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M. Agaiah Vs. Mohd. Abdul Kereem - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetters Patent Appeal Nos. 82 and 83 of 1959
Judge
Reported inAIR1961AP201
ActsCode of Civil Procedure (CPC) , 1908 - Order 17, Rules 2 and 3 - Order 43, Rule 1 - Order 47, Rules 1, 4, 4(2) and 7
AppellantM. Agaiah
RespondentMohd. Abdul Kereem
Appellant AdvocateK. Suryanarayana and ;Y.B. Tata Rao, Advs.
Respondent AdvocateJaleel Ahmed, Adv.
DispositionAppeals dismissed
Excerpt:
civil - question of law - order 47 rule 4 (2) of code of civil procedure, 1908 - whether appeal lies against an order granting review on grounds other than those mentioned in order 47 rule 4 (2) - held, no appeal lies if review granted on grounds not mentioned in provisos to order 47 rule 4 (2). - - ' 4. nearly three months thereafter, the plaintiff filed a petition for reviewing this order alleging that the district judge was wrong in dismissing the case for default, that he should have given a decision on the merits and that the error committed by him amounted to a failure to exercise the jurisdiction vested; 7. at this stage it is convenient to refer to rules 2 and 3 of order 17. (2) where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail.....chandra reddy, c.j.1. the question to be answered by the full bench is whether an appeal lies against an order granting review on grounds other than these mentioned in the two provisos to rule 4(2) of order 47.2. the facts culminating in this litigation may be shortly stated. the respondent brought a suit in the court of the district judge, warangal (o. s. no. 9/1/54) for a declaration that he was entitled to the exclusive user of his trade mark, which he had registered under the trade marks act, representing and describing a particular brand of beedies manufactured by him. the basis of the action was that the defendant (appellant) was closely copying this trade mark and using it as his own with slight changes and thereby causing considerable loss of trade to the plaintiff's beedi.....
Judgment:

Chandra Reddy, C.J.

1. The question to be answered by the Full Bench is whether an appeal lies against an order granting review on grounds other than these mentioned in the two provisos to Rule 4(2) of Order 47.

2. The facts culminating in this litigation may be shortly stated. The respondent brought a suit in the Court of the District Judge, Warangal (O. S. No. 9/1/54) for a declaration that he was entitled to the exclusive user of his trade mark, which he had registered under the Trade Marks Act, representing and describing a particular brand of beedies manufactured by him. The basis of the action was that the defendant (appellant) was closely copying this trade mark and using it as his own with slight changes and thereby causing considerable loss of trade to the plaintiff's beedi business.

3. The trial of the suit commenced in the beginning of 1956 and after two witnesses were examined for the plaintiff, including, the plaintiff and some documents were marked on his behalf, it was adjourned to 14-4-1956 for further evidence. On the adjourned date, as plaintiff's witnesses were not present, the case was adjourned to 22-6-1956 at the request of the Counsel for the plaintiff. What happened on 22-6-1956 could be seen from the following note:

'Parties present by Advocates. Plaintiff's advocate reports that his client has not been taking any interest in prosecuting the case. No witnesses are present to day. Mr. Khaja Moinuddin pleader reports no instructions. Plaintiff called and is absent. Hence suit dismissed with costs for default.'

4. Nearly three months thereafter, the plaintiff filed a petition for reviewing this order alleging that the District Judge was wrong in dismissing the case for default, that he should have given a decision on the merits and that the error committed by him amounted to a failure to exercise the jurisdiction vested; in him by law. The trial Judge allowed the review petition in the view that, in dismissing the suit for default, he did not exercise his discretion judicially and that he ought to have disposed of the case on merits.

5. The defendant who was dissatisfied with his decision carried the matter in appeal to this Court. Sanjeeva Row Nayudu, J. who heard the appeal dismissed the appeal in the view that the case was covered by Rule 3 of Order 17 and not Rule 2, and that as the trial court has committed an error in dismissing the suit for default, instead of deciding it on merits, the review petition was competent and therefore the judgment of the trial Court could not be successfully questioned. This appeal under Clause 15 of the Letters Patent is preferred against that decision.

6. There can be little doubt that the view ofthe learned Judge that it is Rule 3 that applies andnot Rule 2 is unsustainable.

