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Firm of C. Haji Abdul Shukoor and Co. and ors. Vs. Firm of C. Haji Mohamed Ibrahim Saheb Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberMisc. Appeal No. 73 of 1959
Judge
Reported inAIR1962Kant239; AIR1962Mys239; ILR1961KAR895
ActsCode of Civil Procedure (CPC),1908 - Order 43 Rule 1 (w) and Order 47 Rule 7(1)
AppellantFirm of C. Haji Abdul Shukoor and Co. and ors.
RespondentFirm of C. Haji Mohamed Ibrahim Saheb Co.
Appellant AdvocateE.S. Venkataramaiah, Adv.
Respondent AdvocateM.N. Faruki and ;K.S. Kasim, Advs.
Excerpt:
- industrial disputes act, 1947 [c.a. no. 14/1947]. section 11-a: [subhas b. adi, j] proportionality of punishment bank clerk dismissed from services for abusing customer and trying to assault him outside bank - incident of using abusive language fully proved held, punishment of compulsory retirement is harsh and shockingly disproportionate to the gravity of misconduct. reduction of punishment to withholding three annual increments without any backwages and also without continuity of service, is sufficient. - if order xlvii, rule 7 is to be interpreted as limiting the grounds on which an order granting review may be appealed from, he claims a right to file an appeal on all available grounds on the strength of order xliii, rule 1(w) interpreting the expression 'granting an.....narayana pai, j.(1) this is an appeal by the defendants in original suit no. 9 of 1957 on the file of the court of the principal civil judge at bangalore, against an order dated the 9th of february, 1959, granting the application of the respondent- plaintiffs in miscellaneous case no. 109 of 1958 for review of the judgment dated the 30th of october, 1958, in the said suit. (2) the plaintiffs who are a firm of traders had originally filed against the appellant- defendants original suit no. 111 of 1956 for recovery of a sum of rs. 13,117-1-11. the plaintiffs firm had not then been registered under the partnership act. the plaintiffs therefore sought, and were granted, leave to withdraw the suit with permission to file a fresh one. accordingly the plaintiffs full filed subsequently original.....
Judgment:

Narayana Pai, J.

(1) This is an appeal by the defendants in original Suit No. 9 of 1957 on the file of the Court of the Principal Civil Judge at Bangalore, against an order dated the 9th of February, 1959, granting the application of the respondent- plaintiffs in Miscellaneous Case No. 109 of 1958 for review of the judgment dated the 30th of October, 1958, in the said suit.

(2) The plaintiffs who are a firm of traders had originally filed against the appellant- defendants Original Suit No. 111 of 1956 for recovery of a sum of Rs. 13,117-1-11. The plaintiffs firm had not then been registered under the Partnership Act. The plaintiffs therefore sought, and were granted, leave to withdraw the suit with permission to file a fresh one. Accordingly the plaintiffs full filed subsequently Original Suit No. 9 of 1957. The defendants also are described as a firm by name C. Haji Abdul Shukoor and Co., represented by seven persons described as its partners. The person named Haji Abdul Shukoor is said to be dead, and the seven persons shown as partners of the defendants firm are his wife and children. The first four are shown as majors, aged respectively 42, 22, 21, and 20 years. Defendants 5, 6, and 7 are shown as minors represented by their guardian and mother, the first defendant.

(3) Although paragraph 7 of the plaint said that the Court may be pleaded to pass a decree for Rs. 13,117-1-11 together with current interest, costs and other expenses, only a sum of Rs. 100/- was paid by way of Court -fee. The office raised an objection as to the sufficiency of the Court -fee. Apparently, in answer to that objection, corrections were made in plaint-paragraphs 4 and 5 to make it appear that the suit was one for a mere declaration. The last but one sentence in the fourth paragraph which originally read 'The plaintiff -firm therefore are constrained to file this suit for recovery of the said amount .........' was corrected into 'The plaintiff- firm therefore are constrained to file this suit for a declaration that they are entitled for recovery of the said amount .......'. To the last sentence in that para 'Hence this suit', the words 'for a declaration' were added. The 5th paragraph as corrected read as follows:

' The value of the suit for purposes of Court-fee and Jurisdiction is Rs. 13,1171.11 and a Court fee of Rs. 800/- was paid. The suit was withdrawn. The present suit is for declaration. A fixed Court-fee of Rs. 100/- is herewith paid.'

