Final Order 1

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Pdf Text: 1 Review Petition No.293/2019 in
Summary Suit No.8044 of 2001
MHCC010105482019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
REVIEW PETITION NO. 293 OF 2019
IN
SUMMARY SUIT NO. 8044 OF 2001
1) M/s. Prabhat General Agency
154/6, Mittal Tower 'B',
Nariman Point, Mumbai400021.
2) Tolaram Chudiwala, Karta of Lachhiram
(Since Deceased)
Chudiwala HUF Proprietor,
M/s. Prabhat General Agencies
Indian Inhabitant, Hindu Adult
R/at : Rizvi Apartment,
6th Floor, Altamount Road,
Opp. Olmpus, Mumbai400026
2 (a) Mohini Chudiwala,
R/at : Rizvi Apartment,
6th Floor, Altamount Road,
Opp. Olumpus, Mumbai400028
2 (b) Vikash Tolaram Chudiwala
R/at : 6/B, Rizvi Park,
'D' Raj Lane, Altamount Road,
Mumbai400026
2 (c) Mrs. Vibha Dipak Agarwala
R/at : 2, Buckley Court,
5 Wode House Road, Colaba,
Mumbai400031
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Summary Suit No.8044 of 2001
2(d) Mrs. Vidhi Atul Maheshwar
R/at : Mahdav Vilas, 2nd Floor,
Setawad Lane, Napensea Road,
Mumbai – 400036 ….Petitioners/
Orig. Defendants.
V/s.
Mr. Manish Jhunjhuwala,
Indian Inhabitant, Hindu Adult
R/at : 3/4, Sunita Apartment,
62, Pedder Road,
Mumbai400036 ....Respondent/
Orig. Plaintiff.
Appearance:
Mrs. Harsha Y. Shah, Advocate for the Petitioners/Orig. Defendants.
Mr. R.M. Pardiwala, Advocate for the Respondent/Orig. Plaintiff.
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.34)
DATE : 03 rd September, 2021
ORDER
1. This Petition is filed seeking review of the order dated
03.09.2021 in Miscellaneous Application Exh4 taken out by the
petitioners/original defendants for striking out amendment carried out
by respondent/original plaintiff without there being order of Hon'ble
Court and beyond schedule in Chamber Summons No.217/2018.
2. Review is sought on the ground that as per order dated
07.03.2018, respondent was directed to incorporate names of legal heirs
of deceased Defendant No.2A and no order of consequential amendment
was allowed to be carried out. There is no specific relief sought for
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Summary Suit No.8044 of 2001
carrying consequential amendment. The provision of the law is not
mentioned as regards incorporating paragraph Nos. 2(a) and 2(b) and
paragraph No.11 and prayer clause (a) in the plaint. The
petitioners/original defendants were not made aware of paragraph Nos.
2(a) and 2(b), amendment to paragraph No.11 and prayer clause (a) as
it was not part of schedule of Chamber Summons and therefore
petitioners could not file their reply to Chamber Summons. It is further
submitted that the said amendment would cause prejudice to the right of
petitioners.
3. Respondent/original plaintiff filed reply at Exh2 and
opposed the Review Petition on the ground that it is fictitious, false,
misconceived and not tenable in law. With the sole purpose to delay
hearing of the suit, petitioners have filed this review petition. The suit
was filed in the year 2001 and ExaminationinChief of respondent and
his witness was filed in the year 2011. When the suit was pending before
Hon'ble High Court, sufficient opportunity was given to deceased original
defendant No.2 to cross examine respondent and his witness. Due to
failure of the same, crossexamination of the defendants was closed by
the order dated 18.01.2012. After transfer of the suit in Court Room
No.40, Notice of Motion No.2115/2012 was taken out by deceased
original defendant No.2 for setting aside order dated 18.01.2012 and for
permission to defendant to cross examine the respondent and his
witness. The said Notice of Motion was dismissed. So, present review
petition is also another attempt to delay the hearing of the suit. No
grounds are made out, for review of the order dated 03.09.2019 and
does not require any interference. Chamber Summons was taken by
respondent for bringing legal heirs of deceased defendant No.2A on
record and learned Advocate for petitioner gave no objection to the said
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Summary Suit No.8044 of 2001
Chamber Summons. It is evident from paragraph No.2 of schedule of
Chamber Summons that there is averment with regard to consequential
amendments in the plaint. However, petitioners have deliberately
maintained silence with regard to no objection given by their Advocate
on the said Chamber Summons. Chamber Summons was allowed.
