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Ram Surat and ors. Vs. Shitla Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 611 of 1976
Judge
Reported inAIR1978All270
ActsCode of Civil Procedure (CPC) , 1908 - Order 47, Rule 1
AppellantRam Surat and ors.
RespondentShitla Prasad
Appellant AdvocateSantosh Kumar, Adv.
Respondent AdvocateS.M. Chaturvedi, Adv.
DispositionAppeal dismissed
Excerpt:
.....code of civil procedure, 1908 - defendant's right to passage over plaintiff's land - evidence on record in favour of defendants right of passage by chance escaped attention in judgment initially passed by lower appellate court - lower appellate court of opinion that said piece of evidence is important and material - facts showing that there has been a prima facie and material error - held, review under order 47 rule 1 is justified. - - i would like to make it clear that this case is governed by the provisions of order 47 rule 7 c. 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, (2) where the application has been rejected in consequence of the failure of the applicant..........have come up in the instant appeal and in support and opposition thereof, i have heard the learned counsel for the parties. the counsel for the defendants-respondents has raised an objection about the maintainability of the appeal. it may be stated that the lower appellate court allowed the review petition on the ground of error apparent on the face of the record. it is contended before me that in view of the provisions contained in order 47 rule 7 c. p. c. the right to file an appeal against an order granting a review petition is limited and is not an unlimited right. i would like to make it clear that this case is governed by the provisions of order 47 rule 7 c. p. c. as they stood before their recent amendment by the civil procedure code (amendment) act, 1976 passed by the.....
Judgment:

M.P. Mehrotra, J.

1. This first appeal from order is directed against an order where by the lower appellate Court allowed a review application and set aside its own judgment and decree passed earlier in civil appeal No. 33 of 1976. In the said appeal, the defendants were the appellants and the plaintiffs were the respondents. The appeal was dismissed by the lower appellate Court. Thereafter, the defendants moved an application seeking a review of the judgment and the same, as stated above, was allowed by the lower Appellate Court. The plaintiffs, feeling aggrieved, have come up in the instant appeal and in support and opposition thereof, I have heard the learned counsel for the parties. The counsel for the defendants-respondents has raised an objection about the maintainability of the appeal. It may be stated that the lower Appellate Court allowed the review petition on the ground of error apparent on the face of the record. It is contended before me that in view of the provisions contained in Order 47 Rule 7 C. P. C. the right to file an appeal against an order granting a review petition is limited and is not an unlimited right. I would like to make it clear that this case is governed by the provisions of Order 47 Rule 7 C. P. C. as they stood before their recent amendment by the Civil Procedure Code (Amendment) Act, 1976 passed by the Parliament. Order 47 Rule 7 C.P.C. in its relevant part before the aforesaid 1976 Amendment stood in the following manner:--

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

(a) (** ** **) (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,

(2) Where the application has been rejected in consequence of the failure of the applicant to appear he may apply for an order to have the rejected application restored to the file and where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same.

(3) No order shall be made under Sub-rule (2) unless notice of the application has been served on the opposite party.'

It is not disputed before me that Clause (c) will not be applicable- here and the only dispute is with reference to the applicability and scope of Clause (b). It is contended by Sri Santosh Kumar, learned counsel for the appellant, that if a review petition is allowed in contravention of Order 47 Rule 4 Sub-rule (1) C. P. C. then an appeal shall lie. On the other hand. Sri Chaturvedi, learned Counsel for the defendants respondents has contended that on a true interpretation of the aforesaid Clause (b) of Order 47 Rule 7 Sub-rule (1), the appeal can only lie when there is a contravention of any of the two provisos of Order 47 Rule 4, Sub-rule (2). A reference has been made to the decided case law on this controversy. The important cases are as follows :--

: AIR1961AP201 (M. Agaiah v. Mohd. Abdul Kareem); (2) AIR 1954 Hyd 166 (FB) (Geddam Sita Ram Reddy v. Yerrasani Venkat Varada Reddy); (3) AIR 1946 Cal 530 (FB) (Smt. Sarajubala v. Aswini Kumar Ghosh); : AIR1959Ker154 (P. K. Sathianesam v. Sankaram Nadar); (5) AIR 1953 Trav Co. 441 (Francis v. Ouseph C. M.); : AIR1951Mad927 (Mrs. Anantha Lakshmi Ammal v. The Hindustan Investment and Financial Trust Ltd.); (7) AIR 1926 Bora 121 (Daso Keshav Panchbhai v. Karbasappa Karriyappa); : AIR1964All516 (Krishna Banwari Lal v. Behari Lal Sri Krishna); (Bisheshwar Pratap Sahi v. Parath Nath); : AIR1930All106 (Banaras Bank Ltd. v. Pirya Das Pitam Chand); : AIR1925All395 (Gudri Singh v. Parshottam Das); : AIR1925All552 (Madhori Saran v. Parvati); (13) AIR 1918 All 229 (Khursheed Alam Khan v. Rahmat Ullah Khan); (14) AIR 1920 All 112 (Sunder v. Habib Chik);

2. These cases are undoubtedly in conflict in regard to the true interpretation of Order 47 Rule 7 (1) (b). In Chitaley's commentary on Civil P. C. (8th Edition) in Note 7 to Order 47 Rule 7, the conflict has been noticed. However, it should be observed that so far as this court is concerned, there is no conflict and the line of decision is almost in uniformity. The decisions of this Court noticed above undoubtedly support Sri Chaturvedi and, in these circumstances. Sri Santosh Kumar, learned counsel for the appellant, made a prayer that the controversy be referred to a larger Bench. In this connection, he drew attention to : AIR1964All516 (supra) where the learned Single judge did refer such a controversy to a larger Bench. However, the larger Bench was not called upon to decide the said controversy.

3. I would have considered the desirability of making such a reference but as I feel that on merits I am not disposed to allow this appeal, therefore, it is not necessary in the instant case to make such a reference. The controversy between the parties here was as to the right of the defendants to pass through the Sehan on the north of the plaintiffs house. The lower appellate court says that the defendants were claiming the said right of passage and that the evidence on the record showed that they had their temple and land etc. towards the south of the plaintiff's Sahan. The said piece of evidence somehow escaped attention in the judgment which was initially passed by the lower appellate court. How and in what manner the said piece of evidence would have been considered by the lower appellate court in conjunction with other pieces of evidence on record is a matter on which no opinion was passed by the said court and I too cannot pass any opinion on the same. It was however, felt by the said court that the said piece of evidence was an important one and was bound to be considered by the Court while deciding the claim of the defendants to the right of passage. Thus, there was an error apparent on the face of the record which justified a review under Order 47 Rule 1 C. P. C. I feel that the lower appellate Court was in the circumstances, justified in setting aside the judgment on the said ground.

4. This appeal accordingly fails. In the circumstances, there will be no order as to costs. Learned counsel for both the parties have prayed that in the circumstances of the case, the record of the court below should be sent down without any delay whatsoever. The record shall be sent down without delay.


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