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Mt. Abhilakhi Vs. Sada Nand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All244
AppellantMt. Abhilakhi
RespondentSada Nand and ors.
Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under.....mukerji, j.1. the question that has been referred for decision to the full bench is a short one, namely:whether under the provisions of the civil procedure code (act 5 of 1908), an application for review of a judgment, passed by a bench hearing an appeal from the decision of a single judge of the court under c1.10 of the letters patent of the allahabad high court, lies.2. the answer to the question depends on the further question whether the civil procedure code applies to a hearing of a letters patent appeal. by section 117, civil p.c., the provisions of the code except as provided therein, apply to chartered high courts. unless therefore the hearing of a letters patent appeal comes within the exceptions mentioned in section 117 the provision of the civil procedure code would apply to.....
Judgment:

Mukerji, J.

1. The question that has been referred for decision to the Full Bench is a short one, namely:

Whether under the provisions of the Civil Procedure Code (Act 5 of 1908), an application for review of a judgment, passed by a Bench hearing an appeal from the decision of a single Judge of the Court under C1.10 of the Letters Patent of the Allahabad High Court, lies.

2. The answer to the question depends on the further question whether the Civil Procedure Code applies to a hearing of a Letters Patent appeal. By Section 117, Civil P.C., the provisions of the Code except as provided therein, apply to chartered High Courts. Unless therefore the hearing of a Letters Patent appeal comes within the exceptions mentioned in Section 117 the provision of the Civil Procedure Code would apply to such an appeal. It is conceded that the exceptions enumerated do not apply to such an appeal except Rule 35, Order 41, Civil P.C. The Bench of a High Court hearing an appeal from the decision of a single Judge is as much a High Court as the single Judge himself. The Letters Patent declare that certain appeals would lie to the High Court : see Clause 11. The High Court consists usually of more than one Judge, and by the Letters Patent the High Court is to frame rules by which it is to be settled what kind of cases would go before what number of Judges. The Letters Patent contemplate that there may be appellate decisions in certain cases by a single Judge. In such eases they provide that a further appeal would lie to two or more Judges of the same Court. A Letters Patent appeal therefore is as much an appeal to the High Court as any other appeal. In any case, the Judges composing the Bench hearing the Letters Patent appeal are as much a High Court as Judges hearing, say, a first appeal from the judgment of a Subordinate Judge or a District Judge. The procedure to be applicable is that provided by Order 41, Civil P.C. excepting Rule 35: see Order 49. Rule 3, Civil P.C., last clause.

3. It is therefore clear, that the procedure before and at the hearing, of a Letters Patent appeal by a Bench of the High Court, and the delivery of the judgment, are all governed by Order 41, Schedule 1, Civil P.C.

4. Then the question is whether a review is allowed by the Code in respect of a judgment delivered by the Bench hearing the Letters Patent appeal. The answer is-to be extracted from the provisions of Section 114, Civil P.C., read with Order 41, Schedule 1 of the same Code. Section 114, starts with the words 'subject as aforesaid.' This refers to Section 113 which runs as follows: 'Subject to such condition and limitation as may be prescribed.' Section 114 therefore should read as follows: 'Subject to such conditions and limitation as may be prescribed, any person considering himself aggrieved . . . .' In this particular case the qualifying words have no special importance. Section 114 enumerates three cases in which a review of judgment is allowed. The first is 'a decree or order from which an appeal is allowed by the Code but no appeal has been preferred.' The second is 'a decree or order from which no appeal is allowed by the Code.' We are not concerned with the third case in which also a review of judgment is allowed. The third case is an entirely independent case and has no reference to cases 1 and 2. If we road ease No. 2 in which a review of judgment is allowed we find that a judgment given by a Bench of the High Court hearing a Letters Patent appeal comes clearly and without any ambiguity within the language of the case. The judgment of the High Court has to be followed by a decree which would be executable as any other decree of the civil Court. The decree therefore that would be prepared in pursuance of the judgment of the High Court deciding a Letters Patent appeal is a decree from which no appeal is allowed by the Civil Procedure Code. Indeed, no appeal whatever is allowed by any law, unless it be a case in which an appeal to His Majesty in Council is admissible under the Civil Procedure Code.. In this particular case which is under reference the suit was of a small value and an appeal from the Letters Patent Bench decision to His Majesty in Council is out of the question. We can therefore safely say that it is a decree from which no appeal is allowed by the Civil Procedure Code. It has been argued that the oases 1 and 2 are to be taken together and the word 'decree' in case 2 is to be treated as a decree as described in case 1. In other words, it is stated that the decree mentioned in case 2 must be a decree which is provided for by the Civil Procedure Code itself. I find it extremely difficult to accept this interpretation although even if this interpretation be permissible, it would not make any difference in the end. As I have already pointed out, case 3 in which a review is allowed stands by itself and apart from cases 1 and 2. There is no reason to suppose that in interpreting the language by which case 2 has been described we should import some of the language employed in describing case 1. This method of reading case 2 in my opinion is inadmissible under the true rules of interpretation.