7. At this stage it is convenient to refer to Rules 2 and 3 of Order 17.

'(2) Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.

(3) Where any party to a suit to whom lime has been granted fails to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.'

8. It is profitable to reproduce Order 9 Rule 3 as Order 17 Rule 2 requires the Court to dispose of the suit in accordance with Order IX if the parties or any of them fail to appear.

'Where neither party appears when the suit is called on for hearing the Court may make an order that the suit be dismissed.''

9. The point, that calls for determination is whether Rule 3 governs a case where the party who is granted time to perform some act not only fails to do it but is also absent or whether it falls within the ambit of Rule 2. In our opinion the scope of Rule 2 is quite distinct from that of Rule 3. Rule 2 applies to all cases of absence of parties irrespective of their failure to perform the act necessary to the further progress of the suit notwithstanding the fact that time was granted earlier for that purpose. Rule 3 conies into operation only where the parties are present and are prepared to proceed with the further hearing of the case but default of the kind mentioned in that rule is committed. Thus, the fields of operation of these two rules are distinct and different.

10. It is true that it is not incumbent upon a Court to dismiss the suit as that rule expressly empowers the court to pass such other orders as it thinks fit, such as adjourning the case to another date in the interest of justice.

11. There is abundant authority for this proposition In Pichamma v. Sreeramulu, ILR 41 Mad 286: (AIR 1918 Mad 143 (2)), it was decided by a Full Bench of the Madras High Court that where an adjournment was granted to the defendant to enable him to produce his evidence at the close of the plaintiffs case but he did not appear at the adjourned date of hearing and the Court proceeded to pass a decree against him, that case fell within the purview of Order 17 Rule 2 and the decree may be set aside under Older IX Rule 13. Kumarasswami Sastriar, J., who delivered the leading opinion of the court, remarked that Rules 2 and 3 of Order 17 are independent and mutually exclusive and that where the requisites of Rule 2 are satisfied, that rule and Rule 3 should be applied in spite of non-compliance with the requirement of Rule 3, if the parties were absent.

12. Ellammal v. Karuppan Chetti, 70 Mad LJ 688: (AIR 1936 Mad 625), rendered by a Bench of the same court is in consonance with this principle. There the learned Judges ruled that Rule 2 of Order 17 deals with a case of non-appearance while Rule 3 relates to a case where no default occurs under Rule 2 but where the default consists in not performing the act for which time was granted on the previous adjourned date.

13. This is also doctrine of Gurusanthayya, v. Setra Veerayya, : AIR1952Mad825 . The learned Judge has not adverted to any of these rulings though they are said to have been cited before him.

14. Thus, both on the language of the relevant rules and the decided cases, the position is clear that where the parties fail to appear in court, it is open to the Court to dismiss the suit for default, the other alternative being to adjourn it to another date. But it is not competent to the Court in the absence of parties to proceed to dispose of the case on the merits, though the defaulting party is also guilty of non-compliance with the requirements of Rule 3. When a suit is dismissed under Rule 2, the appropriate remedy to the aggrieved party is an application for restoration of the suit and not for review.

In acceding to the petition for review, the trial Court has acted without jurisdiction because the grounds set forth in the petition are not within the Words of Rule 1, Order 47, apart from the dismissal of the suit being in consonance with the relevant provisions of Order 17, C. P. C. As such, the order reviewing the original judgment was liable to be set aside. For these reasons, we must hold that the learned Judge's opinion that 'the trial court rightly granted the review cannot be Upheld.

15. If the matter had rested there, we wouldhave allowed the appeal and dismissed the petition for review. But a preliminary objection asto the maintainability of the appeal is raised bythe counsel for the respondent. It is urged thatgranting review to rectify errors committed by acourt is not an appealable ground, and that suchan order could be attacked only on any of thegrounds specified in Order 47, Rule 7. It is only whenthere is violation of the two provisos to Rule 4(2) ofOrder 47, that an appeal could be maintained againstan order granting review, continued the counsel forthe respondent.

16. This objection of the respondent is met by the argument that there is a general right or appeal against every Order granting review and is not restricted to cases vitiated by the failure to observe the provisions of Rule 4(2) of Order 47, C. P. C.

