MANU/WB/2014/2019

IN THE HIGH COURT OF CALCUTTA

R.V.W. No. 26 of 2018 in C.O. No. 4525 of 2015

Decided On: 07.08.2019

Appellants: Biswabani Private Limited
Vs.
Respondent: Rabindra Nath Dutta and Ors.

Hon'ble Judges/Coram:
Sahidullah Munshi

JUDGMENT

Sahidullah Munshi, J.

1. The petitioner being a defendant in a suit for eviction being Eviction Suit No. T.S. 77 of 1981 pending before the learned Civil Judge (Senior Division) 1st Court, Howrah, filed an application for mandatory injunction restraining the plaintiff/landlord from surrendering the cinema licence which was held by the landlord. The learned trial Court disposed of the injunction application restraining the plaintiffs from doing anything including surrendering licence of the cinema house that would injure the business of the defendant No. 1 with the observation that on the question of renewal of licence appropriate authority should decide the controversy. Aggrieved thereby the defendant/petitioner filed Misc. Appeal 46 of 2015 which was dismissed by the First Appellate Court holding inter alia that the documents filed by the petitioner did not show any signature on the licence and on other documents to show that both the parties were present at the time of inspection made by the Chartered Engineer. The learned Judge while dismissing the Miscellaneous Appeal also held that the appellant filed some documents showing that the report of inspection of cinema recording sight line dated 10.12.2013 and 16.11.2014 to show that the chartered engineer had inspected/recorded sight lines and it was followed up to 2014 and the certificates of Md. Sahzada and Pradip Kumar Bachar were also followed up to 16.04.2015 and 05.08.2014 (sic. 05.08.2015) and there was no bar for renewal of license. Against such an order passed in Miscellaneous Appeal the petitioner filed a revisional application before this Court. In the revisional application the petitioner raised inter alia the following grounds:

i. "For that the learned Judge erred in law as well as in fact in making observation that the petitioner did not file any document to prove that for renewal of licence, all the formalities including the inspection in presence of both parties has been conducted according to law, without appreciating that there is no requirement in law for presence of both the parties during inspection by the concerned authorities and this has resulted in the failure of justice.

ii. For that the learned Judge failed to consider that submission of inspection report by the concerned authorities are only the requirements under the Act for renewal of cinema licence, and it is not at all required that such inspection should be held in presence of the both the parties, nor such inspection was so held earlier.

iii. For that the impugned order passed by the learned Judge is otherwise bad in law, perverse and clearly depicts non-application of the mind to the petitioner's cause, and this has resulted in a failure of justice.

iv. For that the learned Judge passed the impugned order on extraneous consideration and without applying her mind to the cause of the petitioner, and the consequential effect in running the cinema business.

2. Upon consideration of all these grounds this Court while considering the issue rejected the revisional application holding inter alia that the order passed by the Appellate Court was an well reasoned order and that consideration was made upon relevant issues and the documents produced. This Hon'ble Court while rejecting of the revisional application also arrived at a finding that the documents which were considered by this Court as well as the First Appellate Court, according to the petitioner, were not the entire bunch of documents rather it is the petitioner's case in this review that he filed Sifiristi on 16.02.2015 which has been brought to the notice of the Court in CAN 2209 of 2018 filed on 13th April, 2018.

3. The ground No. 1 of the Memorandum of Review says "For that the Hon'ble Judge has rejected the revision petition on an impression that two inspection reports for renewal of license are purely a copy of each other, which is apparently wrong on the face of record inasmuch as the documents at page Nos. 52 and 76 being annexure 'B' and 'C respectively are not the reports for renewal issued by the License Renewing Authority, those documents are report of inspection of cinema regarding sight lines, issued by the Chartered Engineer to be considered by the License Renewing Authority at the time of granting renewal of license."

