Case: HIGH COURT OF TRIPURA THROUGH THE REGISTRAR GENERAL Vs. TIRTHA SARATHI MUKHERJEE

in rare or exceptional cases on the commission of material error. It may not be correct to characterize the case as a rare or exceptional case when the first respondent approaches the Court with a delay of nearly 5 years allowing subsequent events to overtake him and the Court. We feel that this aspect was not fully appreciated by the High Court. The review, it must be noted is not a re-hearing of the main matter. A review would lie only on detection without much debate of an error apparent. Was this such a case? It is here that we must notice the argument of the appellant relating to question in Part III of the examination alone, engaging the attention of the Court for the reason that the first respondent pressed this aspect alone before the High court. The judgment of the High Court in the writ petition appears to bear out this submission of the appellant. The issue relating to the anomaly in the evaluation of the Paper III has been discussed thread bare in the judgment. The view of the High Court has not been disturbed by this Court. Despite this the High Court in the impugned judgment has proceeded to take up the plea relating to questions in Part-I and Part-II and proceeded to consider the review petition and granted relief that too after the passage of nearly 5 years. This suffices to allow the present appeal. Despite all this we would also make a few observations on the merits of the matter. 23. The first respondent has fallen short of 5 marks. In the impugned judgment in paragraph 25, the Division Bench picks up four questions. The Court has premised its interference on the basis of the aforesaid answers given to the 4 questions by the first respondent. If we take Question 3(xiii), the question was as follows: Question no.-3(xiii) of paper-II Adjournment under order xvii Rule 1 C.P.C. cannot be granted under any circumstances for more than 3 times to a party during trial of the suit (Mark -1) . 24. The first respondents answer is that it is incorrect but he has been given no marks as apparently cross sign is given as he has given wrong answer. Order XVII Rule 1 reads as follows: 1. Court may grant time and adjourn hearing – (1) The Court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the suits. 25. The case of the first respondent is based on the judgment of this Court in Salem Advocates Bar Association Case 2005 (6) SCC 344. According to him even though under Order XVII Rule 1 under no circumstances can adjournment be granted to a party during trial for more than three times, this Court in the aforesaid judgment has taken the view that beyond 3 times adjournment can be granted. It is clear that going by the provisions of Order XVII Rule 1, the answer given by the first respondent is wrong. It is on the basis of interpretation placed by the Court that adjournment can be in excess of 3 times. If the examining body has proceeded to evaluate the answers on the basis of actual provision of Order XVII Rule 1, it is not a matter where particularly there is no right to revaluation, we are persuaded to interfere. We would defer to the view which the examining body would have taken. 26. The next question is Question No.2 (xviii) which reads as follows: Q.No. – 2(xviii) in paper no. – (II) The Plaintiff can file an application under section 5 of Limitation Act seeking extension of the period of limitation prescribed (Mark – 1) . The choices given are as follows: (a) for filing a suit, (b) for filing an appeal, (c) for filing an application under Order XXI CPC (d) for all the above.27. The complaint of the first respondent is that he ticked Answer No.B but he is given cross sign which means his answer is wrong whereas he would contend that all the other answers namely A,C and D were incorrect and it is only B which could possibly be correct. 28. We will proceed on the basis that there is merit in the contention of first respondent. The next question is Question No.3 (xv) in Paper No.2. The question was Appellate Court cannot allow a party to produce additional evidence. But for the answer given `incorrect. Respondent was given the cross sign and no marks given. Here also we proceed on the basis that first respondent may have legitimate grievance. Finally, there is Question No.1 (xiv) in Paper No.2 which reads as follows: Q.No. – 1(xiv) in paper no. – (II) Plaintiff sues the defendants for recovery of Rs. 1,00,000/- in order to prove the case, the plaintiff proved the entries in his books of account showing the defendant to be indebted to him to the said amount (Mark – 3) . 29. The answer of the petitioner appears to be as follows: In civil case, the case is proved by preponderance of probabilities. But in the above case, neither written of nor money receipt was proved. So, entries in the Books of account is not sufficient. 30. It is to be noted that it is not an objective type question, the maximum marks are 3. This is not a case even if we proceed on the basis that the answer is correct, marks is to be awarded as such. We noticed that for 5 questions, the respondent No. 1 has been given 1 mark, even though, the maximum is 3 marks. It would appear that awarding full marks is based, not merely, on the correctness of the answer.