Chitta Ranjan Kar Vs. State of Tripura and ors. - Court Judgment

Excerpt:
- orderu.b. saha, j.1. this petition under section 114 read with order 47 of the cpc is filed for review of the judgment and decree dated 4-12-2006 passed in r. f. a. 39 of 2001 dismissing the appeal of the appellant petitioner on merit in absence of the learned counsel for the parties, preferred under section 96 read with order 41 of the cpc against the judgment and decree dated 25-9-2001 passed by the learned civil judge, senior division, court no. 1, west tripura, agartala in money suit no. 25 of 2000, whereby, the claim of the appellant petitioner was rejected.2. aggrieved by, the appellant petitioner filed special leave petition before the hon'ble supreme court seeking special leave to appeal (civil) no. 6149 of 2007 which was also dismissed on withdrawal. the order of the apex court reads as follows:learned counsel for the petitioner wants to withdraw this petition stating that she will move the high court.the special leave petition is dismissed as withdrawn.3. the case of the appellant petitioner was that he was issued work order for the work of construction of sale hall at sundar tilla market under mohanpur (sidhal) vide no. f. 4(14) agri/ee/w/85-86/3406-11 dated 7-3-1986 and for the work of construction of sale hall development market (block i & ii) at hapania under sadar, west tripura vide work order no. 4(36) agr/ee/w/89-90/1082 dated 2-8-1989 and work order no. 4(36)-agri/ee/w/89-90/12-06-1209 dated 9-8-1989. according to the appellant petitioner, during construction of the said work, he was asked to execute some extra works. accordingly, after completion of the works, final bill was prepared, but he was not paid in full of the final bill. consequently, he filed a suit in the court of civil judge, senior division no. 1, west tripura, agartala praying for a money decree against the defendant respondents towards recovery of the cost incurred for execution of the said works.4. on pleading of the parties, learned court below framed the following issues:a. is the suit maintainable and has the plaintiff cause of action for the present suit?b. has the plaintiff completed the work as per terms and condition of work order? if so, what is the cost of the work?c. is the plaintiff entitled to get money decree in this suit with interest and cost, as prayed for?d. what other relief/reliefs the parties are entitled to get?5. the appellant petitioner examined himself as p.w. 1 by exhibiting as many as 25 documents as exhibits and the defendants respondents examined only one witness, namely, dipak ghosh, as d.w. 1 and placed on records as many as 17 exhibits (ext. a to ext. q).6. after considering the materials as well as evidences on record, the learned civil judge analyzed each issue for adjudication and by judgment dated 25-9-2001 dismissed the suit rejecting the claim of the appellant petitioner.7. dissatisfied with the said judgment, the appellant petitioner preferred r.f.a. no. 39 of 2001 before this court and this court after going through the impugned judgment as well as materials on records, dismissed the appeal on merit in absence of the learned counsel of both the parties. the observation recorded in para-1, 10 and 11 of the judgment is reproduced hereinbelow:1. none appears either on behalf of the appellant or on behalf of the respondents. this regular first appeal is being disposed of on the materials available on record.10. i have gone through the impugned judgment, the materials on records, the evidences as well as the statements of the witnesses produced for and on behalf of the appellant/plaintiff as well as by the respondents/defendants. i find that the appellant/plaintiff could not prove his claim on the basis of the exhibits produced by the appellant/plaintiff and materials on record. the appellant/plaintiff has already been paid the amount due to him for execution of the work and nothing was on the record to reveal that he was directed to execute some extra work orally or in writing. on analysis of the evidence and witnesses and the finding on the issues arrived at by the learned civil judge, senior division, i am of considered view that the judgment of civil judge (senior division) is legally correct and the same cannot be interfered with. in these circumstances, i do not find any illegality or impropriety in the impugned judgment dated 25-9-2001.11. accordingly, the appeal is dismissed.8. now the moot question arises for decision whether an application for review under order 47, rule 1 read with section 151, cpc is maintainable when there is a provision for readmission of appeal under order 41, rule 19. cpc.9. assailing the impugned judgment, mr. b. das, learned senior counsel for the petitioner submits that the order of dismissal on merit in absence of the learned counsel for the parties is without jurisdiction and should be treated as an order of dismissal in default which is sought to be reviewed as a nullity in the eye of law. referring to the roman concept of justice expressed in legal maxim 'actus curiae neminem gravabit', he further submits that court should do injustice to no one. relying on the decision in the case of jang singh v. brij lal : air 1966 sc 1631 particularly relying on paras 6 & 8, learned senior counsel submits that no act of court should harm a litigant and it is bounden duty of the court to see that if a person is harmed by a mistake of the court, he should be restored to the position he would have occupied but for that mistake, which was also considered by this court in the case of arun chandra das majumder v. wajid ali : 1978 cri lj 1184. learned senior counsel referred to paras 16 and 17 of the said judgment. he also submits that when it is detected that court due to mistake has done injustice to anybody, it is the duty of the court to suo motu recall and remove the injustice. he has further referred to a decision of the apex court in the case of ajudh raj v. moti air 1991 sc 1600, particularly to paragraph 5 and submitted that if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, in the eye of law, the order does not exist, and it is not necessary to set aside. according to mr. das, the question as to whether a petition under order 41, rule 19, cpc should be filed or a review petition is maintainable is a technical question. relying upon decision of the supreme court in the case of the madras port trust v. hymanshu international : air 1979 sc 1144, he submits that it is the observation of the supreme court that the governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. he also urges that it is not mandatory on the part of the parties to take recourse to order 41, rule 19 of the cpc as a must. the parties can seek redress by taking recourse to other provision of law to section 114 of the cpc. the inherent power of the courts including the high court as enshrined in section 151, cpc may also be invoked so that justice is done to the review petitioner by removing the injustice done by the impugned judgment and the instant review petition is maintainable, he submits.10. mr. das further submits that as provided by chapter vi, item-4. of the court fees act, 1870 as applicable to tripura for review, court-fee has to be paid equivalent to the fee leviable on the plaint or memo of appeal, if the application for review is presented on or after nineteenth day from the date of the decree and the state failed to notice that the review petitioner is an indigent person and is exempted from paying court-fee. in the appeal also, the review petitioner had not paid any court-fee as per order of this court dated 22-4-2002 and, therefore, the review petitioner is not required to pay any court-fee in filing the present review petition.11. mr. t.d. majumder, learned additional govt. advocate, on the other hand, submits that the instant review application is not maintainable as remedy under order 41, rule 19, cpc is available to the review petitioner. while he has explained the order 41, rule 19, cpc, he refers to a decision of the apex court in the case of sarwan singh v. kishan singh (dead) through l.rs. reported in (2007) 13 scc 575. the impugned judgment was passed dismissing the appeal on merit, not in default of the learned counsel for the parties for which the appeal is required to be restored in file. mr. majumder also