STATE OF GUJARAT Vs. AJAYBEN DAYABHAI

JUDGEMENT

(1.) This application for review is preferred by the State on the ground that, while disposing of the Second Appeal, a decision of a Division Bench of this Court rendered in Letters Patent Appeal No. 610 of 2005 dated 22nd June, 2005 was not brought to the notice of this Court by the concerned Assistant Government Pleader by mistake and was not considered by this Court. It is contended that the decision of the Division Bench deals with the very issue, which was decided by the Civil Courts and the Division Bench has taken a contrary view in the matter and, therefore, the order in the Second Appeal by this Court may be reviewed in light of decision in the case of Board of Control Cricket in India v. Netaji Cricket Club (2005) 4 SCC 741, where a view is taken by the Apex Court that expression 'mistake' in Order XLVII, Rule 1 of the Code of Civil Procedure would cover a mistake on part of the Court regarding nature of undertaking given by counsel of a party and, therefore, the order may be reviewed. Learned Assistant Government Pleader has drawn attention of this Court to Government Resolution dated 27th June, 1967, which was forming part of the record of the Trial Court, at Exhibit 64, Government Resolution dated 6.4.2002 and the decision of the Division Bench to contend that cut off date of 1.1.1997 has been upheld by the Division Bench, whereas the deceased employee had expired in the year 1992 and, therefore, he could not have claimed benefits of pension, etc.

(2.) Learned Advocate, Mr. Sampat, has opposed this application. According to him, the scope for review is very limited. He submitted that there is no mistake on the part of the Court while disposing of the Second Appeal. He submitted that the Courts below had relied on the 1967 resolution, which has not been considered by the Division Bench while disposing of the Letters Patent Appeal. He also submitted that this review application is only by way of a counter-blast to a Contempt Application preferred by the opponent, which is preferred in the year 2005, whereas the review application along with delay condonation application is preferred in the year 2006. He, therefore, submitted that this application may be rejected.

(3.) This Court has taken into consideration rival side contentions. The decision of the Apex Court in the case of Board of Control Cricket in India (supra) has taken a view that, if there is a mistake on the part of the Court regarding nature of undertaking given by the counsel of a party, a review would be permissible.