C.K. Buch, J.
1. By way of preferring the present Civil Application, the applicants have prayed that the delay in filing the Misc. Civil Application (Stamp) No. 301 of 2007 in Special Civil Application No. 20628 of 2005 for reviewing the order dated 11th October, 2005 passed by this Court in Special Civil Application No. 20628 of 2005, may be condoned on the grounds mentioned in the application in the interest of justice.
2. The said substantive petition i.e., Special Civil Application No. 20628 of 2005 has been dismissed by this Court vide order dated 11th October, 2005, which is sought to be reviewed by way of captioned Misc. Civil Application for review. The said petition was preferred by the State of Gujarat and other two officers of the State serving at District Banaskantha; and it was mainly prayed that:
(B) Be pleased to issue a writ of certiorari or writ in the nature of mandamus or order/direction or writ in the nature of appropriate writ and be pleased to call for the records and proceedings of Spl. Civil Suit No. 118 of 1994 and to quash and set aside the order below Exh. 125 dated 30-6-2005 passed by the Principal Sr. Civil Judge, Palanpur, Dist. Banaskantha and further be pleased to declare it to be unconstitutional including in violation of Constitution of India and allow the application at Exh. 125 and direct and order the transfer the case before Arbitration Tribunal.
(C) Your Lordships be pleased to stay the implementation, operation and execution of the order dated 30-6-2005 passed by the Principal Sr. Civil Judge, Palanpur in Spl. Civil Suit No. 118 of 1994 below Exh. 125, pending admission hearing and final disposal of this petition.
3. Of course, the applicants had mentioned in the said petition that the said petition is under Articles 226 and 227 of the Constitution of India, but in sum and substance, the petition was found to be a petition under Article 227 of the Constitution of India. The matter was in reference to the Gujarat Public Works Contracts Disputes Arbitration Act, 1992 (hereinafter referred to as 'the Act') The say of the applicants was that though the Suit before the Civil Court was not maintainable ex-facie, a vital application going to the root of the sustainability of the Civil Suit i.e., application Exh. 125, was rejected, and therefore, the said petition was filed before this Court.
4. While dealing with the said petition and after hearing the learned Assistant Government Pleader for the applicants and the learned Counsel appearing for the opponents herein, it has been ordered that there is no merit in the said petition, and the same is therefore, dismissed in limine.
5. The Court is supposed to consider whether the delay caused in filing the Review Application should be condoned or not and the order sought to be reviewed requires any second thought or not keeping the scheme of Order 47, Rule 1 of the Code of Civil Procedure in mind. If the answer to the second part of the question is in the affirmative, the Court also shall have to consider whether it is legally possible to put the clock back, especially when the similar point has been agitated by the applicants in the First Appeal preferred against the judgment and decree passed in favour of the opponents-original plaintiffs, and whether there is any scope in view of the settled legal position to pass orders reviewing the earlier order passed in the substantive petition. There is strong resistance from the opponents herein against the application praying for condonation of delay mainly on the following counts:
Firstly, this is a case of gross and practically unexplained delay. The second point of resistance is that while appreciating the case placed praying for condonation of delay, the Court may consider the prima facie strength in the case of the applicants in the Review Application and if the applicants have no good or fairly arguable case in the Review Application or chance of success is practically nil, the delay may not be condoned only for the sake of condoning it. The third point of resistance is that the question which the applicants intend to agitate before this Court is already raised in the First Appeal and the captioned Review Application is not a bona fide.
6. I have heard Shri Shivang Shukla, learned Assistant Government Pleader for the applicants and Shri P.K. Jani, learned Counsel appearing for the opponents. While dealing with the application, it would be beneficial to mention certain facts, which are as under:
(i) Special Civil Suit No. 118 of 1994 was filed on 23rd December, 1994 by a partnership firm and by its active partner dealing with administration of the firm. After service of summons of the suit, the applicants herein filed their written statement on 20th June, 1995.
(ii) The learned trial Judge framed the issues on the strength of the pleadings vide Exh. 10 on 21st June, 2004 practically after about 10 years from the date of filing of the written statement.