5. Assuming however that we are to qualify the word 'decree' as used in the description of the second case by the words a decree provided for or passed under the provisions of the Civil Procedure Code,' this would make no difference, for, as I have already pointed out the decree that is made by a Bench of the High Court on the hearing of a Letters Patent appeal is a decree made under the provisions of the Civil Procedure Code as applied by Section 117 of the same Code. I need not repeat that the procedure at the hearing and the method of deciding are all dictated by the Civil Procedure Code, namely, Schedule 1, Order 41, excepting Rule 35 of the said order.

6. It has been argued that, as the appeal is provided by the Letters Patent and not by the Civil Procedure Code, it must be taken that the decree that is passed by the Bench of the High Court hearing a Letters Patent appeal is a decree which is something different from a decree passed under the provisions of the Civil Procedure Code. I can find no warrant for such a construction. The appeal is to the ''High Court,' and the procedure is that prescribed by the Civil Procedure Code. Under the Letters Patent a third appeal is provided for but the appeal is to be heard by the same High Court and the hearing and the judgment are to be governed by the same Code, namely the Civil Procedure Code. The mere fact that the Letters Patent provided for a third appeal while the Civil Procedure Code allows only two appeals does not in any way take away the applicability of the provisions of the Civil Procedure Code from the appeal itself.

7. Particular stress has been laid on the fact that in case 2, in which a review of judgment is provided for, the words 'by this Code' appear. It is argued that these words .contemplate that where an appeal is allowed by the Letters Patent case 2 has no application. I fail to see how this interpretation follows from the words employed in describing case 2, for as a matter of fact no appeal is allowed from the judgment of a Bench hearing a Letters Patent appeal even by the Letters Patent. The result is that an appeal is allowed neither by the Civil Procedure Code nor by the Letters Patent. If such be the case then the decree is surely a decree 'from which no appeal is allowed by this Code' within the meaning of Clause (b), Section 114 and Clause (b), Order 47 in which the words 'by this Code' do not appear.

8. On a bare reading of the provisions of the Civil Procedure Code I am of opinion that a review of judgment is allowed in the, case under consideration.

