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Rukn-ul-mulk Syed Abdul Wajid and ors. Vs. R. Visvanathan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka
Decided On
Case NumberCivil Petn. Nos. 49, 50, 61 and 62 of 1949-50
Judge
Reported inAIR1950Kant55; AIR1950Mys55
ActsMysore High Court Act - Sections 15 and 15(3); Code of Civil Procedure (CPC), 1908 - Sections 98, 114 and 151 - Order 41, Rule 21 - Order 47, Rule 1; Code of Criminal Procedure (CrPC) , 1898 - Sections 429
AppellantRukn-ul-mulk Syed Abdul Wajid and ors.
RespondentR. Visvanathan and ors.
Advocates:K. Hanumanthaiya, Adv.
Excerpt:
.....15(3) of the mysore high court act, to full bench - it further argued whether failure to formulate questions served as a ground to seek such review under rule 1, order 47 and section 98 of the civil procedure code, 1908. b) the court upheld that absence of counsel or his refusal to take part in argument at hearing of appeal does not serve a proper ground for review under rule 1, order 47 of the civil procedure code, 1908. c) it was ruled that the court would not exercise its inherent powers in granting review of judgments, on grounds not falling within order 47, rule 1 of the civil procedure code, 1908. d) the case discussed about the effect of refusal of counsel of the respondent to take part in hearing and arguments, though the decree had been passed - the court adjudicated that..........prevented by 'sufficient cause' from appearing or taking part in the arguments and hence it is not open to the petitioners to say that the inherent powers of the court may be invoked for the grant of the relief asked for. in the circumstances, we are of opinion that there are no grounds to admit the review petitions and we hold that the petitions under order 41, rule 21 read with section 151, civil p.c. are not maintainable.8. in the result, all the four petitions are dismissed. it follows that the stay petitions numbered as i.a.i in each of the appeals shall also stand dismissed.9. petitions dismissed.
Judgment:
ORDER

1. The petitioners in these four petitions are the respondents in R.A. Nos. 104 and 109 of 1947-48. Two civil petitions are filed under Section 151 and Order 41, Rule 21, Civil P.C., praying that the Court may be pleased to set aside the ex parte decree passed respectively in the appeals. Two other petitions C.Ps. Nos. 50 and 49 of 49-50 relate respectively to the above appeals and are filed under Section 114 and Order 47, Rule 1 of the C.P.C., for review of the judgment passed in the above appeals.

2. Before discussing the merits of these petitions it is necessary to set out in brief the history of these cases. Before these appeals were posted for hearing, the parties filed an application in or about March 1948 to advance the hearing of the appeals for an early disposal of the same. The appeals were subsequently heard by a Bench consisting of the then Chief Justice and when the arguments were almost concluded, the parties took time with a view to effect a compromise. Later, they were heard by another Bench and the Judge composing the Bench delivered differing opinions with the result that the cases were referred to a Full Bench for final decision. The appeals were posted to 25 July 1949 before the Full Bench for arguments. The respondents filed an application for adjournment on the ground that they had requested the Government for the constitution of a Special Bench. The counsel for the respondents also filed memos praying for permission to retire from the cases. The applications for adjournments were dismissed after arguments and orders were passed on the memos refusing permission to the counsel to retire. Thereupon, the Court proceeded to hear the arguments and ultimately judgment was pronounced in both the appeals on 29 July 1949. As noted in the order-sheets in these appeals, the respondents-plaintiffs and their counsel were all present on 25 July 1949. On 16 July 1949 also, Messrs. L.S. Raju and Venkatanarasimhaiya, the advocates for the respondents were present and on 27th July 1949 and 29th July 1949 Sri Venkatanarasimhaiya's presence is noted.

3. Sri K. Hanumanthaiya, the learned advocate, who now represents the petitioners respondents addressed a common argument in relation to all the petitions and so, they were heard together. The first point raised by Sri Hanumanthaiya is that the reference by the Division Bench to the Full Bench is irregular and contrary to the provisions of Section 15, High Court Act. His contention is that Sub-clause 3 of Section 15, High Court Act requires the Judge, differing in opinion to formulate a material question pending before them for reference to a Full Bench and that if a reference is made without formulating a material question in that manner, it becomes incompetent. The scope of the application under Section 98, Civil P.C. as also Section 15, High Court Act, has been fully dealt with by the Full Bench of this Court in a case (S.A. No. 179 of 47.98 Mysore). Sub-clause 3 of Section 15, High Court Act, runs as follows:

' The decision of the majority of Judges comprising any Full Bench of the High Court or other Bench of the said Court consisting of not less than three Judge shall be the decision of the High Court. (When a Bench of the High Court consists of only two Judges and there is a difference of opinion between such Judges on any material question pending before it, such question shall be disposed of in the manner prescribed in Section 98, Civil P.C. or Section 429, Criminal P.C., as the case may be or at the discretion of either of the Judges composing the Bench, it shall be referred to a Full Bench and the decision of the majority of the Judges on such Full Bench shall be the decision of the High Court.)