(iii) On 7th December, 2004 i.e., after about five months, the learned Assistant Government Pleader appearing for the applicants herein-original defendants submitted an application Exh. 125 and prayed that one more issue as to the jurisdiction of the said Court may be cast and may be heard as a preliminary issue. The contents of the application Exh. 125 were that the Act has come in force since 1st January, 1994, and therefore, as per the scheme of Section 3(1)(e) of the said Act, the dispute is required to be transferred to the Tribunal considering the valuation of the Suit. It was mentioned that in view of Section 13 of the Act, the jurisdiction of the Civil Court is expressly barred, and therefore, the issue of jurisdiction is required to be carried out and the same may be heard as preliminary issue. The said application Exh. 125 was resisted by way of written objections and one of the objections was that though the written statement is filed on 20th June, 1995 i.e., after 1st January, 1994, no such dispute has been raised in the written statement and the State had submitted to the jurisdiction of the said Court. It was also contended that before instituting the Suit, the opponents had requested the applicants to refer the dispute to the Arbitrator, but there was no positive response to their request. On the contrary, in Paragraph No. 36 of the written statement, the applicants have contended that the question of referring the dispute to the Arbitrator does not arise as the opponents-original plaintiffs are not entitled to take shelter of Clause 3 read with Clause 30 of the Tender Agreement.
7. The order was passed below application Exh. 125 challenged by way of captioned substantive petition, after hearing the parties, this Court decided to dismiss the petition in limine vide order dated 11th October, 2005. While dealing with the said petition and recording the finding, this Court has considered the order impugned in the said petition. The relevant part of the said order was also reproduced in Paragraph No. 5 of the order dated 11th October, 2005. However, it is necessary for this Court to reproduce the other relevant part of the order sought to be reviewed.
8. In the present application praying for condonation of delay, the applicants have referred to the pendency of the First Appeal filed by the applicants against the judgment and decree passed in the said Suit. According to the applicants, after the orders passed by this Court on 11th October, 2005 in the said petition, the parties had focused on the hearing of the Special Civil Suit, and after the judgment and decree passed by the learned trial Judge on 21st April, 2006, the applicants had decided to prefer First Appeal before this Court. The said First Appeal preferred by the applicant-State was filed after the period of limitation prescribed. The application seeking extension of period of limitation was preferred in the said First Appeal and the same was ultimately granted by this Court on 22nd December, 2006. It is the say of the applicants that when the First Appeal came up for hearing before this Court, the factum came to the surface that the plea for want of jurisdiction of Civil Court could not be taken up in the First Appeal as the issue was decided intra-partes. It is averred that though the plea of want of jurisdiction of Civil Court is supported by the decision of this Court as well as the Apex Court, the said plea could not have been taken up in the First Appeal as the said issue was decided intra-parte in the captioned petition. It is said that 'as a matter of fact prior thereto since the applicants were not apprised about the settled legal position, no steps could have been initiated for filing application for recalling the earlier order passed in Special Civil Application'. It is not a matter of dispute that the order passed by this Court and now sought to be reviewed was not assailed before the higher forum and after having acquiesced with the finding, the applicants had defended the Suit on merit, and ultimately, the same came to be decreed after a lapse of about 12 years. According to the applicants, this Court may consider the averments made in the memo of the Misc. Civil Application, and it is abundantly clear that the applicants have a strong prima facie case at their command, and therefore, the delay caused in filing the said application for review may be condoned and the Misc. Civil Application preferred to get the order reviewed may be heard on its own merits. The present application is obviously supported by the affidavit filed by the applicant No. 2-Executive Engineer of R. & B. Department.
9. The opponents have resisted the present application by way of filing an affidavit-in-reply and it is contended that the application preferred for recalling the order dated 11th October, 2005 passed in the captioned petition is not maintainable. So, there is no need to condone the delay as prayed for by the applicants. It was open for the applicants to challenge the said order before the Apex Court and as the same was not challenged before the Apex Court, the said order has attained finality. It is alleged that the present application praying for condonation of delay and the application for reviewing the order, are nothing but attempts to cover up what has been done after the order dated 11th October, 2005. If the applicants were of the view that the order passed by the learned single Judge is not correct, the appropriate remedy was to prefer a Special Leave Petition before the Apex Court; however, the applicants have waited for one year and 4 months for approaching this Court by way of the said review application, stating that this Court may be pleased to review the order in question. It is denied that the Civil Court had no jurisdiction to deal with the Suit. The substratum of the affidavit-in-reply is that the said delay has not been explained appropriately by the applicants. It has also not been mentioned as to how and in which manner the delay of one year and 4 months has been caused in filing the said review application. It is further contended that the application also does not spell any convincing grounds for condonation of delay, and therefore, the same may be dismissed.
