Chattisgarh High Court
M/S Dubey Stone Crushers vs Chhattisgarh State Power Distribution … on 16 January, 2025
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1
2025:CGHC:2682
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
REVP No. 35 of 2024
1 - M/s Dubey Stone Crushers Through Its Proprietor Heeramani Dubey S/o
Shri Ramkumar Dubey, Aged About 46 Years R/o Village Chhatona, Tahsil
Bilha, District Bilaspur (C.G.)
--- Petitioner
versus
1 - Chhattisgarh State Power Distribution Company Limited (C.G.) Through
Its Managing Director, Chhattisgarh State Power Distribution Company
Limited, Daganiya, Raipur (C.G.)
2 - Superintending Engineer (O And M) (Bilaspur Circle) Chhattisgarh State
Power Distribution Company Limited, Bilaspur (C.G.)
3 - Executive Engineer (O And M) Bilaspur Division, Chhattisgarh State
Power Distribution Company Limited, District Bilaspur (C.G.)
......Respondents
_____________________________________________________________
For Petitioner : Mr. Amit Soni, Advocate
For Respondents : Ms. Astha Shukla, Advocate
Hon’ble Shri Justice Parth Prateem Sahu
Order On Board
16/01/2025
1. Petitioner has filed this review petition seeking review of the order
passed by this Court in WPC No.3985 of 2023 dated 11.09.2023 inter-
alia on the ground pleaded therein.
Digitally signed by
BALRAM PRASAD
DEWANGAN
Date: 2025.01.22
15:51:05 +0530
2
2. Learned counsel for petitioner would submit that against the order
passed in the writ petition, petitioner has filed writ appeal bearing W.A.
No.448 of 2023 and during the course of arguments, writ appeal was
permitted to be withdrawn with liberty to file review application
considering the ground raised that this Court has not considered the
point of limitation taken and raised before this Court. He contended
that Regulation 30 which is extracted in para -8 of the order dated
11.09.2023 specifically mentions the review application to be filed
within a period of 30 days of the order. He also pointed out that
specific ground is also raised in the writ petition in Para 8.5. He
contended that though there is specific pleading in para 8.5, this Court
while deciding this writ petition escaped consideration of the important
ground of limitation raised for consideration and further that
respondents have not filed any application for condonation of delay
along with the application for review before the authority. As the
application for review was barred by limitation, therefore, there is error
apparent on the face of order passed in writ petition. Hence, the
application be allowed.
3. Learned counsel for respondents opposes the submission of learned
counsel for review petitioner and would submit that arguments raised
by learned counsel for petitioner in the review petition has been
discussed in Para-2 and 3 of the impugned order. In the said order, in
the arguments there is no discussion with respect to the ground of
limitation raised by learned counsel for petitioner at the time of oral
argument raised before this Court while arguing in the writ petition.
Hence, the review is not permissible on the new ground and review
cannot be entertained as an appeal. She also submits that from the
3
argument considered by this Court and mentioned in para 2 and 3 of
the order impugned, there is no mention even if the pleadings is there
in the writ petition with respect to the ground of limitation if not
pressed.
4. I have heard learned counsel for parties, perused the pleadings made
in the writ petition, and the arguments raised by learned counsel for
petitioner and respondents, order passed in the writ petition and
further the ground taken by learned counsel for petitioner in the writ
appeal from the copy of writ appeal placed by learned counsel for
petitioner before this Court for perusal.
5. Perusal of writ petition would show that in para 8.5 of writ petition it is
mentioned that “It is pertinent to mention here that even no application
for condonation of delay has been filed by respondents while
preferring review application”. There is no pleading in ground that
review petition is barred by limitation and could not have been
considered on merits. The ground to challenge the order impugned in
the writ petition is raised in para -9, in which there is no specific
ground raised by the writ petitioner with respect to the limitation as it is
being raised in the review petition. The arguments, which was
advanced by both the sides, before this Court while hearing writ
petition has been written in para 2, 3 & 4 of the order impugned. From
the contents of the para 2 & 3 of the order passed in writ petition dated
11.09.2023 it is reflecting that during the course of arguments counsel
for writ petitioner has not raised the ground that review application was
barred by limitation and no application for condonation of delay is filed.