It is true that when the Bench consists of only two Judges and there is a difference of opinion between such Judges on any material question pending before it, such question at the discretion of either of the Judges composing the Bench shall be referred to a Full Bench. There is no warranty in the words of the Section for the contention that a material question or questions about which there is a difference of opinion should always be formulated before a reference is made to the Full Bench though a specific question may be formulated and referred. In the event of differences of opinion on all the material questions which are necessary for the disposal of the case the entire case will have to be referred to the Full Bench with the opinions of the differing Judges on the entire matters and the formulation of any question or questions becomes unnecessary. This is also in accordance with the precedent and practice of this Court. A number of case have been referred like this in this Court to a Full bench without specifying all the material questions involved in the cases. Moreover, an objection of this kind should be raised before the Bench decides the case and what is more an irregularity of this nature even if it is deemed an irregularity cannot form a ground for review of a judgment on merits.

4. The next point urged by the learned advocate for the petitioners is that his client were only very anxious to get the services of their senior advocate who was then in Delhi and that in the interest of justice another opportunity may be given to them to have their case argued by admitting the review or re-hearing the case. Order 47, Rule 1 is restricted in its scope and confines itself to obtain a review on the ground of the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by the party at the time when the decree was passed or order made, on account of some mistake or error apparent on the face of the record. The learned advocate does not deny that the grounds upon which the admission of review is urged do not come under any of these two categories; but he desires that the grounds urged by him should be considered to fall under 'any other sufficient reason' contained in the Section. It is explained by the Privy Council in Chhajju Ram v. Neki, A.I.R. (9) 1922 P.C. 112: (3 Lah. 127) that

'any other sufficient reason as meaning a reason sufficient on ground at least analogous to those specified immediately previously.'

It is obviously that neither the absence of the counsel nor the refusal to take part in the arguments which in fact is the case in these appeals can be brought under 'sufficient reason' as they cannot be said to be analogous to the grounds immediately preceding. We are, therefore, of opinion that the grounds urged for the review are not within the purview of Order 47, Rule 1, Civil P.C. as held by the Privy Council in Chhujjuram's case (A.I.R. (9) 1922 P.C. 112: 3 Lah. 127) referred to above.

5. Sri Hanumanthaiya next pleaded for the exercise of the inherent powers of the Court in granting a review in these case especially as the ex parte decisions constitute a great hardship on his clients. The inherent powers of the Court cannot be invoked regarding petitions falling under the other provisions of the Code. Even so, the exercise of inherent powers should be for 'sufficient reason' and if the meaning of 'sufficient reason' defined by the Privy Council and followed by all the Courts is adopted, then the absence of the counsel or the counsel's refusal to take part in the arguments do not constitute a 'sufficient reason' for granting a review.

6. The other two petitions filed under Order 41, Rule 21 do not satisfy the requirements of the provision. Rule 21 of Order 41 states that when an appeal is heard ex parte the respondent may apply for re-hearing of the appeal and the condition precedent for consideration of such an application is that he should satisfy the Court that no notice was duly served or that he was prevented by 'sufficient cause' from appearing when the appeal was called for hearing. It is seen from the history of these cases that the dated fixed for arguments was notified about a month earlier and the parties and their counsel were present on the date of hearing and did take part in the earlier proceedings. After the first day of arguments, the respondents were absent but one of their counsel continued to be present in Court throughout though he did not take part in arguments or help the Court in any way. The petitioners wantonly refused to avail themselves of the opportunity afforded to them to argue their cases. Their wilful ban on their counsel to argue their cases cannot in any way be construed as an irregularity in the proceedings of the Court.

7. It cannot, by any means, be said that the appeals were heard ex pare as the respondents had notice of the hearing and were, in fact, present during the proceedings. As stated above, the party was not prevented by 'sufficient cause' from appearing or taking part in the arguments and hence it is not open to the petitioners to say that the inherent powers of the Court may be invoked for the grant of the relief asked for. In the circumstances, we are of opinion that there are no grounds to admit the review petitions and we hold that the petitions under Order 41, Rule 21 read with Section 151, Civil P.C. are not maintainable.

8. In the result, all the four petitions are dismissed. It follows that the stay petitions numbered as I.A.I in each of the appeals shall also stand dismissed.

9. Petitions dismissed.


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