10. One additional affidavit-in-reply has also been filed on 9th March, 2007, wherein it is contended that the applicants have not only participated in the proceedings but they have led oral as well as documentary evidence in the Suit. They have examined witnesses vide Exhs. 151, 167 and 169 in the original proceedings. The list of documents was also produced vide Exh. 270 and all these documents were received in evidence and they were given Exhs. 272 to 335. Thereafter, on 21st March, 2006, the applicants had submitted written arguments vide Exh. 340. So, when the applicants had accepted and chosen to pursue the Civil Suit further, they may not be permitted to seek the review of order, more particularly, when there is no proper explanation with regard to gross delay. It is alleged that the application praying for condonation of delay suffers from one more infirmity i.e., suppression of material facts. It is submitted that the applicants ought to have mentioned that the similar point has been agitated by the applicants in the First Appeal preferred before this Court on 3rd October, 2006. The said First Appeal has been admitted. While admitting the appeal, the Division Bench of this Court has granted ad-interim relief on a condition to deposit the principal decretal amount before 31st January, 2007 before the trial Court, even then the review application is filed by the applicants on 14th February, 2007; and there is no explanation of the time consumed in between i.e., the day on which the learned Division Bench raised query on the issue of maintainability of the issue raised and the day on which the application has been filed. Indirectly, it is the say of the applicants that to avoid the payment of amount ordered by the Division Bench of this Court, the application has been preferred at a belated stage.
11. It is contended in the affidavit-in-rejoinder submitted by the applicants that they have not suppressed any fact of filing of First Appeal No. 528 of 2006 before this Court. The case of the applicants is that after grant of extension of period of limitation on 22nd December, 2006, when the First Appeal came up for hearing, the factum that a plea of want of jurisdiction of this Court would not have been taken up as the issue was decided intra-partes, came to the surface. On the contrary, the reference of fact of filing the First Appeal with the application for extension of period of limitation is a bona fide attempt on the part of the applicants and the say of the present applicants is that one fact that could have been brought to the notice of this Court while dealing with the substantive petition was not placed i.e., the order of this Court holding the field prior to the delivery of order dated 11th October, 2005 in the captioned petition. Perhaps the finding dated 11th October, 2005 would not have been arrived at because according to the applicants the earlier decision holding the field would have a binding force unless the learned Presiding Judge of the Coordinate Bench is of some other view than the learned Presiding Judge intends to hold otherwise, then he is supposed to refer to the point at issue to the Larger Bench expressing the views of disagreement, so that the Larger Bench can deal with the point as well as the reasons assigned by two different Benches. It is contended that so far as the scope of Review Application is concerned, the law no longer remains res-integra as held by various judicial pronouncements and error of law or fact can be rectified by way of Review Application. If by bona fide inadvertence on the part of the learned Counsel appearing of either party the judgment on which the present applicants have placed reliance was not brought to the notice of the Court, this ground is justifiable ground for seeking review of the order. It is inter alia contended that failure to notice and giving effect to the binding authority because of failure of learned Counsel appearing to draw the attention of the learned Judge to such an authority, can be said to be constituting an error apparent on facts of the case. The Andhra Pradesh High Court has also observed in respect of the same in a decision in case of Karutha Kritya Rameshwara Swami Varu v. R. Ramlinga Raju and Ors. reported in : AIR1960AP17 . In the present case, the delay in filing the application Exh. 125 has hardly any relevance inasmuch as the delay in filing the said application challenging the order below Exh. 125 or in assailing the application praying for extension of period of limitation in filing the present review application. It is settled legal position that the delay cannot be a ground for deciding the jurisdiction of the Court, more particularly, when the Court cannot assume jurisdiction on account of any statutory provision. In the present case, the jurisdiction of the Civil Court has been completely barred by Section 13 of the Act. The applicants have accepted that the order passed by this Court dated 11th October, 2005 which is sought to be reviewed is a final order, however, the same cannot be said to be a justified ground for opposing the review of the very order. According to the applicants, they proceeded with the Suit on merit as they were not aware about the settled legal position, but merely because they have not challenged the order dated 11th October, 2005 and as they have participated in the Suit on merit, they are not estopped from seeking review of the order in question, especially when there are justifiable good reasons for seeking review. It is contended that merely because the opponents have succeeded in the Suit and the First Appeal preferred by the applicants is pending and the interim relief is also granted in favour of the applicants on certain conditions, the same cannot be a ground to oppose the review of the order dated 11th October, 2005. The solitary premise on which the present applicants are seeking review of the said order is that the decision of this Court holding the field prior to the delivery of the judgment and decree was not placed for consideration and that has resulted into error. Non-challenge of the order dated 11th October, 2005 only would not be relevant to prevent the applicants in preferring the present application seeking review.
