Judgment:
ORDER
Biswanath Somadder, J.
1. By consent of the parties, the aforementioned CAN 2011 of 2009 is treated as on day's list.
2. Heard the learned advocates appearing for the parties.
3. This is an application under Section 5 of the Limitation Act of 1963 in respect of an application for review of an order dated 26th June, 2008 passed by this Court in CO. 3009 of 2006.
4. Upon considering the submissions made and upon perusing the instant application, I am satisfied that sufficient cause has been shown by the applicant for condo-nation of delay of 215 days in filing the Re- view application. The delay is condoned and the application thus stands allowed.
Re : RVW 39 of 2009
5. Heard the learned advocates for the parties. This application, styled as a review 3 application, is in respect of an order passed by this Court on 26th June, 2008 in CO. 3009 of 2006.
6. The applicant before this Court was the defendant/opposite party in a revisional application, being CO. No. 3009 of 2006. By the order dated 26th June, 2008, this Court, upon hearing the learned advocates for the parties gave certain directions and disposed of the revisional application. One such direction contained in the order dated 26th June, 2008 was upon the defendant/opposite party who was directed to deposit the total decretal amount (without interest component) for contesting the suit on merit. This Court also directed payment to be made in terms of that order within a period of six weeks from date of order. In default, the defendant would be automatically disabled from contesting the suit. This Court also observed further that in that event, the decree dated 15th January, 2003 would stand revived and it would be opened to the plaintiff to take steps to execute the said decree in accordance with law.
7. This Court also directed the learned Court below to hear out and dispose of the suit, subject to compliance with the directions given therein, a period of 12 weeks and without granting any unnecessary adjournments to either of the parties and if so required, hold day to day hearing to ensure that the suit was disposed within the specified time-frame. There was a further observation in the order dated 26th June, 2008 to the effect that if the particular Bench of the learned Court below was not available or vacant, the learned Judge-in-charge of that Bench was to hear out and dispose of the suit in terms of the directions given therein.
8. In the present review application taken out by the defendant/opposite party, the following grounds have been taken:
I. For that the order of the Hon'ble single Judge herein is vitiated by erroneous findings of law and fact.
II. For that the Hon'ble single Judge erred in relying upon the statements of the opposite party herein.
III. For that the question of error appears on the face of record may be that of law as well as fact. Hence the Hon'ble single Judge ought not to have modified the order as it will be much hard for your petitioner to arrange for so much of money as he is a humble broker dealing in garments business and has no sufficient bank balance to provide for the cost.
IV. For that the question of error appears on the face of record may be that of law as well as fact. Hence the Hon'ble single Judge ought not to have modified the order as it will be much hard for your petitioner to arrange for so much of money as he and his son both are physically handicap and cannot lead a normal life.
V. For that the question of error appears on the face of record may be that of law as well as fact. Hence the Hon'ble single Judge ought not to have modified the order as directing to deposit the total decretal amount before hearing the money suit on merit, will virtually amounts in allowing the said suit and your petitioner will have nothing to defend in the said money suit.
VI. For that the impugned order is otherwise bad in law.
9. Learned Advocate appearing on behalf of the applicant, being the defendant in the Court below, submits that the above grounds constitute sufficient reasons for the purpose of allowing this review application.
10. It is well known that the scope of review of an order, is extremely limited. The Court, sitting in review jurisdiction, does not have the competence to hear a matter de novo, since that would amount to committing a jurisdictional error. The procedural law for review is provided under Order XLVII of the Code of Civil Procedure, 1908. Rule 1 under Order XLVII of the Code of Civil Procedure, 1908 provides as follows:
Rule 1 under Order XLVII
Application for review of judgment:
(1) Any person considering himself aggrieved:
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appearing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
11. Section 114 of the Code of Civil Procedure, 1908 is the enabling provision for instituting an application for 'Review' before a Court of Civil Judicature. Section 114 provides as follows:
114. Review - Subject as aforesaid, any person considering himself aggrieved:
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code,
or
(c) by a decision on a reference from a Court of Small Causes,
may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
12. The scope or compass of review of an order by a Court of Civil Judicature, in my view, is circumscribed by the above quoted provision of law, which provides, inter alia, that a review of an order is permissible upon discovery of a new and important matter of evidence, which after the exercise of due diligence was not in the knowledge of the applicant or could not be produced by him at the time when the order was passed or on account of some mistake or error apparent on the face of record, or for any other sufficient reason.
13. In my opinion, the fact that the applicant/defendant has to 'arrange for so much money' as he is a 'humble broker dealing in garments business' having 'no sufficient bank balance to provide for the cost,' cannot be construed as 'sufficient reason' for invoking the jurisdiction of this Court for review of the order dated 26th June, 2008. Further, Ground IV also cannot be said to fall within the definition of 'sufficient reason' as contemplated under Sub-rule (1) of Rule 1 of Order XLVII of the Code of Civil Procedure 1908. With regard to ground V, this Court is of the opinion that the revisional application, being CO. 3009 of 2006, was disposed of on merits, upon hearing the learned advocates for the parties, and whether or not deposit of money in terms of the order dated 26th June, 2008 would virtually amount to allowing the suit, cannot be gone into, at this belated stage, in a review application.
14. In such circumstances, I am of the view that the instant application is thoroughly misconceived and is liable to be dismissed. Rather, it is a sort of mercy petition, essentially praying for Court's indulgence for grant of some more time for making payment in terms of the order dated 26th June, 20081 although couched in the form of a review petition and styled as a 'Review Application.' In the circumstances, upon taking notice of the submission made on behalf of the applicant/defendant, for the ends of justice, I grant liberty to the applicant/defendant to deposit the total decretal amount, without the interest component, in 4(four) instalments which shall be payable month by month, beginning 20th April, 2009. The cost which was required to be paid by the applicant/defendant in terms of the order dated 26th June, 2008 and which has not yet been paid, shall be, paid within six weeks from date. In the event there is a single instance of default on the part of the applicant/defendant, the same will automatically disable him from contesting the suit and the decree shall become executable in terms of the order passed earlier.
15. The revisional application is dismissed, subject to the above observations.
16. Let urgent Xerox certified copy of this order, if applied for, be made available to the learned advocates appearing for the parties.