submits that the petitioner also has not agitated any mistake crept therein or is there any error apparent on the face of record or the disposal of the appeal on merit is illegal in absence of the learned counsel for the parties, and in a review petition, the high court cannot re-appreciate the evidence, he urges. he further submits that review will lie only if the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the petitioner. while explaining as to what an error apparent on the face of the record means, he has referred to the decisions of the apex court reported in the case of state of west bengal v. kamal sengupta (2008) 8 scc 612 : 2008 air scw 4294, particularly to paras 22, 25, deva metal powders (p) ltd. v. commissioner, trade tax, uttar pradesh : (2008) 2 scc 439 : 2007 air scw 7725, particularly to para 11 and in the case of haridas das v. usha rani banik : (2006) 4 scc 78 : air 2006 sc 1634 : 2006 air scw 1771. the only ground agitated in the review petition is that the learned civil judge did not consider exhibit-2 which was more than enough to decree the suit. so the premise of the review petition is very narrow, he submits. mr. majumder has also referred to para 10 of the impugned judgment to support that the learned judge has gone through the materials on record, the evidence as well as statement of witnesses produced from both the parties. mr. majumder further submits that the court may commit mistake in appreciation of evidence and such mistake can be cured through appeal but not by any review application. the petitioner failed to follow the prescription of procedural law as regards the proper remedy. therefore, the instant review application is liable to be dismissed in limine.12. learned additional govt. advocate also submits that the review petitioner has not paid the required court-fees as required under sl. no. 4 and 5in schedule 1. no separate application has been filed for declaring him as an indigent person, nor has he disclosed the fact whether the slp was filed as an indigent person or not.13. regarding the contention of the learned additional govt. advocate relating to the non-payment of the required courtfees by the review petitioner, this court is of prima facie opinion that as before dismissal of appeal by the impugned order to be reviewed, the petitioner was allowed as an indigent person to prefer an appeal, it would not be proper for the court to reject the review application only on the ground of nonpayment of court-fees. therefore, the question regarding the requirement of deposit of court's-fee by the petitioner is kept open. the respondents are at liberty to raise the said question in appeal.14. before proceeding with the discussion, it would be profitable for the court to refer the provisions of order 41, rule 17 and rule 19 of the cpc as well as order 47, rule 1 of the cpc as the aforesaid provisions are the provisions which are required to be discussed. accordingly, the same is reproduced hereunder:17. dismissal of appeal for appellant's default.(1) where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the court-may make an order that the appeal be dismissed.xxx xxx xxx19. re-admission of appeal dismissed for default.where an appeal is dismissed under rule 11, sub-rule (2) or rule 17, the appellant may apply to the appellate court for the re-admission of the appeal; and, there it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.xxx xxx xxxorder 47, rule 1.1. 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 pf 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 appealing from a decree or order may apply for a review pf 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.15. to appreciate the scope on review, it would be proper for this court to discuss the object and ambit of section 114, cpc as the same is the substantial provision, for review when a person considering himself aggrieved either by a decree or an order of a ?court from which appeals allowed, but no appeal is preferred or where there is no provision for appeal against an order and. decree, may apply for review of the decree or order as the case may be, in the court which made the order or passed the decree. from bare reading of section 114 of the code, it, appears that the said substantive power pf review under section 114, cpc is not laid down any condition as. the condition precede t in exercise of the power of review nor, the said section imposed any prohibition on the court for exercising its power to review, its decision there was a time when it was considered that an order can be reviewed by a court only on, the prescribed grounds mentioned in, order 47, rule 1 i.e. (1) discovery of new and, important matter or evidence, which after the exercise of due diligence, was riot within his knowledge or could not be produced by him at the time when the decree was passed order made against; him; (ii) mistake or error apparent on the face of record or any such sufficient ground which is analogous to two grounds aforementioned, the subsequent development of law on the subject of review was in fact extended for the interest of justice by the apex court of the country in the case of lily thomas v. union of india reported in : (2000) 6 scc 224.: air 2000 sc 1650 : 2000 air scw 1760. while the apex court noted the dictionary meaning of the word 'review' is 'the act' of looking, offer something again with a view to correction or improvement' also considered the case of patel narshi thakershi v. pradyumansinghji arjunsinghji : air 1970 sc 1273 wherein it was held that the power of review is not an inherent power. it must be conferred by law either specifically or by necessary implication. the review is also not an appeal in disguise. it cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures of technicalities of law cannot stand in the way of administration of justice. law has to bend before justice. if the court finds that the error pointed out in the review petition was under a mistake and the, earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice, nothing would preclude the court from rectifying the error. (emphasis supplied). in moran mar bassellon catholicos v. most rev. mar poulose athanasius air 1954 sc 526, the apex court held that an application for review is, much more restricted than that of an appeal and the court of review has only limited jurisdiction as to the definite limit mentioned in the order itself. but in the subsequent decision of the apex court in the case of lily thomas v. union of india air 2000 sc 1650 : 2000 air scw 1760 (supra), the apex court held that the power or 'review' cannot be exercised as an inherent power nor can an appellate power be exercised in the guise of the power of review, the supreme court has, nevertheless, clarified that correction of an order by a court cannot be denied if the court finds that the error, pointed out in the review person, was under a mistake or fact or law rand/or that the earlier judgment would not have been passed, but for erroneous assumption of a fact, which in fact, did not exist, and that perpetration of such an erroneous assumption of fact shall result in miscarriage of justice.16. in deva metal powers (p) ltd. comissioner, trade tax, uttar pradesh 2007 air scw 7726 (supra) the apex court discussed as to what means 'mistake' and 'apparent error'. according to the apex court, 'mistake' means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error, a fault, a misunderstanding, a misconception. 