4. It is further submitted that in OrderXLVII Rule1 of Code of
Civil Procedure, “Judgment or order may be open for review, if there is
mistake or error apparent on the face of record.” The grounds pleaded in
the review petition are without any substance and do not warrant review
of the order dated 03.09.2019. It has been rightly observed that
amendments which are carried out by respondent in the suit will not
cause prejudice to the right of petitioners and therefore the said
amendments cannot be struck off on the reason that it was not
specifically mentioned in paragraph No. 2 of schedule of Chamber
Summons No.217/2018. For all these reasons, it is prayed to dismiss the
review petition with heavy exemplary costs.
5. Following points arise for consideration. Findings against
each of them alongwith reasons are stated as below.
SR. NOS.
POINTS FINDINGS
1. Whether order dated 03.09.2019
passed in Miscellaneous
Application Exh4 in Summary
Suit No.8044 of 2001 needs to be
reviewed. ?
In Negative
2. What Order ? As per final order
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Summary Suit No.8044 of 2001
REASONS
As to point Nos.1 and 2 jointly :
6. Heard learned Advocate for petitioners and respondent at
length. Learned Advocate for petitioners vehemently submitted that
consequential amendments as pleaded by respondent was not in
knowledge of the petitioners. As there is no mention of the said
amendment carried out in paragraph Nos.2(a) and 2(b) of the plaint in
schedule of Chamber Summons, the petitioners have given no objection
for bringing legal heirs of deceased defendant No.2A on record and no
such objection was given for amendments in paragraph Nos. 2(a) and
2(b), paragraph No.11 and prayer clause (a) in the plaint. Under what
provision, said amendment is carried out is not stated. As the impugned
amendment carried out by respondent without any order of the Court
and without there being any mention in the schedule of Chamber
Summons, it is an error apparent on the face of record in view of Order
XLVII Rule1 of Code of Civil Procedure. Therefore, great prejudice is
caused to the petitioners and their rights are infringed. It is further
submitted by learned Advocate for petitioners that impugned amendment
is beyond the schedule of Chamber Summons and thus it is revisable.
On the contrary, learned Advocate for respondent submitted
that in the order dated 03.09.2019, it is specifically observed that no
prejudice will cause to the petitioners, as right to sue survives after death
of defendant No.2A. Amendments carried out in paragraph Nos. 2(a)
and 2(b), paragraph No.11 and prayer clause (a) in the plaint is nothing
but relief sought against the original defendants. Defendant Nos. 2(B),
2(C) and 2(D) being legal heirs of deceased defendant No.2A,
respondent has every right to seek relief against them which were sought
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against original defendant/father of defendant Nos. 2(B), 2(C) and
2 (D). Thus, amendment carried out by respondent had not changed any
basic structure of prayers mentioned in the plaint nor it affected any of
the rights of petitioners.
7. Learned Advocate for petitioners cited the Judgments in the
matter of S.P. Awate, V/s. C.P. Fernandes and Another in AIR 1959
Bombay 466 ( V 46 C 136 ), wherein it is laid down by Hon’ble High
Court of Bombay that :
“The powers of review enjoyed by the High Court are
very limited powers and when a decision is challenged
on the ground that there is an error apparent on the
face of record, the error contemplated is an error so
manifest, so clear, that no court would permit such an
error to remain on the record.”
Vasant Jaiwantrao Mahajan V/s. Tukaram Mahadaji Patil in AIR
1960 Bombay 485 ( V 47 C 131), wherein it is laid down by Hon’ble
High Court of Bombay that :
“ Where a relevant provision of law, in this instance O9
R13 Proviso, has not been considered at the time of
passing an order, such an order can be reviewed, if
necessary, by the Judge who passes that order or by his
successor.”
Molu Ram Amar Singh V/s. Saroj Kumari in AIR 1973 Punjab and
Haryana 265, ( V 60 C 67), wherein it is laid down by Hon’ble High
Court of Punjab and Haryana that :
“ Review should be granted in case of error apparent on
face of record, though point was not urged before.”
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Summary Suit No.8044 of 2001
Y. Venkannachowdary V/s. The Special Deputy Collector, Land
Acquisition (General), Hyderabad District and others in AIR 1981
Andhra Pradesh 232, wherein it is laid down by Hon’ble High Court of
Andhra Pradesh that :
“Important provision of law not brought to notice of
Court during hearing of appeal by mistake of
Counsel.Amounts to error apparent on face of record.
