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Sakal Singh and ors. Vs. Smt. Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberReview Appln. No. 246 of 1967 and Second Appeal No. 4264 of 1961
Judge
Reported inAIR1979All274
ActsCode of Civil Procedure (CPC) , 1908 - Order 47, Rule 1; Uttar Pradesh Consolidation of Holdings Act, 1954 - Sections 5 and 5(2)
AppellantSakal Singh and ors.
RespondentSmt. Devi and anr.
Advocates:R. Chaudhari, Adv.
Excerpt:
.....of disputed land was dismissed by trial court and lower appellate court - second appeal allowed - review application filed by defendants and court directed issue of notice - during pendency disputed lands brought under section 4 of u.p. consolidation of holding act - held, as review application was only admitted and not allowed - pendency would not result in abatement of suit under section 5 of act. - - the trial court as well as the lower appellate court dismissed the suit. the proceedings for review and appeal differ in many particulars, the primary intention of a review is the reconsideration of the subject of the suit by the same judge under certain conditions while an appeal is a re-hearing by another court or tribunal, secondly, a point which may be a good ground for an appeal..........dated 4th august, 1967. smt. devi and smt. dharma, the applicants, later on, filed the present review application on 23rd august, 1967. the review application came up for admission before the same learned judge on 24th october, 1967, who directed for the issue of notice. during the pendency of the review application, the village where the plots in dispute are situate was brought under consolidation operation in pursuance of a notification under section 4 of the u. p. consolidation of holdings act (hereinafter referred to as the act) the applicants moved an application on 5th august 1976, for abating the suit and the appeal under section 5 (2) of the act. as the learned judge, who decided the second appeal, ceased to be a member of the court, the application for review came up for.....
Judgment:

R.B. Misra, J.

1. The present review application is directed against the order of D.D. Seth, J. (as he then was) dated 27th August, 1976.

2. It appears that Sakal Singh and five others filed a suit for declaration that they were either the bhumidhars or sirdars of the disputed plots against the applicants, Smt. Devi and Smt. Dharma, the suit was contested by the applicants on the ground that they were the bhumidhars in possession. The trial Court as well as the lower appellate court dismissed the suit. The plaintiffs, therefore, filed a second appeal before this Court, which was allowed by a learned Single Judge of this Court by his order dated 4th August, 1967. Smt. Devi and Smt. Dharma, the applicants, later on, filed the present review application on 23rd August, 1967. The review application came up for admission before the same learned Judge on 24th October, 1967, who directed for the issue of notice. During the pendency of the review application, the village where the plots in dispute are situate was brought under consolidation operation in pursuance of a notification under Section 4 of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act) the applicants moved an application on 5th August 1976, for abating the suit and the appeal under Section 5 (2) of the Act. As the learned Judge, who decided the second appeal, ceased to be a member of the Court, the application for review came up for final disposal before a Bench of two Judges, as required under the Rules.

3. Learned counsel for the applicants pressed the application for abatement of the suit and the appeal under Section 5 (2) of the Act and in support of his contention, placed reliance on Smt. Raj Dei v. Ram Pal 1974 All LJ 518, In that case, it was held that once a review application has been admitted and a rule has been issued, the Court is seized of the matter in dispute and the proceedings in the second appeal are revived. On the strength of this authority, it was contended that the suit is pending in the form of a second appeal and the same may be abated in view of Section 5 (2) of the Act. The Bench hearing the review application, however doubted the correctness of the proposition laid down in Smt. Raj Dei v. Ram Pal (supra). The Bench, therefore, referred the following question for answer by a larger Bench:--

'Does a mere admission of a review application and issue of a rule therein disturb the finality of the judgment in a suit or appeal and reopen and revive that suit or appeal?'

This is how the matter has come up before this Bench.

