26 May 2020


High Court of Calcutta

Biswabani Private Limited Vs. Rabindra Nath Dutta and Ors.




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 face of record

The Petitioner being a Defendant in a suit for eviction 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 Miscellaneous Appeal which was dismissed by the First Appellate Court. 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 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 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.

Power of review under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 (CPC) 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 of CPC. 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.

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. 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 CPC 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 is 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.

Tags : Injunction Review Maintainability

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