9. As regards authority it was conceded that there are only two in this Court, directly applicable. In the case of Hafiz Muhammad Mohsin v. Sheo Prasad [1904] 1 A.L.J. 509 the judgment consists of a single sentence and is based an a wrong apprehension of the law. It is said that the Civil Procedure Code does not apply to a hearing of an appeal preferred under the Letters Patent. I have shown above that this is wrong. The opinion expressed is against the clear words of Section 632, Civil P.C. of 1882, which was then in force and which was not even quoted before the learned Judges. The second case reported in Ranjit Singh v. Maharaj Bahadur Singh A.I.R. 1918 P.C. 85 merely follows the earlier case. It appears that the correctness of the earlier decision was not contested before the learned Judges who decided the later case. I have already shown that Section 117, Act 5 of 1908, which takes the place of Section 632, Civil P.C. of 1882, clearly makes the Civil Procedure Code applicable to all cases coming before the High Court either on its appellate or original side. The decision of the Privy Council case in Sabitri Thakurain v. Savi A.I.R. 1921 P.C. 80, removes any doubts on the point. The Allahabad cases are therefore no longer any authority on the point. In the Madras case of Venkatasubbarayadu v. Sri Krishna Yachendralu [1917] 40 Mad. 651 two learned Judges held that a review of a judgment passed on the hearing of a Letters Patent appeal was permissible. The same view has been taken by a learned Judge of the Bombay High Court in Ratanchand Khimchand v. Damji Dharsey A.I.R. 1927 Bom. 232.

10. There are a few cases decided in the Allahabad High Court in which it was held that a cross-objection under Rule 22, Order 41, Civil P. C, was not maintainable in a Letters Patent appeal. The latest case on the point follows the earlier case in which the decision was based on the ground that Order 41, Civil P. C, does not apply to the hearing of a Letters Patent appeal. This opinion is clearly erroneous, as has been shown above, on the language of the Codes of 1882 and 1908, and the Privy Council case in Sabitri Thakurain v. Savi A.I.R. 1921 P.C. 80. These cases therefore are no authority on the point for decision. In Venkatesam Chetty v. Motichand Gulabchand A.I.R. 1926 Mad. 316 a Full Bench of the Madras High Court took a contrary view.

11. For reasons given above I would hold that an application for review of a judgment passed on the hearing of a Letters Patent appeal is maintainable.

Bennet, J.

12. This is a reference to a Full Bench of the question whether a Bench of this Court has jurisdiction to review its own judgment delivered in Letters Patent appeal. A learned single Judge of this Court passed a judgment dismissing a second appeal. In Letters Patent appeal, under Clause 10 of the Letters Patent, a Bench of this Court allowed the second appeal in part and granted a decree to that effect, . The appellant in second appeal has again come before this Court with an application for review of the judgment of the Bench in Letters Patent appeal, asking for further relief. The opposite party objected that no application for review lay. The question is whether the provision in Section 114, Civil P.C., does or does not apply to Letters Patent appeals.

13. In the first place the applicant relied on Section 117, Civil P. C, for the proposition that the provisions of that Code do apply to Letters Patent appeals. The opposite party contended that Section 117 only referred to the original civil jurisdiction of chartered High Courts. The section provides:

Save as provided in this Part or in Part 10 of in rules, the provisions of this Code shall apply to such High Courts.

14. It was argued that the exempting provisions were Section 120 of Part 9, Section 129 of Part 10, and Order 49, Rule 3, and that all; these provisions related to original civil jurisdiction. Therefore it was said, because the exceptions relate to original civil jurisdiction, Section 117 itself must only relate to original civil jurisdiction. We consider that the premises are inaccurate and the argument is unsound. As to the premises, Order 49, Rule 3, specifically refers to appellate jurisdiction in stating that O.41, Rule 35, shall not apply to the appellate jurisdiction of chartered High Courts. We also point to the language of Section 117 itself, which is perfectly general, and has nothing to indicate that its provisions were only intended to apply to the original civil jurisdiction of chartered High Courts. We conclude therefore that Section 117, applies the provisions of the Civil Procedure Code to chartered High Courts in. the exercise of their appellate civil jurisdiction including their jurisdiction in Letters Patent appeals.

15. But the question remains whether on the particular wording of Section 114, Civil P.C., that section is or is not intended to give a chartered' High Court jurisdiction to review a judgment made in Letters Patent appeal.

