Calcutta High Court
Sri Subhas Kumar And Ors vs Mani Square Limited And Ors on 15 May, 2025
OD-2
RVWO/12/2025
In ALP/2/2025
IA No.GA/1/2025
IN THE HIGH COURT AT CALCUTTA
Extra-Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SRI SUBHAS KUMAR AND ORS.
-VERSUS-
MANI SQUARE LIMITED AND ORS.
BEFORE:
The Hon'ble JUSTICE SHAMPA DUTT (PAUL)
Date : 15th May, 2025.
Appearance:
Mr. Dhruba Ghosh, Sr. Adv.
Mr. Shuvasish Sengupta, Adv.
Mr. Sourik Majumdar, Adv.
Ms. Anyapurba Banerjee, Adv.
Ms. Ajeya Chowdhury, Adv.
...for the review applicant.
Mr. Joydeep Kar, Sr. Adv.
Mr. Pranit Bag, Adv.
Ms. Rituparna Chatterjee, Adv.
Ms. Sadia Sultana, Adv.
...for the respondent.
1. The prayer for review in the present application has been made on the
ground that there is error apparent on the face of the judgment and order dated 27 th
March, 2025 passed in ALP/02/2025 for the reasons that there has been mis-
conception of facts and law in the decision under review, which as stated in the
application are as follows:-
i) The application for rejection of plaint filed under Order 7 Rule 11 in
IA No.5 of 2023 by the review petitioners was not dismissed on the
2ground that the dispute inter se the parties was a commercial
dispute.
ii) It will be apparent from record that the issue of commercial dispute
was not adjudicated by the learned trial Court in IA No.5 of 2023,
nor the High Court or the Supreme Court.
iii) The Court has made observations on merits of the pending suits and
interlocutory application.
iv) The case laws referred to in paragraph 15 of the judgment and/or
order dated 27th March, 2025 are not applicable in the facts and
circumstances of the case.
v) The reliefs granted are beyond the prayers sought for in ALP/2/2025.
2. The following judgments have been relied upon by the parties herein:-
For the Petitioners/Revisionists/Respondents:-
a) Richa Bisht & Ors. vs. Union of India & Ors. reported in
2020 SCC OnLine Utt 1386 (paragraphs 9, 10 & 11);
b) S. Murali Sundaram vs. Jothibai Kannan & Ors.
reported in (2023) 13 SCC 515 (paragraphs 16 & 17).
For the Opposite Parties/Petitioners in ALP/2/2025:-
a) Kamalesh Verma vs. Mayawati & Ors. reported in (2013)
8 SCC 320 (paragraph 13);
b) S. Murali Sundaram vs. Jothibai Kannan & Ors. reported
in (2023) 13 SCC 515 (paragraphs 16, 17 & 23);
c) S. Madhusudhan Reddy vs. V. Narayana Reddy & Ors.
reported in (2022) 17 SCC 255 (paragraphs 20.2).
3
3. The opposite parties case while opposing the prayer for review is that
in the guise of a prayer for review, the petitioners herein has actually made out a
case of an appeal, which lies before a different forum.
4. It is further stated by the opposite parties that the petitioners by the
grounds as stated in the review application has tried to put in their own
interpretation of the findings in the judgment, which clearly is beyond the scope of
review.
5. On hearing the parties and considering the case as made out along
with the judgments relied upon, it appears that:-
a) In S. Murali Sundaram vs. Jothibai Kannan & Ors (supra) , a
judgment relied upon by both sides, the Supreme Court clearly
laid down the guidelines relating to the scope of review
jurisdiction.
6. The petitioners’ argument that the petition under Order 7 Rule 11 of
C.P.C was not dismissed on the ground that the dispute inter se the parties was a
commercial dispute, this Court having not gone into the merits of the case before
the trial/commercial Court, made observations based on the materials on record,
being the prayer of the petitioners herein in his petition under Order 7 Rule 11 of
CPC (paragraph 3 in the order of the Commercial Court and Para 19 therein
rejecting the petition under Order 7 Rule 11 of CPC).