12. I have considered the rival contentions of the parties and the decisions relied upon by them. The backbone of the submissions on the part of the applicants is that they have very good case on merit and the present application may not be thrown out on mere technicality of period of limitation. The present application has been filed by the applicants seeking extension of period of limitation in filing Review Application. The said application is filed, however, without prejudice to the contentions of the applicants to the effect that the Limitation Act is not applicable in the present case, and therefore, the captioned Review Application is required to be heard on its own merits. It is settled legal position that in a case of proceeding with the main proceeding the subsequent proceeding will receive its colour from the main proceeding. In the present case, a petition under Articles 226 and 227 of the Constitution of India was preferred which this Court has been pleased to dismiss vide order dated 11th October, 2005. It is submitted that the Limitation Act is not applicable to the proceedings initiated under Article 226 of the Constitution of India. As a matter of fact, the law in this regard no longer remains res-integra. The applicants have placed reliance on certain decisions of the Apex Court in support of this submission. The ratio of these decisions is that 'the limitation is not applicable to the proceedings arising out of the petition under Article 226 of the Constitution of India'. The present Civil Application obviously would receive its colour from the captioned petition which is titled as 'In the matter under Articles 226 and 227 of the Constitution of India'. The Limitation Act, therefore, cannot be made applicable to the review application as the same is not applicable to the main petition preferred earlier for quashing and setting aside the order passed below application Exh. 125. The applicants have also relied upon one decision of this Court in the case of Jayantilal Dhanjibhai Patel v. Rohitbhai Dhanjibhai Bin Gokalbhai Patel reported in 2002 (1) GLH 1.
13. The another main point of submission is that the review of order is competent in the cases where a settled legal position has been overlooked by the concerned Court even on the ground of fault on the part of the learned Counsel to draw the attention of the Court to such decisions and in support of this submission, the applicants have relied upon the following judgments:
(i) Karutha Kritya Rameshwara Swami Varu v. R. Ramlinga Raju and Ors. reported in : AIR1960AP17 , in Paragraph No. 18 of the judgment, the Andhra Pradesh High Court relying upon the judgments in the case of AIR 1924 Mad. 98 and AIR 1941 Mad. 918, has held as under:
Failure to notice and give effect to binding authority because of failure of Counsel to draw the attention of a Judge to such an authority can be said to constitute an error apparent on the face of the record. If so, then a failure to give proper effect to decisions cited because the Court had overlooked (it may be for the reason that Counsel did not draw its attention to it) certain material passages in the authorities cited is equally an error. In any case, it is difficult to contend that it is not a ground at least analogous to such an error.(ii) Decision of Allahabad High Court reported in : AIR1952All318 (Keshodass Wadhumal Advani v. Syed Murtaza Ali Khan), wherein the Allahabad High Court has observed that:
If any mistake or error relating to a point of law is alleged, it must appear that the view expressed in the judgment is contrary to any well established rule or any relevant provision of law and it would not be sufficient to show on different set of reasoning for interpretation of a provision of law another view was possible.(iii) The another decision is of the Calcutta High Court reported in : AIR1967Cal518 (Tinkari Sen v. Dulal Chandra Das), whereby the Calcutta High Court has held that:
The mistake be it, of fact or law has go to be patent or in the words of the Code apparent on the face of record. A mistake in interpreting the law correctly will not do, but when the clear legal position established by a binding authority is overlooked, as it has been overlooked by me, clearly it becomes an error within Order 47, Rule 1.(iv) It is submitted that in the case of Gujarat State Construction Corporation v. Ghanshyambhai and Bros. reported in : (1997)3GLR2302 , this Court has reviewed its own order. The case before this Court in the cited decision was that this Court after extending the time under Section 28 directed the Arbitrator to dispose of the disputes under the Reference as expeditiously as possible, but not later than four months from the date of receipt of service of notice to both the parties. At that time, the attention of this Court was not drawn to the provisions of the Act. Section 1 of the Act came into force on 5th December, 1991 and the remaining provision of the Act came into force on 1st January, 1994 as per the notification published in the Official Gazette. The judgment and order which is sought to be reviewed was passed on 10th January, 1995, and therefore, the provisions of the Act were in force. In a Review Application, the said provisions were brought to the notice of the Court and this Court in Paragraph No. 4 noticed provisions enunciated in Section 21 of the Act, and ultimately, the Court allowed the review application. It is submitted that this very decision of this Court would squarely apply in the present case. This Court may look to the basic facts while evaluating the strength in the case of the applicants which was placed before the learned trial Judge at the time of preferring application Exh. 125.
13A. It is submitted mat the jurisdiction of the Civil Court was ousted with effect from 1st January, 1994, and therefore, the present case would be a case of complete lack of inherent jurisdiction and any party even under an agreement cannot waive such a statutory bar. The opponents cannot even submit that the applicants had waived their right to object the point of jurisdiction. The Civil Court itself suo motu ought not to have entered in the Suit any further when it was pointed out that there is bar of inherent jurisdiction of the Civil Court. The learned trial Judge at least ought to have seen the sole object of enactment of the Act and one of the objects was to eliminate the delay caused in public works. A statutory remedy has been created by constituting a Tribunal to deal with, decide and adjudicate contractual dispute in public works. Any proceeding if is permitted to be decided and adjudicated by any forum other than me forum constituted by the statute, it would frustrate the purpose of enactment of the Act. The law laid down by the Apex Court as well as this Court as set out, could not be brought out of notice of this Court on account of failure on the part of learned Counsel to draw the attention of the Court to the said binding authority. The observations made by this Court in the order dated 11th October, 2005 if are not reviewed, the same would run counter to the observations made by the Apex Court as well as this Court. Therefore, be in the fitness of things and in the interest of justice that the order dated 11th October, 2005 may be reviewed. In such a contingency, this Court may extend the period of limitation as prayed for and pass appropriate orders reviewing the earlier order.