17. For a correct appraisal of the contentionsadvanced on either side, it is necessary to read therelevant provisions of the Civil Procedure Code.Order 47, Rule 1, enacts; (omitting the unnecessaryportion)

'Any person considering himself aggrieved andwho, from the discovery of new and important matter of evidence which, after the exercise of duediligence, was not within his knowledge or couldnot be produced by him at the time when the decree was passed or order made, or on account ofsome mistake or error apparent on the face of therecord, or for any other, sufficient reason desiresto obtain a review of the decree passed or ordermade against him, may apply for a review of judgment to the Court which passed the decree ormade the order.'

Order 47, Rule 4 runs as follows:

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

(2) Where the Court is o 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 he 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.

Order 47, Rule 7 in so far as it is of immediate velevancy is:

(1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may he 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.

18. We may look at Order 43, Rule 1:

'(1) An appeal shall lie from the following orders under provisions of Section 104, namely:

X X X X(w) an order under Rule 4 of Order 47 granting an application for review.'

19. These provisions were the subjectmatter of judicial interpretation by almost all the High Courts of India, but first we will try to solve the problem that is posed to us unhampered by decided cases.

20. While Order 47, Rule 1 talks of the circumstances in which resort could be had to that order, Rule 7 permits objections to be taken to the granting of an application only on the three grounds enumerated therein in cls. (a), (b) and (c). It may be mentioned here that Clause (a) has been omitted in 1956 by Section 14(10), C. P. C. (Amendment) Act, 66 of 1956. Clause (c) also has no bearing on the present enquiry as the application was presented in court before the expiration of the period of limitation. We are concerned only with the scope and ambit of Clause (b).

21. While it is argued on behalf of the respondent that it is only the contravention of the two provisos that would amount to any violation of Rule 4, the stand taken by the appellant is that the granting of a review for reasons other than those set out in Rule 1 would constitute a violation of Rule 4 and, as such, an appeal could be entertained against every order granting review. The learned counsel for the appellant seeks assistance from Order 43, Rule 1 to substantiate his proposition.

22. We are inclined to think that the proposition stated by the counsel for the appellant could not be sustained on the language of Rule 7 read with Rule 4. It is manifest from Sub-rule (2) of Rule 4 that the discretion is vested in court to grant review in order to rectify its own mistakes. It is not circumscribed by any limitations except those contained in the two provisos. That being so, it is difficult to predicate that a court infringes Rule 4 when it conies to the conclusions that review should be granted.

It is reasonable to assume that in accepting a review petition the court is satisfied that there are sufficient grounds. It is only when the specific conditions embodied in the two provisos are violated that it could be said that the Court had committed a breach of Rule 4. Rule 4 does not address itself to the contents of Rule 1. To hold it otherwise would be to import Rule 1 of Order 47 into Rule 7. If that was the intention of the Legislature, it would have used appropriate language viz., 'contravention of Rr. I. and 4'.

23. In this connection, it is useful to refer to the legislative changes that were introduced when the present Code was enacted. So far as Order 47, Rule 7, which corresponds to Section 629, of the old Code is concerned, the changes are not many. The changes are more verbal in nature than the scope of the section. Section 629 spoke of the application being admitted and the admission being objected to, while in the present provision it is the order, that is granting the application that could be objected to.

We may here mention that the word 'application' occurring in the last clause 'objected on the ground that the application was etc.', in Rule 7 seems to be inappropriate with reference to Clause (b) as it conveys no meaning. The appropriate word would, have been 'order'. Perhaps it was used by the Legislature in that sense. However, that is not of much consequence as that does not in any way affect the interpretation of that rule.

24. The Legislature effected a material change in regard to Rule 4(2) in the present Code. The section that was equivalent to Rule 4 of Order 47 was Section 626. The first part of that section is analogous to sub-rule (1) in every respect. Except the fact that 'if' in the old section is replaced by the word 'where' the two provisions are word for word the same. The second part of that section reads as follows:

'If the Court be of opinion that the application for the review should be granted, it shall grant the same and the Judge shall record with his own hand his reasons for such opinion.'

25. The last sentence of this paragraph is omitted in the present rule. This omission, in our opinion, is very significant. This makes the object of the Legislature clearer that it should be left to the discretion of the Court to correct defects or errors committed by it and the grounds which induced the Court to review its order should not be subject to scrutiny in an appeal provided the procedural safeguards are observed by the Court in the process of hearing the application for review.