'apparent' means visible; capable or being seen; obvious; plain. para 11 of the said judgment is relied by mr. majumder, learned additional govt. advocate appearing for the state respondent, wherein their lordship referring to the case of satyanarayan laxminarayan hedge v. mallikarjun bhavanappa tirumale : air 1960 sc 137, discussed that an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the fact of the record. where an alleged error is far from self-evidence and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.17. in the case of state of west bengal v. kamal sengupta 2008 air scw 4294 (supra), their lordship also discussed what is mistake or error apparent on the face of record and held that mistake or error which is prima facie visible and does not require any detail examination can be considered as a mistake or error apparent, on the face of record and if an error is not self-evident and detection thereof requires long debate and process of reasoning, the same cannot be treated as art error apparent on the face of the record for the purpose of order 47, rule 1, cpc or an order of decision or judgment cannot be corrected merely because it is erroneous in. law or on the ground that a1 different view court have been taken by the court/tribunal on the, point of fact or law. while exercising the power of review; the court/tribunal concerned cannot sit in appeal over its judgment/decision. there is ho quarrel with the discussion of the apex court and the proposition laid down by it in, the aforementioned cases. in the case in hand, it is admitted position that where though this court was not authorized to dismiss the appeal on merit in absence of the learned counsel for the, parties, the same was done by it which itself is an apparent] error on the face of record. there is no doubt that when an order of dismissal of an appeal is passed by a court in absence of the learned counsel of the appellant or both the parties, then that has to be treated not a dismissal on merit, but a dismissal in default and for which the party can take recourse to the provisions of order 41, rule 19 of the cpc. but mere existence of a specific provision for restoration of appeal, that does not mean that the appellant is totally precluded from approaching the court by one application of review.18. now we have to see whether the review is permissible or not when there is a provision for restoration/re-admission of die appeal under order 41, rule 19 of the cpc. in the case of sarwan singh v. kishan singh 2007 (13) sc 574 (supra), the appellant therein filed an appeal before the apex court against the order passed by the learned single judge of punjab and haryana high court dismissing the application under order 41, rule 19, cpc read with section 151 cpc which was filed to restore the appeal for deciding he same on merit. in that case, like the case in hand, the high court referred to the merits of the case at the time of dismissal of the appeal noting that none appeared for the appellant against which the appeal was preferred before the apex court, but no review petition was filed before the high court like the present one. therefore, there was no scope to the apex court for considering the question whether a review petition can be filed even when there is a procedure prescribed for restoration/re-admission of the appeal under order 41, rule 19, cpc. therefore, the same is distinguishable.10. in shivdeo singh v. state of punjab air 1963 sc 1909; the apex court noted that there is nothing in article 227 of the constitution to preclude a high court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. in the case of bhagawan prasad v. madan murari lal : air 1929 allahabad 811 while deciding the review petition held that when an application for restoration, was made, the learned judge rectified his mistake and restored the case. it is rightly contended before us that the court below should not have proceeded under order 9, as the provisions in hat order were not applicable; but it cannot be doubted that the court had jurisdiction to rectify its own mistake. even under order 47, the court could have set aside its own order because there was a mistake and error apparent on the face of the record. the court, however, has not proceeded-under order 47 but under section 151, civil p.c. if order 47 did not apply, then the court would certainly have inherent jurisdiction to restore the case if it thought that such restoration was necessary for the ends of justice.20. in the case of aribam tuleshwar sharma v. aribam pishak sharma : air 1979 sc 1047, the apex court has made the pertaining observation:it is true as observed by this court in shivdeo singh v. state of punjab air 1963 sc 1909 that there is nothing in article 226 of the constitution to preclude a high court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable error committed by it. but, there are definitive limits to the exercise of the power of review. the power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. but, it may not be exercised on the ground that the decision was erroneous on merits. that would be the province of a court of appeal. a power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.21. the aforesaid case of aribam tuleshwar sharma (supra) has also been followed by the apex, court, again in the case of smt. meera bhanja v. nirmala kumari choudhury : air 1995 sc 455 wherein the case of satyanarayan laxminarayan hedge : air 1960 sc 137 (supra) was also taken in consideration.22. before i entered into a discussion, it may be noted here that the court can review its order even invoking the doctrine 'actus curiae neminem gravabit' as contended by mr. b. das, learned senior counsel for the petitioner relying on a decision in the case of jang singh v. brij lal : air 1966 sc 1631 (supra). the principal laid down in the said case was also considered by this court in the case of arun chandra das mazumder v. wajid ali : 1978 cri lj 1184 (supra). 'actus curiae neminem gravabit' means an act of the court shall prejudice to no man. in the instant case, it appears from the order impugned that though the parties were not present before the court, this court decided the appeal on merit, as a result of which, the petitioner appellant herein is prejudiced due to the act of the court without jurisdiction.23. relying the aforesaid case of shivdeo singh v. state of punjab air 1963 sc 1909. (supra), the karnataka high court in the case of t. krishnappa v. h. lingappa air 1982 kar 58, held that it is true as argued on behalf of the respondent that there is no specific provision in the act conferring power on this court to review its order. but the power of review is inherent in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. this court is a court of plenary jurisdiction and has therefore the power to review its order.24. in the case of board of control for cricket in india v. netaji cricket club : (2005) 4 scc 741 : air 2005 sc 592 as relied by mr. das, the apex court observed that we are, furthermore, of the opinion that the jurisdiction of the high court in entertaining a review application cannot be said to be, ex facie bad in law. section 114 of the cpc empowers a court to review its order if the conditions precedent, laid down therein are satisfied. the substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided in section 114 of the cpc in terms whereof it is empowered to make such order as it thinks fit. in the said judgment of board of control for cricket in india (supra), para 52 of lily thomas (supra) has been taken into consideration wherein the apex court held that it cannot be denied that justice is a virtue which transcends ail barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. law has to bend before justice. if the court finds that the error pointed out in the review petition was under a mistake and, the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the court from rectifying the error.