LAKSHMAN BHOWMICK Vs. SATYA NARAYAN CHAKRABORTY

JUDGEMENT

(1.) This is an application for review, directed against an order of a Division Bench to which I was a party and whereby a second appeal had been dismissed under Order 41, Rule 11 of the Code of Civil Procedure on the ground, inter alia, that it did not raise any substantial question of law. The appeal was at the instance of the defendants, who are the applicants for review before me.

(2.) Mr. Roy Chowdhury, appearing in support of the application has emphasised that the impugned order of the Division Bench deserves to be reviewed and recalled because of existence of error apparent on the face of the records. In support of his submission, Mr. Roy Chowdhury, has pointed out that before the Trial Court to the report of the Commissioner, an objection was preferred by his clients. The said report, inter alia, stated that there was encroachment by the defendant/appellant and on the basis of such statement plaintiffs prayer for amendment of the plaint asking for a relief by way of recovery of possession had been allowed subject to the condition that in case the objection to the Commissioner's report succeeded, the order allowing amendment will stand recalled Mr. Roy Chowdhury, pointed out that the objection was actually taken up along with final hearing of the suit and the acceptance thereof by the learned Trial Judge had the effect of depriving his clients of an opportunity to file any additional written statement or to counter the evidenciary value of the Commissioner's report by appropriate evidence. This, according to Mr. Roy Chowdhury, could be said to be error apparent on the face of the record as mere perusal of the order sheets would pin point the prejudicial irregularity in the procedure followed by the learned Trial Judge.

(3.) Mr. Sakti Nath Mukherjee, opposing the prayer for review, placed strong reliance on the principle judicially settled to the effect that where a review required a detailed process of reasonings for finding out an error. such error could not be said to be an error apparent on the face of the record. In the instant case, the judgment of the Court of appeal below which was a judgment of affirmance embodied categorical findings of the said Court about the correctness of the approach by the Trial Judge in accepting and relying upon the Commissioner's report which had been marked as an exhibit on admission and the failure of the defendants failed to demolish the correctness of which report even after thorough cross-examination of the Commissioner. According to Mr. Mukherjee, the objection could be said to have been waived by participation of the defendants in the Trial without asking for an opportunity to file additional written statement at the appropriate stage apart from the finality of the findings of the Trial Court about the untenability of the objections of the defendant to the Commissioners report by specific approval by the Appeal Court of the reasons recorded by it. The restricted scope of review according to Mr. Mukherjee, even assuming that the dismissal of the appeal under Order 41 Rule 11 of the Code of Civil Procedure was vitiated by error of law, did not authorise this Court to undertake a re-appraisal of the materials as a Court of appeal. The review application, therefore, according to Mr. Mukherjee, deserves rejection.