7. Paragraph 3 of IA No.GA/1/20256 is reproduced here:-
“3. The concerned defendants by dint of the instant
application being I.A No. 05 of 2023 pray for rejection of the
plaint stemming on the grounds that, i) this is not a commercial
4suit, ii) the instant suit is barred by laws of limitation, iii) the
plaint does not disclose any cause of action.”
8. The Commercial Court kept the issues of limitation and cause of action
open and rejected the application under Order 7 Rule 11 CPC of the petitioners,
wherein relief prayed for included the prayer that the suit before the Court was not
a commercial suit.
9. In appeal the High Court in paragraph 16 of it’s judgment held as
follows:-
“16. Considered the submissions of the learned Advocates
for the respective parties. The issue which has fallen for a
decision by this Court is whether the learned trial judge had
passed a perverse order. The defendants/petitioners prayed for
rejection of the plaint on the grounds of non-disclosure of cause
of action, lack of jurisdiction of the Commercial Court and non-
maintainability of the suit on the ground of limitation. While
adjudicating an application for rejection of a plaint, the
averments in the plaint should be treated as true and correct.
Upon a meaningful reading of the plaint, the court must arrive
at the conclusion that the plaint disclosed a cause of action. A
meaningful and not a formal reading would be necessary to
determine whether the right to sue had been properly pleaded in
the plaint. Cause of action is a bundle of facts and cannot be
extracted from a single paragraph. The plaint read as a whole,
must disclose that the plaintiff had made out a case to sue the
defendants for the reliefs claimed. The averments in the plaint
which have been placed by Mr. Mookherjee, indicate that the
suit was filed by the present owner of the property, who claimed
to have stepped into the shoes of the original owner. The suit
was for recovery of possession of the property from persons who
5were allegedly in wrongful and illegal possession of the property,
upon termination of the lease way back in 1993 as per the terms
and conditions of the lease deed. The lease by which the
predecessors of the defendants had been inducted into the
premises dated December 15, 1973 was for a period of 20 years
and upon expiry of lease on November 30, 1993, the predecessors
of the petitioner and thereafter the petitioners, became wrongful
and illegal occupants of the premises. The dispute arose upon
termination of the lease agreement by efflux of time on
November 30, 1993. The suit was filed for recovery of the
premises (immovable property) from the unlawful and
unauthorized occupants. There are sufficient pleadings to
indicate why the dispute was covered by the definition of a
commercial dispute under Section 2(1)(c)(vii) and explanation (a)
thereof.”
10. The said observation is the answer to the judgment in Richa Bisht &
Ors. (supra) relied upon by the petitioners.
11. The High Court then affirmed the trial Court’s order.
12. The Supreme Court dismissed the SLP filed by the petitioners herein.
13. About the case laws, being not relevant, is a matter of interpretation
and thus not subject to review.
14. No relief beyond the prayers have been granted, which includes
prayer to grant relief as deemed fit and proper by the Court.
15. It is thus clear that the review application has been preferred, even
though there is no error apparent on the face of the judgment/order under review.
16. The grounds on which the prayer for review has been made, are not
grounds for review, there being no material error, manifest on the face of the
judgment/order under review and thus no miscarriage of Justice.
6
17. Considering the grounds on which review has been prayed for, it
appears that the review application is clearly an appeal in disguise as there is no
error apparent on the face of the record.
18. The petitioners in the review application have sought to re-appreciate
the materials on record which is not permissible under the forum of review, there
being no prima facie misconception of fact or law in the judgment/order under
review.
19. Regarding the submission made by Mr. Ghosh, that the petitioners
apprehend that the order under review may influence, the Court while deciding the
petition under Order 7 Rule 10 CPC filed in the commercial suit, it is made clear
that the commercial court while deciding the application under order 7 Rule 10 CPC
shall do so on it’s independent findings, as this Court while considering the prayer
for transfer has not gone into the merit of any of the issues in the two suits.
20. Thus there being no ground for review having been made out,
RVWO/12/2025 arising out of ALP/2/2025 stands dismissed. Consequently, the
connected application IA No.GA/1/2025 also stands dismissed.
(SHAMPA DUTT (PAUL), J.)
A.Sadhukhan
[ad_1]
Source link