26. Only two restrictions are imposed on the powers of the Court to review its own judgment. One is contained in the first proviso which gives effect to the doctrine of audi alteram partem. The second limitation relating to the necessity of strict proof bearing on the discovery of new material, etc., is imposed. The reason for the second limitation seems to he that it is an indulgence given to a party to get the previous decision altered on the basis of discovery of important evidence which was not within his knowledge at the time of original hearing. So in the fitness of things, a person, who relies on such circumstances to obtain a review, should affirmatively establish them.

The latitude shown to a party by a Court is conditional upon strict compliance with that requirement. Both the provisos arc unconnected with any defects or errors in the judgment of the Court. It 13 only when the court disregards these provisions in acceding to the prayer for review that that order could be impugned in an appeal. Rule 7 read with Rule 4, provisos (a) and (b) defines the limits within which an appeal lies. Consequently, the correction of every error or defect does not form a ground of attack in an appeal.

27. We shall next proceed to examine the question whether Order 43 enlarges the grounds mentioned in Order 47, Rule 7; in other words, whether it gives an unqualified and unlimited right of appeal. It should be remembered that this was, for the first time, added in the Code of 1908. It is asked why the Legislature added this if the. intention was not to widen the scope of Rule 7. We feel that the purpose of the insettion of this clause was to confer expressly a right of appeal which was previously implied in Section 629 and no change was contemplated in that behalf.

This clause does not mention the grounds of appeal. It should therefore, be read as subject to Rule 7. We think that this provision which is in general language does not dominate Rule 7 but should be read with it. As such, there is no conflict between the two and, if there is any, it is apparent than real. The result has to be achieved by reading the two sections together.

28. It is a well settled canon of construction of statutes that the provisions of a statute should be so read as to harmonise one with the other and not to read a repugnancy into them. Even it two enactments appear to be inconsistent, it must be seen that one is a qualification of the other. On the language of the relevant provisions, we have arrived at the conclusion that the granting of an application on ground foreign to the two provisos of Rule 4 could not be subjected to an appeal. If a Court acts in contravention of Rule 1, i.e., if review is granted on grounds not covered by Rule 1 it is open to the aggrieved party to have it revised by a superior court.

29. We will now proceed to examine the judicial precedents to see if they are in accord with the principles enunciated above. We will first take up the decided cases in Madras. The earliest of them brought to our notice is Ramanadhan Chetti v. Narayanan Chetty, ILR 27 Mad 602. The main question that posed itself there was whether it was within the jurisdiction of the trial court to allow a review petition pending an appeal against its decree and judgment and whether an appeal against such an order is sustainable on the ground that the order was passed without jurisdiction.

The Division Bench consisting of Subrahmania Ayyar, Officiating Chief Justice and Benson, J., answered the first question in the negative and the second in the affirmative. The reason for the opinion on the second aspect of the matter was that where an appeal was allowed, the question of jurisdiction was necessarily an appealable ground. It is interesting to note that the learned Judges recognised that Order 47, Rule 7 does not mention want of competence to grant reyiew as onq of the grounds for appeal. Further, it is with considerable hesitation that they expressed the Opinion that the question of jurisdiction is necessarily an appealable ground as could be seen from' the remark:

'Should this view not be correct, it must be held that this court has power to revise the order of the Subordinate Judge in question.'

Be that as it may, the learned Judges proceeded on the assumption that lack of jurisdiction to grant review was not within the contemplation of Rule 7, Order 47.

30. Another Bench of the same Court in Gopala Aiyar v. Ramasami Sastrial, ILR 31 Mad 49, struck a different note. It was laid down that an appeal could be taken only on such of the objections as are specified in Rule 7. The learned Judges followed the rulings of the Allahabad and Calcutta High Courts in that regard.

31. Subsequently that Court had adopted this principle except in one case which will be referred to presently.

32. In Brahmayya v. Vellamma, 31 Mad LJ 509 : (AIR 1917 Mad 965), Seshagiri Aiyar and Phillips JJ., decided that Clause (w) did not give a general light of appeal but it was subject to Order 47, Rule 7 and that the fact that reasons granting the review are not satisfactory or insufficient was not a ground which was open to the appellant. The learned Judges after referring to the pronouncement of the Privy Council in the matter of the petition of Hadjee Abdoolah, ILR 2 Cal 131,: in which it was observed that the Legislature did not contemplate the calculation of degrees of sufficiency stated:

'The obvious intention of the legislature isthat the grounds which satisfied a court that itsown judgment requires re-consideration should notbe subjected to adverse comment in the court ofappeal.'

