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Kailash Singh Rajput Vs. Ram Prakash - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1382 of 1977
Judge
Reported inAIR1979All110
ActsCode of Civil Procedure (CPC) , 1908 - Sections 114 and 151 - Order 47, Rule 1
AppellantKailash Singh Rajput
RespondentRam Prakash
Advocates:Prakash Gupta, Adv.
DispositionRevision dismissed
Excerpt:
civil - power of review - section 114 and order 47 rule 1 of code of civil procedure, 1908 - review application rejected on grounds of limitation - revision filed against rejection of review application - protection of retrospective operation of u.p. civil laws amendment act claimed - no valid reason for delay in filing review provided - review allowed only if made within period prescribed by law. - - both the parties, the plaintiff as well as the defendant, filed revision before the district judge. it is well settled that whenever legislature enacts law with retrospective effect, the legislative intent must be given effect by the courts. the additional district judge had considered the plaintiff's application for condonation of delay and he rejected the same as in his opinion the..........contended that the order dated 22nd march, 1976, was a nullity and the decree of the judge small cause court, stood validated under section 26 (6) of u. p. act 28 of 1976. he relied on the supreme court judgment in sunder dass v. ram prakash, 1977 all ren cas 244 : (air 1977 sc 1201). the supreme court held that if a law was amended with retrospective effect and if the judgment or decree which may have been passed by the court in contravention of that law would be nullity and it is open to the party against whom the decree of ejectment may have been passed to raise objection in execution proceeding that the decree was a nullity on the date when it was sought to be executed. the question of making a review application and the limitation, asus involved in the present case,.....
Judgment:
ORDER

K.N. Singh, J.

1. This is an application in revision under Section 115 of the Civil P. C.filed by the plaintiff-applicant against the order of the Additional District Judge, Agra, dated 23rd April, 1977, rejecting the plaintiff-applicant's review application.

2. The plaintiff-applicant filed a suit for recovery of arrears of rent and ejectment against the defendant-opposite party in the court of the Munsif. In Oct. 1972 the suit was transferred to the file of the Judge, Small Cause Court in view of Section 9 of the Civil Laws (Amendment) Act. 1972. The Judge, Small Cause Court, dismissed the plaintiff's suit for the recovery of arrears of rent but it decreed the suit for defendant's ejectment. Both the parties, the plaintiff as well as the defendant, filed revision before the District Judge. On 22nd March, 1976, the Additional District Judge allowed both the revisions and set aside the judgment and decree of the Judge, Small Cause Court, and remanded the suit to the Additional Munsif, before whom the plaintiffs suit had initially been filed, with a direction that the suit may be tried afresh. The remand order was passed on the findings that the Judge, Small Cause Court, had no jurisdiction to try the suit as it was originally filed before the Munsif on the regular side. The plaintiff did not challenge the order of remand in revision before the High Court. But the defendant opposite party filed two revisions under Section 115 of the Civil P. C. before the High Court against the order of remand but when the revisions came up for hearing the defendant got the same dismissed as not pressed. On 20-9-1976, the plaintiff-applicant filed a review application before the Additional District Judge under Sections 114 and 151 read with Order 47, Rule 1 of the Civil P. C. for review of his judgment dated 22nd March, 1976. Along with the review application, the plaintiff filed an application under Section 5 of the Limitation Act for condoning the delay in filing the review application. The Additional District Judge rejected the plaintiff's application under Section 5 of the Limitation Act as he refused to condone the delay; he further dismissed the review application by his order dated 23rd April, 1977.