14. The gist of the written submissions placed on record by the opponents is that the order dated 11th October, 2005 passed by this Court has not been challenged before the Apex Court, and hence, the same has attained finality. It is contended that the applicants-original defendants had accepted the order, and thereafter, had participated in the proceedings of the Suit. If the applicants were of the view that the Court where the Civil Suit was pending and was being tried lacks the inherent jurisdiction, they ought not to have participated in the proceeding. On the contrary, they have adduced oral as well as documentary evidence, which have been mentioned hereinabove. On 21st March, 2006, the present applicants have filed written submissions before the learned trial Judge vide Exh. 340, and therefore, it would not be open for the applicant to seek review of the order, more particularly, when there is no proper explanation with regard to gross delay.
15. The another point of argument is that the Review Application is not maintainable inasmuch as the ground on which the Review Application is preferred is not error apparent on me face of record, and even otherwise, the Review Application does not fall under the scope and ambit of Order 47, Rule 1 of the Code of Civil Procedure, 1908, and therefore, the same deserves to be rejected.
16. Ultimately, the judgment and decree passed by the learned trial Judge has been challenged by way of the First Appeal. The said appeal is pending and in the appeal itself the ground which has been agitated before this Court is taken up by the applicants. It is submitted that the applicants have been granted interim stay against the execution of the judgment and decree dated 21st April, 2006 in the main Suit.
17. The Review Application is filed on 14th February, 2007 seeking the review of the order dated 11th October, 2005 and no sufficient good reasons have been mentioned in the application for condonation of delay. For short, this is a case of unexplained delay.
18. When the application does not fall in the scope and parametres of Order 47, Rule 1 of the Code of Civil Procedure, 1908, the application for condonation of delay may be dismissed, saying that there is no strength in the case of applicants.
19. The applicants had neither taken the basic plea at the time when the original plaintiffs had served them with the notice upon them for filing Civil Suit nor in the written statement. On the contrary, they had objected reference to Arbitration Tribunal in Paragraph No. 36 of the written statement. Meaning thereby, they were of the view that the Suit before the Civil Court was competent keeping in mind the relevant dates which have been referred to in the order passed below application Exh. 125. Merely because certain decisions which could have been cited before the learned Judge at the relevant point of time could not be cited, would not make a party entitled to get the order reviewed blaming the learned Counsel appearing for the applicants. Failure in assisting the Court cannot be a good ground for recalling/reviewing the order.
20. It is further contended that the other Bench if has taken a different view, would also not be a ground for reviewing the order and in support of this submission, the reliance has been placed in the case of Union of India and Ors. v. Mohd. Nayyar Khalil and Ors. reported in : (2000)9SCC252 , the Apex Court in Paragraph No. 1 of its decision has held that:
690 days delay is not satisfactorily explained. Hence, the review petition is liable to be dismissed on the ground of limitation itself. However, we have also considered the merits of the review petition. The impugned order has followed a three-Judge Bench judgment of this Court in the case of Union of India v. M. Bhaskar. Even if the question regarding the legality of the said three-Judge Bench decision is pending scrutiny before the Constitution Bench, the same is not relevant for deciding the review petition for two obvious reasons firstly, this was not pointed out to the Bench which decided the civil appeal; and secondly, by the time the impugned order was passed the three-Judge Bench judgment had not been upset and even in future if the Constitution Bench takes a contrary view it would be a subsequent event which cannot be a ground for review as is clear from the explanation to Order 47, Rule 1(2) of the Code of Civil Procedure which reads as under:
Explanation : 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 superior Court in any other case, shall not be a ground for the review of the judgment.