Review maintainable. ”
Labh Singh and Another V/s. Bant Singh and Others in AIR 1999
Punjab and Haryana 189, wherein it is laid down by Hon’ble High Court
of Punjab and Haryana that :
“ As per notification right of preemption is taken away
in respect of sales effected after 31st March, 1961.
However, Court recorded the finding that said right was
taken away in respect of sales effected before 31st March,
1961 and rejected amendment application. This is error
on face of record. Said finding can be reviewed.
Amendment of plaint permitted. ”
In the matter of S.P. Awate, review petition was filed against
the decision of the Payment of Wages Authority. The application for
review was dismissed. In the matter of Vasant Mahajan, a decree passed
in favour of Tukaram and against defendant Nos. 2 and 3 was set aside
against defendant No.3 only under OrderIX, Rule13 of the C.P.C.. While
setting aside the decree against defendant No.3, no order was passed as
regards the decree against other defendants. The revision application
was rejected on the ground that to money decree the provisions of
proviso to OrderIX Rule13 of the C.P.C. are not attracted. In the matter
of Molu Ram, the point as regards the 1/5th share as per right of pre
emption was not argued before the Court, so on that ground the
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Judgment was modified under Order XLVII Rule1 of the C.P.C. to the
extent of share of the plaintiff from 2/5th to 1/5th. In the matter of Y.
Venkannachowdary, the review raises the question of rate of interest to be
awarded on the amount of compensation under the Land Acquisition Act
visavis the lands acquired by the Central Government in the year 1963.
In the matter of Labh Sing, as per notification right of preemption was
taken away in respect of sales effected after 31.03.1961 but the court
recorded that the said right was taken away before 31.03.1961. So,
considering the said facts and circumstances, review petition was
allowed. The facts in the matters cited by learned Advocate for
petitioners are thus distinguishable from the facts in the present case.
So, with due respect those are not applicable to the present case.
8. Learned Advocate for respondent cited the Judgments in the
matter of Meera Bhanja (Smt) V/s. Nirmala Kumari Choudhury (Smt)
in (1995) 1 Supreme Court Cases 170, wherein it is laid down by
Hon’ble Apex Court that :
“ The review proceedings are not by way of an appeal
and have to be strictly confined to the scope and ambit
of Order47, Rule1, CPC. The review petition has to be
entertained only on the ground of error apparent on the
face of the record and not on any other ground. 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 longdrawn process of
reasoning on points where there may conceivably be two
opinions.”
Parsion Devi and Others V/s. Sumitri Devi and Others in (1997) 8
Supreme Court Cases 715, wherein it is laid down by Hon’ble Apex Court
that :
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Summary Suit No.8044 of 2001
“ In exercise of the jurisdiction under Order47, Rule1
CPC it is not permissible for an erroneous decision to be
“reheard and corrected”. There is a clear distinction
between an erroneous decision and an error apparent on
the face of the record. While the first can be corrected
by the higher forum, the latter only can be corrected by
exercise of the review jurisdiction. A review petition has
a limited purpose and cannot be allowed to be 'an
appeal in disguise'.”
Ishwar Dutt V/s. Gyan Chand in AIR 1998 Rajashthan 302, wherein it
is laid down by Hon’ble High Court of Rajasthan Bench at Jaipur that :
“ The review proceedings are not by way of an appeal
and have to be strictly confined to the scope and ambit
of Order47, Rule1, CPC. The scope for exercise of
power by High court while dealing with and deciding a
review petition is very limited confined within the four
corners of the statute.”
Lily Thomas and Others V/s. Union of India and Others in (2006) 6
Supreme Court Cases 224, wherein it is laid down by Hon’ble Apex Court
that :
“ The power of review can be exercised for correction of a
mistake but not to substitute a view. Such powers can
be exercised within the limits of the statute dealing with
the exercise of power. The mere possibility of two views
on the subject is not a ground for review. Once a review
petition is dismissed no further petition of review can be
entertained.”
Dolat Industries, Gonal V/s. Krishna Oil Industries, Jamnagar and
Anothers in AIR 2002 Gujarat 91, wherein it is laid down by Hon’ble
High Court of Gujrat that :
“ Review Not permissible on ground that court has
proceeded on wrong proposition of law. Not permissible
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also on ground that decision is erroneous on merits.
Suit on ground of infringement of trade mark. High
Court allowing appeal. However, not allowing interim
relief after considering facts, on ground that there was
no prima facie case in favour of applicant. Decision can
be subject to appeal to higher forum. It cannot however,
be subject to review.”
