- (1.) The appellant has filed this application for review of the judgment and decree dated 25th of April, 2003 in FA No. 12 of 2001. Mr. Dasgupta in support of the review application had contended that the Court had overlooked the materials apparent on the face of the record to the extent that the wife had made false and wild disparaging allegations against the spouse, which amounts to cruelty. In support, he relied on Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate, 2003(6) SCC 334. He then points out that the learned Court in the judgment had disbelieved the evidence of the appellant/ husband and believed that of the wife on the ground that there was no cross-examination on certain points. Mr. Dasgupta contended that absence of cross-examination does not mean that the evidence was unchallenged. To support this contention, he relied on the decisions in Juwarsingh s/o Bheraji & Ors. vs. State of Madhya Pradesh, 1980 (Supp) SCC 417 and P. Ram Reddy & Ors. vs. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad & Ors., 1995(2) SCC 305. Thus the finding arrived at suffers from errors apparent on the face of the record. He next contended with regard to the question of cohabitation, particularly, at page 7 of the judgment under review and drew our attention that the evidence itself was unreliable and as such the absence of cross-examination would not matter. Inasmuch as Mr. Dasgupta pointed out that the wife admitted of not living in the same room and cohabitation was alleged four months after the filing of the suit. It is the probability of the evidence and the credibility of the witness, which are to be considered not the absence of cross-examination. Even in the absence of cross-examination, the evidence is to be weighed with its value without attaching much importance on the absence of cross-examination. On the question of review, Mr. Dasgupta relied on the decisions in Green View Tea & Industries vs. Collector, Golaghat, Assam & Anr., 2004(4) SCC 112 (para-14); Srinivasiah vs. Balaji Krishna Hardware Stores, AIR 1999 SC 462 (paras-8, 9); Moran Mar Basselios Catholicos & Anr. vs. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526 and Benoy Krishna Rohatgi & Ors. vs. Surajbali Misra & Anr., AIR 1963 Cal 100 (paras- 3 to 13), in order to support his contention that this is a case fit for review. Mr. Dasgupta drew our attention to the various materials on record to substantiate his contention. Virtually he had reargued the whole appeal.
(2.) Mr. Haradhan Banerjee, learned Counsel for the respondent/opposite party, on the other hand, took a preliminary objection that the review does not lie if the decision is erroneous. According to him, when two views are possible, acceptance of one view cannot be a ground for review. The judgment proceeds on the basis of the question of belief and disbelief, which can never form the subject-matter of review. On the question of cohabitation, he drew our attention to pages 8 to 10 of the judgment under review. Mr. Banerjee then contends that the filing of the case under section 498A of the Indian Penal Code (IPO would not amount to cruelty since the cruelty stands condoned unless the allegations are renewed or repeated. Mr. Banerjee, however, distinguishes the decision in Moran Mar Basselios Catholicos (supra) on the ground that in the said decision, the question was not attended; whereas in the present case the question was adverted to. He drew our attention to page 17 of the said judgment. He further points out that the cohabitation had revived the matrimonial relation and amounts to condonation. He relied on Krishna Sarbadhikary vs. Alok Ranjan Sarbadhikary, AIR 1985 Cal 431 at page 440, to enunciate the ground when the matrimonial offence can be revived. Relying on this decision, he contended that in this case there was no material to show that the matrimonial offence was revived to attract the principles of cruelty on account of pendency or survival of the proceedings under section 498A IPC. He also relied, for the same proposition, on the decision in Parison Devi & Ors. vs. Sumitri Devi & Ors., 1997 (8) SCC 715 (paras-9, 10). He then contended that there is nothing to indicate that what documentary evidence was not considered. On this ground Mr. Banerjee submits that the review application should be dismissed.
(3.) We have occasion to hear the matter for days together. Both the learned Counsel continued to elaborate their submissions from various angles. The matter was hotly contested. Both the learned Counsel had referred to the pleadings and the evidence as well as exhibits in relation to the merit of the case. In the process of the elaborate argument, both the learned Counsel had argued the whole appeal in order to substantiate the case for review. Both the learned Counsel suggested that they may be permitted to argue on both the counts and the Court may pass a composite order, namely an order disposing of the review application and in case the review is allowed to dispose of the appeal upon re-hearing in the same process. Accordingly, both the Counsel had addressed the Court. Having regard to the submissions made by the learned Counsel as above, we agreed to the suggestion and heard the application for review and the appeal simultaneously. In these circumstances, by consent of parties, we propose to dispose of the review application along with the appeal. RVW No. 425 of 2004.;