(emphasis supplied)25. in the board of control for cricket in india (supra), the apex court has also pointed our that when a court can consider the subsequent event in finding out whether it had committed any mistake or not in understanding the nature and purport of an undertaking given by a counsel appearing on behalf of the party and when the court can rectify its own mistake for just decision of this court, these points are not4 necessary. this court is not referring to those paragraphs of board of control for cricket in india (supra), particularly, paras 87, 89, 90 and 93.26. taking aid from the decision of the madras port trust v. hymanshu international (supra), this court can easily come to a conclusion that the court should not allow technical pleas of the party for the purpose of defeating the legitimate claims of the citizens as it is the duty of the court to render justice to the citizen.27. in mahakali engineering corporation v. r.c. subramanyam (2000) 10 scc 264, the apex court while considering the averment made in the review application before the high court that no one was present on behalf of the appellant at the time when the revision was taken up for hearing, it was held where order impugned in review petition was passed in absence of counsel for the review petitioner, high court ought to have allowed the review petition and heard the matter on merit. not only that, the apex court also held that the high court erred in dismissing the review petition without giving opportunity to the appellant to contest civil revision filed by the respondent landlord.28. taking note of the lily thomas,, board of control for cricket in india and moran mar bassellios catholicos, etc. this court in dhanani shoes ltd. v. state of assam (2008) 5 glr 459 observed that at one point of time, it was considered to be a case of universal application that the review by a court of its order is not possible except, on two prescribe grounds, namely, (i) discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time, when the order was passed, or (ii) mistake or error, which is apparent on the face of the record. one of the cases, which has helped in the explanation of court's power to review its order is the case of lily thomas (supra) inasmuch as order 47, rule 1, cpc is the specific power of review, 'being a creature of statute, cannot be exercised as an inherent power, yet such technicalities of law may have to be bent, in an appropriate case, for the purpose of correcting, an order committed by the court if such an error arises out of a presumption of fact, which was non-existent and when the court finds that its refusal to review its own error would cause, or has caused, grave miscarriage of justice. it is essentially the principle behind the doctrine of 'actus curiae neminum gravabit', has made the court hold, in municipal board pratapgarh (supra), that when a court corrects and rectifies an error, what it restores is the rule of law and not defeat it'.29. in the instant case also, there was some mistake on the part of the court regarding assumption of law as the court dismissed the appeal on merit in absence of the learned counsel for the parties.30. from the aforesaid discussion, there is no hesitation in the mind of the court that there is apparent error in the order of this court as impugned in the instant review petition. hence, the application for review is maintainable.31. order 41, rule 17, cpc authorizes the court only to dismiss the appeal for default, but not to decide it on merit. the order passed by the appellate authority dismissing the appeal on merit in absence of the appellant can be treated only as an order dismissing the appeal in default. not only that if the court passes such an order of dismissal of appeal on merit, that has to be considered to have decided without jurisdiction. the order passed without jurisdiction, if affects the right of a party, then such party has the right to come with an application for review of the court's order under order 47, rule 1, cpc and not only that, even when the court wrongly dismissed either the suit or appeal, then aggrieved party can approach the court for rectifying the error of the order of the court under section 151 of the code.32. in the case of bhagawan prasad v. madan murari lal air 11929 all 811 (supra), a division bench of the allahabad high court while deciding the revision petition filed by the defendant revision petitioner held that the court, however, did not proceed under order 47, but under section 151, cpc. if order 47 did not apply, then the court would certainly have inherent jurisdiction to restore the case if it thought that such restoration was necessary for the ends of justice.33. in the case of smt. annapurna chatterjee v. smt. sabita guha : air 1979 cal 338, a similar question came up like the question arises for decision in the instant case. in the aforesaid case, the learned additional district judge dismissed an application of the petitioner under section 151, cpc praying for restoration of appeal dismissed for non-prosecution, which was ultimately set aside by the high court stating, inter alia, that ultimate responsibility was with the court which passed the decree and it was the default on the part of the court for over looking such a wrong statement. it is now well settled that no person should suffer on account of the default of the court. the learned additional district judge should have stayed the hearing of the appeal as prayed for by the petitioner. in our opinion, the learned additional district judge should not have dismissed the appeal for non-prosecution. it is however, contended that the application under section 151 is not maintainable as there is a specific provision for restoration of the appeal that is, order 41, rule 19 of the code of civil procedure. such a contention commended to the learned additional district judge in dismissing the application for restoration. it is true that there is such a provision, but when the default is the default of the court, the proper provision to apply is the provision of section 151. in our view, no, application is even required to be made, but the court should in such circumstances, of its own, rectify the defect under its inherent power as soon as the defect is brought to its notice.34. in view of the submission of the, learned counsel for the parties and law reports referred, above, this court is of considered opinion that when an order of dismissal of suit in default in presence of the pleaders of the plaintiff can be permitted to be reviewed in the in interest of justice, then why an order passed without jurisdiction like the order impugned in, the instant case should not be permitted, to be reviewed. in other words, when an, appeal is dismissed, on merit in absence of the appellant, then aggrieved party can approach before the same court either by way of filing an application under order 41, rule 19 of the cpc for readmission or by way of filing an application for review under order 47, rule 1 read with section 151, cpc for setting aside the order of dismissal for restoration of the case in its original file for decision on merit as the provisions of cpc do not preclude the party to take the benefit of either of the provisions.35. this court is of the further opinion that an order of dismissal of an appeal on merit in absence of the learned counsel of the appellant is to be treated dismissal for default, not on merit. hence the aggrieved party is entitled to file an application for re-admission of the appeal under order 47, rule 19, cpc, but as the remedy lies under order 47, rule 1 for review, re-admission itself would not be a bar to approach the court, the court can rectify the error committed by it while passing the order on an application for review under order 47, rule 1. as such, the application for review is not precluded by any of the provisions of the cpc and impugned order passed by the appellate authority dismissing the appeal on merit in absence of the parties can be treated only an order of dismissal of appeal in default. the decree being on dismissal of the appeal in default, the same can be set aside by the same court on review for hearing the appeal on merit in the interest of justice, particularly, when the party is not negligent for non-appearance, he should not be punished.36. though the appellant review petitioner went to the apex court and filed special leave petition to appeal against the order impugned herein, but the same was dismissed as withdrawn. from the order of the apex court, it also appears that the review petitioner herein withdrew the special leave petition to move the high court which was ultimately done by filing the instant review, petition. mere dismissal of the special leave, petition by sc on being withdrawn cannot be a bar for filing a review petition as there was no decision on merit in the special leave petition. this court is also of the opinion that when the court cannot exercise the power of review vested on it under order 47, rule 1, then the court can exercise its inherent power under section 151, cpc to rectify the mistake and/on error committed by it which caused injustice to the parties. the court cannot do injustice to any of the parties and the duty of the court only to do justice and prevent from doing any injustice.37. for the foregoing reasons, the impugned order of this court dated 4-12-2006 is hereby set aside and the appeal being rfa 39 of 2001 is restored to its original file for hearing on merit.38. in the result, the review petition is allowed. no order as to costs.

