Final Order 1

Order Details: Other
Pdf Text: Review Petition No. 36 of 2019 1 Date : 06.08.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
REVIEW PETITION NO. 36 OF 2019
IN
NOTICE OF MOTION NO. 2607 OF 2017
IN
SUMMARY SUIT NO. 5899 OF 2005
(CNR NO.MHCC010009172019)
Dr. (Mrs.) Jyoti Chordia .. Petitioner
(Org. Defendant no. 1)
Versus
Elegant Industries Pvt. Ltd. & Anr. .. Respondents
(Org. Plaintiff and
Defendant no. 2 to 4)
Appearances :
Plaintiff in person present.
Mrs. Preeti Shah @ Mr. Ravi Irle, Ld. Adv. for defendant no.1
present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 06.08.2019
1. The applicant / Original defendant no. 1 has filed instant
Review application for review of order dated 18.09.2017 passed in
Notice of Motion No. 2607 of 2017 whereby the Notice of Motion
debarring Dileep B. Nevatia from appearing on behalf of petitioner
was rejected.
2. It is contended by the applicant that the plaintiff filed instant
suit without there having being authority letter from the Elegant
Industries Limited. Dileep B. Nevatia is neither Director nor
-- 1 of 7 --
Review Petition No. 36 of 2019 2 Date : 06.08.2019
authorised person to file present suit. Dileep Nevatia at the time
of filing of the suit did not obtain permission as required under
Section 32 of Advocates Act, 1961. Hence, the appearance of the
Dileep Nevatia should be debarred in the present matter.
3. It is contended by the Advocate for the applicant that Dileep
Nevatia was debarred by Court Room No. 32 from appearing in
suit no. 6814 of 2003. The aforesaid order was challenged by the
Dileep Nevatia before Hon'ble High Court by filing Writ Petition
No. 12696 of 2017 and Hon'ble High Court vide its order dated
30.11.2018 upheld the order of Court Room No. 32. Whereby,
Dileep Nevatia was barred to appear in person because he did not
obtain leave under Section 32 of Advocates Act, 1961.
4. It is contended by the applicant that the aforesaid order
passed by Hon'ble High Court confirming the entitlement of the
Dileep from appearing in person was passed in 30.11.2018.
Therefore, on the basis of the same, the applicant seek to review
order dated 18.09.2017 whereby my predecessor dismissed the
Notice of Motion No. 2607 of 2017.
5. It is contended by the applicant that, thus from the date of
passing of the order by the Hon'ble High Court in Writ Petition No.
12696 of 2017, the present review application challenging order
dated 18.09.2017 is within limitation. Thus, it is contended by the
applicant that Dileep Nevatia should not be permitted to appear in
the proceeding on behalf of the applicant company.
-- 2 of 7 --
Review Petition No. 36 of 2019 3 Date : 06.08.2019
6. Per contra Dileep Nevatia appeared in person on behalf of
the respondent no.1 and opposed the application by filing say
below Exh. 9. It is contended by the respondent no. 1 that scope
of review is very limited only to the extent of correcting error
appearing on the face of record. The applicant by way of instant
review application is seeking rehearing of the entire matter on
merit which amounting to apparent disguise. In support of his
contention, he has relied on Judgment of Hon'ble Delhi High
Court reported in 2006, Delhi 12 in case of Smt. Sarla Devi
Jain V/s. Union of India and Ors.
7. It is further contended by the respondent no. 1 that as per
Order XLVII Rule 1, the applicant ought to have filed Review
Petition within 30 days from the date of order. However, there is
inordinate delay in filing Review Petition. The applicant failed to
explain the delay hence, on this count, the Review Application
needs to be rejected with cost.
8. It is further contended by the respondent no. 1 that, order
passed in Writ Petition No. 12696 of 2017 is arising out of suit No.
6814 of 2003 in which the parties are different. Hence, the
applicant can not take advantage of the aforesaid order and
contend that order passed by Hon'ble High Court is merged into
the Impugned Order. The respondent no. 2 also invited my
attention towards various proceedings between present parties to
the proceeding wherein, after passing of order dated 30.11.2018
by Hon'ble High Court in Writ Petition No. 12696 of 2017, the
-- 3 of 7 --
Review Petition No. 36 of 2019 4 Date : 06.08.2019
respondent no. 1 appeared in person and represented the
company. Those proceedings are transfer application No. 257 of
2016 before the Small Causes Court, Misc. Civil Application No.
174 of 2017 before Hon'ble High Court, Writ Petition No. 13206
of 2017 before Hon'ble High Court in which the respondent no. 1
appeared in person and contested the application.
9. It is further contended by the respondent no. 1 that on
12.06.2014, he has obtained permission to appear in person and
conduct present matter. In the present matter the plaintiff
examined in all 9 witnesses. Thus, witnesses were duly cross
examined by the applicant without any objection as to the
appearance of the respondent no. 1. Hence, the objection of the
applicant does not survive and same needs to be rejected.
10. Admittedly, the plaintiff examined in all 9 witnesses and the
applicant crossexamined those witnesses without any objection.
In my view, the aforesaid objection is due to have been waved by
the applicant. Moreover, this Court on 12.06.2018 granted
permission to the applicant to represent the plaintiff in person. In
my view, although there is no separate application but there is an
order of the Court granting him permission to conduct proceeding
in person. Hence, now at the belated stage, objection of the
applicant did not sustained.
11. Heard both the sides. Perused application, Impugned Order
and reply. The applicant is original defendant no. 1 in the suit and
-- 4 of 7 --
Review Petition No. 36 of 2019 5 Date : 06.08.2019
is preferred the review application for review of the order dated
30.11.2018. As per Order XLVII Rule 1, scope of review is only to
the extent of correcting the mistake or error appearing on the face
of record. The applicant has not filed Review Petition on the
grievance that, there is a error on the Impugned Order rather
applicant filed Review Petition. In view of the order dated
30.11.2018 passed by the Hon'ble High Court in Writ Petition No.
12696 of 2017 whereby the respondent no. 1 was not allowed to
appear in person in Suit No. 6814 of 2003 on the ground that he
has failed to seek leave under Section 32 of Advocates Act, 1961.
Thus, in my view, the Review Petition filed is misconceived and do
not fall within scope of Order XLVII Rule 1.
12. As per Article 124 of Limitation Act, the applicant should file
Review Application within 30 days from the date of order.
Admittedly, Review Application is not filed within 30 days from
the impugned order. The applicant took the ground that from the
date of order dated 30.11.2018, their application is within
limitation. In my view, the aforesaid order can not curtail the
period of limitation which was already commenced. The applicant
atleast ought to have filed application condone the delay.
Moreover, in the application for condonation of delay also, there is
no sufficient and justified reasons were assigned by the applicant.
Hence, in my view, the application is beyond limitation and thus, it
needs to be rejected with cost. Hence, I proceed to pass the
following order.
-- 5 of 7 --
Review Petition No. 36 of 2019 6 Date : 06.08.2019
ORDER
1. Review Petition No. 36 of 2019 is hereby rejected with
cost.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 06.08.2019 Greater Mumbai
Dictated on : 07.08.2019
Typed on : 07.08.2019
Draft Submitted on : 07.08.2019
Checked on : 09.08.2019
Signed on : 09.08.2019
-- 6 of 7 --
Review Petition No. 36 of 2019 7 Date : 06.08.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
09/08/2019 at 3.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
06/08/2019
JUDGMENT/ORDER signed by P.O.
on
09/08/2019
JUDGMENT/ORDER uploaded on 09/08/2019
-- 7 of 7 --