16. The subsection in question is Section 114 (b). which states:

Subject as aforesaid, any person considering himself aggrieved (b) by a decree or order from which no appeal is allowed by this Code, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

17. The difficulty arises from the three words 'by this Code'. Now these words do not occur in O.47, Rule 1, which repeats the three parts of Section 114. It was therefore argued that the words 'by this Code' should be ignored, and that as they do not appear in the order, the section has been modified by the order. The words in the section, 'subject as aforesaid,' are apparently intended to repeat the words in the previous Section 113, which are 'subject to such conditions and limitations as may be prescribed.' It was therefore argued that the order did prescribe the condition and limitation by implication that these words ''by this Code' should have no effect in Section 114 (b). In the first place we note that Rule 1, Order 47, makes no mention of the words 'subject as aforesaid,' and if the argument were correct, these words would also have no force, thus taking away the basis of the argument itself. In the next place we observe that Part 10 of the Code deals with rules, and Section 121 in Part 10 provides that

the rules in Fell. 1 shall have effect as it enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part.

18. Section 122 gives High Courts established under the High Courts Act power to make rules annulling, altering or adding to all or any of the rules in Schedule 1. But Section 128 (1) provides that

such rules shall not be inconsistent with the provisions of the body of this Code.

19. We consider therefore that the rules in Schedule 1 must be read with the sections of the Code and cannot be held to override those sections. We are strengthened in this conclusion by the consideration that it would be singularly inconsistent to enact a Code in which the rules in the schedule were inconsistent with the sections and were to be read as overriding the sections. We consider that words 'subject to such conditions and limitations as may be prescribed' mean that conditions and limitations may be laid down within the limitations prescribed by the sections, and not that the limitations laid down by the sections may be extended.

20. In our opinion therefore the words in Section 114 (b) 'by this Code' must be taken into account and they cannot be ignored. We consider that these words did not find a place in this subsection accident-ally and that due weight must be assigned to them.

21. Now Sub-section (b), Section 114, has three elements: firstly a 'decree' or 'order' and secondly one ''from which no appeal is allowed by this Code' and thirdly a 'judgment.'

22. In the first place we shall consider whether the words 'allowed by this Code' can be applied to the judgment in a Letters Patent appeal. In our view the procedure in a Letters Patent appeal like the procedure in any other civil appeal is governed by the Code. The decree which follows is a decree drawn up in accordance with the Code. But procedure is one thing and jurisdiction is another and we draw a clear distinction between procedure and jurisdiction. We consider that a Bench hearing a Letters Patent appeal derives its jurisdiction to hear the appeal from the Letters Patent and not from the Code because the Letters Patent , provide that such an appeal should lie to a Bench and the Code makes no such provision. A somewhat similar case would be an appeal to the High Court under Section 476-B, Criminal P.C., against an order of a subordinate civil Court making or refusing to make a criminal complaint. The Civil Procedure Code governs the procedure in such an appeal. This is the procedure in this Court, and there are rulings to this effect of the Calcutta High Court reported in 0049/1926 : AIR1927Cal98 , Nasaruddin Khan v. Emperor and : AIR1929Cal428 , Mahendra Nath Das v. Emperor. But the appeal is not one allowed by the Civil Procedure Code,' it is an appeal allowed by Section 476-B, Criminal P.C., and the appellate Court derives its jurisdiction from that section. Another example is the probate and divorce jurisdiction of the Sigh Court which is derived from the Letters Patent and from various Acts, though the procedure is in general regulated by the Civil Procedure Code. In these cases in our opinion the Bench which hears the case or appeal does not derive its jurisdiction from the Civil Procedure Code, and for this reason the judgment of the Bench cannot be said to be a judgment allowed by the Civil Procedure Code.