But, the prayer contained in paragraph 7 was left uncorrected. The first issue raised in the suit was whether the Court-fee paid is sufficient.

(4) The suit claim was in respect of the value of goat and sheep skins despatched by the plaintiffs to the defendants upon orders placed by the defendants. It was also averred that the defendants had signed the account pattis said to have been despatched by the plaintiffs firm.

(5) Though it is not so stated in the plaint, the judgment dated the 30th of October 1958 states that it was the fourth defendant that came to Bangalore to place orders and it was also the fourth defendant that signed the account pattis. One of the pleas raised in the written statement was that the fourth defendant was a minor at the time of the suit transactions.

(6) Apparently, after noticing the corrections made in the plaint purporting to convert the suit into one for a mere declaration, the defendants by way of amendment to the written statement raised a further plea that the suit for a mere declaration was not maintainable in law. That was made the subject- matter of additional issue No. 10.

(7) By its judgment dated the 30th of October, 1958, the Court below dismissed the suit. On the first issue as to Court-fee the Court below merely stated 'so far as the payment of Court -fee is concerned, suit having been launched only for declaration, the Court -fee paid appears to me to be sufficient'. At the same time, on the additional issue, the Court held that 'a suit for declaration alone would not be competent' and that in the opinion of the Court, ' the same should have been accompanied by a consequential relief'. The Court also held that, because the fourth defendant was a minor, all the contracts would be void and they could not be validated on the basis of either acquiescence by, or estoppel against, the major defendants.

(8) The application for review of the judgment (Miscellaneous Case No. 109 of 1958) was filed on the 5th of December 1958. Four principal grounds were raised in support of the prayer for review. It was first stated that the plaintiffs on the 19th of November, 1958, i.e., subsequent to the judgment, discovered from the register of Births that the fourth defendant was a major at all material times. Secondly, even on the assumption that he was a minor, because the suit was against a firm of partners, the fourth defendant could be said to have been admitted to the benefits of the partnership under section 30 of the partnership Act and that his acts, either in the matter of placing orders or of signing the pattis, can be said to have been done as an agent of the firm and that, therefore, his age was immaterial. Thirdly it was stated that the pattis having been signed by the fourth defendant on behalf of the firm, the defendants would not be entitled to call upon the plaintiffs to adduce evidence in proof of the account pattis. Finally, it was stated that the payment of inadequate Court -fee was due to a misapprehension on the part of the plaintiffs then Advocate that credit could be taken for the Court -fee paid on the pliant in O.S. 111 of 1956, and that, in any event, the Court ought not to have dismissed the suit on the ground that it was one for a mere declaration without first giving an opportunity to the plaintiff to amend the plaint or to pay up the deficient Court -fee.

(9) The lower Court accepted all those grounds as available to the plaintiffs in support of their prayer for review of the judgment and made the order now under appeal, subject to the condition that the necessary Court -fee on the entire suit claim should be paid before the order was given effect to. Full Court -fee was subsequently paid by the plaintiffs on the 16th of February, 1959.

(10) In their memorandum of appeal, the appellants contend that none of the grounds stated in support of the prayer for review could come within the purview of Rule 1 of Order XLVII of the Code of Civil Procedure and that the said rule cannot be made use of by the plaintiffs to pay the deficient Court- fee on the plaint in the manner permitted by the Court below.

(11) The learned counsel for the respondents has raised a preliminary objection to the maintainability of this appeal. He contends that, although the appeal purports to have been presented under the provisions of Order XLIII, Rule 1 (w), the grounds on which such an appeal can be sustained are only those stated in Order XLVII, Rule 7 of the Code Civil Procedure and no other. In the present case, according to the learned counsel, although one of the grounds stated in support of the prayer for review was discovery of a new and important piece of evidence in the shape of the birth extract relating to the fourth defendant', the actual grounds on which the review has been granted are the other grounds which fall within the meaning of 'mistake or error apparent on the face of the record or other sufficient reason'; none of which would fall within the purview of Order XLVII, Rule 7.

(12) Section 104 of the Code of Civil Procedure provides that an appeal shall lie from the orders set out therein and save as otherwise expressly provided in the body of the Code or by any law for the time being in force, from no other orders. One of the categories of appeal able orders mentioned therein are orders made under the rules from which an appeal is expressly allowed by the rules. Order XLIII, rule 1 states that an appeal shall lie from the orders set out therein under the provisions of section 104. These orders are set out in clauses (a) to (w) of that rule.