33. Sreenivasa Aiyar v. Nataraja Aiyar, AIR 1916 Mad 544 (1), Chokkalitigam v. Lakshmanan, AIR 1920 Mad 633 and Govinda Chetty v. Rangammal, AIR 1929 Mad 261, are in consonance with the principle adumbrated in the above case,

34. This question' was discussed at some length again by Odgers and Curgenven, JJ., in Srinivasa Ayyangar v. Official Assignee, Madras, ILR 50 Mad 891: (AIR 1927 .Mad 641). The learned Judges dealt with the relative ambits of Order 43, Rule 1(w) and Order 47, Rule 7 and stated that Rule 7 contained a precise and definite provision allowing an appeal under certain conditions and limiting it to certain matters and that Clause (1) of Order 43 is subject to it, consequently no appeal lay against an order granting review if it was not based on any of the grounds recited in R, 7.

35. But in Anantalakshmi v. Hindustan Investment and Financial Trust, Ltd., : AIR1951Mad927 , a discordant note is struck by Chief Justice Rajamannar and Somasundaram J. The learned Judges remarked that the preliminary objection, that an appeal was not maintainable as the conditions of Order 47, Rule 7 were not fulfilled and that ill was only the order which was in Lontravention of the provisions of Rule 2 or Rule 4 that could be attacked in appeal, though plausible and had some support in decided cases 'did not appear to them to be invulnerable'.

They thought that where the Court grants an application without sufficient grounds for review, it contravenes Rule 4 and that would furnish a sustainable ground of appeal. However they did not think it necessary to decide that question. This dictum is opposed to the long line of cases and we cannot give our approval to it. The weight of authority in Madras is in favour of the principle that an appeal against an order granting review is confined to the grounds mentioned in Rule 7 and that the contravention contemplated by Clause (b) bears on the breach of the two conditions set out in R, 4(2).

36. There are only two decisions of our High Court cited to us in this regard. One is Narasimhulu Chetty v. Subbarayuhi, 69 Mad LW (Andhra) 50 and the other is Mallikarjunappa Kalyanshetti v. R. S. Patil, : AIR1959AP305 . In the first of them, I expressed an opinion contrary to the principle enunciated above. I said that Clause (b) of Rule 7 did not limit the right of appeal to the matters mentioned in the provisos and that an appeal lies against every order allowing an application for review and for this conclusion reliance was placed on : AIR1951Mad927 . For the reasons mentioned above, I feel that this view cannot prevail.

37. The other case accords with the principle adumbrated in ILR 50 Mad 891, (AIR 1927 Mad 641) and that line of cases.

38. The above rule found acceptance with the erstwhile Hyderabad High Court in Sita Ram v. Venkata Varada, AIR 1954 Hyd 166, and in Venkata Narhari v. Narsu Bai, AIR 1955 Hyd 112.

39. 'It has been uniformly held in Allahabad that the provisions of Order 47 Rule 7 control Order 43, Rule 1, that an appeal can only be entertained on the grounds set out in Rule 7 that an appeal must be supported only on one Or other of the grounds set forth in Order 47, Rule 7 and that the fact that tne reasons for allowing a review are outside Rule 1 will not sustain an appeal.

40. This view was affirmed in the older case Ali Akbar v. Khurshed Ali, ILR. 27 All 695, which held that the sufficiency or otherwise of the reasons for granting review could not be canvassed in an appeal against an order accepting a review petition. We do not hear any dissenting voice in that Court. We may cite some of the cases of that Court here. Benarsi v. Altaf Husain, 63 Ind Cas 171 (All); Munnu Lal v. Kunj Behari, AIR 1922 All 206; Narain Das v. Chiranji Lal, AIR 1925 All 364, Shaukat Ali v. Mt. Shakila Banu, AIR 1926 All 492, Jaggu Mal v. Brij Lal, AIR 1930 All 127 and Ganga Prasad v. Saroop Dei, : AIR1951All568 .

