TMI Blog2010 (10) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... of a new and important matter or an evidence does not mean the discovery of a matter or evidence subsequent to the passing of the decree otherwise the next sentence “after the exercise of the due diligence was not within his knowledge or could not be produced by him at the time within the decree was passed” shall render superfluous. Thus once a case is decided it is hardly permissible to review that decision merely on the ground that subsequent to the said decision some other decisions have to be taken. Revisional application dismissed. - C.O. No. 2941 of 2007 - - - Dated:- 6-10-2010 - Harish Tandon, J. Shri P.K. Das, Ms. Pooja Das Choudhury, Purnasish Roy and Bikramjit Banerjee, for the Appellant. Shri P.K. Mukherjee and T.K. Majumder, for the Respondent. JUDGMENT This revisional application is directed against an Order No. 67, dated April 23, 2007 passed by the learned 5th Bench, City Civil Court at Kolkata in Misc. Case No. 1421 of 2006 whereby dismissing an application for review filed by the petitioner. 2. The opposite party invited tender for supply of 36 k.m. of 80 m.m. diam brass jacketed strainers and other documents. The tender submitted by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay. The said application for setting aside the ex parte decree was dismissed. 7. The petitioner preferred an appeal against the said order of dismissal of its application for setting aside the ex parte decree before this Court. The Division Bench ultimately dismissed the said appeal. 8. After the dismissal of the said appeal the petitioner filed an application for review of the said ex parte decree dated July 30, 2002 along with an application for condonation of delay. By an impugned order the Court below dismissed both the applications i.e. an application under Section 5 of the Limitation Act as well as an application for review. Assailing such order the petitioner has filed the instant revisional application. 9. It is for the first time contended in the application for review by the petitioner that there was a concluded contract between the parties and the rate, as quoted, was inclusive of excise duty and other taxes and after acceptance of the unit price which is inclusive of excise duty, the opposite party in effect has given a go-bye to clause 10 of the general condition of contract. The said order was further sought to be reviewed on another ground that the oppos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the revisional application that the lack of jurisdiction connotes error of law and such error is an error on the face of the record and should be corrected as early as possible. To buttress his submission he relies upon a judgment of the Madras High Court in case of Bommadevara Venkatarayulu Naidu v. Lanka Venkata Rattamma Garu reported in AIR 1939 Madras 293 and also relies upon a judgment of this Court in case of Lahiri Co. v. Makhan Lal Basak reported in AIR 1935 Cal. 153. 13. Mr. Das tries to impress that the Court having no jurisdiction, if passes a decree, such decree is nothing but nullity and can be assailed even in collateral proceeding. He refers section 11D of the Central Excise Act, 1944 as quoted below : Section 11D. Duties of excise collected from the buyer to be deposited with the Central Government. - (1) Notwithstanding anything to the contrary contained in any order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder, every person who is liable to pay duty under this Act or the rules made thereunder, and has collected any amount in excess of the duty assessed or determined and paid on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id on the excisable goods on account of excise duty. He further contends that if an authority is vested with the power to determine conclusively under the Special Act the jurisdiction of the Civil Court is ousted by necessary implication. 15. Mr. Prasanta Mukherjee, learned Advocate appearing on behalf of the state/opposite party vehemently opposed and disputed the contention of the petitioner. He submitted that the petitioner did not take any objection as to the lack of jurisdiction in its written statement and thus is precluded from taking such point in review. He further contended that the review is not maintainable merely on the basis of a subsequent event. His further contention is that under the Central Excise Act, 1944 and/or rule framed thereunder, there is no express bar upon the Civil Court to adjudicate the said matter. He strenuously argued that the petitioner assailed the said ex parte decree by taking recourse to Order 9 Rule 13 of the Code of Civil Procedure and having unsuccessful up to this Court has resorted the remedy of review with an intention to frustrate the decree passed in favour of the opposite party as long as back in the year 2002. In support of his c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner received the copy of the said order of March 18, 2004. The application for setting aside the ex parte decree was dismissed on June 28, 2005 and an appeal against the said order was also dismissed by the Division Bench of this Court on March 7, 2006. The review application is filed on August 29, 2006. 19. Thus, from the above-noted facts it is not in dispute that the order of the Assistant Commissioner, Central Excise was passed when an application for setting aside the ex parte decree was pending. There was no attempt made on the part of the petitioner to bring to the notice of the Court about the said fact. It is a settled law that a judgment being a nullity can be assailed even in a collateral proceeding. The petitioner was keeping silent and did not bring to the notice of the opposite party or of the court that an order has been passed by the competent authority under the Central Excise Act, 1944. It was not even whispered that the impugned decree suffers from lack of jurisdiction. 20. On a bare perusal of Section 11D of the said Act every person who is liable to pay duty under the Act has collected any amount in excess of duty assessed or determined and paid on any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich reads thus : Application for review of judgment. - (1) Any person considering himself (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case of which he applies for the review. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on the ground of the happening of some subsequent event. Section 29(5) further gives power to the Controller to act under S. 151 or S. 152 of the Code of Civil Procedure. Section 152 has no application in the present case for there is no clerical or arithmetical mistake here. Nor can the Controller in our opinion set aside an order which was right when it was made, under s. 151 of the Code of Civil Procedure as there is no question in such circumstances of subserving the ends of justice or preventing the abuse of the process of the court. We are therefore of opinion that the Controller had no power to set aside the order that had been made on August 9, 1956 for it was right when it was made. The view taken by the High Court in this connection is correct. 27. The same view is taken by the Privy Council in the case of 27 Indian Appeal (supra) in the following : In the opinion of their Lordships, the ground of amendment must at any rate be something which existed at the date of the decree, and the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event. It is, however, easy to point out the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agnitude and importance which really negates the recording in the order and is suggestive of the contention raised as to the real intendment of the parties can be taken into consideration. In other words the said subsequent event is taken into consideration in aid of finding out the real intendment of the parties and not otherwise. 30. The Apex Court in case of State of West Bengal Ors. v. Kamal Sengupta Anr. reported in (2008) 8 SCC 612 was pleased to observe in para 35 : The principles which can be culled out from the above noted judgments are : (i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a Civil Court under Section 114 read with Order 47 Rule 1 of CPC. (ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise. (iii) The expression any other sufficient reason appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds. (iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of re ..... 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