Perusal of the ground raised in the writ appeal which is filed
4
immediately after passing of the impugned order in the writ petition
also does not specifically mention that ground of limitation is argued at
the time of hearing of the writ petition, before the writ Court but writ
Court has not considered that arguments while passing the impugned
order.
6. In absence of arguments as mentioned in the para 2 and 3 of the order
passed in writ petition as also considering the writ appeal where no
such ground is raised, submission of learned counsel for petitioner that
ground of limitation is not considered in the opinion of this Court
cannot be considered in this review proceedings.
7. Review petition cannot be entertained on any new grounds. Only
consideration in the review petition while exercising review jurisdiction
is that whether there is any error apparent on the face of order or not.
The law is well settled by Hon’ble Supreme Court that all the pleadings
made in the writ petition and the grounds raised, unless and until it is
argued during the course of making oral submission before the Court
is not always required to be considered. Submission made by learned
counsel for respective parties during the course of hearing arguments
before the Court is required to be considered and discussed in the
order.
8. Hon’ble Supreme Court in case of Amanullah v. State of U.P., (1973)
2 SCC 81 has observed thus :
“8. Normally it has to be presumed that all the arguments
actually pressed at the hearing in the High Court were
noticed and appropriately dealt with and if the judgment of
the High Court does not contain discussion on a point, then
that point should be assumed prima facie not to have been
5argued at the bar, unless the contrary is satisfactorily
shown. No doubt, in the grounds of appeal in this Court it is
pleaded in so many words that the High Court ought to
have held that Ram Pyar specifically mentioned in the
dying declaration was a different person and impersonator
called Shyam Pyar came forward to oblige the prosecution.
But it is nowhere stated that this point was actually argued
in the High Court but not dealt with by it in the judgment. In
the absence of such an assertion capable of acceptance by
this Court, we have no option but to hold that this point was
presumably not argued in the High Court. Having not been
pressed in the High Court, in the absence of special
reasons, this Court would normally feel disinclined to
permit it to be raised on appeal by special leave under
Article 136 of the Constitution. New points may be
permitted to be raised by this Court only in exceptional
circumstances when they go to the root of the matter and
the larger interests of justice demand it. However, as the
learned counsel for the appellant has actually taken us
through the material on the record and we have heard
arguments of both sides, we would not exclude this point
from our consideration but would pronounce upon it. After
fully considering the matter, we feel little hesitation in
agreeing with the line of reasoning and the conclusion of
the trial court. There is no serious infirmity and there is
certainly no failure of justice. Both the courts have taken
the view that Ram Pyar had been wrongly mentioned in the
FIR and it was really Shyam Pyar who was a witness to the
occurrence. There is no cogent ground for differing with this
view.”
9. The Hon’ble Supreme Court in case of French Motor Car Co. Ltd.,
Calcutta Vs. Their Employees, (1961) 2 LLJ 180 has observed thus :
“3. In considering this contention it is necessary first to see
whether this argument was urged before the Tribunal
6below. The tribunal’s award makes no mention of any such
argument. It is not stated in the petition for special leave
that this was pressed before the Tribunal and still it was not
considered. The mere fact therefore that in the written
statement of the company it had been mentioned that as
the issue about the gratuity had been considered by the
First Engineering Tribunal and had been rejected by it and
that wages and conditions of service fixed by the earlier
awards should not be revised unless it could be proved that
there had been change of circumstances subsequent
thereto, we cannot assume that this contention was
pressed at the time of hearing. On a fair reading of the
Tribunal’s award we are bound to hold that the main
contention pressed was that in view of the financial
prospects of the company, gratuity-scheme should not be
introduced in addition to the provident fund. The question
that in view of the previous tribunal having rejected the
claim the present tribunal ought not to direct payment of
gratuity in addition to provident fund in view of this Court’s
authority would be such an important argument that if it had
been raised the Tribunal, it is reasonable to think, would
have dealt with it. We are convinced on a fair reading of the
award that this question, though raised faintly in the
written-statement was ultimately not pressed. No fault can
therefore be found with the Tribunal for not considering this
question whether there had been such changes since the
date of the previous award as to justify a departure from
the previous decision. Nor can we allow the appellant to
raise this question before us when it was not urged at the
hearing.”