23. Now if the judgment in a Letters Patent appeal is not a judgment 'allowed by the Code' why should the criterion of whether an appeal is or is not allowed by the Code against its decree be introduced as the criterion for allowing a review of that judgment? We consider that if Section 114 were intended to apply to judgments not allowed by the Code the words 'by this Code' would be omitted and the criterion would simply be whether an appeal was allowed or not. The intention of Section 114 (a) and (b) appears to be that an application for review shall not lie if an appeal has been filed. That result is attained by providing that a review lies: (a) if an appeal lies but no appeal is preferred or (b) if no appeal lies. If the words 'by this Code' did not appear in Section 114 (a) and (b) this result would be attained whether there was an appeal allowed by the Code or by any other law, and the section would then apply to reviews of judgments passed in exercise of jurisdiction derived from other laws.

24. But the words 'by this Code' do exist in Section 114 (a) and (b). If we were to hold that Section 114 would allow reviews of judgments passed in exercise of jurisdiction derived from other laws, then the section would fail to attain its object which we consider to be that an application for review shall not lie if an appeal has bean filed. For we can easily conceive that the other law might provide for an appeal and the result would be that the Court which made the judgment might review it even though an appeal had been-filed. This view then leads to a result contrary to what we conceive to be the plain intention of the section and accordingly we reject this view. We are therefore left with the conclusion that Section 114 is not intended to provide for the review of judgments passed in the exercise of jurisdiction derived from other laws and that an application for review of judgment would not lie in the present ease.

25. It was argued that because the result of a Letters Patent appeal is a decree of the High Court, and all decrees of the High Court must be taken to be decrees under the Code therefore Section 114 will apply. But the drawing up of a decree is a mere matter of procedure and the right to apply for review is a right which like the right to appeal must be created by a definite provision of statute. We would stress the fact that although Section 114 refers to 'decree or order' the review is a review of a judgment. And the judgment in a Letters Patent Appeal is a judgment passed in the exercise of jurisdiction granted by the Letters Patent and not in the exercise of jurisdiction granted by the Code. It is because this jurisdiction is not derived from the Code that we consider that Section 114 (b) is not intended to apply. For, if it were intended to apply, why would the qualification be added 'from which no appeal is allowed by this Code'?

26. Why would the qualification not be merely 'from which no appeal is allowed?'

27. There are some further considerations which point to the same conclusion. In the first place we, consider that if Section 114 were intended to refer to other Jaws, the section would state, so plainly and not leave this important matter to be read into it by inference. In other parts of the Code where right of appeal is laid down the Code does not expressly refer to other laws., Thus Section 104 lays down the orders from which an appeal lies under the Code, and. states that there shall be no appeal from any other orders ''save as otherwise expressly provided in the body of this Code or by any law for the time being in force.' Section 96 makes similar provision for other laws in regard to first appeals and Section 100 in regard to second appeals. But when we come to review in Section 114 there is no reference to other laws. We consider therefore that this omission of any reference to other laws in Section 114 indicates that the provisions for review were not intended to apply to proceedings held in exercise of jurisdiction derived from other laws.

28. Next we may refer to the way in which other laws have dealt with this right of review. Besides the civil Courts, the most important Courts which use the Civil Procedure Code are the revenue Courts. As to the way in which these Courts derive their powers of review, we may refer to the Agra Tenancy Act. Act 2 of 1901. Section 193 applies the provisions of the Civil Procedure Code so far as they are not inconsistent with the Act and accepts certain parts of the Code. The part of the Code dealing with review is not accepted. Therefore, if the interpretation which the applicant asks us to put on Section 114 were correct, the pro-visions of the Code for review would apply to revenue Courts. But the legislature did not think so and the Act makes special provisions for review by the Board of Revenue in Section 183, and Section 184 provides:

Every other Court shall be competent to review its judgment in accordance with the provisions of Ch. 47, Civil P.C.

