AP No. 500 of 2009 GA NO.2114 OF 2010 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE OSA VENDITA PRIVATE LTD. Versus KERAGEN TECHNOLOGIES PRIVATE LIMITED Mr. [ENTITY], Mr. [ENTITY] for petitioner. Mr. [ENTITY], Mr. [ENTITY] for respondent.
BEFORE:
The Hon'ble JUSTICE [ENTITY] Date : 28th January, 2011.
The Court : This is an application for review of an order dated 14.5.2010 passed by a designate Judge of the Hon'ble Chief Justice in exercise of power under [SECTION] of the [ACT].
A preliminary objection has been raised as regards as the maintainability of an application for review of an order passed by a designate of the Chief Justice exercising power under [SECTION] of the Act by naming an Arbitrator.
There is no dispute with the proposition of law that a right of review like the right of appeal is a creature of statute and unless the statute provides for a provision of appeal or review, a Court not vested with such authority cannot entertain such appeal or review.
So far review is concerned, however, there is an exception as pointed out by the Hon'ble Supreme Court in the cases of [PRECEDENT] and [PRECEDENT] a court has inherent power of review to rectify its own mistakes but those must be in the realm of procedural review and not a review on merit. Thus, notwithstanding the fact that the statute has not provided any right to a Court to review its own order, if it appears that the order sought to be reviewed suffers from such illegality that it vitiated the proceeding and invalidated the order made therein due to procedural mistake on the part of the Court, a Court can in such circumstances, rectify its own mistake by adopting the principle that wrong act of Court should not do harm to a litigant. For instance, if a Court disposes of a matter on day which was not fixed for hearing or if a Court decides a matter before even issuing notice upon the defendant, subsequently, the party affected by such order may draw the attention of the Court to such mistake of the Court and, in such circumstances, the Court can rectify its mistake by recalling the order earlier passed.
In the case before me, the notice of the proceeding was served upon the applicant but he did not contest the proceeding and now complains before me that this Court had no territorial jurisdiction to entertain the application. Therefore, the applicant really wants to review the order on the ground of error apparent on the face of record. Such review on merit is not permissible unless the statute provides for such review.
As pointed out by the Hon'ble Supreme Court in the case of [PRECEDENT], no appeal before a Division Bench of this Court lies against an order passed under [SECTION] of the Act because of absence of any provision of appeal in the statute against such order and the aggrieved party has the only remedy under [SECTION] of the [ACT]. Similarly, in the absence of any provision of review, this Court cannot review an order passed under [SECTION] of the Act on merit.
Mr. [ENTITY], the learned counsel appearing on behalf of the appellant in this connection relied upon a decision of the Hon'ble Supreme Court in the case of [PRECEDENT] pointing out that against the order of the Chief Justice of India or his nominee under [SECTION] of the Act, an application for review is maintainable. By taking analogy from that decision, Mr. [ENTITY] tried to impress upon me that for the selfsame reason, a review is also maintainable against an order passed my predecessor.
After going through the said decision, I find that in the said decision the Hon'ble Supreme Court treated the order passed by the Chief Justice of India or his designate Judge under [SECTION] of the Act as an order within the meaning of [SECTION] of the [ACT] and thus, came to the conclusion that such order can be reviewed. However, unlike [SECTION] of the [ACT], there is no such provision in the [ACT] in the Chapter dealing with High Courts. Thus, in the absence of such power conferred by either the statute or by the [ACT], an application for review is not maintainable.
Thus, on the aforesaid preliminary objection, this application for review is dismissed.
Photostat certified copy of this order be given to the parties within a week from date.
( [ENTITY], J.) pkd.