4. In order to appreciate the question referred, it will be relevant, at this stage, to refer to Section 5 of the Act so far as it is material for the case. It reads:

'5. Effect of notification under Section 4 (2) -- (1) Upon the publication of the notification under Sub-section (2) of Section 4 in the Official Gazette, the consequences, as hereinafter set forth, shall subject to the provisions of this Act, from the date specified thereunder till the publication of notification under Section 52 or Sub-section (1) of Section 6, as the case may be, ensue in the area to which the notification under Sub-section (2) of Section 4 relates, namely-

(a) to (c) ............

(2) Upon the said publication of the notification under Sub-section (2) of Section 4, the following further consequences shall ensue in the area to which the notification relates, namely,--

(a) Every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard towhich proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on the order being passed in that behalf by the court or authority before whom such suit OP proceeding is pending, stand abated:

(b) Such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of the Act and the rules made thereunder,'

5. From the scheme of the Act, it appears that suits or proceedings for declaration of rights or interest pending in any Court would be abated and the parties would get fresh opportunity of getting their rights adjudicated by the consolidation authorities.

6. Section 5 (2) (a) of the Act contemplates various kinds of proceedings pending before any Court or authority whether of the first instance or of appeal, reference or revision to be abated. They are:

(i) Proceedings for correction of records:

(ii) every suit in respect of declaration of rights or interest in any land or for declaration or adjudication of any other right; and,

(iii) Proceedings in respect of declaration of rights or interest in any land.

7. U. P. Land Revenue Act contemplates proceedings for the correction of records, U. P. Zamindari Abolition and Land Reforms Act contemplates suits for declaration of rights. It also contemplates proceedings for the declaration of rights or adjudication of any other right, e. g a suit could be filed for declaration of sirdari or Bhumidhari rights under Section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act. The said Act also contemplates a proceeding in respect of rights and title, e.g. an adhivasi can apply under Section 20/232-B of the U. P. Zamindari Abolition and Land Reforms Act for getting back possession. In the instant case, the plaintiffs had filed a suit for declaration of rights of a Bhumidhar or sirdar and, therefore, it was suit and not a proceeding for declaration of rights nor a proceeding for the correction of the records. If the suit is pending before any Court or authority, whether of the first instance or of the appeal or reference or revision, it shall stand abated.

8. Now, the question is whether by the admission, of the review application, it can be said that the suit is pending. It may be pointed out that Section 5 (2) (a) of the Act contemplates suits or proceedings pending before any Court or authority, whether of the first instance or of appeal, reference or revision. It does not contemplate a review petition. But if by the admission, of the review application, the proceedings in the second appeal are revived then the position would be different,

9. It goes without saying that a review is not the same thing, as, or a substitute for an appeal. The proceedings for review and appeal differ in many particulars, the primary intention of a review is the reconsideration of the subject of the suit by the same Judge under certain conditions while an appeal is a re-hearing by another Court or Tribunal, Secondly, a point which may be a good ground for an appeal may not be a good ground for an application for review, e.g. an erroneous view of evidence or of law is no ground for a review though it may be a good ground for an appeal. A review does not of necessity reopen questions already decided between the parties. The matter in issue is reopened when the application for review is allowed while in the case of an appeal, the matter is reopened as soon as the appeal is admitted.

10. Order 47, C. P. C. contemplates three stages in a review petition. It is open to the Court to reject the review application if it finds that no ground for review has been made out. It may issue notice to the other side before passing a final order on the review application and then, after hearing the parties, the Court may dismiss the application for review or it may allow. If the application for review is dismissed, the matter ends there. If the application for review is allowed then the order sought to be reviewed may either be modified or set aside. Till the previous order passed in the second appeal is set aside, theproceedings in the second appeal aw not revived. They are revived only when the review petition has been allowed,