Judgment:
ORDER

U.B. Saha, J.

1. This petition under Section 114 read with Order 47 of the CPC is filed for review of the judgment and decree dated 4-12-2006 passed in R. F. A. 39 of 2001 dismissing the appeal of the appellant petitioner on merit in absence of the learned Counsel for the parties, preferred under Section 96 read with Order 41 of the CPC against the judgment and decree dated 25-9-2001 passed by the learned Civil Judge, Senior Division, Court No. 1, West Tripura, Agartala in Money Suit No. 25 of 2000, whereby, the claim of the appellant petitioner was rejected.

2. Aggrieved by, the appellant petitioner filed special leave petition before the Hon'ble Supreme Court seeking special leave to Appeal (Civil) No. 6149 of 2007 which was also dismissed on withdrawal. The order of the Apex Court reads as follows:

Learned Counsel for the petitioner wants to withdraw this petition stating that she will move the High Court.

The Special Leave Petition is dismissed as withdrawn.

3. The case of the appellant petitioner was that he was issued work order for the work of construction of Sale Hall at Sundar Tilla Market under Mohanpur (Sidhal) vide No. F. 4(14) Agri/EE/W/85-86/3406-11 dated 7-3-1986 and for the work of construction of Sale Hall Development Market (Block I & II) at Hapania under Sadar, West Tripura vide work order No. 4(36) Agr/EE/W/89-90/1082 dated 2-8-1989 and Work Order No. 4(36)-Agri/EE/W/89-90/12-06-1209 dated 9-8-1989. According to the appellant petitioner, during construction of the said work, he was asked to execute some extra works. Accordingly, after completion of the works, final bill was prepared, but he was not paid in full of the final bill. Consequently, he filed a suit in the Court of Civil Judge, Senior Division No. 1, West Tripura, Agartala praying for a money decree against the defendant respondents towards recovery of the cost incurred for execution of the said works.

4. On pleading of the parties, learned Court below framed the following issues:

A. Is the suit maintainable and has the plaintiff cause of action for the present suit?

B. Has the plaintiff completed the work as per terms and condition of work order? If so, what is the cost of the work?

C. Is the plaintiff entitled to get money decree in this suit with interest and cost, as prayed for?

D. What other relief/reliefs the parties are entitled to get?

5. The appellant petitioner examined himself as P.W. 1 by exhibiting as many as 25 documents as exhibits and the defendants respondents examined only one witness, namely, Dipak Ghosh, as D.W. 1 and placed on records as many as 17 exhibits (Ext. A to Ext. Q).

6. After considering the materials as well as evidences on record, the learned Civil Judge analyzed each issue for adjudication and by judgment dated 25-9-2001 dismissed the suit rejecting the claim of the appellant petitioner.

7. Dissatisfied with the said judgment, the appellant petitioner preferred R.F.A. No. 39 of 2001 before this Court and this Court after going through the impugned judgment as well as materials on records, dismissed the appeal on merit in absence of the learned Counsel of both the parties. The observation recorded in Para-1, 10 and 11 of the judgment is reproduced hereinbelow:

1. None appears either on behalf of the appellant or on behalf of the respondents. This regular first appeal is being disposed of on the materials available on record.

10. I have gone through the impugned judgment, the materials on records, the evidences as well as the statements of the witnesses produced for and on behalf of the appellant/plaintiff as well as by the respondents/defendants. I find that the appellant/plaintiff could not prove his claim on the basis of the exhibits produced by the appellant/plaintiff and materials on record. The appellant/plaintiff has already been paid the amount due to him for execution of the work and nothing was on the record to reveal that he was directed to execute some extra work orally or in writing. On analysis of the evidence and witnesses and the finding on the issues arrived at by the learned Civil Judge, Senior Division, I am of considered view that the judgment of Civil Judge (Senior Division) is legally correct and the same cannot be interfered with. In these circumstances, I do not find any illegality or impropriety in the impugned judgment dated 25-9-2001.

11. Accordingly, the appeal is dismissed.

8. Now the moot question arises for decision whether an application for review under Order 47, Rule 1 read with Section 151, CPC is maintainable when there is a provision for readmission of appeal under Order 41, Rule 19. CPC.

9. Assailing the impugned judgment, Mr. B. Das, learned senior Counsel for the petitioner submits that the order of dismissal on merit in absence of the learned Counsel for the parties is without jurisdiction and should be treated as an order of dismissal in default which is sought to be reviewed as a nullity in the eye of law. Referring to the Roman concept of justice expressed in Legal Maxim 'Actus Curiae Neminem gravabit', he further submits that Court should do injustice to no one. Relying on the decision in the case of Jang Singh v. Brij Lal : AIR 1966 SC 1631 particularly relying on paras 6 & 8, learned Senior Counsel submits that no act of Court should harm a litigant and it is bounden duty of the Court to see that if a person is harmed by a mistake of the Court, he should be restored to the position he would have occupied but for that mistake, which was also considered by this Court in the case of Arun Chandra Das Majumder v. Wajid Ali : 1978 Cri LJ 1184. Learned Senior Counsel referred to paras 16 and 17 of the said judgment. He also submits that when it is detected that Court due to mistake has done injustice to anybody, it is the duty of the Court to suo motu recall and remove the injustice. He has further referred to a decision of the Apex Court in the case of Ajudh Raj v. Moti AIR 1991 SC 1600, particularly to paragraph 5 and submitted that if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, in the eye of law, the order does not exist, and it is not necessary to set aside. According to Mr. Das, the question as to whether a petition under Order 41, Rule 19, CPC should be filed or a review petition is maintainable is a technical question. Relying upon decision of the Supreme Court in the case of The Madras Port Trust v. Hymanshu International : AIR 1979 SC 1144, he submits that it is the observation of the Supreme Court that the Governments and Public Authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. He also urges that it is not mandatory on the part of the parties to take recourse to Order 41, Rule 19 of the CPC as a must. The parties can seek redress by taking recourse to other provision of law to Section 114 of the CPC. The inherent power of the Courts including the High Court as enshrined in Section 151, CPC may also be invoked so that justice is done to the review petitioner by removing the injustice done by the impugned judgment and the instant review petition is maintainable, he submits.

10. Mr. Das further submits that as provided by Chapter VI, Item-4. of the Court Fees Act, 1870 as applicable to Tripura for review, court-fee has to be paid equivalent to the fee leviable on the plaint or Memo of Appeal, if the application for review is presented on or after nineteenth day from the date of the decree and the State failed to notice that the Review petitioner is an indigent person and is exempted from paying court-fee. In the appeal also, the review petitioner had not paid any court-fee as per order of this Court dated 22-4-2002 and, therefore, the review petitioner is not required to pay any court-fee in filing the present review petition.

