M/s. Sikder Brothers Vs. Chairman, Power Development Board, WAPDA Bhaban and others, IV ADC (2007) 767

Case No: Civil Petition for Leave to Appeal Nos. 1500 of 2006 & 188 of 2007

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Md. Asaduzzaman Asad,Mr. Ozair Farooq,,

Citation: IV ADC (2007) 767

Case Year: 2007

Appellant: M/s. Sikder Brothers

Respondent: Chairman, Power Development Board, WAPDA Bhaban and others

Subject: Arbitration/Mediation,

Delivery Date: 2007-02-26

Supreme Court of Bangladesh
Appellate Division
(Civil)
 

Present:
Md. Ruhul Amin, J.
MM Ruhul Amin, J.
Md. Tafazzul Islam, J.
 
M/s. Sikder Brothers
……………Petitioner (In both the cases)
Vs.
Chairman, Power Development Board, WAPDA Bhaban and others
…………Respondents (In both the cases)
 
Judgment
February 26, 2007.
 
The Arbitration Act, 2001, Section 12
Arbitration Miscellaneous Case………. (1)
A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error…… a review can only lie if one of the grounds in rule 1 of Order 47 is made out, when the petitioner of a review fails to show any of such grounds, his review petition cannot be allowed. The power of review is not an inherent power. It must be conferred by the law either specifically or by necessary implication. Yet it must be remembered that power of review inheres in every Court to prevent miscarriage of justice or to correct grave and palpable errors committed by it. …….. (1)
 
Lawyers Involved:
Ozair Farooq, Senior Advocate, instruct­ed by Mazibar Rahman, Advocate-on-Record-For the Petitioner (In both the cases)
Asaduzzaman, Advocate, instructed by Syed Mahbubar Rahman, Advocate-on-Record-For the Respondents (In both the cases)

Civil Petition for Leave to Appeal Nos. 1500 of 2006 & 188 of 2007

JUDGMENT
Md. Ruhul Amin J.
 
Civil Petition for Leave to Appeal No. 1500 of 2006 has been filed against the order dated August 23, 2006 of the High Court Division rejecting the application filed seeking review of the judgment and order dated May 9, 2006 and May10, 2006 passed in First Miscellaneous Appeal No.100 of 2005 dismissing the same. The First Miscellaneous Appeal was filed against the judgment and order dated March 3, 2005 of the Court of District Judge, Dhaka in Arbitration Miscellaneous Case No. 240 of 2004 filed under Section 12 of the Arbitration Act, 2001.The Arbitration Miscellaneous case was dismissed by the Court of District Judge. As against the said order of the Court of District Judge the petitioner filed First Miscellaneous Appeal No.100 of 2005. The High Court Division by a detailed and reasoned judg­ment as mentioned hereinbefore dismissed the appeal. Thereafter the petitioner filed an application seeking review of the judg­ment passed in First Miscellaneous Appeal No. 100 of 2005 and same was numbered as Civil Order No. 784 (FM) of 2006  (review). The High Court Division dismissed the said application   upon observing that no ground for review of the judgment dated May 9 and 10 of 2006 passed in First Miscellaneous Appeal No. 100 of 2005 could be made out by the petitioner. The High Court Division has observed "A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error......A review can only lie if one of the grounds in rule 1 of Order 47 is made out, when the petitioner of a review fails to show any of such of grounds, his review petition can not be allowed. The power of review in not an inherent power. It must be conferred by the law either specifically or by necessary implication. Yet it must be remembered that power of review inheres in every Court to prevent miscarriage of justice or to correct grave and palpable errors com­mitted by it. In the instant case no such glaring omission or patent mistake or grave error has been crept up from the impugned judgment and order. Moreover the appellant petitioner has totally failed to show any of such grounds to uphold his Review petition. …….. The appellant petitioner failed to bring any important matter or to show any error apparent on the face of the record.
 
2.         A review is permissible only when it is seen that there was an error apparent on the face of the record in recording the judgment and order under review. The judgment and order recorded by us does not appear to have suffered from any error which is apparent on the face of the record.
 
3.         It may be mentioned although judgment in the First Miscellaneous Appeal was passed on 9th and 10th May, 2006 and the review application was rejected on August 23, 2006 the petitioner did not file any petition for leave to appeal against the judgment of the High Court Division in the First Miscellaneous Appeal and that only filed a petitioner for leave to appeal against the order rejecting the review application. On a second thought, as it appears, the petitioner filed petition for leave to appeal against the judgment and order dated 9th and 10th May, 2006 passed in First Miscellaneous Appeal No. 100 of 2005 on February 19, 2007. In that state of the matter the office reported that the Civil Petition for Leave to Appeal No. 188 of 2007 was barred by 285 days.
 
4.         We have heard the submissions made by the learned Counsel for the petitioner in Civil Petition for Leave to Appeal No. 1500 of 2006 which was filed against the order dated August 23, 2006 rejecting the application for review and also the sub­missions made in Civil Petition for Leave to Appeal No. 188 of 2007 which was filed against the judgment and order dated 9th and 10th May, 2006 passed in First Miscellaneous Appeal No. 100 of 2005 dismissing the same.
 
5.         The learned Counsel could not point out error of a kind calling for interference by this Division in respect of the judgment dated August 23, 2006 rejecting the appli­cation for review. From the judgment passed in the First Miscellaneous Appeal the learned Counsel could also not point out that there had been any error of the kind when a review could be allowed. Since no case for review was made out from the said of the petitioner we are of the view that High Court Division was quite correct in rejecting the petition seek­ing review of the judgment and order dated 9th and 10th May, 2006 passed in First Miscellaneous Appeal No.100 of 2005.
 
6.         Now let us consider the Civil Petition for Leave to Appeal No. 188 of 2007. We find that the same is out of time by 285 days. The application has been filed seek­ing condonation of delay. Grounds shown in support of the prayer for condonation of delay in our view are in no way can be considered sufficient and satisfactory grounds for condonation of delay. In that view of the matter the Civil Petition for Leave to Appeal No. 188 of 2007 is dis­missed being barred by time. We have held that petitioner failed to make out a case for review of the judgment and there­upon the High Court Division having had rejected the application for review committed no error calling for interference by this Division with the judgment passed in Civil Order No.784 (FM) of 2006 (review) sought to be appealed.
 
7.         In the background of the discussions made hereinabove we find so (no) sub­stance in the petitions.
 
8.         Accordingly both the petitions stand dismissed. One on merit (Civil Petition for Leave to Appeal No. 1500 of 2006) and the other are barred by limitation (Civil Petition for Leave to Appeal No. 188 of 2007).
 
Ed.