4 Aug 2023 11:26 AM GMT
The Calcutta High Court recently slammed the practise of the Bar invoking procedural formalities in order to take a “circuitous route" to reopen an issue which is already decided and having an order reviewed under the garb of recall."A desperate attempt is made to have the order reviewed in the garb of recall...Even a live streaming, which has started with the. avowed object is being...
The Calcutta High Court recently slammed the practise of the Bar invoking procedural formalities in order to take a “circuitous route" to reopen an issue which is already decided and having an order reviewed under the garb of recall.
"A desperate attempt is made to have the order reviewed in the garb of recall...Even a live streaming, which has started with the. avowed object is being misused and/or abused despite the disclaimer having been shown therein," a division-bench of Justice Harish Tandon and Justice Prasenjit Biswas regretted.
The Bench was in seisin of a recall application filed against an order passed on the 13th of March 2023, wherein the Court had refused to initiate contempt proceedings against the respondents at the behest of the applicants, M/s Odhisha Slurry Pipeline Infra Ltd. It was argued by the applicants that the respondents had played “serious fraud” on the Court, which led to the Court making specific findings regarding the ownership of the pipeline.
At the outset, the Court examined the concept of ‘fraud’ within the law of pleadings under Order VI Rule 4 of the Civil Procedure Code and noted that merely use of the word “fraud” would not be enough to constitute the same. It held:
“The Court should be conscious when a recall is intended on an alleged fraud and would refuse to exercise its discretion if there is lack of element of fraud or the real intention is to invite the attention of the Court to various observations which may sometimes be factually incorrect or arrived erroneously. The moment the element of fraud is lacking and the hidden intention to reopen the entire case in the garb of a so-called fraud by creating an illusory cause of action with the clever draftsmanship, the Court should nip such litigation in the bud.”
Difference between recall and review
The Court held that a recall application must be considered in a limited manner, and that neither a review or a recall application can be used for “re-visitation, re-writing and/or re-appreciation of the facts as its applicability is within the limited contour envisaged under the law.” It said:
"A practice has developed at the Bar in making an extensive argument, sometimes de hors the pleadings, sometimes by filling the documents and several applications treating the same to be a part of the record and perceiving the same to be an integral part of the pleading so as to postpone the disposal of the main matter on its merit...It would not be incorrect, in our opinion, what we gather from the stand of the applicants that the instant application has been taken out to achieve a thing indirectly, which cannot be achieved directly. What is intended by filing the instant application is the revisitation of the judgment rendered in the contempt application and any findings incidentally or accidentally made in the instant judgment to take advantage thereof, which, in our opinion, should be deprecated."
It was argued by the respondents that the cause title of the present recall application was ‘somewhat identical’ to the one in the contempt proceedings (CPAN 922 of 2022) and that the same could not be maintained based on the 13th March judgement which had made clear that the applicants are not entitled to maintain an application for contempt under the various Acts and Rules of the High Court. It said:
The applicants of the contempt application appear to be identical except its representation manifest. In the judgment and order dated 13.03.2023, this Court held that the petitioners of the contempt application cannot maintain the said application in the name of the Trust without the Trustees having impleaded therein. The instant application is filed by the same Trust acting through a shareholder of the Trust having 52% contributory in India Growth Opportunity Fund and Srei Industrial Finance Limited (SIFL). As indicated above, in absence of any disclosure of the percentage of shares held in SIFL by the alleged shareholder and when the Company itself does not intend to proceed with the litigation nor have authorized such shareholder to do so, we do not find that an application can be maintained at the behest of such shareholder.
Finally, in expressing dismay at the practise of extensive arguments which may be outside the scope of pleadings, the Court emphasised on the dissemination and importance of live-proceedings of Court, even in light of their rampant misuse, in order to maintain the ‘sacrosanct interaction’ in Court and to make the general populous more aware of the procedures of Court for the furtherance of fairness and transparency. In imposing heavy costs on the applicants for taking up the Court’s time on “frivolous points”, it concluded:
Even a live streaming, which has started with the avowed object is being misused and/or abused despite the disclaimer having been shown therein. Every bit of interaction in course of hearing is being taken as sacrosanct and a part of the affirmative stand of the parties. The disclaimer would reveal that no person shall be allowed to record the live streaming, which is primarily aimed to make aware of the common man of the country to understand the mannerism in which the proceedings are dealt by the Court and the procedures. We do not intend to say any more words and leave it to the wisdom to the respective Members of the Bar to ponder upon the same. We, thus, do not find that it is a fit case where we should recall our order. However, the conduct of the parties would not deter us from imposing the costs for unnecessarily inviting the Court to invest the time on such frivolous points. We, therefore, dismiss the instant application with costs assessed at Rs. 5,00,000/- (Rupees Five Lakh only) to be deposited with the State Legal Services Authority, West Bengal by the applicants/petitioners within two weeks from date.
Case: M/s. Odisha Slurry Pipeline Infrastructure Ltd. & Anr. v Rakesh Sharma & Ors.
Coram: Justice Harish Tandon and Justice Prasenjit Biswas
Citation: 2023 LiveLaw (Cal) 211
Click Here To Read/Download Order