IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Review Application MCC 105 of 2008 along with Delay Condonation Application No. 272/2008 IN Writ Petition No. 5282 of 2001 (M/S) (Old CMWP No. 4551 of 1984) Smt. Davesh Nagalya W/O Sri Suraj Prakash Nagalya and 5 others. …… Petitioners-Applicants. Versus District Judge, Dehradun and 3 others. … Respondents. Sri S.D.Singh, learned counsel for the petitioner-review applicants. Sri Anil Kumar Joshi, learned counsel for O.P.-respondent no. 3 & 4. Date April 23, 2008. Hon’ble B.S.Verma, J. Sri S.D.Singh, learned counsel for the review- applicants (petitioners) and Sri Anil Kumar Joshi, learned counsel for the opposite party-respondent no. 3 & 4. Heard learned counsel for the parties on delay condonation application. The review petition has been filed within a period of 30 days after dismissal of Special Leave Petition by the Apex Court on 10-01-2008. Grounds shown in the affidavit are sufficient to condone the delay in filing the review application. The delay is condoned. The writ petition No. 5282 of 2001, Smt. Davesh Nagalya and others Vs. District Judge, Dehradun and others, was dismissed on merits vide judgment dated 10-10-2007. The judgment passed by this Court had been challenged before the Apex Court in Special Leave to Appeal (Civil) No. 24837 of 2007, Davesh Nagalaya and others Vs. Pradeep Kumar (D) through L.Rs. 2 and others. The Apex Court dismissed the Special Leave Petition vide order dated 10-01-2008, which reads as under:- “Upon hearing counsel the Court made the following ORDER The Special leave petition is dismissed.” The main ground taken for review of the order is that the Court did not consider the factum of death of Pradeep Kumar (respondent no.3), hence the partnership deed came to an end automatically on the death of Pradeep Kumar-respondent no.3. It has also been stated that the entire claim of the respondents was not maintainable and no relief could have been granted in their favour by the competent authority in view of the bar under Section 69 of the Partnership Act 1932. It is pertinent to mention that an amendment application (No. 11651 of 2006) was moved by the petitioners and in the amendment application the only prayer was made to the effect “that in the array of the respondents in the writ petition at serial No.3 after word Sri Pradeep Kumar word “now dead” be written and in its place the respondent No. 3/1 to 3/3 be added in the following manner.” The petitioners had neither prayed for making consequential amendments in the pleadings of the writ petition nor sought for permission to make consequential amendments on account of death of respondent no.3. It may be added that the amendment application moved by the petitioner- applicants was allowed vide order dated 18-9-2006, while the arguments in the case were heard on 7-5-2007, i.e. after more than seven months. It does not stand to reason as to why the petitioners did not prefer to seek consequential amendments in the writ petition including the grounds raised therein for such a long time. Even after incorporating the amendment, the petitioners never chose to plead in the memo of writ petition that the partnership between the 3 respondent no.3 and respondent no.4 came to an end on the death of one of the partners, namely Pradeep Kumar respondent no.3, rather the stand of the petitioners before the courts below was that the so called partnership at the instance of only one the heirs of deceased Tika Ram could not be recognized in law. The partnership between respondent no.3 Pradeep Kumar and respondent no.4 Subhash Chand had always been put to question by the petitioners. Learned counsel for the review applicants has firstly contended that the Special Leave Petition filed before the Apex Court had not been dismissed on merits, therefore, it is open to the review applicants to file the review application before the High Court. In support of this contention, he has relied upon the case of Kunhayammed and others Vs. State of Kerala and another [(2000) 6 Supreme Court Cases, 359]. The Apex Court in paragraph 18 has held as under:- “18. In our opinion what has been stated by this Court applies also to a case where a special leave petition having been dismissed by a non-speaking order, the applicant approaches the High Court by moving a petition for review. May be that the Supreme Court was not inclined to exercise its discretionary jurisdiction under Article 136 probably because it felt that it was open to the applicant to move the High Court itself. As nothing has been said specifically in the order dismissing the special leave petition one is left merely guessing. We do not think it would be just to deprive the aggrieved person of the statutory right of seeking relief in review jurisdiction of the High Court if a case for relief in that jurisdiction could be made out merely because a special leave petition under Article 136 of the Constitution had already stood rejected by the Supreme Court by a non-speaking order.” In reply thereto, the learned counsel for the Opposite Party-respondent no.4 has submitted that the review petition is not 4 maintainable in view of the the Apex Court judgment in the case of Abbai Maligai Partnership Firm and another Vs. K.Santhakumaran