Amrita Sinha, J.
Two applications for review have been filed for review of the judgment dated 15th March, 2002 passed in WP No. 4312 of 1993.
Review Application No. 38 of 2018 has been filed by Kelvin Jute Company Ltd. Workers' Provident Fund, the respondent no. 1 of the writ petition and Review Application No. 39 of 2018 has been filed by M/s. Trend Vyapaar Ltd., being the Company which subsequently took over the Kelvin Jute Company Ltd by merger under a Scheme framed by BIFR.
For the sake of convenience both the matters were taken up for consideration together and a common order is being passed herein below.
The primary ground for filing the applications for review is that the order complained of was obtained by the writ petitioner by practising fraud on the Court and by misleading the Court.
The brief background of the case is as follows:
The writ petition filed by the petitioners was allowed by the judgment dated 15th March, 2002 to the extent as mentioned in the said judgment. Being aggrieved by the judgment passed by the learned Single Judge the respondent No.1 in the writ petition preferred an appeal before the Hon'ble Division Bench.
The Hon'ble Division Bench by a judgment dated 16th February, 2006 dismissed the said appeal. A special leave petition was filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court by an order dated 21st January, 2016 dismissed the appeal and passed necessary orders therein.
The petitioners herein i.e, the applicants before the Supreme Court filed separate miscellaneous applications for modification of the order dated 21st January, 2016. The Hon'ble Supreme Court by a judgment dated 25th October, 2018 was pleased to dismiss the said applications. The Supreme Court was of the view that "Having regard to the judgment dated 15.03.2002 passed by the learned Single Judge of the High Court in Writ Petition No. 4312 of 1993, which has been affirmed by the Division Bench of the Calcutta High Court and by this Court in the judgment dated 21.01.2016, we are afraid any application for recall/modification which has the effect of reviewing the original judgment in the Writ Petition cannot be entertained by this Court. The main contention of the applicants seem to be that writ petitioners had played fraud on Court and that the basis of the judgment of the High Court has been obtained by misleading that Court. If that be the position, nothing prevents the applicants from approaching the High Court and seeking a review of the judgment. We make it clear that in the event of such a review being filed on the ground of fraud, the High Court will be free to examine the same and the judgment of this Court dated 21.01.2016 shall not stand in any way of the High Court looking into that aspect of the matter".
The instant application for review has been filed pursuant to the liberty granted by the Hon'ble Supreme Court to seek review of the judgment passed by the High Court in the writ petition.
The petitioners herein strenuously submit that the judgment dated 15th March, 2002 was obtained by practising fraud on court. The court was misled to pass the impugned judgment. The fraud perpetrated all along during the entire proceeding. It was only after the Regional Provident Fund Commissioner on 26th August, 2016 submitted the report before the Hon'ble Supreme Court, as per its direction in 2016, the fraud was unearthed.
A point of demurrer has been taken by the respondents in the instant application. It has been submitted that the Single Judge of this court does not have the jurisdiction to entertain the application for review. It has been contended that as the Hon'ble Supreme Court did not specify the strength of the Bench to decide the issue, accordingly, the application for review shall be maintainable only before the Hon'ble Division Bench and not before the learned Single Judge. It has been vociferously contended that according to settled principles of law, it is only one order that can survive and as the order of the learned Single Judge merged with the order of the Hon'ble Division Bench, accordingly, there is no independent existence of the learned Single Judge's order at present. It is only the order of the Hon'ble Division Bench that is holding the field. If a review has to be made the same is required to be done before the Appellate Court and not before the learned Trial Court.
The respondents have relied upon the decision delivered by the Hon'ble Supreme Court in the matter of M/s. Gojer Bros. (P) Ltd. -vs- Shri Ratan Lal Singh (three Judge Bench) reported in AIR 1974 SC 1380 paragraphs 22, 23 and 24, Sharda Singh -vs- State of Uttar Pradesh & Ors. reported in (2009) 11 SCC 683 and Chadi Prasad & Ors. -vs- Jagdish Prasad & Ors. reported in (2004) 8 SC 724 in support of their contention.
What falls for consideration before this court, at this stage, is whether the applications for review will be maintainable before the learned Trial Judge or before the Hon'ble Division Bench.
The Hon'ble Supreme Court at the time of granting liberty to the applicants therein to approach the Hon'ble High Court records that "having regard to the judgment dated 15th March, 2002 passed by the learned Single Judge of the High Court in WP 4312 of 1993, which has been affirmed by the Division Bench of the Calcutta High Court and by this court in the judgment dated 21st January, 2016 we are afraid that any application for recall/modification which has the effect of reviewing the original judgment in the writ petition cannot be entertained by this court".
The expression 'having regard to the judgment dated 15th March, 2002' and the expression 'effect of reviewing the original judgment in the writ petition', in my opinion, is indicative of the fact that the review will be maintainable before the learned Trial Court who passed the original judgment in the writ petition. This is more so because the point of fraud was never agitated before either the Trial Court or before the Appellate Court. It is an absolute new point urged by the petitioners herein for the first time.
