Case Note & Summary
The review petitioner, Ganesh N. Salunkhe, sought review of an order dated 4 February 2015 passed in Writ Petition No. 174 of 2015. The order directed that the review petitioner be impleaded as a respondent in Appeal No. 29 of 2008 pending before the Charity Commissioner. The review petitioner claimed he was not a party to the writ petition and that the direction was contrary to Order XLI Rule 20 of the Code of Civil Procedure, 1908 (CPC) as interpreted in Sheikh Yusuf Haji Sheikh Usman & Ors. vs. Haji Mohammad Jamil Ahemad & Ors. The court noted that the writ petition was filed by the Nizampur Vibhag Shikshan Prasarak Mandal (Trust), of which the review petitioner was a trustee. During the hearing of the writ petition, the trust's counsel had stated that the petition was filed on instructions from Shankarlal Mehta and Ganesh Salunkhe, the review petitioner. This statement was recorded in the order. The court found that the review petitioner was aware of and had consented to the direction. The court held that Order XLI Rule 20 CPC does not bar impleadment with consent, and there was no error apparent on the record. The review petition was dismissed.
Headnote
A) Civil Procedure - Review - Error Apparent on Record - Order XLI Rule 20 CPC - Review petition against direction to implead trustee in appeal before Charity Commissioner - Held that the direction was made with consent of the trust's counsel and the review petitioner, being a trustee, was aware and had consented - No error apparent on record - Review dismissed (Paras 1-6).
Issue of Consideration
Whether the order dated 4 February 2015 directing impleadment of the review petitioner in Appeal No. 29 of 2008 before the Charity Commissioner suffers from an error apparent on the record warranting review.
Final Decision
The review petition is dismissed. The civil application for condonation of delay is allowed and delay condoned.
Law Points
- Review jurisdiction limited to errors apparent on record
- Order XLI Rule 20 CPC does not bar impleadment with consent
- Consent order cannot be reviewed on grounds of non-party status when party was aware and consented
Case Details
2016 LawText (BOM) (01) 47
Civil Application (ST) No. 23727 of 2015 in Review Petition (ST) No. 23726 of 2015 in Writ Petition No. 174 of 2015
Mr. Balkrishna Joshi for Applicant, Mr. R. A. Thorat - Senior Advocate i/b. Ms. Gauri Jadhav with Mr. Tushar Jadhav for Original Petitioner, Mr. C. G. Gavnekar for Respondent Nos. 3 to 7
Nizampur Vibhag Shikshan Prasarak Mandal & Ors.
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Nature of Litigation
Review petition against an order directing impleadment of a trustee in an appeal before the Charity Commissioner.
Remedy Sought
Review of the order dated 4 February 2015 in Writ Petition No. 174 of 2015.
Filing Reason
The review petitioner claimed he was not a party to the writ petition and that the direction to implead him was contrary to Order XLI Rule 20 CPC.
Previous Decisions
Order dated 4 February 2015 in Writ Petition No. 174 of 2015 directing impleadment of the review petitioner in Appeal No. 29 of 2008 before the Charity Commissioner.
Issues
Whether the order dated 4 February 2015 suffers from an error apparent on the record.
Whether the direction to implead the review petitioner was contrary to Order XLI Rule 20 CPC.
Submissions/Arguments
Review petitioner argued he was not a party to the writ petition and the direction to implead him could not have been made.
Review petitioner argued the direction was contrary to Order XLI Rule 20 CPC as interpreted in Sheikh Yusuf Haji Sheikh Usman & Ors. vs. Haji Mohammad Jamil Ahemad & Ors.
Ratio Decidendi
A review petition lies only for an error apparent on the record. The direction to implead the review petitioner was made with the consent of the trust's counsel, and the review petitioner, being a trustee, was aware and had consented. Order XLI Rule 20 CPC does not bar impleadment with consent. Hence, no error apparent on record.
Judgment Excerpts
The review petition has been instituted by Ganesh N. Salunkhe, who has claimed that he was not a party to writ petition no. 174 of 2015, in which the order dated 4 February 2015, of which review is applied for came to be made.
The order dated 4 February 2015, of which, review is applied for was made in the writ petition No. 174 of 2015 instituted by the Nizampur Vibhag Shikshan Prasarak Mandal (Trust). Admittedly, review petitioner – Ganesh Salunkhe is a Trustee of the said Trust.
Procedural History
The review petitioner filed Civil Application (ST) No. 23727 of 2015 for condonation of delay in filing Review Petition (ST) No. 23726 of 2015 against the order dated 4 February 2015 in Writ Petition No. 174 of 2015. The delay was condoned and the review petition was heard on merits.
Acts & Sections
- Code of Civil Procedure, 1908: Order XLI Rule 20