21. The another decision relied upon by the opponents is in the case of Nand Kishore Ahirwar and Anr. v. Haridas Parsedia and Ors. reported in : (2001)9SCC325 , in Paragraph No. 3 of the decision, the Apex Court has observed that:
3. Thus, even if subsequent Constitution Bench takes a contrary view, it will be no ground for reviewing the judgment in question. Mere reference to Constitution Bench stands on a still weaker footing. Even otherwise, on merits, it has to be kept in view that the decision sought to be reviewed has nothing to do with the question whether there can be dilution of standards in the matter of promotion of employees as referred to in Indra Sawhney case. The issue was entirely different. In the present case, there was already dilution of standards in making promotions by granting 10 percent reduction of marks for S.C./S.T. candidates in examinations for the purpose. The question was when the examination was confined to S.C./S.T. candidates only, such dilution could be restored to. It was not in dispute between the parties that if at such departmental examinations general category of candidates competed with S.C./S.T. candidates, such dilution was legally permissible. Thus, question of dilution of S.C./S.T. candidates only was not on the anvil of scrutiny before this Court in the judgment sought to be reviewed while in Indra Sawhney case, such general dilution was not approved. Even otherwise, after insertion of Article 16(4-A) of the Constitution of India by the Constitution (Seventy-seventh Amendment) Act, 1995 this objection would not survive even on merits. For all these reasons, these review petitions are dismissed.
22. The another decision relied upon by the opponents is in the case of Dawloo Ma and Ors. v. Kamam Ghowdappa and Ors. reported in : AIR1930Mad579 , wherein the Madras High Court in the cited decision has held that:
But it was argued by the learned Advocate for the appellants that the guardian ad litem, respondent No. 2 in the prior case, was guilty of gross negligence in not having applied for review of the judgment passed by the High Court. After the decision of the High Court in the second appeal in question, a Full Bench of this Court held that a Hindu widow marrying a Mahomedan forfeits her widow's estate in her Hindu husband's properties. It cannot be said that, because there was a subsequent Full Bench decision of superior Court of leading authority on a question of law, the prior judgment passed on a different view of law is not liable as a matter of course to be reviewed....
23. Firstly, it is necessary to decide whether the delay in filing the Review Application should be condoned or not taking liberal and pragmatic view keeping the question as to sustainability of the Review Application on merit open and without making any comment on the merits of the application. But in view of the submissions made before the Court, it would be appropriate for this Court to deal with both these points i.e., whether this is a fit case where the Court should condone the delay and whether the applicants have any prima facie strength in the Review Application, require to be dealt with because while dealing with the prayers prayed for to condone the delay, this Court obviously shall have to deal with the submission of the applicants that the delay should be condoned keeping the question of merit open. The second question is while dealing with the application praying for condonation of delay, whether the Court should normally see the strength in the case of the applicants who have sought for review of the order. Here, it would be relevant to note that when it comes to condonation of delay in reference to the substantive right conferred under the statute or for any other privilege to assail the order, would be very much relevant. So, when the Court is dealing with the application under Section 5 of the Limitation Act in reference to the Review Application vis-a-vis the appeal provided under the statute, may take a different view. The same standard or criterion obviously would apply when it comes to a proceeding which is termed as supplementary proceeding under the Code of Civil Procedure, 1908 or the proceeding which can be initiated in the nature of a Review Application. Of course, the order which the applicants intend to get reviewed is an order passed in a substantive petition, but the same does not fall in the category of a constitutional review contemplated under Article 235 of the Constitution of India. The Article 235 of the Constitution of India empowers the High Court so that the High Court can have effective control over the subordinate Courts. The control vested in the High Court is a mechanism to ensure independence of subordinate judiciary. In the case of Tej Pal v. State of U.P. reported in : [1986]3SCR428 and in the case of High Court of Judicature at Bombay v. Shirish Kumar Rangrao Patil reported in : [1997]3SCR1131 , the Apex Court has elucidated the expression 'control' in Article 235 of the Constitution of India. Looking to the facts of present case, it is clear from the very Review Application that it is neither the case nor it is possible to argue that the Article 235 of the Constitution of India has any room to play. True, it is that the applicants have submitted that this Court while dealing with the captioned petition has failed due to the mistake in appreciating the ratio of the decision in the case of Sorathia Velji Ratna and Co. v. Gujarat Agricultural University and Anr. reported in 2000 (4) GLR 3666, wherein the Division Bench of this Court while allowing the appeal vide judgment dated 17th February, 2000 decided to quash and set aside the judgment and decree dated 30th July, 1996 in a suit preferred by the appellant of First Appeal No. 1542 of 1997 dismissing the Special Civil Suit. It was the say of the appellant of the cited decision that the Gujarat Agricultural University was a body-corporate within the meaning of the Act widi effect from 1st January, 1994, and therefore, the learned Civil Judge (S.D.), Palanpur ought to have referred the dispute to the learned Tribunal constituted.
24. The say of the applicants is that die decree which has been challenged by way of aforesaid First Appeal by the present applicants is a nullity; and if the order dated 11th October, 2005 is not reviewed, it may result into serious miscarriage of justice and me decree which is null and void for want of jurisdiction of the Court, also will get its legal colour and the applicants apprehend that it shall be executed and the exercise undertaken by the applicants is to see that a decree which is null and void does not survive.