B. Dhanalakshmi V/s. M. Shajahan and Others in AIR 2004 Madras
512, wherein it is laid down by Hon’ble High Court of Madras that :
“ If the parties aggrieved by the Judgment on the ground
that it is erroneous, remedy is only questioning the said
order in appeal. The power of review under O47, R1,
C.P.C. may be opened inter alia only if there is a
mistake or an error apparent on the face of the record.
The said power cannot be exercised as is not permissible
for an erroneous decision to be rehears and corrected.”
Union of India V/s. Sandur Manganese and Iron Ores Limited and
Others in (2013) 8 Supreme Court Cases 337, wherein it is laid down by
Hon’ble Apex Court that :
“Under review jurisdiction Court has power to modify
impugned judgment to the extent of deletion of
misquoted statement. Mere disagreement with view of
the judgment cannot be ground for invoking review
jurisdiction.”
N. Anantha Reddy V/s. Anshu Kathuria and Others in (2013) 15
Supreme Court Cases 534, wherein it is laid down by Hon’ble Apex Court
that :
“ The review jurisdiction is extremely limited and unless
there is mistake apparent on the face of the record, the
Order/Judgment does not call for review. The mistake
apparent on record means that the mistake is self
evident, needs no search and stares at its face.”
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Sivakami and Others V/s. State of Tamil Nadu and Others in (2018)
4 Supreme Court Cases 587, wherein it is laid down by Hon’ble Apex
Court that :
“ Power of review under O47, R1 of CPC is very limited
and it may be exercised only if there is a mistake or an
error apparent on face of record. Review
petition/application cannot be decided like a regular
intracourt appeal.”
9. I have noted the facts and ratio of the cited Judgments relied
by learned Advocate for the respondent. Section 114 of Code of Civil
Procedure, gives a substantive right of review in certain circumstances
and Order XLVII provides the procedure therefor. The normal principle
of law is that once a Judgment is pronounced or order is made, the Court
becomes functus officio. Such Judgment or order is final and it cannot be
altered or changed. An application for review of Judgment may be made
on any of the following grounds :
(i) Discovery of new and important matter or evidence or
(ii) Mistake or error apparent on the face of record or
(iii) Any other sufficient reason.
10. The present review petition is filed on the ground that there
is an error apparent on the face of record as the respondent had carried
out amendments beyond the schedule of Chamber Summons. As
defendant No.2A died during the pendency of suit, vide Chamber
Summons No.217/2018, defendant Nos. 2(B), 2(C) and 2(D) were
added as per the schedule attached to the Chamber Summons. It is not
disputed that defendant Nos. 2(B) to 2(D) are legal representatives of
deceased No.2A. The schedule of Chamber Summons reveals that
consequential amendment is also prayed for and learned Advocate for
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Summary Suit No.8044 of 2001
the petitioners had given no objection to allow the Chamber Summons.
In paragraph Nos.11 and 17 of the plaint, only numbers of defendants
i.e. 2(B) to 2(D) are mentioned. In paragraph 2(a) and paragraph 2(b)
it is mentioned that defendant Nos. 2(B) to 2(D) are legal representatives
of deceased defendant No.2A and the suit be proceeded against them as
the right to sue survives. As per paragraph No.2(b) wherever the words
defendant No.2 appears, it is mentioned that it be read as deceased
defendant No.2. So, from the nature of amendment carried out by the
respondent has not created any new ground or claim against the
petitioners. Further, in the affidavit of Chamber Summons it is
specifically mentioned that as the right to sue survives against the legal
representatives of deceased defendant, the suit can be proceeded against
them. So, in my opinion no such amendment is carried out by
respondent which had caused great prejudice to the right of petitioners
and therefore the said amendment cannot be struck off. In the suit itself,
the prayers sought against original defendant are sought against his legal
representatives. Therefore, the review petition fails as no error apparent
on face of record is shown. Resultantly, point No.1 is answered in
negative and for the answer of point No.2, I pass following order.
ORDER
Review Petition is dismissed and disposed off.
(Jayshri R. Pulate)
Judge
City Civil Court,
Date : 03.09.2021 Gr. Bombay
Dictated on : 03.09.2021
Transcribed on : 03.09.2021 & 04.09.2021
Signed on : 04.09.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
04.09.2021 06.00 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.34)
Date of pronouncement of Order 03.09.2021
Order signed by P.O. on 04.09.2021
Order uploaded on 04.09.2021
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