Gauhati High Court
Page No.# 1/9 vs Union Of India on 7 February, 2025
Author: Malasri Nandi
Bench: Malasri Nandi
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2022:GAU-AS:11831
GAHC010174102022
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./149/2022
M/S NORTH EAST IODISED SALT (P) LTD.
PO BHADRAPALLI, GANDHINAGAR, TRIPURA.
VERSUS
UNION OF INDIA.
REPRESENTED BY THE GENERAL MANAGER, NF RAILWAY, MALIGAON,
GUWAHATI, ASSAM 781011
Advocate for the Petitioner : MR. K P MAHESWARI, MS. C SAHA,MS. M SHARMA
Advocate for the Respondent : MRS. UMA CHAKRABORTY, MS. M CHATTERJEE
Linked Case : MFA/15/2011
UNION OF INDIA
REPRESENTED BY THE GENERAL MANAGER
N.F. RAILWAY
MALIGAON
GUWAHATI
DIST. KAMRUP ASSAM
VERSUS
M/S NORTH EAST LODISED SALTP LTD.
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BHADRAPALI
GANDHIJGRAM
TRIPURA
------------
Advocate for : SC
NF RLY
Advocate for : appearing for M/S NORTH EAST LODISED SALTP LTD.
BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
JUDGMENT & ORDER (CAV)
Date : 07-02-2025
Heard Ms. M. Sharma, learned counsel for the review petitioner. Also
heard Mrs. U. Chakraborty, learned Standing Counsel, Railways.
2. By filing this application u/s 114 read with Rule 1, Order XLVII of the
Code of Civil Procedure, 1908, the petitioner has prayed for review of the
Judgment and Order dated 17.08.2022 passed by this Court in MFA No.15/2011.
3. The present review petitioner was the respondent in MFA No.15/2011 and
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Claim Applicant in the Original Claim Application No. OA.35/2006. As per the
facts of the case, the review petitioner had filed the Claim Application before the
Railway Claims Tribunal, Guwahati Bench, claiming compensation amounting to
Rs.4,66,590/- vide Claim Application No. OA.35/2006. The learned Tribunal vide
judgment and order dated 12.11.2010 had awarded a decree of Rs. 4,66,590/-
along with interest @ 6% per annum from the date of filing of the application
and also directed the Respondent to make the payment within 90 days from the
date of the order, failing which the amount shall carry interest @ 7% per annum
till realization. The Respondent was also directed to pay proportionate cost of
application fee Rs.4,799/- and legal practitioner’s fee of Rs.3000/-.
4. Being highly aggrieved with the impugned judgment and order dated
12.11.2010, the Respondent N.F Railway preferred an appeal before this Court
vide MFA No.15/2011. This Court vide order dated 17.08.2022 allowed the
appeal and set aside the judgment and order dated 12.11.2010 passed by the
Tribunal. Hence, this review petition.
5. It was urged by the learned counsel for the review petitioner that the
findings of this Court passed in the common judgment and order dated
17.08.2022 is liable to be reviewed as this Court had taken a view in
paragraph 8 (viii) that the counsel for the Appellant-Railways has placed
reliance in the case of Union of India vs. Bajaj Trading Company vide
MFA Case No.20/2012 (Gauhati High Court), is incorrect and liable to be
reviewed because the learned counsel for the Review Petitioner who was the
Respondent therein, relied on the said judgment in support of Review
Petitioner’s claim to prove the actual loading of the consignment as mandates
under proviso to Section 63 of the Railways Act, 1989.
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6. It is also the submission of learned counsel for the Review Petitioner that
the judgment dated 17.08.2022 of this Court is liable to be reviewed because
the Review Petitioner proved the loading of 32,894 bags of crystal common salt
and the price by producing “Purchase Invoice” at the time of filing of Claim
Application before the learned Tribunal where the purchase invoices reflected
the railway receipts no.220443 to 220444 vide invoice no.04 to 05 and date of
booking i.e. 04.06.2005 quantity, rate , total cost price including the railway
freight Rs.22,84,465/- and Misc. and siding expense and wagon clearing i.e.
Rs.1668/- which is sufficient to prove that the said 32,894 bags of crystal
common salt were put on rails.
7. The learned counsel for the review petitioner also pointed out that the
consignment was booked under “Railway Risk Rate” as contained in the
Railway Receipt and on the contrary the Appellant stated in their memo of
appeal that the consignment was booked on “said to contain” at own risk of the
sender, is wrong. According to learned counsel for the review petitioner, in the
instant case, the consignment was booked under “Railway Risk”. Therefore,
the Railways are responsible for the loss of 3186 bags of cystal common salt.
Hence, learned counsel for the review petitioner prays to review the judgment
and order as aforesaid.
In support of her submission, learned counsel for the review
petitioner has relied on the following case laws:
a) (2016) 1 GLT 447 (Union of India vs. Sunrise Traders)
b) MFA 122/2011 (Union of India vs. Ms. Jayprakash
Associates Limited)
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8. In response, learned counsel for the respondent Railways has argued that
an application for review would lie when the order suffers from an error
apparent on the face of the record and permitting the same to continue would
lead to failure of justice. It is further submitted that it is beyond any doubt that
the review court does not sit in appeal over its own order. A rehearing of the
matter is impermissible in law. It constitutes an exception to the general rule
that once a judgment is signed or pronounced, it should not be altered. It is
also trite that exercise of inherent jurisdiction is not invoked for reviewing any
order.
Learned counsel for the respondent has referred to
following case laws:
i) (2000) 6 SCC 224 (Lily Thomas & others vs.
Union of India)
ii) (2022) 5 GLT 161 ( Tage Gerang vs. Taje
Gerang)
iii) (2023) 6 GLT 171 ( Samsul Hoque & Ors vs.