and others [AIR 1999 Supreme Court, 1486] wherein it has been held inter alia in paragraph no.4 that “the High Court, therefore, had no power or jurisdiction to review the self same order, which was the subject matter of challenge in the SLPs. in this Court after the challenge had failed. By passing the impugned order on 7-4-1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this Court, on contest, no review petitions could be entertained by the Court against the same order.” The argument of the learned counsel for the opposite party-respondent no.4 cannot be accepted because from the observations made in paragraph 4 by the Apex Court, it reveals that the special leave petition was dismissed after hearing counsel for the parties and on contest, while in the case at hand, the SLP was dismissed in limine, by a non-speaking order, hence the review application is maintainable. Learned counsel for the review applicants has secondly contended that even if ground has not been raised in the writ petition and in case document is available on record, then the Court has to consider the document itself. The writ petition was filed before the Allahabad High Court in the year 1984 and the respondent no. 3 Pradeep Kumar had died in the year 2004. The argument of the learned counsel for the applicants is that the partnership firm stands automatically dissolved as per Section 42 of the Partnership Act. The contention of the learned counsel is that review of the order passed by this Court is permissible firstly from the discovery of new and important matter or evidence which, after the exercise of due diligence could not be produced by the party at the time when the order was passed; secondly on account of some mistakes; thirdly, where error is apparent on the face of record or is a palpable wrong and fourthly, any other sufficient reason. The 5 learned counsel for the review petitioners has relied upon the Apex Court verdict in the case of S.Bagirathi Ammal Vs. Palani Roman Catholic Mission [2007(13) SCALE, Page 789]. In that case, it has been held inter alia in paragraph no. 5 that “an error contemplated under the Rule must be such which is apparent on the face of record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the Court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the appellant, in such circumstances, the review will lie. Under the guise of review, the parties are not entitled re-hearing of the same issue but the issue can be decided just by a perusal of the records and if it is manifest can be set at right by reviewing the order.” Thus, the Apex Court has laid down the test for reviewing the order. Learned counsel for the respondent no.4 in reply has submitted that in the review petition entirely a new issue has been raised and interference in review proceeding on the new issue is not proper. Learned counsel for the respondent no.4 has relied upon the case of Nehali Panjiyara and others Vs. Shyama Devi and others [(2002) 10 Supreme Court Cases, 578] wherein it has been held that no case is made out for interference in the review proceedings on the new contention. I have perused the entire order passed by this Court as well as the averments made in the writ petition and the grounds taken for assailing the orders impugned in the writ petition. The grounds raised in the review petition are entirely new grounds. None of the grounds has been taken in the writ petition. 6 It is pertinent to mention that the review-applicants have set up entirely a new case in the review petition. The factum of death of respondent no.3 was fully within the knowledge of the applicants. It was open to them to have sought consequential amendments on account of death of respondent no.3. The respondent no. 3 Pradeep Kumar had died on 21-05-2004 as stated by the petitioners in the affidavit accompanying the amendment application. The orders impugned in the present writ petition are dated 12-12-1983 passed by the District Judge and dated 18-11- 1982 and 25-11-1982 passed by the Prescribed Authority. Counter Affidavit has been filed against the review petition by respondent no.4 Subhash Chand. It has been stated in para 5 that the provisions of section 42(c) of Indian Partnership Act are not attracted in the present case as in pursuance of the Partnership the Prescribed Authority has been pleased to induct the deponent as a partner. The ground that now the partnership has dissolved due to the death of the partner cannot be seen in these proceedings and the review on this ground cannot be entertained. It has further been stated that the review applicant has an opportunity to seek appropriate remedy before appropriate forum on this ground. The review petitioners have set up entirely a new case in the review petition, therefore, in view of the Apex Court verdict in the case of Nehali Panjiyara and others (supra), no case for interference in the review proceeding is made out. Moreover, the ground taken by the review petitioners on account of death of respondent no.3 is not in itself sufficient to grant the relief of quashing of impugned orders to the review petitioners. For the reasons and discussion aforesaid, the review petition has no force and the same is hereby dismissed. ( B.S.Verma, J. ) RCP 7 8 9 10