Clause (w) reads --

'an order under Rule 4 of Order XLVII granting an application for review'.

(13) Neither section 104 nor Rule 1 of Order XLIII specifies the grounds on which an order may be appealed from. But, with special reference to an order granting an application for review, Rule 7 of Order XLVII specifies the grounds on which it can be objected to on appeal. Sub-rule (1) thereof, which is the material portion of it, reads as follows:--

'(1) An order of the Court rejecting the application shall not be appeal able; but an order granting an application may be objected to on the ground that the application was :--

(a) in contravention of the provisions of Rule 2,

(b) in contravention of the provisions of Rule 4, or

(c) after the expiration of the period of limitation prescribed therefor and without sufficient cause.

Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit.'

Clause (a) thereof has since been omitted by section 14(10) of the Code of Civil procedure (Amendment) Act No. 66 of 1956. Rule 4 of Order XLVII to which Clause (b) refers, reads as follows:--

'4. Application where rejected :

(1) Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application.

Application where granted.

(2) Where the Court is of opinion that the application for review should be granted, it shall grant the same :

Provided that :--

(a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and

(b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.'

(14) The learned counsel for the appellants argues that the expression 'granting an application for review' in Order XLIII, Rule 1(W) obviously means the granting of such an application in accordance with the provisions of Order XLVII, Rule 1, -- that is to say, consequent upon a finding that one or more of the grounds mentioned in Order XLVII, Rule 1, is or are available in the case. He further contends that granting an application for review is the same thing as failing to reject it and that a contravention of Order XLVII, Rule 4, mentioned in Clause (b) of Rule 7 (1), would include an omission to reject an application for review when there is no sufficient ground for a review. Because sufficient ground for a review necessarily means the existence of one or the other of the grounds mentioned in Rule 1, the argument proceeds, the granting of an application in contravention of Rule 1, would also be comprised within the expression 'contravention of the provisions of Rule 4' occurring in Clause (b) of Rule 7 (1).

(15) The reply of the respondents learned counsel is that the interpretation suggested on behalf of the appellants would result in rendering the provisions of Order XLVII, Rule 7 (1) totally superfluous and that an interpretation which ignores a part of the statute should not, according to ordinary canons of interpretation, be accepted.

(16) The legal position resulting from the existence in the Code of Civil Procedure of these two apparently differing provisions, viz., Order XLIII, Rule 1 (w) and Order XLVII, Rule 7 (1), has been the subject of examination and consideration by almost all the High Courts of India. The learned counsel for the respondents has read to us the judgment of a full Bench of the Andhra Pradesh High Court reported in Agaiah v. Mohd. Abdul Kereem. : AIR1961AP201 (FB) in which, after a review of the decisions of the several High Courts of India, it was held that Order XLIII, Rule 1(w) must be read subject to Order XLVII, Rule 7, that every contravention of Order XLVII, Rule 1, cannot furnish a ground of attack in an appeal against an order granting review such as, an error apparent on the face of the record or insufficiency of grounds, that such an appeal can be sustained only upon grounds mentioned in Order XLVII, Rule 7(1) and that the contravention of the provisions of Rule 4 mentioned in Order XLVII, Rule 7 (1) (b) could only mean the disregard of the provisos (a) and (b) to rule 4(2) of Order XLVII.

(17) As pointed out by the Full Bench in that case, the preponderance of judicial authority is in favour of the view ultimately taken by it. As most of the leading cases on the subject have been collected and discussed in the judgment of the said Full Bench, it is unnecessary for us to make a detailed reference to the various decisions.

(18) The Madras High Court has consistently taken the view that Order XLIII, Rule 1(w) must be read subject to Order XLVII, Rule 7. Illustrative case is Srinivasa Aiyangar v. Official Assignee Madras, ILR 50 Madras 891 : (AIR 1927 Mad 641), where their Lordships refer to the previous decisions of that High Court also. The only case suggesting that a contrary view is also possible is Ananthalakshmi v. Hindustan Investment and Financial Trust Ltd., : AIR1951Mad927 , in which the learned Judges observed by way of obiter dictum that the said view, though supported by many decided cases, did not appear to them to be invulnerable. Actually, their Lordships found it unnecessary to decide the question because they had before them under appeal an order which could not be described merely as an order granting review but was a final order passed after reopening a previous order by way of review.