11. Mr. T.D. Majumder, learned Additional Govt. Advocate, on the other hand, submits that the instant review application is not maintainable as remedy under Order 41, Rule 19, CPC is available to the review petitioner. While he has explained the Order 41, Rule 19, CPC, he refers to a decision of the Apex Court in the case of Sarwan Singh v. Kishan Singh (dead) through L.Rs. reported in (2007) 13 SCC 575. The impugned judgment was passed dismissing the appeal on merit, not in default of the learned Counsel for the parties for which the appeal is required to be restored in file. Mr. Majumder also submits that the petitioner also has not agitated any mistake crept therein or is there any error apparent on the face of record or the disposal of the appeal on merit is illegal in absence of the learned Counsel for the parties, and in a review petition, the High Court cannot re-appreciate the evidence, he urges. He further submits that review will lie only if the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the petitioner. While explaining as to what an error apparent on the face of the record means, he has referred to the decisions of the Apex Court reported in the case of State of West Bengal v. Kamal Sengupta (2008) 8 SCC 612 : 2008 AIR SCW 4294, particularly to paras 22, 25, Deva Metal Powders (P) Ltd. v. Commissioner, Trade Tax, Uttar Pradesh : (2008) 2 SCC 439 : 2007 AIR SCW 7725, particularly to para 11 and in the case of Haridas Das v. Usha Rani Banik : (2006) 4 SCC 78 : AIR 2006 SC 1634 : 2006 AIR SCW 1771. The only ground agitated in the review petition is that the learned Civil Judge did not consider Exhibit-2 which was more than enough to decree the suit. So the premise of the review petition is very narrow, he submits. Mr. Majumder has also referred to para 10 of the impugned judgment to support that the learned Judge has gone through the materials on record, the evidence as well as statement of witnesses produced from both the parties. Mr. Majumder further submits that the Court may commit mistake in appreciation of evidence and such mistake can be cured through appeal but not by any review application. The petitioner failed to follow the prescription of procedural law as regards the proper remedy. Therefore, the instant review application is liable to be dismissed in limine.

12. Learned Additional Govt. Advocate also submits that the review petitioner has not paid the required court-fees as required under Sl. No. 4 and 5in Schedule 1. No separate application has been filed for declaring him as an indigent person, nor has he disclosed the fact whether the SLP was filed as an indigent person or not.

13. Regarding the contention of the learned Additional Govt. Advocate relating to the non-payment of the required courtfees by the review petitioner, this Court is of prima facie opinion that as before dismissal of appeal by the impugned order to be reviewed, the petitioner was allowed as an indigent person to prefer an appeal, it would not be proper for the Court to reject the review application only on the ground of nonpayment of court-fees. Therefore, the question regarding the requirement of deposit of court's-fee by the petitioner is kept open. The respondents are at liberty to raise the said question in appeal.

14. Before proceeding with the discussion, it would be profitable for the Court to refer the provisions of Order 41, Rule 17 and Rule 19 of the CPC as well as Order 47, Rule 1 of the CPC as the aforesaid provisions are the provisions which are required to be discussed. Accordingly, the same is reproduced hereunder:

17. Dismissal of appeal for appellant's default.

(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the court-may make an order that the appeal be dismissed.

xxx xxx xxx19. Re-admission of appeal dismissed for default.

Where an appeal is dismissed under Rule 11, Sub-rule (2) or Rule 17, the appellant may apply to the Appellate Court for the re-admission of the appeal; and, there it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

xxx xxx xxxOrder 47, Rule 1.

1. 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 pf 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 appealing from a decree or order may apply for a review pf 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.

15. To appreciate the scope on review, it would be proper for this Court to discuss the object and ambit of Section 114, CPC as the same is the substantial provision, for review when a person considering himself aggrieved either by a decree or an order of a ?Court from which appeals allowed, but no appeal is preferred or where there is no provision for appeal against an order and. decree, may apply for review of the decree or order as the case may be, in the Court which made the order or passed the decree. From bare reading of Section 114 of the Code, it, appears that the said substantive power pf review under Section 114, CPC is not laid down any condition as. the condition precede t in exercise of the power of review nor, the said Section imposed any prohibition on the Court for exercising its power to review, its decision There was a time when it was considered that an order can be reviewed by a Court only on, the prescribed grounds mentioned in, Order 47, Rule 1 i.e. (1) discovery of new and, important matter or evidence, which after the exercise of due diligence, was riot within his knowledge or could not be produced by him at the time when the decree was passed order made against; him; (ii) mistake or error apparent on the face of record or any such sufficient ground which is analogous to two grounds aforementioned, the subsequent development of law on the subject of review was in fact extended for the interest of justice by the Apex Court of the country in the case of Lily Thomas v. Union of India reported in : (2000) 6 SCC 224.: AIR 2000 SC 1650 : 2000 AIR SCW 1760. While the Apex Court noted the dictionary meaning of the word 'review' is 'the act' of looking, offer something again with a view to correction or improvement' also considered the case of Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji : AIR 1970 SC 1273 wherein it was held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures of technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the, earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice, nothing would preclude the Court from rectifying the error. (Emphasis supplied). In Moran Mar Bassellon Catholicos v. Most Rev. Mar Poulose Athanasius AIR 1954 SC 526, the Apex Court held that an application for review is, much more restricted than that of an appeal and the Court of review has only limited jurisdiction as to the definite limit mentioned in the order itself. But in the subsequent decision of the Apex Court in the case of Lily Thomas v. Union of India AIR 2000 SC 1650 : 2000 AIR SCW 1760 (supra), the Apex Court held that the power or 'review' cannot be exercised as an inherent power nor can an appellate power be exercised in the guise of the power of review, the Supreme Court has, nevertheless, clarified that correction of an order by a Court cannot be denied if the Court finds that the error, pointed out in the review person, was under a mistake or fact or law rand/or that the earlier judgment would not have been passed, but for erroneous assumption of a fact, which in fact, did not exist, and that perpetration of such an erroneous assumption of fact shall result in miscarriage of justice.

16. In Deva Metal Powers (P) Ltd. Comissioner, Trade Tax, Uttar Pradesh 2007 AIR SCW 7726 (supra) the Apex Court discussed as to what means 'mistake' and 'apparent error'. According to the Apex Court, 'mistake' means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error, a fault, a misunderstanding, a misconception. 'Apparent' means visible; capable or being seen; obvious; plain. Para 11 of the said judgment is relied by Mr. Majumder, learned Additional Govt. Advocate appearing for the State respondent, wherein their Lordship referring to the case of Satyanarayan Laxminarayan Hedge v. Mallikarjun Bhavanappa Tirumale : AIR 1960 SC 137, discussed that an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the fact of the record. Where an alleged error is far from self-evidence and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ.