3. Before I deal with the contention raised on behalf of the applicant, I consider it necessary to refer to the various legislative amendments which were made from time to time. U. P. Act XIII of 1972 was enforced with effect from 15th July, 1972. Section 20 (6) of the said Actamended entry 4 of the Second Sch. to the Provincial Small Cause Courts Act, 1887. Shortly thereafter the U. P. Civil Laws (Amendment) Act, 1972 (U. P. Act 37 of 1972) was enforced on 20th Sept 1972. This amending Act deleted Section .20 (6) of U. P. Act XIII of 1972 and by Section 9 the Judge, Small Cause Court, was invested with power to hear and decide a suit filed for recovery of arrears of rent and ejectment. In pursuance of Section 9 of the U. P. Civil Laws Amendment Act, 1972, the plaintiff-applicant's suit was transferred from the court of the III Additional Munsif to the Judge, Small Cause Court. As already noted the suit for arrears of rent was dismissed but it was decreed in so far as the defendant's ejectment was concerned. A learned Single Judge of this Court, however, held that if a suit was filed in the Civil Court on the regular side for recovery of rent and ejectment, the same could not be transferred to the Judge, Small Cause Court under Section 9 of the U. P. Civil Laws Amendment Act, 1972, and the decree if any passed by the Judge, Small Cause Court, on transfer of a suit was without jurisdiction. The Additional District Judge placing reliance on the said judgment set aside the decree of the trial court and remanded the suit to the Munsif's court for re-hearing. Meanwhile the legislature intervened and enacted U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, U. P. Act 28 of 1976. Section 26 of the 1976 Act contained transitory provision. Sub-section (6) of Section 26 provided that Section 9 of the U. P. Civil Laws (Amendment) Act, 1972, shall apply and shall be deemed always to have applied in relation to suits of the nature referred to therein which before the commencement of that Act had been transferred to a competent court and were pending immediately before the date of commencement of that Act in such transferee court as they apply in relation to suits which were pending in the court in which they were instituted. The proviso to the sub-section further laid down that any suit decided by the transferee court between the commencement of the U. P. Civil Laws Amendment Act, 1972, and the commencement of U. P. Act 28 of 1976. on the assumption that Section 9 of the Civil Laws Amendment Act, 1972, did not apply to the said suit shall be deemed to have been validly decided as if the said section did not apply to such suits. The provisions contained in Section 26 (6) were retrospective in nature and validated the decree which may have been passed by the Judge, Small Cause Court in a suit which may have been instituted in the Munsifs court and later on transferred to the Judge, Small Cause Court in pursuance of Section 9 of the U. P. Civil Laws Amendment Act, 1972. The legislature enacted this provision in order to meet the difficulty which had arisen on account of the judgment of the learned Single Judge of this Court. In view of the aforesaid retrospective legislation the plaintiff-applicant filed an application for review of the order of the Additional District Judge dated 22nd March, 1976. The Additional District Judge, however, dismissed the same on the ground already noted.

4. Learned counsel for the applicant urged that since the legislature had enacted a provision with retrospective effect to validate the decree of the Judge, Small Cause Court, the Additional District Judge should have given effect to the legislative intent by recalling his order of remand. He refused to exercise the jurisdiction vested in him by law in dismissing the review application. There is no dispute that the provisions of Section 26 (6) are retrospective and consequently the amendment must be deemed to have been enforced on all material dates. The effect of the deeming clause contained in the said provision was that the Judge, Small Cause Court, had jurisdiction at all material times to hear and decide the plaintiff's suit. The statutory fiction created by Section 26 (6) validated the decree of the Judge, Small Cause Court, and cured the defect, if any. It is well settled that whenever legislature enacts law with retrospective effect, the legislative intent must be given effect by the courts. A case decided or a judgment given in accordance with the law as it stood on the date of decision is open to review on the ground of subsequent change of law, provided a deeming provision is contained in the amending law. The deeming provision of law under Section 26 (6) made the said provision effective, and operative with effect from 20th Sept. 1972, namely, the date when Section 9 of the U. P. Civil Laws Amendment Act came into force. By the said amendment a legal fiction was created, consequently the amended provision was fully effective and operative at all material time with effect from 20th Sept. 1972. It was, therefore, open to the plaintiff-applicant to apply for the review of the judgment which had proceeded on the assumption that the Judge, Small Cause Court, had no jurisdiction to try the suit. A review application would be maintainable as due to the retrospective change of law there would be an error apparent on the face of the record; the error would be that the law that was applied by the Additional District Judge in setting aside the decree of the Judge, Small Cause Court, was not the law which was applicable.

5. The U. P. Act No. 28 of 1976 did not, however, contain any provision for review of the judgment or decree which may have been passed earlier. The legislature made no specific provision under the Amending Act for the review of the judgment and decrees which may have been passed earlier even though the provisions of Section 26 (6) were retrospective in nature. In the absence of any specific provision contained in the Amending Act, the provisions contained in the Civil P. C. for the review of orders, judgments and decrees would be applicable. For this reason the plaintiff's review application was made under Sections 114 and 115 of the Code read with Order 47, Rule 1. The learned Additional District Judge rejected the review application on the ground that it was made beyond the prescribed period of limitation. There is no dispute that the period of limitation for making the review application is thirty days from the date of order or decree. An application under Section 114 read with Order 47, Rule 1 must be made within 30 days from the date of order or decree, if it is made beyond 30 days from the date of order or decree it is not maintainable unless sufficient cause is shown for the delay and the court condones the delay under Section 5 of the Limitation Act- In the instant case the plaintiff's application for review of the remand order was admittedly made beyond thirty days as the order of remand was made on 22nd March. 1976, while the review application was made on 20th Sept., 1976. The plaintiff's application was beyond time and he was aware of this defect and for that reason he had made an application under Section 5 of the Lim. Act for condoning the delay. The learned Additional District Judge considered the plaintiff's explanation but he found no sufficient cause to condone the delay.