41. The same is the case with the Patna High Court. In Keshab Prasad Mandal v. Janeshwar Prasad Mandal, 181 Ind Cas 455, Fazl Ali and James, JJ., held that where review was granted on the ground that there was an error apparent on the face of the record, it could not be challenged in an appeal, since the ambit of an appeal, under Order 47, Rule 7 read with Order 43, Rule 1 is a limited one. To a like effect are the rulings of that Court in Jadunandan Singh v. Shankar Sahu, AIR 1936 Pat 310 and Ramfal v. Mangal, : AIR1953Pat208 .

42. This principle has gained currency in the Punjab High Court also. Atra v. Chajju, 12 Ind Cas 246, contains & rule that it is only an infringement of the provisos to Rule 4 that could furnish a ground of appeal. This question received some attention at the hands of Tek Chand, J., in Sikandar Khan v. Baland Khan. AIR 1927 Lah 435(2), where the learned Judge, after considering the various aspects of the matter and noticing the earlier decisions of that Court and of the various other High Courts, held that Rule 7 excludes all grounds other than those contained therein for the purpose of an appeal.

43. This is also the purport of Mt. Baghtan v. Ghulam Hassan, AIR 1928 Lah 608. See also Kesho Ram v. Bhagwan Das, AIR 1934 Lah 575.

44. That the Rangoon, Sind and Oudh High Courts have accepted this principle as correct could be seen from Ma Lon v. Ma Mya May, AIR 1939 Rang 59, Satramdas Kishinchand v. Manghoomal Hakumal, AIR 1944 Sind 68, Mt. Majidun-Nisa v. Shaikh Answarullah, ILR 18 Luck 48: (AIR 194S Oudh 210) and Kailash Narain v. Raj Kumar, AIR 1945 Oudh 183.

45. With the single exception of Mukundsa v. Motiram, AIR 1929 Nag 73, where a single Judge Macnair, A. J. C., said that Order 43, Rule 1 enables a party to appeal on grounds other than those mentioned in Order 47, Rule 7 as there was nothing in the Code which expressly limited ths grounds of an appeal under Order 43, Rule l(w), the Nagpur High Court has expressed the opinion that Order 43, Rule 1 (w) is controlled by Rule 7 of Order 47 and that an appeal against an order granting review could only be supported on one or other of the grounds mentioned in Order 47, Rule 7, an appeal against an order granting review does not He when it is not accepted on the ground of discovery of new evidence. See Mt. Rukhmabai v. Ganpatrao, AIR 1932 Nag 177, AIR 1944 Sind 68 and Karnfdan Hansraj v. Askaran Jhabak, AIR 1937 Nag 385.

46. We will now consider the rulings of the Calcutta and Bombay High Courts. The current of authority in Calcutta has been in favour of this view beginning with Munni Ram Chowdhry v. Bishen Perkash Narain Singh, ILR 24 Cal 878, except for Nritya Copal Mitra v. Jorit Manjari Dasi, AIR 1926 Cal 217.

47. There are a series of cases of that court in conformity with the afore-mentioned doctrine-ircluding Hari Charan Saha v. Baran Khan, ILR 41 Cal 746; (AIR 1915 Cal 283(1)), which referred to a number of unreported decisions of that court. What mainly influenced the Division Bench in that case to come to the conclusion, that it was open to the court to examine the ground upon which the review was granted and if that ground for review did not fall within the meaning of Rule 1, the appellate court could say that the review was Improperly granted, was Chhaju Ram v. Neki, AIR 3 Lah 127: (AIR 1922 PC 112). We feel that the learned Judges made a mistake in thinking that ILR 3 Lah 127: (AIR 1922' PC 112) lends any countenance to the theory propounded by them:

They overlooked the fact that the subject-matter of the appeal before the Privy Council was the order made by the Chief Justice of Punjab granting review of its own decision. The Privy Council could reverse the order on any ground not mentioned by Rule 7 as their Lordships were not bound by the C. P. C. Therefore, ILR 3 Lah 127; (AIR 1922 PC 112) could not serve as an authority on the powers of an Indian Appellate Court under the Code.