(19) The erswhile High Court of Hyderabad had also taken the same view in Geddam Sita Ram v. Venkat Varada, AIR 1954 Hyderabad 166 (FB) and in Venkat Narhari v. Narsu Bai, AIR 1955 Hyderabad 112.

(20) The Bombay High Court in Daso Keshav v. Karbasappa, AIR 1926 Bombay 121 took the view that the right of appeal under Order XLIII Rule 1(w) could not be confined to the grounds set out in Order XLVII, Rule 7. But the said High Court has subsequently repealed Clause (w) of Order XLIII, Rule 1, altogether by acting under the power conferred by section 122 of the Code.

(21) The view taken by the erstwhile Mysore High Court also appears to have been the same. Three decisions of that High Court have been cited before us, viz., (1) Sreenivasarunguchar v. Venkatramiah, 13 Mysore LR 318, (2) Nagubayamma v. Abdul Karim, 4 Mysore LJ 53 and (3) Puttappa v. Maligamma, AIR 1954 Mysore 147. The first of these cases was decided under the old code when there was no provision corresponding to present Order XLIII, Rule 1(w). The other two cases were revision petitions, but the present question did arise. In both the cases, the original Court viz., that of the Munsiff, having granted review, appeals had been filed before the District Court. In the former case the District Judge declined to interfere on the ground that the appeal was not maintainable. In the latter, he did interfere and reversed the order of the Munsiff. In both the cases the High Court declined to interfere in revision that the parties did have a remedy by way of appeal against the final decree that would be passed at the re-hearing consequent upon the review. But, the proposition stated in the earlier case to the effect that 'if the Court has erroneously granted a review unless the error falls under Clause (a), (b) or (c) of Rule 7 of Order XLVII, it cannot be objected to either by way of appeal or in revision was taken in the later case as an authoritative statement of the law.

(22) Thus, out of the four High Courts which had exercised jurisdiction in respect of parts of the territory of the present state of Mysore over which this Court now exercise jurisdiction, three had in their several decisions taken the view that an appeal under Order XLIII, Rule 1(w) against an order granting review could be sustained only upon the grounds set out in Order XLVIII, Rule 7, and on no other grounds, and one of them, viz., the Bombay High Court, had given statutory effect to this view by actually repealing Clause (w) of Rule 1 of Order XLIII.

(23) While interpreting the Statute as it stands to-day, there is no doubt that Courts should have regard to the rule that no part of the Statute should be ignored or rendered ineffective or redundant and that as far as possible, an interpretation which harmonises the several provisions of the Statute and gives effect to every one of them should be preferred. The learned counsel for the appellants in this case has taken two alternative position. If Order XLVII, Rule 7 is to be interpreted as limiting the grounds on which an order granting review may be appealed from, he claims a right to file an appeal on all available grounds on the strength of Order XLIII, Rule 1(w) interpreting the expression 'granting an application for review' as a grant in accordance with the provisions of Order XLVII, Rule 1. Alternatively, he wants us to read the expression in contravention of the provisions of Rule 4, occurring, in Order XLVII, Rule 7 (1) (b), as including a contravention of the general provisions of Rule 1 as well. To give effect to the former alternative, would amount to a virtual repeal of Order XLVII, Rule 7. In the latter alternative, the effect of Rule 7 of Order XLVII will not in any respect be different from the effect of Order XLIII, Rule 1 (w), which means that one of the two provisions having the same meaning and effect is totally redundant.

(24) It is also not possible, in our opinion, to accept the interpretation of Order XLVII, Rule 7 (1) (b) suggested by the learned counsel in the second alternative position taken up by him. It proceeds on the basis that the positive act of granting an application for review is not different from the negative act of omitting to reject it as required by sub-rule (1) of Rule 4 of Order XLVII. On the same line of reasoning, it can well be suggested that the rejecting of an application for review is not different from omitting to grant it as required by sub-rule (2) of the same rule. The result would be that each of the two sub-rules of Rule 4 should be read as comprising both the topics of granting and rejecting an application for review. That is opposed to the plain language of the rule which has clearly dealt with two topics in two different sub-rules. In the same manner, the statute has dealt with the matter differently while dealing with the appeal ability of the orders under Rule 7, according to which an order rejecting an application is not appeal able at all. Hence, it is clear that when Rule 7 refers to an order granting an application, the contravention of Rule 4 which it contemplates can only be the contravention of sub-rule (2) of Rule 4 which sub-rule alone deals with the granting of an application for review. That sub-rule can be rightly said to have been contravened only when the Court grants an application in circumstances in which the sub-rule says it shall not be granted. Those circumstances are set out in the two provisos to sub-rule (2) of Rule 4. It, therefore, follows that the expression' in contravention of the provisions of Rule 4' contained in Rule 7 (1) (b) means granting a review contrary to the provisos to sub-rule 2 of Rule 4.

