Whether additional grounds can be raised in appeal at subsequent stage?

As regards the raising of additional grounds, it is the case of the applicants that they did not know the actual contents in the order dated 17.09.2014 in A.No.4969 of 2014 passed by the learned Master, as the copy of the same was not furnished to them. Only in the course of enquiry by this Court in the earlier Application Nos. 6809 to 6811 of 2014 etc., the respondent herein had filed a copy of the order dated 17.09.2014 in A.No.4969 of 2014 passed by the learned Master, in the typed set of papers dated 08.12.2014 before this Court. After knowing the text of the order dated 17.09.2014 passed in Application No. 4969 of 2014, by the learned Master, from the typed set of papers submitted by the respondent herein, dated 08.12.2014, the applicants herein have filed the Application No. 1160 of 2015 seeking permission to raise additional grounds in the appeal preferred by the applicants against the order dated 17.09.2014. Under such circumstances, I find that the applicants have given sufficient reason in the affidavit to raise additional grounds. Hence, I am of the opinion that as sufficient reasons have been shown, the application in A.No.1160 of 2015 for raising additional grounds, also deserves to be allowed and accordingly, the same is allowed as prayed for.

IN THE HIGH COURT OF MADRAS

A. Nos. 1156 to 1160 of 2015 in E.P. No. 48 of 1997 in C.S. No. 43 of 1962

Decided On: 16.06.2016

 S.V.R. Saroja and Ors.

Vs.

 S.V. Matha Prasad

Hon'ble Judges/Coram:

R. Subbiah, J.

Citation: AIR 2017 (NOC) 145 Mad

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Whether justice can be denied to litigant if his action is due to wrong legal advice of Advocate?

  Having considered the nature and contents of the various applications filed by the petitioner through her learned Advocate Sri Sachin Mukherjee, we have no hesitation in concluding that the petitioner was wrongly advised by him, particularly in filing the application for drawing up of another preliminary decree by setting aside the ex parte decree earlier passed and in not prosecuting the application earlier filed under Order 9, Rule 13, C.P.C. It is elementary knowledge that so long as a decree, either preliminary or final, legally subsists, it can not be replaced or substituted by another decree. It necessarily follows that if and when the ex parte preliminary decree in the instant suit was set aside by allowing the application under Order 9, Rule 13 of the Code then only another preliminary decree could have been passed. Therefore, filing of the application by the petitioner expressing her intention not to proceed with Misc. Case No. 15 of 1979, as she had filed an application for substitution of the preliminary decree, was wholly misconceived and must be attributed to wrong advice of her learned Advocate. In making this observation we have drawn inspiration from the sworn testimony of the learned Advocate himself who admitted that the steps taken by him were not proper and that the applications were filed out of his own bona fide mistake. On facts therefore we are fully satisfied that the petitioner has been badly let down by the wrong advice given to her by her former Advocate and placed in an unenviable position.From the impugned order we find that the learned Judge appreciated the predicament of the petitioner, but rejected the application solely on the ground that the phrase "sufficient reason" in Order 47, Rule 1 of the Code did not include misconception o:

fact and/or law of the Advocate and inherent power could not be used to correct the erroneous view of the learned Advocate. We are, however, unable to agree with the learned Judge.

As has been already noticed, the principal ground which was canvassed for setting aside the above orders was that whatever steps she had taken earlier in connection with the suit was under wrong advice of her Advocate; and as we have already noticed, the testimony of the learned Advocate also supports that view. By filing the application, therefore, the petitioner prayed for justice which was denied to her owing to patently wrong steps taken by her under legal advice. In such a situation the Court would be failing in its duty if it does not invoke its inherent powers to come to her rescue. Every Court functions for the purpose of doing justice according to law and therefore shall be deemed to possess, as a necessary corollary thereto, all such powers as may be necessary to do the right and to undo a wrong in course of its such functioning.

Citation : AIR 1989 Cal 106

IN THE HIGH COURT OF CALCUTTA

Decided On: 05.04.1988

 In Re: Mahamaya Banerjee

Hon'ble Judges/Coram:
M.K. Mukherjee and Sudhanshu Shekhar Ganguly, JJ.

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Whether an order can be reviewed on ground that it was passed due to misconception of court?

It  is an error apparent on the face of the record  if  the
judgment   does  not  deal  effectively  and  determine   an
important  issue in the case on which depends the  title  of
the plaintiff and the maintainability of the suit.
To decide against a party on matters,which do not come with-
in the issues on which parties went to trial clearly amounts
to an error apparent on the face of the record.
Where the error complained of is that the Court assumed that
a  concession had been made when in fact none had been made
or  that the Court misconceived the terms of the  concession
or  the scope and extent of it or the attitude taken, up  by
the  party  and has been misled by a misconception  of such
alleged  concession,  such  error  must  be  regarded  as  a
sufficient  reason analogous to an error on the face of  the
record within the meaning of Order 47, rule I of the Code of
Civil Procedure.
Such error will not generally appear on the record and will
have  to  be  brought  before  the  Court  by  means  of  an
affidavit.

Supreme Court of India

Moran Mar Basselios Catholicos ... vs The

 Most Rev. Mar Poulose ... on 21 May, 1954

Equivalent citations: 1954 AIR SC 526, 1955 SCR 520

BENCH:
JAGANNADHADAS, B.
DAS, SUDHI RANJAN
HASAN, GHULAM

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Under which circumstances court can review its own order?

At the outset, we want to express that it is well-settled that the power of review is limited in nature and the jurisdiction required to be exercised in this regard is circumscribed by the definite limits fixed by the language used in Order XLVII Rule 1. There are basically three grounds on which the review may be allowed. Those are: (i) discovery of new and important matter of evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or order was made; (ii) mistake or error apparent on the face of the record; or (iii) for any other sufficient reason.

Bombay High Court

Spanco Limited : Review vs A2Z Maintenance & Engineering ... on 1 September, 2010

Bench: D.D. Sinha, Mridula Bhatkar

Citation: 2010 (7) MHLJ 391

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