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]12. Noticing cleavage of judicial opinion, the matter has been referred to a larger Bench. In the light of these developments we do not think that the appellant is entitled to relief on the basis that the Review Petition was filed after the dismissal of the Special Leave Petition18. We have noticed the decisions of this Court. Undoubtedly, a three Judge Bench has laid down that there is no legal right to claim or ask for revaluation in the absence of any provision for revaluation. Undoubtedly, there is no provision. In fact, the High Court in the impugned judgment has also proceeded on the said basis.It is true that the right to seek a writ of mandamus is based on the existence of a legal right and the corresponding duty with the answering respondent to carry out the public duty. Thus, as of right, it is clear that the first respondent could not maintain either writ petition or the review petition demanding holding of revaluationA grave injustice may be occasioned to a writ applicant in certain circumstances. The case may arise where even though there is no provision for revaluation it turns out that despite giving the correct answer no marks are awarded. No doubt this must be confined to a case where there is no dispute about the correctness of the answer. Further, if there is any doubt, the doubt should be resolved in favour of the examining body rather than in favour of the candidate. The wide power under Article 226 may continue to be available even though there is no provision for revaluation in a situation where a candidate despite having giving correct answer and about which there cannot be even slightest manner of doubt, he is treated as having given the wrong answer and consequently the candidate is found disentitled to any marksIt is one thing to say that the absence of provision for revaluation will not enable the candidate to claim the right of evaluation as a matter of right and another to say that in no circumstances whatsoever where there is no provision for revaluation will the writ court exercise its undoubted constitutional powers? We reiterate that the situation can only be rare and exceptional22. In this case we have already noted that the writ petition was filed challenging the results and seeking revaluation. The writ petition came to be dismissed in the year 2012 by the High Court. The Special Leave Petition was dismissed in the year 2013. The review petition is filed after nearly 5 years. In the interregnum, there were supervening development in the form of fresh selection. While it may be true that the delay in filing the review petition may have been condoned, it does not mean that the Court where it exercises its discretionary jurisdiction under Article 226 is to become oblivious to the subsequent development and the impact of passage of time. Even in the judgment of this Court in U.P.P.S.C. through its Chairman & Anr. Vs. Rahul Singh & Anr. reported in 2018 (2) SCC 357     which according to the first respondent forms the basis of the High Courts interference though does not expressly stated so, what the Court has laid down is that the Court may permit revaluation inter alia only if it is demonstrated very clearly without any inferential process of reasoning or by a process of rationalization and only in rare or exceptional cases on the commission of material error. It may not be correct to characterize the case as a rare or exceptional case when the first respondent approaches the Court with a delay of nearly 5 years allowing subsequent events to overtake him and the Court. We feel that this aspect was not fully appreciated by the High Court. The review, it must be noted is not a re-hearing of the main matter. A review would lie only on detection without much debate of an error apparent. Was this such a case? It is here that we must notice the argument of the appellant relating to question in Part III of the examination alone, engaging the attention of the Court for the reason that the first respondent pressed this aspect alone before the High court. The judgment of the High Court in the writ petition appears to bear out this submission of the appellant. The issue relating to the anomaly in the evaluation of the Paper III has been discussed thread bare in the judgment. The view of the High Court has not been disturbed by this Court. Despite this the High Court in the impugned judgment has proceeded to take up the plea relating to questions in Part-I and Part-II and proceeded to consider the review petition and granted relief that too after the passage of nearly 5 years. This suffices to allow the present appealDespite all this we would also make a few observations on the merits of the matter27. The complaint of the first respondent is that he ticked Answer No.B but he is given cross sign which means his answer is wrong whereas he would contend that all the other answers namely A,C and D were incorrect and it is only B which could possibly be correct30. It is to be noted that it is not an objective type question, the maximum marks are 3. This is not a case even if we proceed on the basis that the answer is correct, marks is to be awarded as such. We noticed that for 5 questions, the respondent No. 1 has been given 1 mark, even though, the maximum is 3 marks. It would appear that awarding full marks is based, not merely, on the correctness of the answer.