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TMI Blog1966 (12) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... ee mentioned the matter that very day (June 17, 1966), saying that the case was lost sight of. Thereupon I set it down for hearing on June 22, 1959 so that the matter might be heard in presence of both the parties. On June 22, however I did not find Mr. Apurbadhan Mukherjee nor his learned junior. I, therefore, ordered that the judgment I had rendered on June 17 previous would stand. More, I signed the judgment that day too: June 22. This is the second order that is sought to be reviewed and/or reconsidered. 3. Mr. Chittatosh Mookerjee, it appears, drew up the review petition, moved it before me on August 23, 1966, and obtained the rule which is for decision now and in support of which he appears, though he appeared at no stage during the carriage of the main rule under Article 227 of the Constitution. (Here hangs a point. More of which hereafter in paragraph 6 et seq. infra.) 4. Opposing the rule, Mr. Deb raises a preliminary point which, he submits, goes to the very root of the matter. The point is: the application for review I am seized of contains no certificate by the advocate that the grounds taken in support thereof are good grounds of review, infracting thereby the mandator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of review After all, a rule as this is a means to an end, not an end in itself. In looking at the rule so. I do not scrap it as Mr. Deb apprehends I only keep it in its proper place. 6. Thus, I see no difficulty in getting the requisite certificate even now from Mr. Chittatosh Mookerjee with a view to making my record complete. Mr. Deb. however, submits, that that will not be the right thing to do. So he does on the strength of two ancient decisions of this Court: (1) Rousseau v. Pinto (1868) 10 Suth WR 54: Civil Rulings, and (2) Toog Oung v. British India Steam Navigation Co. Ltd. (1876) 24 Suth WR 430: Civil Rulings. The first is a case which has features all its own and distinguishes it from the facts in hand. That litigation was before the Court on several former occasions. More, it was argued by able counsel. The Court bestowed much time in considering it, and expressed its reasons fully on two occasions to come to the decision it did that the plaintiff was not entitled to possession. In this background an application for review ramp to be made on the basis of a certificate, not of either of the learned counsel who argued the case originally, but of a raw recruit to the Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record. 8. Toog Oung's case (1875) 24 Suth WR 430 the other authority Mr. Deb relies upon, also reveals absence of an error in the judgment the review of which was prayed for The original judgment was based on the assumption that it was part of the duty of the defendant company to land the disputed goods into the cargo-boat These was an admission on behalf of the defendant company that one Mr. Cotton was the person generally hired by them to provide cargo-boats for the landing of goods when they would not come along side of the wharf. More, the learned Recorder had observed that Mr. Cotton was so hired and employed on the occasion, so that he and his crew were, for the purposes of the case, the servants of the company. This observation of the Recorder, not expressly overruled in the judgment under review, was made the ground for review--a ground which was certified to be good. Upon these facts. Markby J. (Lawford J. agreeing) held that what the learned Recorder had meant was that Mr. Cotton and his crew were to be considered for the purposes of the litigation as the servants of the company. In other words, in estimating the liability of the defendant, it was the same thing as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances, it was held, would be a patent misapplication of Section 161 of the Procedure Code; (ii) Asutosh Ghose v. Indu Bhusan Ghose AIR1927Cal158 , where it was held that an order under Order 11, Rule 21, of the Code, dismissing a suit, being appealable a court cannot review such order in exercise of its inherent power; and on that class of cases which lay down the law that, a specific provision being there in the Code, it is not for the court to exercise its inherent jurisdiction under Section 151. More, Mr. Deb dies a direct case on the point: Jiwan Das v. Rakhmat Din AIR 1941 Lah 212 where it has been held that a court cannot review its judgment suo motu when neither party prays to, Mr. Chittatosh Mookerjee points out that fee application is not only for review, but also for reconsideration. But fee distinction between review and reconsideration, in fee context of facts in hand, appears to be a distinction without difference. I need not, however. pursue the matter further, because I find a clear case for review under Order 47, Rule 1, of the Code. The only omission that is there is absence of a certificate about the grounds for review I shall supply that omission by calling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 91) 2 QB 665 where Lord Esher M. R., observed at page 674: The definition says that landlord means (it does not say includes ) any person for fee time being entitled to receive the rents and profits of any holding. I doubt whether the executors of a landlord would come within that definition. It is a hard and fast definition, and you cannot give any other meaning to the word landlord in the Act than that which is mentioned in the definition. Mr. Deb likes me to read so the definition of tenant in Section 2, Clause 11. of the 1950 Act--a definition which starts with the word means. Hence, it is a hard and fast definition into which. Mr. Deb concludes. 1 must not read an ex-tenant I cannot agree. In the first place, such a contention militates against the Special Bench decision which I must go vern myself by In the second place, as Mr. Chittatosh Mookerjee submits, if the definition of tenant opens with the word means, it al most concludes with the word includes--a word the lack of which in the English statute Lord Esher was commenting on 14A. Mr. Chittatosh Mookerjee also refers me to Srikuar Mohta v. Nripen Bhattacharjee, AIR1957Cal333 . But there the application for standardizatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (as his Lordship then was), observed, Rania C J., Fazl Ali, Patanjali Sastri and Mahajan JJ (as their Lordships then were) agreeing: That a decision is erroneous in law is certainly no ground for ordering review. If the Court has decided a point and decided it erroneously the error could not be one apparent on the face of the record or even analogous to it When, however, the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way. that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order 47, Rule 1 of the Civil Procedure Code. Just so here, save that I have not applied my mind to a law settled by the Special Bench in Krishna Prosad's case AIR1961Cal505 . supra, nothing to say of other cases. 17. Of take the law laid down by Mahajan J. (as his Lordship then was) speaking for the Court in Mt Jamna Kuer v. Lal Bahadur AIR 1950 FC 131 a case I consider on my own: Whether the error occurred by reason of the counsel's mistake or it crept in by reason of an oversight on the part of the Court was not a circumstance w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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