6. Learned counsel for the plaintiff-applicant urged that the review application was made in extraordinary circumstances on account of the amendment oflaw, therefore the law of limitation was not applicable to it. I find no merit in the contention. The Additional District Judge was exercising the powers of court in hearing the revision under Section 215 of the Small Cause Courts Act and he was exercising the powers of a Civil Court. The provisions contained in the Civil P. C. and the Limitation Act were applicable to the proceedings before him, In Mohd. Azamat Azim Khan v. Raja Shatranji (AIR 1963 All 541), a Full Bench of this Court held that if a law was amended with retrospective effect the judgment and decree of a court founded on the unamended law was liable to be reviewed under Order 47, Rule 1. C. P. C. to give effect to the law as amended by the legislature. The Full Bench, however, observed that the judgment or decree could be reviewed only if the review application could be made within the period prescribed by law. If the review application was made beyond the limitation. prescribed for the same, the review application would not be maintainable. The Full Bench judgment of this Court was affirmed by the Supreme Court in Raja Shatrunjit v. Mohd. Azrnat Azim Khan (AIR 1971 SC 1474), The petitioner's contention that the law of limitation was not applicable to review application cannot be upheld. The Additional District Judge had considered the plaintiff's application for condonation of delay and he rejected the same as in his opinion the plaintiff-applicant had failed to make out any sufficient cause for condonation of delay. It is not open to this Court in these proceedings to interfere with the findings recorded bv the Additional District Judge.

7. Learned counsel for the plaintiff-applicant contended that the order dated 22nd March, 1976, was a nullity and the decree of the Judge Small Cause Court, stood validated under Section 26 (6) of U. P. Act 28 of 1976. He relied on the Supreme Court judgment in Sunder Dass v. Ram Prakash, 1977 All Ren Cas 244 : (AIR 1977 SC 1201). The Supreme Court held that if a law was amended with retrospective effect and if the judgment or decree which may have been passed by the court in contravention of that law would be nullity and it is open to the party against whom the decree of ejectment may have been passed to raise objection in execution proceeding that the decree was a nullity on the date when it was sought to be executed. The question of making a review application and the limitation, asus involved in the present case, was not considered by the Supreme Court.

8. Learned counsel then referred to the Supreme Court decisions in M. K. Venkatachalam I. T. O. v. Bombay Dyeing and . (AIR 1961 SC 699) in support of his contention that the plaintiff's review application was maintainable on account of change of law with retrospective effect. I find no difficulty in accepting the contention that a review application would be maintainable if the law is amended with retrospective effect and it is the duty of the court to give full effect to the retrospective legislation provided the review application is made within the period of limitation. In none of the aforesaid Supreme Court decisions the question of limitation was involved. The Supreme Court considered the scope of Section 35 of the Income-tax Act. 1922, and observed that the restrictive operation of the order of review under Order 47. Rule i was not applicable in the case of Section 35 of the Income-tax Act as the special provision was made bv the Income-tax Act which was a special Act. Therefore the provisions of Order 47, or Section 114 of the Civil P. C. were not applicable to review proceedings under Section 35 of the Income-tax Act. Since the plaintiff-applicant's application for review was made beyond time, the court below rightly rejected the same. The Additional District Judge did not commit any error of jurisdiction or law in rejecting the plaintiff's review application. The plaintiff has failed to make out any case for interference with the order of the court below.

9. Lastly, the learned counsel for the plaintiff-applicant urged that since inherent jurisdiction of the Additional District Judge was invoked by the plaintiff-applicant the review application was maintainable as no period of limitation is prescribed for the exercise of inherent; power. No doubt, the plaintiff-applicant had mentioned Section 151 of the Civil P. C. in his review application, but the court has no power to review its order in exercise, of its inherent power. It is well settled that the power of review is not inherent power. It must be conferred by law, either specifically or by necessary implication. Section 114 and Order 47, Rule 1 expressly confer power of review on the civil court, therefore the power of review must be exercised under the said provision and inherent power will not include power of review. See Patel Narshi Thakershi v. Pradyumnasinghji (AIR 1970 SC 1273). I therefore hold that the plaintiff's application for review was not maintainable under Section 151 of the Civil P. C.

10. In the result, the revision fails and is accordingly dismissed, but there will be no order as to costs.


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