29. By making such express provisions the legislature implied that the provisions for review would not apply to proceedings under other laws without such express provisions. The provision in Act 3 of 1926, the present Agra Tenancy Act, is similar. 'We now turn to consider the way in which different High Courts have dealt with this question. In the Allahabad Court the question first arose in Hafiz Muhammad Mohsin v. Sheo Prasad. The judgment merely stated that the objection prevailed that no application for review lay. The main argument was that Section 623 of the Code of 1882 did not apply as the right to apply for review was like the right to appeal and was created by statute and unless there was express provision permitting an application for review, a Court could not alter or modify its judgment, because it had become functus officio as soon as it had decided the appeal. In 1918, ten years after the present Civil Procedure Code came into force, this decision was followed in Kalyan Singh v. Allah Diya, but again no reasons were given. The practice of the Allahabad High Court therefore for twenty-six years has been that applications' do not lie for review of Letters Patent appeal judgments.

30. In the Madras High Court a different view has been taken in Venkatasubbarayadu v. Sri Rajah Krishna Yachendrulu Varu Bahadur. There is only a very brief passage on p. 652 alluding to Section 114 of the Code which says:

It was then argued that the review section, Section 114 of the Code (Act 5 of 1908), cannot apply, as it provides only for the review of decrees or orders passed under the Code of Civil Procedure. We are not impressed by this argument. In the first place decrees are passed in appeals heard under the Letters Patent only under the Civil Procedure Code. In the second place, Cl (b), Section 144, does not require that orders and decrees should have been passed under the Code.

31. With due respect to the learned Judges who gave this ruling we would point out that in their first argument no distinction is drawn between the procedure in Letters Patent appeals, which is prescribed by the Code and the jurisdiction which is derived from the Letters Patent. The fact that the procedure of the Code applies to the hearing of these appeals and to the decree does not require that every section of the Code should apply irrespective of the wording of that section. In regard to the second argument we consider that the question is not whether the decree or order is under the Code but whether the judgment to be reviewed is made in exercise of jurisdiction derived from the Code or derived from another law. Moreover the argument in the ruling merely is that there is no express provision in the section on the point. There is of course no express provision either way; and if there had been any express provision the question which is before us could not have arisen. It is because there is no express provision that we have to rely on implication to ascertain what is the meaning of the section. The ruling in question does not deal with the difficulty arising from the words 'by. this Code,' and therefore the ruling does not assist in the interpretation of the section.

32. Reference was also made to Venkatesam Chetty v. Mothichand Gulabchand, but that ruling merely laid down that the provisions of O.41 do apply to appeals from the original side of a High Court, and a cross-objection may be filed. And reference was made to a ruling of their Lordships of the Privy Council, Sabitri Thakurain v. Savi, at p. 487 (of 48 Cal.) it is stated:

The real question is whether Order 41, Rule 10, applies to such appeals, as the High Court thought it did, and to this question alone their Lordships will proceed to address themselves.

33. There was therefore no question of the interpretation of Section 114 in that ruling. We may summarize our view of the question under reference by stating that, while the procedure of the Civil. Procedure Code does apply to the hearing of Letters Patent appeals and to the consequent decrees, the jurisdiction in the exercise of which the judgments are. made is derived from the Letters Patent, and not from the Code; the criterion in Section 114 (a) and (b) whether an appeal is allowed by the Code would not be introduced if the section were intended to apply to judgments passed in the exercise of jurisdiction not derived from the Code; and if the section were meant to apply to such judgments then the criterion would merely have been whether an appeal was allowed without reference to the Code; further, if the section were applied to such judgments the object of the section, to ensure that an application for review should not lie if an appeal has been filed, might be frustrated; and lastly, if the section were intended to apply to such judgments, the section would contain an express reference to other laws, as is found in Sections 96, 100 and 104, which deal with the right to appeal, a right similar to the right to apply for review.

34. In view of the considerations which we have set forth we are of opinion that there is no right to apply for review of the judgment of a Bench of this Court made in Letters Patent appeal, and we accordingly return an answer to that effect.

35. The answer of the majority of the Judges composing the Full Bench to the question, whether an application for review of judgment lies, where an appeal has been decided under the Letters Patent, is that no such application for review of judgment lies.


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