17. In the case of State of West Bengal v. Kamal Sengupta 2008 AIR SCW 4294 (supra), their Lordship also discussed what is mistake or error apparent on the face of record and held that mistake or error which is prima facie visible and does not require any detail examination can be considered as a mistake or error apparent, on the face of record and if an error is not self-evident and detection thereof requires long debate and process of reasoning, the same cannot be treated as art error apparent on the face of the record for the purpose of Order 47, Rule 1, CPC or an order of decision or judgment cannot be corrected merely because it is erroneous in. law or on the ground that a1 different view court have been taken by the Court/Tribunal On the, point of fact or law. While exercising the power of review; the Court/tribunal concerned cannot sit in appeal over its judgment/decision. There is ho quarrel with the discussion of the Apex Court and the proposition laid down by it in, the aforementioned cases. In the case in hand, it is admitted position that where though this Court was not authorized to dismiss the appeal on merit in absence of the learned Counsel for the, parties, the same was done by it which itself is an apparent] error on the face of record. There is no doubt that when an order of dismissal of an appeal is passed by a Court in absence of the learned Counsel of the appellant or both the parties, then that has to be treated not a dismissal on merit, but a dismissal in default and for which the party can take recourse to the provisions of Order 41, Rule 19 of the CPC. But mere existence of a specific provision for restoration of appeal, that does not mean that the appellant is totally precluded from approaching the Court by one application of review.

18. Now we have to see whether the review is permissible or not when there is a provision for restoration/re-admission of die appeal under Order 41, Rule 19 of the CPC. In the case of Sarwan Singh v. Kishan Singh 2007 (13) SC 574 (supra), the appellant therein filed an appeal before the Apex Court against the order passed by the learned single Judge of Punjab and Haryana High Court dismissing the application under Order 41, Rule 19, CPC read with Section 151 CPC which was filed to restore the appeal for deciding he same on merit. In that case, like the case in hand, the High Court referred to the merits of the case at the time of dismissal of the appeal noting that none appeared for the appellant against which the appeal was preferred before the Apex Court, but no review petition was filed before the High Court like the present one. Therefore, there was no scope to the Apex Court for considering the question whether a review petition can be filed even when there is a procedure prescribed for restoration/re-admission of the appeal under Order 41, Rule 19, CPC. Therefore, the same is distinguishable.

10. In Shivdeo Singh v. State of Punjab AIR 1963 SC 1909; the Apex Court noted that there is nothing in Article 227 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In the case of Bhagawan Prasad v. Madan Murari Lal : AIR 1929 Allahabad 811 while deciding the review petition held that when an application for restoration, was made, the learned Judge rectified his mistake and restored the case. It is rightly contended before us that the Court below should not have proceeded under Order 9, as the provisions in hat order were not applicable; but it cannot be doubted that the Court had Jurisdiction to rectify its own mistake. Even under Order 47, the Court could have set aside its own order because there was a mistake and error apparent on the face of the record. The Court, however, has not proceeded-under Order 47 but under Section 151, Civil P.C. If Order 47 did not apply, then the Court would certainly have inherent jurisdiction to restore the case if it thought that such restoration was necessary for the ends of justice.

20. In the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma : AIR 1979 SC 1047, the Apex Court has made the pertaining observation:

It is true as observed by this Court in Shivdeo Singh v. State of Punjab AIR 1963 SC 1909 that there Is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable error committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.

21. The aforesaid case of Aribam Tuleshwar Sharma (supra) has also been followed by the Apex, Court, again in the case of Smt. Meera Bhanja v. Nirmala Kumari Choudhury : AIR 1995 SC 455 wherein the case of Satyanarayan Laxminarayan Hedge : AIR 1960 SC 137 (supra) was also taken in consideration.

22. Before I entered Into a discussion, it may be noted here that the Court can review its order even invoking the doctrine 'Actus Curiae Neminem gravabit' as contended by Mr. B. Das, learned senior Counsel for the petitioner relying on a decision in the case of Jang Singh v. Brij Lal : AIR 1966 SC 1631 (supra). The principal laid down in the said case was also considered by this Court in the case of Arun Chandra Das Mazumder v. Wajid Ali : 1978 Cri LJ 1184 (supra). 'Actus Curiae Neminem gravabit' means an act of the Court shall prejudice to no man. In the instant case, it appears from the order impugned that though the parties were not present before the Court, this Court decided the appeal on merit, as a result of which, the petitioner appellant herein is prejudiced due to the act of the Court without jurisdiction.

23. Relying the aforesaid case of Shivdeo Singh v. State of Punjab AIR 1963 SC 1909. (supra), the Karnataka High Court in the case of T. Krishnappa v. H. Lingappa AIR 1982 Kar 58, held that it is true as argued on behalf of the respondent that there is no specific provision in the Act conferring power on this Court to review its order. But the power of review is inherent in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. This Court is a Court of plenary jurisdiction and has therefore the power to review its order.

24. In the case of Board of Control for Cricket in India v. Netaji Cricket Club : (2005) 4 SCC 741 : AIR 2005 SC 592 as relied by Mr. Das, the Apex Court observed that we are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be, ex facie bad in law. Section 114 of the CPC empowers a Court to review its order if the conditions precedent, laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the Court except those which are expressly provided in Section 114 of the CPC in terms whereof it is empowered to make such order as it thinks fit. In the said judgment of Board of Control for Cricket in India (supra), para 52 of Lily Thomas (supra) has been taken into consideration wherein the Apex Court held that it cannot be denied that Justice is a virtue which transcends ail barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and, the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error.

(Emphasis supplied)

25. In the Board of Control for Cricket in India (supra), the Apex Court has also pointed our that when a Court can consider the subsequent event in finding out whether it had committed any mistake or not in understanding the nature and purport of an undertaking given by a Counsel appearing on behalf of the party and when the Court can rectify its own mistake for just decision of this Court, these points are not4 necessary. This Court is not referring to those paragraphs of Board of Control for Cricket in India (supra), particularly, paras 87, 89, 90 and 93.

26. Taking aid from the decision of the Madras Port Trust v. Hymanshu International (supra), this Court can easily come to a conclusion that the Court should not allow technical pleas of the party for the purpose of defeating the legitimate claims of the citizens as it is the duty of the Court to render justice to the citizen.

27. In Mahakali Engineering Corporation v. R.C. Subramanyam (2000) 10 SCC 264, the Apex Court while considering the averment made in the review application before the High Court that no one was present on behalf of the appellant at the time when the revision was taken up for hearing, it was held where order impugned in review petition was passed in absence of Counsel for the review petitioner, High Court ought to have allowed the review petition and heard the matter on merit. Not only that, the Apex Court also held that the High Court erred in dismissing the review petition without giving opportunity to the appellant to contest civil revision filed by the respondent landlord.