25. It is the say of the applicants even till today that the petition preferred by die applicants was a petition under Articles 226 and 227 of the Constitution of India challenging the order passed by the learned Civil Judge (S.D.), Palanpur below application Exh. 125 in Special Civil Suit No. 118 of 1994, but no attempt was made to approach the higher forum, may it be the Apex Court or the forum provided by way of intra-Court appeal i.e., Letters Patent Appeal, if the applicants were of the view that their petition was under Article 226 of the Constitution of India and the same was wrongly treated as a petition under Article 227 of the Constitution of India. It is also not a matter of dispute that the application Exh. 125 preferred by the applicants as defendants of the said Suit was preferred after about six months from the date of framing of the issues. A joint prayer was made. On plain reading of the application Exh. 125 it is clear that two prayers were made simultaneously. The first prayer was to recast the issues framed earlier and to add one more issue as to the jurisdiction of the Civil Court and it was simultaneously prayed that the said newly framed issue of jurisdiction may be heard as a preliminary issue. The crucial question before the Court is that without preferring any petition under Article 226 and/or Article 227 of the Constitution of India, whether the appellant could have challenged the decision of the learned Civil Judge in the First Appeal which is a statutory privilege of the aggrieved party against the judgment and decree provided under Section 96 of the Code of Civil Procedure, or not. The answer would obviously be in the affirmative. The opponents-original plaintiffs could not have been permitted to raise the issue before the Appellate Court that the finding recorded by the learned Civil Judge below application Exh. 125 has resulted into an illegal decree vis-a-vis miscarriage of justice on account of ignorance of prevailing law. Ultimately, this Court was asked to answer whether refusal to frame the preliminary issue raised by the plaintiff at a belated stage and requested to frame the additional issue needs any interference by exercising powers under Article 227 of the Constitution of India or not.
26. Now, this Court is informed and it is even accepted by the learned Assistant Government Pleader during the course of submissions that a specific ground has been taken in the First Appeal but the resistance placed by the present opponents and the say of the Division Bench of this Court prevents the applicants in agitating the issue of jurisdiction placing the finding recorded by this Court in the captioned substantive petition. Therefore, they are compelled to prefer the said Review Application. It is always open for the appellant to convince the Court that the decree passed by the learned trial Judge is null and void or otherwise unexecutable, and such a decree, therefore, could not have been passed. In the present case, the finding recorded by the learned Civil Judge while dealing with the application Exh. 125 appreciated is in narrow compass of Article 227 of the Constitution of India, and it is difficult for this Court to accept the argument of learned Assistant Government Pleader that the parties were set at rest permanently qua the issue of jurisdiction that the applicants had intended to raise.
27. Here it would be relevant to mention that Shri Shivang Shukla, learned Assistant Government Pleader has submitted that the Review Application is preferred because some oral orders/observations made by the Division Bench while passing the conditional order staying the execution of the full decree, had orally told the learned Assistant Government Pleader that the issue of jurisdiction has to be decided, and hence, they are compelled to prefer the said Review Application. But according to me, this submission cannot be given any legal weightage because on this count the case of the applicants would not be strengthened on merit. On the contrary, the impression in the mind of the Court is that as the Appellate Court refused to stay the decree absolutely or unconditionally, by presenting this misconceived application, the applicants want to reopen the ancillary proceeding which had concluded much earlier before the disposal of the Suit.
