 41 Rule 27 of the Code of Civil Procedure (In short "CODE") for acceptance of additional evidence was filed before the High Court in the aforesaid First Appeals, which were dismissed by the High Court by the impugned order. However, the application for acceptance of additional evidence under Order 41 Rule 27 of the CODE was not considered by the High Court while disposing of the appeal.

That being the position, without going into the legality and propriety of the impugned order of the High Court passed in the aforesaid appeals, we set aside the same and remit back the cases to the High Court for decision of the Appeals afresh on merits and in accordance with law along with the application for acceptance of additional evidence under Order 41 Rule 27 of the CODE."

He has also relied on Eastern Equipment and Sales Ltd. Vs. ING. Yash Kumar Khanna, AIR 2008 SC 2360 : (2008) 7 JT 136 : (2008) 151 PLR 689 : (2008) 6 SCALE 498 : (2008) 12 SCC 739 : (2008) AIRSCW 3891 for advancing the submission that the appeal has to be taken up along with the application filed under Order 41 Rule 27. He submits that if the cause-list, dated 23.04.2014 on which date the appeal is disposed of is perused, it becomes clear that IA No. 2/2012 was not even put up by the office. The un-noticing of the I.A. and the consequence of dismissal of the appeal call for the review of the order. In support of his submissions, he relies on the Apex Court judgment in the case of North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by Lrs., AIR 2008 SC 2139 : (2012) 281 ELT 161 : (2008) 4 JT 587 : (2008) 6 SCALE 254 : (2008) 8 SCC 511 : (2012) 28 STR 417 : (2008) AIRSCW 3159 . The relevant paragraph is extracted hereinbelow:

"18. It is manifest that in the present case, the High Court did not examine the record of the case with the thoroughness which was expected at the time of disposal of the pending applications. On a perusal of the impugned decisions, it is clear that the High Court was not even aware of the pendency of the application under Order 41 Rule 27 C.P.C seeking leave to adduce additional evidence. A perusal of the documents, which came to light pursuant to the directions given by the High Court on 3.4.2002, prima facie, goes to show that these are likely to widely affect the decision of the Court in one way or the other."

He has also relied on the Apex Court''s judgment in the case of Jatinder Singh and Another Minor through Mother Vs. Mehar Singh and Others, (2008) 5 CTC 374 : (2008) 11 JT 30 : (2009) 153 PLR 435 : (2008) 12 SCALE 734 : (2009) 17 SCC 465 , wherein it is held that the dismissal of appeal without deciding the application for additional evidence is improper. He also relies on the Apex Court''s judgment in the case of Bongaigaon Refinery and P.C. Ltd. and Others Vs. Girish Chandra Sarmah, AIR 2007 SC 2860 : (2007) 115 FLR 4 : (2007) 10 JT 81 : (2007) 9 SCALE 648 : (2007) 7 SCC 206 : (2007) AIRSCW 5185 , wherein it is held that the plea abandoned before the Single Judge can be raised before the Division Bench; such a plea is not barred by estoppel because writ appeal is in continuation of the original order. The learned Senior Counsel relies on the Apex Court''s judgment in the case of Rafiq and Another Vs. Munshilal and Another, AIR 1981 SC 1400 : (1981) 2 SCC 788 : (1981) 3 SCR 509 : (1981) 13 UJ 505 to buttress his submission that if a client''s chosen advocate has defaulted in bringing certain things to the notice of the Court, that client should not be made to suffer and that too for no fault of his.

The learned Senior Counsel very fairly cites the judgment which slightly caused contrary to what was urged in support of the review petition hitherto. He read out the relevant portion of para 13 of the decision reported in Daman Singh and Others Vs. State of Punjab and Others, AIR 1985 SC 973 : (1986) 60 CompCas 1 : (1985) 1 SCALE 664 : (1985) 1 SCALE 644 : (1985) 2 SCC 670 : (1985) 3 SCR 580 : (1985) 17 UJ 1080 .........If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the court making the order to it by filing a proper application for review or clarification.........."

Sri M.M. Swamy, learned counsel for the respondent submits that no attempt whatsoever was made by the appellant''s side (review petitioner''s side) to prosecute I.A. No. 2/2013. He submits that the said I.A. was deliberately not pressed.

On being asked as to whether the filing of the said I.A. was brought to the notice of the Court, Sri Vasantha Madhav submits that the same was not brought to the notice of the Court.

The question that falls for my consideration is whether the judgment, dated 23.04.2014 is liable to be reviewed for non-consideration of the I.A. No. 2/2013?

To consider this review petition, it is helpful to refer to the Apex Court''s judgment in the case of Haridas Das Vs. Smt. Usha Rani Banik and Others, AIR 2006 SC 1634 : (2006) 2 CTC 321 : (2006) 3 JT 526 : (2006) 3 SCALE 287 : (2006) 4 SCC 78 : (2006) AIRSCW 1771 : (2006) 3 Supreme 125 . Neither Section 114 of CPC nor Order 47 Rule 1 postulate the rehearing of the disputes because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcibly and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. Para 13 of the said decision is extracted hereinbelow:

"13. In order to appreciate the scope of a review, Section 114 of the CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit." The parameters are prescribed in Order XLVII of the CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason. " The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1 of the Order XLVII which states that 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. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection."

The perusal of the afore-extracted judgment shows that review cannot be granted on the ground that a pending I.A. was not argued. If the judgment dismissing the appeal is bad for non-consideration of any pending I.As., the aggrieved party has the efficacious remedy of filing the SLP before the Apex Court.

In the instant case, both the sides fairly admit that no arguments whatsoever were addressed on I.A. No. 2/2013. The application therefore has to be treated as impliedly dismissed, as not prosecuted or as not pressed. The petitioner''s side, for the reasons best known to itself, has not even brought to the notice of this Court the filing of the said application. The petitioner''s side cannot be permitted to be a beneficiary of its own lapses or non-prosecution.

The maxim actus curiae neminem gravabit means "an act of the court shall prejudice no man". This maxim affords a safe and certain guide for the administration of law. When the petitioner''s side has not brought I.A. No. 2/2013 to the notice of this Court, much less making any submissions on the said I.A., it is not justified in raising the grievance that the said I.A. ought to have been considered while disposing of the main matter.

In the result, I dismiss this review petition. No order as to costs.