11. Sri Sankatha Rai, appearing forthe applicants, has contended that the view taken by this Court in Smt. Raj Dei v. Ram Pal (1974 All LJ 518) (supra) was fully justified by law, According to him, the review petition is admitted only when the court is satisfied that there is a prima facie case for reviewing the impugned order and the impugned order sought to be reviewed is thereby put in jeopardy and the proceedings of the appeal would be revived. The case of Smt. Raj Dei v. Ram Pal (supra) has taken support from Dilawar Singh v. The Gram Samaj : AIR1973All411 ; Ram Bahadur v. Deputy Director of Consolidation : AIR1973All414 , and Maji Mohan Kanwar v. State of Rajasthan . But the support derived from those decisions, in our opinion, is more apparent than real. In Dilawar Singh v. The Gram Samaj (supra), Smt. Tulsa the tenure holder, was allotted a chak in lieu of her plots. But the consolidation operations were still in progress when she died. Three competitive claimants came forward to be substituted in place of Smt. Tulsa and they applied under Section 12 of the Act for the same. The consolidation officer allowed the claim of Dilawar Singh, one of the claimants. On appeal by the Gram Samaj, which was also a claimant, the order of the consolidation officer was set aside. Dilawar Singh thereupon filed a revision. But before filing the revision, the village, where the plots in dispute were situate, was denotified and a notification under Section 52 of the Act was issued on 7th December, 1963, whereas the revision was filed on 12th December, 1963, An objection was raised that the revision was not maintainable, as the village had been denotified under Section 52 of the Act. Relying on a Supreme Court decision in Garikapati Veeraya v. N. Subbiah Choudhry : [1957]1SCR488 it was held that the revision was maintainable. The reasoning was that a right of appeal is determined on the date of the suit. If there was a right of appeal on the date when the suit was instituted, this being a substantive right, the appeal could be filed evenif, later on, the right of appeal had been taken away. The principle laid down by the Supreme Court in Garikapati Veeraya v. N. Subbiah Choudhry (supra) was extended even to revision application. This case, therefore, does not at all support the proposition that the admission of a review application will reopen the second appeal. The same is the position with regard to the decision in Ram Bahadur v. Deputy Director of Consolidation (Supra). In that case, the principle laid down in Garikapati Veeraya v. N. Subbiah Choudhry (Supra) was extended even to an application for setting aside an ex parte order. The other case, which has been taken into consideration in Smt. Raj Dei v. Ram Pal (Supra) was Maji Mohan Kanwar v. State of Rajasthan (Supra). In that case, dealing with a review application, the Division Bench held (at pp. 265, 266 of AIR 1967 Raj):

'It is clear from the said scheme of Order 47, C. P. C. that it provides three stages of hearing, after a review application is filed. The first stage comes when the application for grant of review is placed before the Judge or Judges under Rule 4, Sub-rule (1). At that stage, if it appears to the Court that there is not sufficient ground for a review, it should reject the application. If, on the other hand, the Court is satisfied that one or more of the grounds detailed in Rule 1 is made out prim a facie, it should order notice to be issued to the opposite party to enable him to appear and be heard in support of the decree or order whose review is applied for. Thus, the first one is an ex parte stage because the opposite party is not present before the Court at that time.

The next stage is reached when the same application (for grant of review) is placed for hearing before the Judge or Judges. At this stage, if the Court comes to the conclusion that the application for review should be granted, It should grant it under Sub-rule (2) of Rule 4. If, however, it is of opinion after hearing the opposite party that the application is not covered by Rule 1, it should be rejected. If the Rule is discharged, the matter ends there. If, on the other hand, the rule is made absolute, then the third stage is reached.

This stage is arrived under Rule 8 after the original case is registered and the Court rehears it on merits. After re-hearing, it may either result in repetition, or in reversal or in variation, of the former decree or order. In either case, since the whole matter is re-heard, there is a fresh decree or order.'

This case also does not support the view taken in Smt. Raj Dei v. Ram Pal (1974 All LJ 518) (supra).