(25) Viewed in this light, there need be no conflict between Order XLIII, Rule 1 (w) which gives a right of appeal without specifying the grounds, and Order XLVII, Rule 7, which limits the grounds available for appeal, and the two can be read together as laying down that an appeal shall lie against an order granting review only on the grounds set out in the latter rule, viz., contravention of the provisos to Rule 4(2) of Order XLVII.

(26) While interpreting a statute or any of its provisions, what the Court is trying to do is to ascertain the intention and the policies of the statute to the extent they may be gathered from the language used in it. Where the statute has undergone changes by way of amendments or otherwise, it is not only permissible but of great assistance in the matter of interpretation to examine the legislative history of the provisions.

(27) The first uniform Code of Civil procedure enacted in India was Act No. VIII of 1859. Prior to that enactment under the several Regulations in force in Bengal, inferior Courts had no competence to review their own judgments without the sanction of superior Courts. The code of 1859 for the first time empowered all Civil Courts to review their judgments when the decrees based thereon had not been appealed from, on the grounds set out in section 376 thereof, viz., the discovery of new matter or evidence which was not within the knowledge of the applicant and could not be adduced by him at the time the decision sought to be reviewed was passed, or any other good and sufficient reason. Section 378 reads as follows :

'Section 378. If the Court shall be of opinion that there are not any sufficient grounds for a review, it shall reject the application, but if it shall be of opinion that the review desired is necessary to correct an evident error or omission, or is otherwise requisite for the ends of Justice, the Court shall grant the review, and its order, in either case, whether rejecting the application or granting the review shall be final. Provided that no review of judgment shall be granted without previous notice to the opposite party to enable him to appear and be heard in support of the decree of which a review is solicited.'

It will be noticed that in granting this power of review to all Courts, the underlying purpose of the statute was to see that all Courts should be competent to correct evident errors and omissions in the decisions to meet the ends of Justice when there was no scope for correction of such errors by an appellate Court which could act only in the event of an appeal being presented to it. It will also be noticed that every order passed by the Court, whatever be its nature, was to be final and not open to question thereafter.

(28) Although an order on review application, whether granting or rejecting it, was to be final, a question arose whether the regularity, propriety or otherwise of an order granting review could be questioned in appeal presented against the final decision made consequent on or following upon the review. There was a conflict of judicial opinion on the matter in the Calcutta High Court which was settled by a Full Bench of that High Court whose decision is reported in Bhyrub Chunder Surmah Chowdhary v. Madhubram Surmah Alias Madhub Chunder Surmah 11 Beng LR 423 (FB).

The Full Bench held that an appellate Court hearing an appeal from a final decision passed upon review could entertain and decide upon objections directed against an order granting review. In that case, an appellate Court had granted a review of its judgment passed on appeal, and the above question was raised in the course of a special appeal before the High Court. Sir Richard Couch, C. J., who was one of the members of the Bench, supported the view on the ground that any irregularity in the matter of granting review would be an error or defect in the procedure which affected the decision of the case upon its merits, which was one of the grounds on which a special appeal under section 372 of the code of 1859 (corresponding to second Appeal under Section 100 of the present code) could be sustained. Jackson J. another member of the Bench, however, stated that because section 378 of the code declared an order granting or rejecting a review to be final, such an order was brought in to the position of an interlocutory order within the meaning of section 363 of the code (corresponding to section 105 of the present code), that is to say, an order not of itself appeal able but any error, defect or irregularity in which may be set forth as a ground of objection in the memorandum of appeal against a decree passed consequent upon review.