According to law, an appeal lies to the appellate court from the order/judgment passed by the court having original jurisdiction. No new point is usually permitted to be urged before the appellate forum if the said point was not raised before the court having original jurisdiction, unless of course, the same is a question of law. The appellate court only decides the issues which are decided by the original court. The expression 'original judgment in the writ petition' clearly means and identifies the judgment passed by the learned Single Judge and not by the Hon'ble Division Bench.
Moreover, the very basis for granting liberty to the applicants by the Hon'ble Supreme Court to approach the High Court was the issue of fraud. Fraud is an issue which goes to the very root of the matter and is necessarily required to be dealt with and decided by the learned Trial Judge prior to the same being decided by the Hon'ble Appeal Court. Whether the applications for review on the ground of fraud will at all be entertained or not is a different question altogether. For entering into the merits of the application for review, ideally it is the learned Single Judge which ought to take up the issue first and then only it will be open for the Hon'ble Division Bench to test the validity of the same.
The apprehension of the writ petitioner/respondent is that in the event the learned Single Judge upholds the contention of the petitioners herein and passes any order or judgment in the matter, contrary to the one passed by the Hon'ble Division Bench, then there may be a conflict of decisions, as the judgment of the Hon'ble Division Bench passed in the writ appeal, affirmed by the Hon'ble Supreme Court, will still be valid. As two diverse judgments cannot remain operative in a particular matter at the same time, accordingly, the applications for review ought to be heard by the Hon'ble Division Bench to avoid conflict of decisions.
The aforesaid contention raised by the respondents does not appeal to the court. When the Hon'ble Supreme Court passed order giving liberty to the applicants therein to prefer application for review, the court was aware that the order of the learned Single Judge was affirmed by the Hon'ble Division Bench. The same was a judgment of affirmation and not reversion. Being alive of the aforesaid fact the Hon'ble Supreme Court specifically directed that entertaining the issue of fraud by the highest court of the country will amount to review of the original judgment passed by the learned Single Judge in the writ petition which was not permissible. The Supreme Court also made it explicitly clear that in the event of such a review being filed on the ground of fraud, the High Court will be free to examine the same and the judgment of this Court dated 21.01.2016 shall not stand in any way of the High Court looking into that aspect of the matter. The same implies that merger will not be applicable and the matter has to be examined and decided independently only on the ground of fraud.
Had the Hon'ble Supreme Court any other intention then the forum for deciding the application for review would have been categorically mentioned by the highest court. That having not being done, the only logical conclusion is that, the matter has to be placed before the learned Single Judge first and then only can the matter travel up to the Hon'ble Division Bench. No new facts can be placed before the Division Bench. The appeal is decided on the facts as pleaded in the petition before the Trial Judge.
It is settled law that a judgment obtained by practising fraud on court is a nullity and non est in the eye of law. The element of fraud vitiates each and every order passed by the court. Essentially the said allegation of fraud is factual and has to be raised before the Trial Judge otherwise the Division Bench has to decide the issue from the scratch which is contrary to the established principles of law.
The judgment relied upon by the learned advocate appearing for the Union of India in the matter of Shivashakti Sugars Limited -vs- Shree Renuka Sugar Limited & Ors. reported in (2017) 7 SCC 729 to drive the point that the matter should be heard by the Appeal Court as the economic interest of the nation should take precedence over technical violation of law, in my opinion, will not be applicable in the facts and circumstances of the instant case. The facts of the two cases are grossly different. There is hardly any economic interest of the country involved in the instant petition. The ratio laid down in the said case can never be made applicable in the instant case.
The other decisions relied upon by the respondents were passed in matters dealing with execution cases and not dealing with review cases. There is no second opinion on the principle of law that there shall be existence of only one order for the purpose of execution. In the case at hand there is no direction or order that is pending execution. The direction of the Supreme Court for deposit of money has already been complied. Whether the court was misled to pass the impugned
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judgment which travelled up to the highest court has to be decided in the review, that too, upon direction from the highest court. The expression of the Supreme Court, as appearing at paragraph 14 of the order dated 25th October, 2018, leads to the inevitable conclusion that the review has to be of the original judgment dated 15th March, 2002, which necessarily implies that the review will be maintainable before the Single Judge and not before the Division Bench at the first instance, more so because it is the consistent stand of the review applicants that fraud was committed before the learned Trial Judge. In view of the discussions made hereinabove, I find no merit in the objection raised by the respondents with regard to the maintainability of the applications for review before the Single Judge and hold that the review applications shall be maintainable before the learned Single Judge. The respondents are directed to file their affidavit-in-opposition within a period of six weeks, reply; if any, be filed within three weeks thereafter. Liberty to mention. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.