28. Taking note of the Lily Thomas,, Board of Control for Cricket in India and Moran Mar Bassellios Catholicos, etc. this Court in Dhanani Shoes Ltd. v. State of Assam (2008) 5 GLR 459 observed that at one point of time, it was considered to be a case of universal application that the review by a Court of its order is not possible except, on two prescribe grounds, namely, (i) discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time, when the order was passed, or (ii) mistake or error, which is apparent on the face of the record. One of the cases, which has helped in the explanation of Court's power to review its order is the case of Lily Thomas (supra) inasmuch as Order 47, Rule 1, CPC is the specific power of review, 'being a creature of statute, cannot be exercised as an inherent power, yet such technicalities of law may have to be bent, in an appropriate case, for the purpose of correcting, an order committed by the Court if such an error arises out of a presumption of fact, which was non-existent and when the Court finds that its refusal to review its own error would cause, or has caused, grave miscarriage of justice. It is essentially the principle behind the doctrine of 'actus curiae neminum gravabit', has made the Court hold, in Municipal Board Pratapgarh (supra), that when a Court corrects and rectifies an error, what it restores is the rule of law and not defeat it'.

29. In the instant case also, there was some mistake on the part of the Court regarding assumption of law as the Court dismissed the appeal on merit in absence of the learned Counsel for the parties.

30. From the aforesaid discussion, there is no hesitation in the mind of the Court that there is apparent error in the order of this Court as impugned in the instant review petition. Hence, the application for review is maintainable.

31. Order 41, Rule 17, CPC authorizes the Court only to dismiss the appeal for default, but not to decide it on merit. The order passed by the appellate authority dismissing the appeal on merit in absence of the appellant can be treated only as an order dismissing the appeal In default. Not only that if the Court passes such an order of dismissal of appeal on merit, that has to be considered to have decided without Jurisdiction. The order passed without Jurisdiction, If affects the right of a party, then such party has the right to come with an application for review of the Court's order under Order 47, Rule 1, CPC and not only that, even when the Court wrongly dismissed either the suit or appeal, then aggrieved party can approach the Court for rectifying the error of the order of the Court under Section 151 of the Code.

32. In the case of Bhagawan Prasad v. Madan Murari Lal AIR 11929 All 811 (supra), a Division Bench of the Allahabad High Court while deciding the revision petition filed by the defendant revision petitioner held that the Court, however, did not proceed under Order 47, but under Section 151, CPC. If Order 47 did not apply, then the Court would certainly have inherent jurisdiction to restore the case if it thought that such restoration was necessary for the ends of justice.

33. In the case of Smt. Annapurna Chatterjee v. Smt. Sabita Guha : AIR 1979 Cal 338, a similar question came up like the question arises for decision in the instant case. In the aforesaid case, the learned Additional District Judge dismissed an application of the petitioner under Section 151, CPC praying for restoration of appeal dismissed for non-prosecution, which was ultimately set aside by the High Court stating, inter alia, that ultimate responsibility was with the Court which passed the decree and it was the default on the part of the Court for over looking such a wrong statement. It is now well settled that no person should suffer on account of the default of the Court. The learned Additional District Judge should have stayed the hearing of the appeal as prayed for by the petitioner. In our opinion, the learned Additional District Judge should not have dismissed the appeal for non-prosecution. It is however, contended that the application under Section 151 is not maintainable as there is a specific provision for restoration of the appeal that is, Order 41, Rule 19 of the Code of Civil Procedure. Such a contention commended to the learned Additional District Judge In dismissing the application for restoration. It is true that there is such a provision, but when the default is the default of the Court, the proper provision to apply is the provision of Section 151. In our view, no, application is even required to be made, but the Court should in such circumstances, of its own, rectify the defect under its inherent power as soon as the defect Is brought to its notice.

34. In view of the submission of the, learned Counsel for the parties and law reports referred, above, this Court is of considered opinion that when an order of dismissal of suit in default in presence of the pleaders of the plaintiff can be permitted to be reviewed in the in interest of justice, then why an order passed without jurisdiction like the order impugned in, the instant case should not be permitted, to be reviewed. In other words, when an, appeal is dismissed, on merit in absence of the appellant, then aggrieved party can approach before the same Court either by way of filing an application under Order 41, Rule 19 of the CPC for readmission or by way of filing an application for review under Order 47, Rule 1 read with Section 151, CPC for setting aside the order of dismissal for restoration of the case In its original file for decision on merit as the provisions of CPC do not preclude the party to take the benefit of either of the provisions.

35. This Court is of the further opinion that an order of dismissal of an appeal on merit in absence of the learned Counsel of the appellant is to be treated dismissal for default, not on merit. Hence the aggrieved party Is entitled to file an application for re-admission of the appeal under Order 47, Rule 19, CPC, but as the remedy lies under Order 47, Rule 1 for review, re-admission itself would not be a bar to approach the Court, the Court can rectify the error committed by it while passing the order on an application for review under Order 47, Rule 1. As such, the application for review is not precluded by any of the provisions of the CPC and Impugned order passed by the appellate authority dismissing the appeal on merit in absence of the parties can be treated only an order of dismissal of appeal in default. The decree being on dismissal of the appeal in default, the same can be set aside by the same Court on review for hearing the appeal on merit in the interest of justice, particularly, when the party is not negligent for non-appearance, he should not be punished.

36. Though the appellant review petitioner went to the Apex Court and filed special leave petition to appeal against the order impugned herein, but the same was dismissed as withdrawn. From the order of the Apex Court, it also appears that the review petitioner herein withdrew the special leave petition to move the High Court which was ultimately done by filing the instant review, petition. Mere dismissal of the special leave, petition by SC on being withdrawn cannot be a bar for filing a review petition as there was no decision on merit in the special leave petition. This Court is also of the opinion that when the Court cannot exercise the power of review vested on it under Order 47, Rule 1, then the Court can exercise its inherent power under Section 151, CPC to rectify the mistake and/on error committed by it which caused injustice to the parties. The Court cannot do injustice to any of the parties and the duty of the Court only to do justice and prevent from doing any injustice.

37. For the foregoing reasons, the impugned order of this Court dated 4-12-2006 is hereby set aside and the appeal being RFA 39 of 2001 is restored to its original file for hearing on merit.

38. In the result, the review petition is allowed. No order as to costs.