28. If the scheme of Code of Civil Procedure is seen, there is scope to initiate supplementary proceedings, ancillary proceedings and also to prefer application which may give rise to any interlocutory proceedings. When this Court was called upon to exercise powers of superintendence vested under Article 227 of the Constitution of India and an interlocutory order passed in the midst of the trial of a case was brought before the Court, where as mentioned earlier, two-fold prayers were simultaneously made. The learned Civil Judge decided to reject the application by a reasoned order and various aspects, legal as well as factual, were taken into consideration. The order passed below application Exh. 125 obviously was not an appealable order, and therefore, the said petition under Article 227 of the Constitution of India was preferred. It is not necessary to reproduce the said Article 227 of the Constitution of India, but ultimately, the powers are of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises its jurisdiction, and as this Court was of the view that the case brought before the Court does not fall in the category of a case where the powers vested in the Court under Article 227 of the Constitution of India need to be exercised, the petition has been dismissed. It appears prima facie that at a belated stage to get some fruits of an afterthought, the present application has been moved so that the applicants can have elasticity to their rights which have become practically infructuous by a lapse of time in placing the original order of the petition before the higher forum and to get the entire concluded proceeding frustrated i.e., Civil Suit, decided on merits. It is the say of the applicants that in the appeal a specific ground has been taken and it is the say of the applicants that failure to frame the issue of jurisdiction suggested vide application Exh. 125 and by not recording the finding on that issue and the order rejecting the request to hear the issue of jurisdiction as preliminary issue, has resulted into frustration. The scheme of Section 105 of the Code of Civil Procedure, 1908 perhaps might have been taken into account by the defendants at the time of contesting the suit on merit. The decision as discussed earlier passed by this Court while dealing with the captioned petition was out of narrow compass. So, there is no scope to prefer Review Application which does not fall in the ambit of Order 47, Rule 1 of the Code of Civil Procedure, 1908. It is difficult for this Court to say that the applicants can be placed in the category of the persons considering themselves 'aggrieved'. If they were really aggrieved, they could have initiated proceedings before the higher forum or could have rushed to this Court in a reasonable period of time at least before conclusion of the Suit. On the contrary, they have participated in the Suit and the result which the applicants wants to achieve by way of the said Review Application has been attempted by raising similar ground in the memo of the First Appeal, perhaps keeping in mind the scheme of Section 105 of the Code of Civil Procedure, 1908. So, the applicants can be said to be riding on two horses simultaneously. There is no element of discovery of new and important matter which would give rise to such a Review Application. The mistake of a lawyer or error in not bringing a particular judgment to the notice of the Court by itself would not help the applicants as the interlocutory proceedings which were brought before this Court by way of captioned petition had reached to its finality or otherwise as the same does not fall in any case under Order 47, Rule 1 of the Code of Civil Procedure, 1908. So, the attempt to initiate Review Application after conclusion of the Suit and after failure in obtaining the absolute stay against the execution decree, also does not appear bona fide.
29. According to me, this is a case of gross delay and a delay which cannot be said to be explained satisfactorily. The Court is conscious that day-to-day delay is not required to be explained. But the explanation offered should be legal, logical and convincing. As discussed in the foregoing Paragraphs, the Review Application has no merits and the same is found misconceived and an application preferred without any bona fide and the action under Section 105 of the Code of Civil Procedure, 1908 is already taken raising available ground before the First Appellate Court. So, the delay of a single day also perhaps would not have been condoned as there is no merit in the application. But it is relevant to note that the request to condone the delay and extending the period of limitation is also meritless for the following main reasons:
(i) The applicants have moved present application to have some release so that the issue concentrating on the earlier order dated 11th October, 2005 perhaps can be taken before the higher forum if the applicants so desire, and therefore, they were supposed to explain as to why the Review Application was not preferred within the prescribed period of limitation or immediately thereafter and no explanation is offered.
(ii) The approach of the Court should be liberal and pragmatic, but this principle would not be applicable to the cases of gross and/or inordinate delay.
(iii) The present Review Application has not been even preferred on the day of filing or on the day when the request to grant stay was made before the first Appellate Court. The applicants are still of the view that they can still agitate the issue before the first Appellate Court under the scheme of Section 105 of the Code of Civil Procedure, 1908.
(iv) The present case falls in the category of a case where delay should not be condoned mechanically and the Court is supposed to test the case and the scope of success of the proceedings initiated and as discussed earlier, the application for review preferred by the applicants is found misconceived and it lacks bona fide.
(v) If the hypothetical view of the matter is taken, the success of this condonation of delay application and the order of registration of Review Application and hearing the same on merit, is likely to go to the root of even filing of the First Appeal preferred by the applicants and even some comments on merits of the prayer prayed for in the application Exh. 125 if again are made by this Court, it may result into revival of the Suit which has been decided bi-partite and that too, on the active participation of the present applicants. A proposition has been brought before this Court by moving this application which may result into frustration. So, it would not be legal or justifiable to condone the delay taking a very casual approach. Number of decisions have been cited as to why the delay should not be condoned in the present case or why the same should be condoned keeping in mind the points on merits advanced by the learned Counsel appearing for both the sides. But it is not necessary to make any comment as I have considered the ratio of all these cited decisions referred to hereinabove while recording the finding and evaluating the submissions made by the parties. So, the present application is required to be dismissed.
30. This is a case where an unwarranted litigation has been brought before this Court by the applicants and when it appears to be a proceeding initiated with lack of bona fide and the same is also found misconceived, and hence, the present application is required to be dismissed with costs.
31. So, in view of aforesaid observations and discussion, the present application for condonation of delay is hereby dismissed with costs. The request of the applicants to condone the delay in preferring the Review Application is hereby rejected. The applicants are directed to pay the amount of Rs. 5000/- (Rupees Five Thousand only) as the costs of this application to the opponents herein at the earliest.
In view of aforesaid, the Review Application i.e., Misc. Civil Application Stamp No. 301 of 2007 also does not survive.