1. These are appeals by the State from orders passed in two suits in favour of the respective plaintiffs granting review of decrees passed in favour of the plaintiffs.
2. The two suits were instituted by the legal representatives of certain persons, who it would appear, died in a collision between a truck and a railway train in the year 1949 between Godhra and Dohad on the Western Railway. In each of those cases, decrees for substantial sums of money were passed in favour of the plaintiffs. There were no specific averments in the plaints regarding interest, but in the prayer clause the plaintiffs claimed interest from the Union of India. The entire claim of the plaintiffs was denied in each of those two suits by the Union of India.
3. The Court, however, did not frame any issue regarding the liability of the Union of India to pay interest. Thus though the plaintiffs' claims were decreed in those suits, no interest was awarded to them.
4. Four years after the decision of the two suits the plaintiffs made applications under Order XLVII, Rule 1, Civil Procedure Code, asking for review of the two decrees alleging, among other things, that those errors were apparent on the face of the record. The applications were opposed on behalf of the Union of India and it is contended that there was no error apparent on the face of the record; that since interest was not granted in the decrees, it mustbe deemed to have been refused and that the cases were not fit for the grant of interest. It is also contended that interest was not payable by the Union of India because the claims made by the plaintiffs were for damages only and not for any ascertained sums. The contentions of the appellant, that is, the Union of India, were over-ruled and a review was granted in each of those cases.
5. It seems to me that the Court below was in error in reviewing its judgments and decrees and granting interest to the plaintiffs. Under Order XLVII, Rule 1, Civil Procedure Code, a Court has power to review its judgment if there is an error apparent on the face of the record; or for discovery of new or additional evidence which was not available to the parties when the litigation was going on or for any other substantial cause. Now, it was laid down by the Privy Council long ago in Chhajju Ram v.Neki that an error of law is not a sufficient ground for the grant of review. It is no doubt true that where a Court has not applied the apposite law to the facts of the case or where it over-looks any provision of law, a review lies. Now, here the question is whether the plaintiffs are entitled to interest on damages. On this question admittedly there is a conflict of opinion. Some High Courts including the Nagpur High Court have held that interest on damages cannot be granted. Some other High Courts including this, in one case, have held that the grant of interest in such circumstances is in the discretion of the Court. Therefore, at best what can be said is that the question is a debatable one. Now, if this is the position it would be incorrect to say that a Court which refused to grant or omitted to grant interest has committed an error apparent on the face of the record.
6. There is a further difficulty also in the way of the payment. That is, that there are no specific averments in the plaint with regard to the claim for interest. It was necessary for the plaintiffs to show how and why they were entitled to claim interest. In the absence of such averments the defendant cannot he said to have had notice of the plaintiffs' claim. For, unless the defendant knew the ground on which the plaintiffs claimed interest, it was not possible to rebut the plaintiffs' claim in a satisfactory manner. It is no doubt true that in the prayer clause the plaintiffs have asked for a decree for the amount claimed as well as interest but that is not enough. A prayer must be necessarily dependent upon substantial allegations made in the plaint. Where there are no such allegations then the prayer is insufficient to enable the plaintiffs to obtain the appropriate relief.
7. Furthermore, I would like to point out that for a long time the plaintiffs took no action whatsoever. If they had consciously claimed interest on the amount of damages they would have filed review petitions' or preferred appeals immediately after the judgments were delivered by the trial Court but they did nothing for four years. It is well to remember that Sub-section (2) of Section 34 lays down that where a decree of a Court does not specifically award interest to a party the Court must be deemed to have refused it. This is, therefore, a case where the Court must be deemed to have refused interest. That being so, the proper remedy for the plaintiffs would have been to prefer appeals from the decrees. The very fact that they did not avail themselves of this remedy would suggest that they had not consciously claimed interest and that the prayers were cast in the particular form in a mechanical way.
8. Lastly, I would like to point out that if the grant of interest is in the discretion of the Court, and the discretion has been exercised by a Court in a particular way or must be deemed to have been exercised in a particular way, it would not be appropriate for the Court to review its previous decision.
9. For these reasons I allow both the appeals and set aside the orders of the Court below granting review. Costs here and the Court below will be borne by the respondents.