State of Assam)
iv) (2022) O Supreme (SC) 734 (S. Madhusudhan
Reddy vs. V. Narayana Reddy and Others)
9. Having heard the learned counsel for the parties and on perusal of the
judgment passed by this Court dated 17.08.2022, the only point that arises for
consideration in this review petition is that whether the review petitioner has
made out a case for reviewing the judgment and order dated 17.08.2022.
10. Order XLVII of CPC deals with review of judgment and order which reads
as follows:
“(1). Application for review of judgment.- (1) Any person
considering himself aggrieved –
a) by a decree or order from which an
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appeal is allowed, but from which no appeal
has been preferred,
b) by a decree or order from which no
appeal is allowed, or
c) by a decision on a reference from a
Court of Small Causes,
and who, from the discovery of new and important matter or
evidence which, after the exercise of due diligence was not
within his knowledge or could not be produced by him at the
time when the decree was passed or order made, or on
account of some mistake or error apparent on the face of the
record, or for any other sufficient reason, desires to obtain a
review of the decree passed or order made against him, may
apply for a review of judgment to the Court which passed the
decree or made the order.
(2) A party who is not appealing from a decree or order may
apply for a review of judgment notwithstanding the pendency
of an appeal by some other party except where the ground of
such appeal is common to the applicant and the appellant, or
when, being respondent, he can present to the Appellate
Court the case on which he applies for the review.
(Explanation- The fact that the decision on a question of law
on which the judgment of the Court is based has been
reversed or modified by the subsequent decision of a superior
Court in any other case, shall not be a ground for the review
of such judgment.)”
11. On a bare look at the aforesaid provisions, it reveals that review
application would be maintainable on discovery of new and important matters or
evidence which after exercise of due diligence, were not within the knowledge
of the applicant or could not be produced by him when the decree was passed
or the order made on account of some mistake or error apparent on the face of
the record or for any other sufficient reason.
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12. In the case of Parsion Devi and others vs. Sumitri Devi & others
(1997) 8 SCC 715, it was held that an error that is not self-evident and the
one that has to be detected by the process of reasoning, cannot be described as
an error apparent on the face of the record for the Court to exercise the powers
of review. The Court observed as under –
“7. It is well-settled that review proceedings have to be strictly
confined to the ambit and scope of Order 47 Rule 1 CPC. In
Tungabhadra Industries Ltd. vs. Govt. of A.P 1964 SCR (5)
174, this Court opined-
’11. What however we are now concerned with is
whether the statement in the order of September 1959
that the case did not involve any substantial question of
law is an error apparent on the face of the record. The
fact that n the earlier occasion the Court held on an
identical state of facts that a substantial question of law
arose would not perse be conclusive, for the earlier
order it shall might be erroneous. Similarly, even if the
statement was wrong, it would not follow that it was an
error apparent on the face of the record, for there is a
distinction which is real though it might not always be
capable of exposition, between a mere erroneous
decision and a decision which could be characterized as
vitiated by error apparent. A review is by no means an
appeal in disguise whereby an erroneous decision is
reheard and corrected but lies only for patent error.’
13. In the case of Meera Bhanja vs. Nirmala Kumari Choudhury (1995)
1 SCC 170, while quoting with approval a passage from Aribam Tuleswar
Sharma vs. Ariban Pishak Sharma (1979) 4 SCC 389 , Hon’ble Supreme
Court once again held that review proceedings are not by way of an appeal and
have to strictly confine to the scope and ambit of order 47 Rule 1 CPC.
14. It is also settled law that on exercise of review jurisdiction, the court
cannot re-appreciate the evidence to arrive at a different conclusion even if two
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views are possible in a matter. In Kerala State Electricity Board vs. Hitech
Electrothermics and Hydropower Ltd. and Others (2005) 6 SCC 65 , it
was observed as follows:
“10. …. In a review petition it is not open to this
Court to reappreciate the evidence and reach a different
conclusion, even if that is possible. Learned counsel for the
Board at best sought to impress us that the correspondence
exchanged between the parties did not support the conclusion
reached by this Court. We are afraid such a submission cannot be
permitted to be advanced in a review petition. The appreciation
of evidence on record is fully within the domain of the
appellate court. If on appreciation of the evidence
produced, the court records a finding of fact and reaches a
conclusion, that conclusion cannot be assailed in a review
petition unless it is shown that there is an error apparent on
the face of the record or for some reason akin thereto. It has
not been contended before us that there is any error apparent on
the face of the record. To permit the review petitioner to
argue on a question of appreciation of evidence would
amount to converting a review petition into an appeal in
disguise.”
15. In view of the aforesaid legal proposition, it is well settled that the power
to review is not an inherent power. The term ‘mistake’ or ‘error apparent’ by its
very connotation signifies an error which is evident from the record of the case
and does not require detailed examination, scrutiny and elucidation either of the
facts or the legal position. An order of decision of judgment cannot be corrected
merely because it is erroneous in law or on the ground that a different view
would be taken by the Court/ Tribunal on a point of fact or law. In any case
while exercising the power of review, the Court concern cannot seek any appeal
over its judgment/decision.
16. In the case in hand, the grounds of review taken by the review petitioner
as mentioned above, does not come under the purview of error apparent on the
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face of the record. Only the appeal lies. The review petitioner is at liberty to
approach the appropriate forum seeking relief, if advised.
17. In view of the above discussion, this Court does not find any ground to
review the judgment and order dated 17.08.2022, passed by this Court in MFA
Case No.15/11. Hence, the review petition is dismissed.
18. The review petition is disposed of accordingly. No order as to cost.
JUDGE
Comparing Assistant
