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ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 17827 OF 2023
IN
INTERIM APPLICATION (L) NO. 1361 OF 2023
ALONG
IN
CONTEMPT PETITION NO.10 OF 2005
IN
APPEAL NO.70 OF 2022
Vinay b. Poddar .. Applicant
Vs.
Jayesh Pandya & Ashok Banwarilal
Gupta and Ors. .. Respondents
REVIEW PETITION (L) NO. 15100 OF 2023
IN
INTERIM APPLICATION (L) NO. 1361 OF 2023
INTERIM APPLICATION NO.2428 OF 2023
IN
REVIEW PETITION (L) NO.15100 OF 2023
REVIEW PETITION (L) NO.15102 OF 2023
IN
INTERIM APPLICATION NO.1984 OF 2023
INTERIM APPLICATION NO.2430 OF 2023
IN
REVIEW PETITION (L) NO.15102 OF 2023
REVIEW PETITION (L) NO.15105 OF 2023
IN
INTERIM APPLICATION (L) NO.1361 OF 2023
INTERIM APPLICATION NO.2429 OF 2023
IN
REVIEW PETITION (L) NO.15105 OF 2023
Jayesh Pandya .. Applicant
Vs.
Rajendra Durgadatta Gupta and Anr. .. Respondents ...
Dr. Abhinav Chandrachud a/w Mrs. Jacinta D’Silva for review petitioner.
Mr. Rohaan Cama a/w Mr. Prateek Pai, Mr. Shashwat Rai, Ms. Arunima Athavale for other applicant in IAL/17827/2023 in
IAL/1361/2023.
Mr. Aseem Naphade for respondent no.2.
Mrs. S.S. Chipkar, Section Officer – present.
…
JUDGMENT
1. These Review Petitions seek a review of the order dated 20th April 2023 on common grounds and arguments and the Interim Applications (‘I.A.’ for short) connected therewith are for condonation of delay of about 17 days in filing the Review Petitions. We therefore dispose of these by a common order whilst referring to one of them being I.A. No. 2429 of 2023 linked with Review Petition No. of 2023 for brevity.
2. Considering there is a delay of only 17 days and with a view to grant a fair opportunity to the applicant seeking review we are inclined to use our discretion to condone it.
3. The Applicants seek a review on the ground that the order dated 20th April 2023 is ex facie replete with mistakes/errors as it disregarded relevant material fact placed on record by the applicant.
4. Dr. Chandrachud learned counsel for the Applicant at the outset, emphasized on the false statements made brazenly by the Respondent to obtain a restoration of the appeal which was apparently dismissed a long time ago in March 2014. According to him, the material facts and documents on record would establish the same beyond any manner of doubt. He submitted that it was inconceivable that the respondent was not aware of the orders passed by this Court from time to time more particularly the orders discharging his own surety and his own advocate who sought and was permitted to take a discharge till his family took a search of the proceeding after his arrest. On the contrary, the affidavit of service filed by the advocate for the surety and the service report filed by the office of the Prothonotary and Senior Master brought on record by the affidavit in reply clearly establish that the respondent was all along aware of all proceedings in court.
5. He submitted that the contention that the respondent had made false statements on oath, was admitted by the respondent in para 4(b) of his affidavit in rejoinder dated 7th February 2023, that was filed pursuant to the court order dated 14th February 2023. It is stated that the respondent had been informed by his advocate in July 2019 that he intended seeking a discharge and that there was correspondence with his advocate exchanged at that time. He submitted that despite having knowledge of all events and proceedings the respondent had failed to take any steps in the matter which could only be attributed to Respondent’s negligence.
6. The learned counsel took strong exception to the statement of the respondent that it was only after his arrest on 14th January 2023 that he had learnt of the order permitting discharge of his advocate. This according to the counsel was brazenly false as the respondent by a further affidavit dated 3rd March 2023 admitted that at all relevant times he had knowledge of the proceedings filed by Mr Mahesh Gupta (the brother of his brother in law Ashok Gupta) who had stood surety for him in the appeal.
7. Moreover, the respondent was convicted for committing civil contempt for wilful and deliberate disobedience of the order. It was submitted that the respondent had admitted that by not filing a proper affidavit in 2007 he had been negligent and thus not purged the contempt. He submitted that these facts would in fact establish that the respondent was guilty of committing criminal contempt.
8. According to the learned counsel, the observation in paragraph 6 of the impugned order was made without any inquiry and without examining the documents regarding the removal of office objections that form a part of the record. Had this exercise been done, the conclusion would have been different. It is submitted that the Court erred in drawing a conclusion that the office objections were removed.
9. The learned Counsel asserted that the statements made by the other two applicants in I.A. No. 650 of 2023 and I.A. (L) No.1984 of 2023 that the office objections were not removed would clearly reveal that the respondent was guilty of continuing to make false and misleading statements. The assertions of the respondent in his interim application and his further affidavits, were contrary to the record.