(29) As Chakravarthi, J. points out in another Full Bench decision of the same High Court, reported in Sarajubala Guha v. A. K. Ghosh, AIR 1946 Cal 530 (Full Bench), it was presumably because the Legislature considered the situation created by the earlier Full Bench decision to be unsatisfactory that the provisions relating to review were recast in the Code of Civil Procedure of 1877. Those provisions were later re-enacted in the Code of 1882 in exactly the same form, even the numbers of the relevant section being same. The Code of 1882 deals with the subject of review in chapter XLVII comprising Sections 623 to 630. The provision relating to appeal is contained in section 629, the relevant portion of which reads as follows:

'Section 629. An order of the Court for rejecting the application shall be final ; but, whenever such application is admitted, the admission may be objected to on the ground that it was --

(a) in contravention of the provisions of section 624.

(b) in contravention of the provisions of section 626, or

(c) after the expiration of the period of limitation prescribed therefor and without sufficient cause. Such objection may be made at once by an appeal against the order granting the application, or may be taken in any appeal against the final decree or order made in the suit'.......... It will be seen that this corresponds to the provisions of present Rule 7(1) of Order XLVII in all respects, except that instead of referring to admission of application, the present Code refers to an order granting an application. Section 626 referred to in section 629(b) corresponds to present Rule 4 of Order XLVII, except that the provision contained in section 626 to the effect that the Judge granting review should record with his own hand his reasons for doing so, has now been omitted. In the Code of 1882, the topic of appeals against orders was dealt with in Chapter XLIII comprising sections 588 to 591.

The first of those sections stated that an appeal shall lie from the orders set out therein and from no other orders under the code. An order on a review application was not one of them. Hence, the only provision for appeals against orders on review applications was one contained in section 629.

(30) The position, therefore, was that scrutiny by a superior Court of an order on a review application became confined to a very narrow area. So far as an order rejecting a review application was concerned, an appeal against it where expressly prohibited; there being in the nature of things no possibility of any further final decree or order to be passed in consequence thereof, there could be no other proceedings in which its regularity or propriety could be questioned. So far as an order granting a review application was concerned, it became appeal able on specified grounds with the result that a party affected by it could not avail himself of any other ground on which he could ask an appellate Court to set aside the order and thereby restore the original judgment.

(31) When the code of Civil Procedure of 1908 was enacted, the provisions of the code of 1882 relating to the topic of review of judgment were re-enacted in substantially the same form in Section 114 and Order XLVII of the new code. The only addition is that a review of a decree or order passed or made on a review was prohibited. Section 114 merely states the cases in which review may be applied for. Those are cases where the decree or order sought to be re- viewed is either not appeal able or, where appeal able, an appeal has not been preferred. The section opens with the words 'subject as aforesaid' which obviously refer to the opening words of the immediately preceding section 113 reading 'subject to such conditions and limitations as may be prescribed' which mean primarily the conditions and limitations prescribed in Order XLVII of the code. When, therefore, the legislature re-enacted the provisions of the code of 1882 in substantially the same form and expressly retained the provisions of old section 629 in the shape of Rule 7 of Order XLVII of the present code, it is obvious that it had no idea or intention of departing from the position as under the code of 1882.

(32) The only question is whether by enumerating an order granting an application for review in the list of appeal able orders contained in Order XLIII, Rule 1, the Legislature may be said to have enlarged the scope of that appeal beyond the limits prescribed in Order XLVII, Rule 7. When, as already stated, there is otherwise no indication of an intention on the part of the Legislature to depart from the old position, there is no valid reason to think that the above enumeration in Order XLIII, Rule 1, necessarily indicates an intention to make such departure, especially in the light of the rule of interpretation already converted to by us. On the contrary, it is more likely that the reasons for such enumeration should be sought in the exigencies of redrafting. The code of 1908 divided the Statute into two parts -- Sections and schedule. The provisions of section 588 of the code of 1882 became divided into section 104 and Order XLIII of the code of 1908. Section 104 became the basic provision. Where as section 588 of the old code confined its attention to orders made under the code, section 104 of the new Code enacted a general rule applicable to appeal orders whether made under the Code or under any other law, and opened by stating that

'an appeal shall lie from the following orders and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders'.

With reference to orders made under the rules set out in the schedule, according to Clause (1) of sub-section 1 of the said section, they would be appeal able only if appeal is expressly allowed by rules. Further, section 105 of the Code of 1908 states that 'save as otherwise expressly provided no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction'. Now the provision as to appeal contained in Order XLVII, Rule 7, cannot in one view be said to be an express provision for appeal. The wording is such as to imply a right of appeal, the express provision being in the nature of a limitation on the grounds available for appeal. This circumstance apparently furnishes the reason why it was considered necessary to make express provision for an appeal against an order granting review by enumerating it in Clause (w) of Rule 1 of Order XLIII.