48. The scope and ambit of Order 47, Rr. 4 and 7 were considered elaborately by a Full Bench of the Calcutta High Court in Sarajubala Guha v. Aswini Kumar Ghosh, AIR 1946 Cal 530. The reference to the Full Bench was necessiated by AIR 1926 Cal 217 being in conflict with other decisions of that Court.

Chakravartti, J., who spoke for the Court has pointed out that the referring Judges have adverted to six cases of that Court where it has been definitely held that the grounds, open to an appellant, were limited to those specified in Order 47 Rule 7 of the Code of 1908 or Section 629 of the previous Code, and to three more where too the ground upon which the Court gave its decision, would on close examination, be found to be one of the grounds specified in Rule 7. After a review of the case law on the subject, the Full Bench ruled, inter alia, that the grounds available to the appellant are those mentioned in Rule 7 and that the absence of grounds of review specified in Rule 1 is not covered by Rule 7.

49. In the course of the judgment, the learned Judge observed:

'In our opinion, the Legislature, through successive Codes, seems to have left the matter of the review of judgment more and more to the discretion of the Judge. It has enjoined that a review should be granted only in cases where one or more of the grounds specified in the Code, exist, but at the same time it has provided that if the Judge himself thinks that Ms decision should be reconsidered, the exercise of his discretion cannot itself be made the subject of an attack on the ground of the non-existence of sufficient reasons, but it is liable to question only on the ground that some transgression of jurisdiction or gross violation of procedure happened as when the Judge granting the application, was not the proper Judge to do so, or the application was granted, although ft was barred by limitation or without notice to the opposite parly.'

In our opinion this passage sums up the legal position correctly if we may say so with respect. This case seems to hold the field till now in Calcutta.

50. Turning our attention to Bombay rulings, as far back as the Bombay and Persia Steam Navigation Co. Ltd. v. The S.S. Zuari, ILR 12 Bom 171. It was held that no appeal lay from an order accepting an application for review without giving notice to the opposite party or without strict proof of the allegations referred to in proviso (b) and that there was no contravention of the previous Section 626, which is equivalent to Order 47 Rule 4, if the Court thought that the review should be granted, the rules laid down in the provisos having been followed.

No case under the old Code and which has dissented from this has been cited to us. Out attention was drawn to a judgment of a Bench of the Court in Daso v. Karbasappa, AIR 1926 Bom 121 where it was held that the right of appeal conferred by Order 43 Rule l(w) was not confined to the grounds set out in Order 47 Rule 7 and that the former provision, which was a new one was not perhaps in the minds of the authors when they reproduced the old Section 629 of the 1882 Code in the form of Order 47 Rule 7.

The learned Judges have remarked that

'Even if Order 43 Rule 1 Clause (w) is read, with Order 47 Rule 7, the only effect of that rule is to enumerate certain grounds on which an order-granting a review may be objected to. It cannon exclude all other grounds and as I have pointed our on a strict construction of the two Orders, Older 47 Rule 7 has become superfluous.'

51. With great respect to the learned Judges we cannot accept the proposition underlying this passage. They overlooked the fact that, while Order 47 Rule 7 says that the order granting an application should be objected to on the grounds recited in that rule, it excludes all other grounds. The rule further lays down that such objection may be taken at once by an appeal from the order granting the application, which denotes that it is only objections within the contemplation of that rule that could be taken in the appeal.

52. We also find it difficult to concur with the opinion of the learned Judges that Order 47 Rule 7 had become superfluous. It is a well established rule of interpretation of statutes that no provision of an enactment should be regarded as a superfluity. Courts cannot without necessity or sound reason regard any part of an enactment as redundant. They should always incline to the view that every word was intended by the legislature to have some meaning and effect. We are. therefore, unable to subscribe to the theory propounded in that case.

Subsequently, the Bombay High Court has deleted Clause (w) of Rule 1 by a rule made under Section 122. After the omission of this clause, the Bombay High Court is Shidramappa v. Gurushantappa, AIR 1929 Bom 183, laid down that consequent upon the deletion of that clause a review granted on the ground of a clear error on the face of the record, could not be attacked in an appeal, since it was done after notice to the opposite party. It was laid down there that Rule 7 would have no application to a case where notice to the opposite party was given or where there was compliance with proviso (b) of Rule 4(2).