12. Sri S.D. Chaudhary, appearing for the opposite parties, however, placed reliance on Gour Krishna Sarkar v. Nilmadhab Saha AIR 1923 Cal 113. In that case, it was held:

'When an application for review is granted the decree previously made is vacated, with the consequence that an appeal preferred against that decree can no longer be prosecuted. When a Judge decides to grant an application for review, he should record an order to that effect, and a note thereof should be made in the register under Order 47, Rule 8. The order should state clearly whether the decree is to be vacated in its entirety or not. A review proceeding commences ordinarily with an ex parte application. The Court then may either reject the application at once or may grant a rule calling on the other side to show cause why the review should not be granted. In the second stage the rule may either be admitted or rejected and the hearing of this rule may involve to some extent an investigation into the merits. If the rule is discharged, then the case ends. If, on the other hand, the rule is made absolute, then the third stage is reached, the case is reheard on the merits and may result in a repetition of the former decree or in some variation of it. Though in one aspect, the result is the same whether the rule is discharged or on the rehearing the original decree be repeated, in law there is a material difference, for in the latter case the whole matter having been reopened, there is a fresh decree.'

13. This case affirms the legal position that it is only when the review application is allowed that the second appeal is revived and not otherwise.

14. Next, reliance was placed on Achambat Abdurahiman v. Kalayarman Puthentheruvil Kizhakkavil Imbichunny AIR 1932 Mad 669. The sameprinciple was reiterated in this case aswell.

15. In Raja Bhagwan Baksh Singh v. Mt. Manraji Kunwar AIR 1922 Oudh 148 a distinction was made between an appeal and a review application. In that case, it was observed:--

'A petition in appeal of necessity re-opens in a Court of higher jurisdiction matters decided by a Court of lower jurisdiction. An application for review on the other hand does not of necessity, by the mere fact of its being filed, re-open questions settled between the parties by the same Court. The question whether an application for review will give a fresh starting time for limitation or not cannot be decided in the abstract but must depend on the facts of every case. If the application for review is not accepted and the Court refuses to reopen the matter, no fresh starting point will be obtained by the applicant for the purposes of limitation.'

16. Again, in Sagar Mal v. Parsotam Das AIR 1942 All 36, A Division Benchof this Court held;

'Mere filing of an application will not reopen a suit. Consequently the words 'at any time before judgment is pronounced' in paragraph 1 cannot apply to an order upon an application for review. Hence the parties to a suit are at liberty to refer privately to arbitration the matters which were in dispute between them after the decision of the suit, notwithstanding the pendency of a review application,'

17. All these cases support the view that mere admission of a review application does not reopen the second appeal or the suit because the admission of a review application only means that the Court is tentatively satisfied about the merits of the case, but still after hearing both the parties, the Court, may again reaffirm its earlier judgment and reject the review application. It is only when the review application has been allowed that the second appeal or the suit is reopened and then it can be said that the judgment is put in jeopardy.

18. Besides, the omission of the word 'review' in Sub-section (2) of Section 5 of the Act is not accidental, but it is a designed one. The reason is that the power of appeal, reference or revision is to be exercised by the higher court but the power of reviewis to be exercised only by the Court which has decided the case on the grounds contemplated by Order 47, Rule 1, C. P. C.

19. The purpose at abatement under Section 5 of the Act is that the matter can be adjudicated by the consolidation authorities afresh, If the matter has already been decided by a competent court, that would not be reopened. When an appeal is pending then the suit itself will be deemed to be continuing because the appeal is only a continuation of the suit. But this is not the position in respect of a review application, Normally, the judgment once signed cannot be touched by the judge or Tribunal and it is only when the conditions contemplated by Order 47, C. P. C. are satisfied then and then alone, the order can be set aside or modified by the same court and till the review application is allowed, the judgment of the appellate authority is not put in jeopardy. In the instant case, as only the review application had been admitted and had been allowed, therefore, the pendency of the review application will not result in the abatement of the suit because the suit had already culminated into a decree by the second appellate court.

20. For the reasons given above,the answer to the question is in the negative. The papers of the case will be laid before the appropriate Bench for deciding the review application.


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