4. The documents so referred in the memorandum of review did not find place in the revisional application either at page 52 or page 76 or as Annexure 'B' and 'C. The documents have come before this Court only in the above mentioned application being CAN 2209 of 2018. Therefore, the first ground of the review cannot be accepted and the petitioner's submission that the Court made an apparent mistake about the appreciation of the said two documents are absolutely incorrect.

5. The second ground in the Memorandum of Review "For that the Hon'ble Judge has rejected the revision petition on a misconception that the operators engaged by the petitioner have no valid license to operate projector machine during the relevant year, which is apparently wrong on the face of record inasmuch as the petitioner has submitted the license of the operators as well as the application for renewal of operator's license in time, by firisti before the trial Court at learned First Subordinate Civil Judge, Howrah in Title Suit No. 77 of 1981 and the First Appellate court but the Hon'ble Judge has rejected the revision petition without considering those documents, which is required to be reviewed upon consideration of those documents."

6. Adverting to the 2nd ground of the Memorandum of Review it will be suffice to say that this is no ground for review because it is an afterthought. The documents might have been filed by firisti before the trial Court but it was never pointed out before the learned Appellate Court below about the same. If that be so this Court had no occasion to deal with those firisti which according to the petitioner was filed before the trial Court. This ground can also not be considered as a ground for review.

7. The third ground in the Memorandum of Review application shown to be "For that the Hon'ble Judge has rejected the revision petition by observing that the petitioner has avoided the joint inspection, which is apparently wrong on the fact of the record inasmuch as the petitioner by letter dated December 10, 2014 intimated the plaintiffs/opposite party that they may take inspection of the cinema hall at reasonable time with prior notice, if they so desire. Such letter was sent by speed post and a copy of the same was submitted before the learned 1st Subordinate Judge, Senior Division, Howrah Trial Court and First Appellate Court and also annexed to the application for injunction, the same is also appearing at page No. 100 of the revision petition."

8. Adverting to the third ground this can be said that the document being page 100 of the revisional application has not been discussed by the order under review and therefore, submission in review that this Court wrongly appreciated the scope of the said document cannot be a ground for review. The document which this Court considered is an inspection report for renewal of license for the year 2014 at page 76 being annexure 'C' to the revisional application. Therefore, this ground is also cannot be appreciated.

9. The other grounds are on merits of the revisional application which can at all not be considered in this review application. Most of the documents referred to in the review application for consideration by this Court are part of the application being CAN No. 2209 of 2018 which was filed after the Memorandum of Review and therefore, these documents were not before the revisional Court while rejecting the application under Article 227 on merit.

10. Power of review under Order XLVII Rule 1 of the Code constitute an exception to the general rule to the effect that once a judgment is signed and pronounced it cannot afterwards be altered. Thus, power to review is exercisable only where the circumstances are strictly covered by the statutory exceptions contemplated under the provision of Order XLVII Rule 1. While deciding the Civil Revision it was the definite finding of the Court that prayer for renewal implies various other consequences and unless the party applying for renewal of license is satisfied about the documentation and its authenticity Court cannot compel such person to apply for renewal. Once such a prayer was rejected by the trial Court an identical opinion is formed by this Court in a revision so also by the First Appellate Court in Miscellaneous Appeal, the situation cannot be altered by way of review simply saying that this Court would have passed some other order had this Court considered the entire documents.

11. It is settled law that a review can only be entertained when there is a mistake or error apparent on the face of the record. An error which is not self-evident and has to be detected by exercise of scrutiny at length cannot be said to be an error apparent on the face of the record. Justifying the Court to exercise its review power under Order XLVII Rule 1 of the Code of Civil Procedure. Power of review is a statutory power and by exercising such statutory power Court has to confine its decision within the ambit of Rule I under Order XLVII of the Code and it cannot the illustricise the scope of review. It is not permissible for the Court for an erroneous decision to be re-heard and corrected for which parties ought to have recourse to appeal. An error apparent on the face of record always distinguishable from an erroneous decision. The petitioner in this case has resorted to really argue an appeal in disguise of review. Accordingly Review Application is rejected.

12. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.

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