53. We will now refer to the two rulings of the Kerala High Court, Francis v. Ouseph, AIR 1953 Trav-Co 441 and Sathianesan v. Sankaran Nadar, : AIR1959Ker154 . In the first of the cases, it was held that if a court granted an application without sufficient ground therefor, it contravened Rule 4 and, as such, an appeal was competent. The learned Judges merely followed, AIR 1951 Mad92Y and Radhakrishna Das v. Beni Madhab, AIR1932 Cal 552. We must say that AIR 1932 Cal 553has not much of a bearing on the applicability ofOrder 47 Rule 7 read with Rule 4 of Order 47. Asregards : AIR1951Mad927 we have already saidthai we are unable to agree with the propositionstaled therein.

54. In the second case, there is not even a reference to any of the decided cases. All that is said there is;

'The Court having said that the decree-holder was negligent, admitted the review on a wrong conception as to the' necessity for a notice and we have already stated that notice of the kind referred to by the Judge is not requited by law. The order is therefore clearly appealable.'

The learned Judges did not say how and why the order is appealable. These two rulings do not appeal to us for the reasons mentioned earlier.

55. We have lastly to examine whether the facts of Bisheshwar Pratap Sahi v. Parath Nath, AIR 1934 PC 213 which was strongly relied upon by the Counsel for the appellant for the proposition that an appeal lies against every order improperly granting review, establish in any way the contention urged on behalf of the appellant. The facts there were these. The plaintiffs sued for a declaration that they were entitled to the properties in dispute under a relinquishment deed executed by a Hindu widow and hence they could not be attached in execution of a decree obtained against her.

Having come to the conclusion that the document was fraudulent and invalid, the subordinateJudge dismissed the suit, Thereafter the plaintiffssought a review of that judgment, grounding itupon the death of the widow on the day beforeor the day on which the judgment was delivered.The trial Court acceded to the prayer, over-lookingthe fact that the suit as originally framed was basedon the relinquishment deed. An appeal by the aggrieved defendants was dismissed by the High Courtwhich rejected the contention that the decree inrespect of money obtained by the widow for legalnecessity, was binding upon the hands of the respondents.

The matter was carried in appeal to the PrivyCouncil. The decisions of the courts in India werereversed by their Lordships for the reason thatthe judgment of the trial court was reviewed ona ground outside the pale of Rule 1. While restoringthe original judgment of the subordinate Judgetheir Lordships disallowed costs of the successfulappellants on the ground that the objection onwhich they had succeeded had not been relied uponin the High Court, though it seems to have beenraised in the grounds of appeal.

56. The point presented on the basis of this judgment is that in effect the Privy Council decided that if a review which is not warranted by Rule 1, is granted, Objection could be taken in appeal. We do not think that such a result could be ascribed to that ruling. For one thing, their Lordships were considering an appeal against a decree passed after review. Secondly, it is clear that the question was not argued before them.

Neither the judgment nor the report of the arguments contain any indication that any question was raised or considered as to the ambit of the objections to an order granting review which are available to an appellant under the provisions of the Code. It is only while disallowing costs that their Lordships remarked that the objection that the trial court acted erroneously in reviewing its judgment was not pressed in the High Court.

It is worthy of note that the point as to want of competence of the Subordinate Judge to accept the review petition was not debated before them. Their Lordships Of the Privy Council were concerned only with the contention as to the jurisdiction of the court to review its judgment. They merely discussed the question whether a court could exercise the jurisdiction to review its judgment on grounds other than those prescribed in Rule 1. We do not think their Lordships intended to over-rule the large body of Indian decisions without giving any consideration to them.

57. Finally, our opinion based on the relevant provisions of the Code and the decided cases is that it is only the disregard of the two provisos of Rule 4 of Order 47 that is within the contemplation of Rule 7(b) of Order 47 and that every contravention of Rule 1 cannot furnish a ground of attack in an appeal against that order, such as an error apparent on the face of the record or insufficiency of grounds.

58. In these circumstances, the preliminary objection prevails and the appeal is incompetent. For these reasons, we must dismiss the appeal but as this objection was not raised before the learned Judge and the appeal is being dismissed for reasons altogether different from those mentioned by the learned Judge, we direct the parties to bear their own costs here and before the learned Judge.

59. L.P.A. No. 83 of 1959 is also dismissed.


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