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Maksud Mahi Vs. the Secretary of State for India in Council and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.532
AppellantMaksud Mahi
RespondentThe Secretary of State for India in Council and anr.
Excerpt:
review - appeal heard before two judges--one judge leaving court--application for review heard before other judge--appeal to be heard by two judges if review granted--sufficient reason--discretion of court. - - the privy council have refused to limit the discretion of the court in saying what reason is good and sufficient, or what may be so far requisite to the ends of justice as to support an application for review. should myself have been prepared to grant a review if it had been clearly established (and by this 1 mean something more than mere doubt) that there were good grounds for supposing that our previous decision was wrong......hear this application. but order xli, rule 5 of the code of civil procedure says:'--'when the judge or judges, or any one of the judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the court at the time when the application for review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such judge or judges or any of them shall hear the application, and no other judge or judges of the court shall hear the same.' the application which is referred to is, i think, an application for a rule as also the hearing of the rule; and the term includes all proceedings up to the discharge or.....
Judgment:

Woodroffe, J.

1. This is an application for review of judgment in appeal from Appellate Decree No. 1922 of 1908.

2. It has been objected, in the first place, that I cannot, sitting as a single judge, hear this application. But Order XLI, Rule 5 of the Code of Civil Procedure says:'--'When the Judge or Judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same.' The application which is referred to is, I think, an application for a Rule as also the hearing of the rule; and the term includes all proceedings up to the discharge or making absolute of the rule. And Rule 6(1), Order XLVII, which states that 'where the application for a review is heard by more than one Judge, and the Court is equally divided, the application shall be rejected, indicates that the application may be heard by one Judge. It is, however, no doubt the case that if on the application for review the rule is made absolute, then in that case the appeal would have to be heard by a Bench of two Judges.

3. Then it is contended that no review lies, this being merely an attempt to re-argue the case on the same materials. The Privy Council have refused to limit the discretion of the Court in saying what reason is good and sufficient, or what may be so far requisite to the ends of justice as to support an application for review. I do not propose to attempt to limit or define the Court's powers. I: should myself have been prepared to grant a review if it had been clearly established (and by this 1 mean something more than mere doubt) that there were good grounds for supposing that our previous decision was wrong. I have, however, heard a full argument, which has lasted nearly the whole day; and I have come to the same conclusion as that expressed in my judgment sought to be reviewed. I do not say that there is nothing which can be urged against the view which this Bench has taken. To say so would be to say that the argument has been a waste of time; which is far from being the case. But I have not been convinced by the argument addressed to me that the previous decision was wrong and that a review should be granted. I have given reasons for the decision in the case sought to be reviewed which is reported as Ananda Kishore Sen v. Secretary of State and Maksud Mahi v. Secretary of State 14 C.W.N. 990 : 7 Ind. Cas. 90. It is not necessary to go over the case again. I would wish, however, to make one or two additional observations in support of that judgment; and they are as follows:

4. Rule 80, Clause (i) refers to the case of the application of several persons in competition for a settlement. There does not appear to be any provision (and the learned Counsel for the applicant has not been able to point to any section) which confers a substantive right to settlement where there is only one applicant. Nor is there, apparently, any provision for record of reasons where the application of such single applicant is refused. Apparently, under Clause (b), on the Settlement Officer declining sanction to a settlement, he has merely to inform the applicant that he cannot have the land. This appears to me to support the conclusion at which I arrived, namely, that Rule 80, Clause (i) did not confer a substantive right, which is enforceable under Section 6(a): for it is not easy to see why a substantive right should be conferred in the case of parties who are in competition with one another and no such right is conferred in cases where there is no such competition.

5. Further, in Appeal No. 1966 it has been contended that the appellant was the only applicant, and that the land was offered to the respondent in that appeal in compromise of a dispute existing between the latter and the Government. Rule 80, Clause (i) must, I think, refer to the case where persons are applicants in competition, bat both claiming* from Government and acknowledging the title of the Government. In the present case the person with whom settlement was actually made was making a claim which was adverse to the Government; and the Government, as it appears it had every right to do, compromised that claim by settling the land with that person.

6. Then, it has been pointed out that under Rule 185 the settlement of land is not a proceeding of a judicial nature. No doubt, the rules when made have the force of law; but I think effect can be given to that provision by holding that they have the force of law in so far as they regulate the procedure which has to be followed in cases of this kind; and it is not necessary to hold that they have the force of law in the sense that they confer a substantive right, enforceable under Section 6, Clause (a), if the procedure which the rule prescribes has not been followed. I do not believe that it was ever intended under this Act that the Court should exercise jurisdiction in cases of this kind. I would, however, point out that even if the Court did so, it would, upon the argument of the learned Counsel for the applicant, be making an order which would be entirely nugatory; because it is admitted that if the appellant were entitled to a declaratory decree, under Clause (i) of Rule 80, they could only get such a decree, subject to the conditions which the rule imposes. In other words, they would only be entitled to receive settlement, unless the Settlement Officer for reasons to be recorded thought fit to grant the subsequent application and reject the first.

7. There is no doubt upon the facts that appear before me in the record that the Settlement Officer would for reasons there stated uphold the compromise which was made with the respondent in Appeal No. 1966, as also in all probability the settlement in the other appeal.

8. Under these circumstances the application for review must be discharged with costs.

9. This decision will also govern rule nisi No. 5206 of 1910.

10. The Senior Government Pleader will receive one set of costs for both the rules. The other opposite parties will get their costs in each of the rules.

11. The hearing fee is assessed at three gold mohurs.


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