10. The Hon’ble Supreme Court in case of Transmission Corpn. of A.P.
Ltd. v. P. Surya Bhagavan, (2003) 6 SCC 353 has observed thus :
“10. Question as to whether the respondent was
overaged for entry into the service was neither raised in
7the written statement nor was it argued before the High
Court. Under the circumstances the appellant cannot be
permitted to raise this point for the first time in this Court.
The second point regarding the delay in filing the petition
though was raised in the written statement, but, it seems
the same was not pressed before the Bench at the time of
arguments. It has not been stated in the grounds of
appeal that this point was raised and argued before the
Bench during the course of arguments and the Bench had
failed to notice the same. In view of this we decline to go
into this question as well.”
11. It is well settled in law that in the guise of review, rehearing is not
permissible. In order to seek review it has to be demonstrated that
order suffers from error apparent on the face of record. The scope of
review is very limited and an order or judgment is open to review only
if there is a mistake or an error apparent on the face of record. Hon’ble
Supreme Court in case of Smt. Meera Bhanja vs Smt. Nirmala
Kumari Choudhury reported in AIR 1995 SC 455 has observed thus :
“8. It is well settled that the review proceedings are not by
way of an appeal and have to be strictly confined to the
scope and ambit of Order 47, Rule 1, CPC. In connection
with the limitation of the powers of the court under Order
47, Rule 1, while dealing with similar jurisdiction available
to the High Court while seeking to review the orders under
Article 226 of the Constitution of India, this Court, in the
case of Aribam Tuleshwar Sharma v. Aribam Pishak
Sharma [(1979) 4 SCC 389 : AIR 1979 SC 1047] ,
speaking through Chinnappa Reddy, J., has made the
following pertinent observations: (SCC p. 390, para 3)“It is true as observed by this Court in Shivdeo Singh
v. State of Punjab [AIR 1963 SC 1909] , there is
nothing in Article 226 of the Constitution to preclude
8the 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. 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.”
12. In the case of Asharfi Devi (dead) through LRs Vs. State of Uttar
Pradesh and Ors. reported in (2019) 5 SCC 86, it was held thus:-
“18. It is a settled law that every error whether factual or
legal cannot be made subject matter of review under Order
47 Rule 1 of the Code though it can be made subject
matter of appeal arising out of such order. In other words,
in order to attract the provisions of Order 47 Rule 1 of the
Code, the error/mistake must be apparent on the face of
the record of the case.”
13. It is also not the case of the petitioner that he discovered any new and
important matter, which after the exercise of due diligence was not
within their knowledge or could not be brought to the notice of the
Court at the time of passing of the order under review. After
9
considering the documents available in record as well as the
arguments advanced by both the parties, the order under review was
passed.
14. Considering the grounds raised by petitioner in this review petition and
taking into consideration aforementioned rulings of Hon’ble Supreme
Court and limited jurisdiction of this Court, this Court is of considered
view that review petitioner failed to point any error apparent on the
face of record warranting review of the order dated 11.09.2023.
15. Accordingly, review petition being sans merit is liable to be and is
hereby dismissed.
Sd/-
(Parth Prateem Sahu)
Judge
Balram
[ad_1]
Source link