10. The learned counsel submitted that by condoning the delay the impugned order restored an appeal dismissed way back in 2014. That he submitted could be done only if ‘sufficient cause’ had been made out and failing which the court was not empowered to exercise its discretion to condone the delay. In support of this proposition he relied upon the judgement in the case of Ramlal Motilal And Chhotelal Versus Rewa Coalfields Ltd.[1] which held that AIR1962 SC 361 if ‘sufficient cause’ for delay was not made out, the application for condonation of delay necessarily has to be dismissed.
11. Referring to matter of diligence shown by the respondent in conducting the proceedings, the learned counsel relied upon the judgement of the Apex Court in the case of Hameed Joharan vs and more particularly the lines that “Law Courts never tolerate an indolent litigant since delay defeats equity. As a matter of fact lapse of time is a species for forfeiture of rights.” to submit that the respondent was indolent, when in the interim application he pleaded that from June 2007 till his arrest in January 2023 he had made no inquiries relating to the status of his appeal. It was on account of such indolence that he was found guilty of contempt and was sentenced to undergo imprisonment. Moreover the respondent’s admission in the subsequent affidavit that he was aware of the developments in his appeal but took no steps on account of being reliant on his brother in law Ashok Gupta to do the needful would clearly indicate that the respondent is making false statements on oath. This in his submission was nothing but an attempt to deceive the honourable court, which ought not to be tolerated by courts.
12. Mr. Cama learned Counsel for the Respondent in support of the impugned order opposed the review on the ground that there was apparently no error on the face of the record and hence the review was not maintainable. He submitted that the present application was in the nature of an appeal and such an order could not be obtained through another division bench in the garb of a review. The learned counsel asserted that the court had in fact considered all the facts and documents as evinced by paragraph 6 of the order which is extracted as under for brevity:
He submitted that the words in paragraph 6 made it amply clear that it was only after considering everything, this Court used its discretionary powers to grant the relief. It also imposed costs to be paid to the applicant as can be evinced in paragraph 7 of the said order.
13. We have heard both counsel at length.
14. At the outset, this bench is constituted as an alternate bench as one of us viz. Dhiraj Singh Thakur, J. was transferred to the High Court of Andhra Pradesh as its Chief Justice. In our view, the arguments advanced by Dr. Chandrachud are in the nature of an appeal more than a review which are not maintainable. We did not find any ground for review as such. There evidently is no error on the face of the order.
15. In our view the present case arose on account of dismissal of an appeal for “non – removal of office objections” because of a self – operating order. It was apparently a mistake of the court registry at the relevant time. This aspect was taken into consideration whilst passing the impugned order in paragraph 6 of the order. The case law relied upon by Dr. Chandrachud was not placed before the earlier bench. Now if either the law or facts were not placed before the court then it cannot be construed that there exists an error apparent on the face or is necessitated on the account of some mistake or any sufficient reason. The Court is not bound to delve into the law or facts not asserted. Certainly, restraining from an investigation, the order cannot be criticized for lacking contemplation and thereby construed as the one with error apparent on the face of the record. Dr. Chandrachud has not been able to pinpoint any mistake in the order. A bench is not expected to overturn the discretion used by the another bench in a review unless the criteria for review are met. We find no such criteria in the present order. We find no mistake in the impugned order. If the court found sufficient reason to use its discretion, in our view it cannot be termed as either misconception of fact or law. The Bench had apparently considered all material facts and record and have exercised its discretion. It is not the case of Dr. Chandrachud that the review is necessitated on account of any subsequent event. Thus none of the circumstances or facts contended above by Dr. Chandrachud convince us to review the order.
16. The other important fact that we were compelled to ascertain was whether office objections were at all removed. We examined the records ourselves once again though one of us Kamal Khata J had already examined the records whilst sitting with Dhiraj Singh Thakur J as he then constituted the bench, and we found that the office objections were in fact complied with on 4th June 2007. Now the ripple effect is evident. The affidavits filed to the contrary in the case cannot be given credence against the courts record that we noticed. The entire series of events that took place for the respondents were on account of an automatic dismissal of the appeal for non removal of office objections. When the court found that the same were removed and went unnoticed for some reason or the other the court can certainly use its discretion to give an opportunity to the respondent to assail the order which the court did. We are unable to agree with Dr. Chandrachud that this court in review need to re-examine the material on record and reconsider the conduct of the party and overturn the discretion used by the court.
17. In these facts and circumstances we find no merit in the contention that material facts and documents were not considered or misconstrued in the impugned order. In our view, a court would rather rely upon its own record than the statements in affidavits unless it is alleged that the noting that “office objections were removed” is fabricated and a fraud has been perpetrated; it certainly cannot be implied.
18. In our view, once a discretion is used by a court an alternate bench cannot sit in appeal to reverse the same unless the criteria for reviewing the matter are met.
19. The review petition is rejected.
20. With regard to the I.A No. of 2023 taken out by Mr. Cama the order is clear and unambiguous and the I.A. seeks to clarify what it implies, which this court being an alternate bench cannot venture into. The same is accordingly rejected. [ KAMAL KHATA, J. ] [ SUNIL B. SHUKRE, J ]