(33) In our opinion, therefore, the Code of 1908 did not make any difference to the position as it existed under the Code of 1882, so far as the topic of review of judgment is concerned.

(34) It has been argued that if this view is taken, parties would be left without a remedy for correcting serious mistakes or injustice that may be caused by an arbitrary exercise of the power of review. We do not think such an argument can be entertained. Courts of Justice are under a duty to eschew arbitrariness and act in the interests of Justice. In non- appeal able cases, the Legislature has deliberately chosen to invest the decisions therein with finality. In such cases, the power of review furnishes the only scope for correction of evident errors and omissions in such decisions for which there is no scope of correcting by way of appeal. In appeal able cases, the appellate Courts are not prevented from exercising appeal the powers of correction which the relevant provisions of law granting an appeal against the final decision confer upon them.

According to Rule 8 of Order XLVII, when an application for review is granted, the Court may at once rehear the case or make such order in regard to the rehearing as it thinks fit. The actual position is that a review of the judgment already delivered only reopens the case either wholly or to the extent required by the order granting review for further consideration, by the Court. Upon such further consideration, the Court may pass a fresh decree or amend the decree already passed before review. Such fresh or amended against it. There are in the judgment of Chakravartti J., in AIR 1946 Cal 530 (FB), already referred to, certain observations suggesting that -- even sections 96 and 100 of the Code of Civil Procedure must be read as subject to Order XLVII, Rule 7. But, as his Lordship himself states clearly, they are so subject only in the sense that the Rule specifies what an error or defect of procedure in an order granting a review application is and that the grounds of application is and that the grounds of appeal available under section 96 and section 100 relate to the decree itself and not to any interlocutory order.

As pointed out by a Bench of the Madras High Court in the case reported in Govinda v. Rangammal, AIR 1929 Madras 261, the fact that the appellate Court cannot interfere with the order granting review does not prevent it from considering the appeal from the ultimate decree passed after review on the merits and seeing whether the evidence supports the decree or order passed. Hence, if the order granting review was one passed by the trial Court, every error in the final decree whether of fact or of law, whatever be the reason which occasioned it, is open to correction by the first appellate Court. The only possible prejudice that may arise would be when the first appellate Court comes to a new finding of fact in a judgment passed after review. But, in majority of such cases the new finding would be arrived at on a consideration of fresh or additional evidence, in which case the admission of such evidence would itself be a matter open to question in second appeal within the scope of section 100 of the Code of Civil Procedure. On the whole, therefore, the provision of the Code preventinga scrutiny of an order granting review except upon certain specified grounds, is hardly likely to lead to any injustice which cannot be corrected, nor is the original purpose of the Code of granting the power of review to appeal Courts to meet the ends of Justice likely to be defeated.

(35) Our conclusion, therefore, is that Rule 1(w) of Order XLIII must be read subject to or along with Rule 7 of Order XLVII, that an order granting review may be appealed from only on grounds set out in Rule 7 of Order XLVII and no other, that the contravention of Rule 4 of Order XLVII referred to in Rule 7 (1) (b) of the said order means a contravention of the provisos to sub-rule 2 of Rule 4 of the same Order but that although only the said grounds can be set forth against the order granting the review as such in an appeal against the final decree or order passed consequent upon review, the appellate Court hearing such an appeal can exercise all the powers conferred on it by the relevant provisions of law allowing such an appeal.

(36) In the case now before us, it will be seen that although the plaintiffs, among other things, relied upon the alleged discovery of an extract from the Birth Register relating to the fourth defendant after the judgment sought to be reviewed, the Court below has granted the application for review on the ground that the original was erroneous even on the basis that the fourth defendant was a minor at the relevant period and upon certain other grounds, none of which falls within the purview of Order XLVII, Rule 7.

(37) The preliminary objection therefore succeeds. Because the appeal is not maintainable, we express no opinion on the merits of the case.

(38) The appeal is dismissed but without costs.

(39) Mr. Venkataramiah, learned Counsel for the appellants, requests that he may be permitted to convert this appeal into a revision petition. We decline to grant such permission.

(40) Appeal dismissed.


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