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inderjit Singh Vs. Sahu Chheda Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1046 of 1960
Judge
Reported inAIR1964All359
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 47, Rule 8
Appellantinderjit Singh
RespondentSahu Chheda Lal and anr.
Appellant AdvocateShanti Bhushan, Adv.
Respondent AdvocateRama Devi Gupta, Adv.
DispositionPetition dismissed
Excerpt:
civil - review - order 47 rule 8 of the code of civil procedure, 1908 - review application on specific ground - held, that full matter may be again heard by the court if ordered so. - - the court no doubt in this case would have been well advised to have given better reasons than merely saying. 'the case is being opened and it is better to let the parties have a chance to represent all their case on all points in dispute. ' the failure to give better reasons would not in my judgment amount to an error in procedure which would justify the court interfering in revision. in any event the case is clearly distinguishable on facts. it was, however, held that the order complained of was within the review jurisdiction of the court and there was no material irregularity in the exercise of that..........1958.2. the short question which arises is whether the court had jurisdiction to direct in a review application that the whole case be reopened and if it had the jurisdiction whether such jurisdiction was exercised with material irregularity or illegality.3. there cannot be any question, in view of rule 8 of order 47 of the c. p. c., that the court had the jurisdiction to rehear the entire case. rule 8 reads :'when an application for review is granted, a note thereof shall be made in the register and the court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit.'the language is couched in the widest possible terms and the matter is left to the discretion of the court. it is not possible to say that the discretion has not been exercised.....
Judgment:
ORDER

S.C. Manchanda, J.

1. This is a revision petition against the order of the Civil Judge, Bijnor dated the 29th of August, 1960 allowing the application for review and ordering the reopening of the case for a fresh hearing and setting aside the earlier judgment and decree dated the 30th August, 1958.

2. The short question which arises is whether the Court had jurisdiction to direct in a review application that the whole case be reopened and If it had the jurisdiction whether such jurisdiction was exercised with material irregularity or illegality.

3. There cannot be any question, in view of Rule 8 of Order 47 of the C. P. C., that the Court had the jurisdiction to rehear the entire case. Rule 8 reads :

'When an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit.'

The language is couched in the widest possible terms and the matter is left to the discretion of the Court. It is not possible to say that the discretion has not been exercised judicially. The Court no doubt in this case would have been well advised to have given better reasons than merely saying. 'The case is being opened and it is better to let the parties have a chance to represent all their case on all points in dispute.' The failure to give better reasons would not in my judgment amount to an error in procedure which would justify the Court interfering in revision.

4. Shanti Bhushan, the learned counsel for the petitioners relied on an observation of Glover, J. in Byjnath Sahoy v. Wuzeer Narain, 24 Suth WR 427 :

'Now, in a review on the point as to whether theproperty was Wuzeer Narain's ancestral property, or hiswife's straedhun, we do not see how the Judge was justified in re-opening the other question, namely, whetherJankee Kooer was the daughter of Dhunputee and WuzeerNarain; and giving a fresh decision on a point which hehad already decided finally, and on which no applicationfor review was made.'

5. The provisions of corresponding to Order 47, Rule 8 of the C. P. C. were not referred to nor was any authority or principle cited in support Of the observations made. In any event the case is clearly distinguishable on facts. This case, therefore, is not of much help to the petitioner. The other case relied upon was Gour Sunder v. Rakhal Raj AIR 1918 Cal 879. In this case it was contended that the Judge allowing the review had no jurisdiction to restrict the reopening of the case only to the points raised, but that the whole case ought to have been thrown open. This contention was rejected by Mookerji, J. in these words:

'In my opinion there is no foundation for this contention. In the first place, it is indisputable that a revision may be granted either as to the entirety of the order assailed or as to a portion only thereof. This was laid down by the Judicial Committee so far back as 1867 in the case of Bhugwandeen Doobey v. Myna Baee, 11 Moo Ind App 487 : 9 Suth W R 23 (PC), where Sir James Colvile observed that 'the judges who might have made a final order, granting or rejecting the application in toto or in part, were not incompetent to make the qualified order which they did make, leaving in the Court, which was to review the decision, a discretion as to the extent to which the review should be carried.'

This authority far from supporting the petitioner goes to show that the discretion is vested entirely in the court granting the review whether it will rehear the whole case or only a part thereof. The Calcutta High Court in the case of Sadar-ud-din v. Ekram-ud-din AIR 1914 Cal 146, has taken the same view that where an application for review of a judgment has been granted, the Court at the hearing is not restricted to the particular ground on which the review was granted, but may rehear the whole case. The view of the Bombay High Court is also similar. See Sainal Ranchhod v. Dullabh Dwarka, 10 Bom HCR 360 and Emperor v. Narayan Raghunath, ILR 32 Bom 111 (FB). The Madras High Court has even gone further and in Mothey Gangaraju v. Venkatrayulu Naidu AIR 1943 Mad 235, held that when the Court grants an application for review, it may hear the case In full and deal with every point (though not raised by any party) which it is necessary to consider before passing a fresh order. Subha Rao, J. as he then was, in the case of Subrahmanya Ayyar v. Govindasami Moopanar, 1952-2 Mad LJ 180 : (AIR 1953 Mad 826), held, on a review of the relevant case law, that where a learned Judge after allowing a review petition had stated that the actual working out involved arguments the appeal itself would be reopened and reheard under Order 47, Rule 8, there is no limit restricting the scope of the inquiry and the whole case can be reopened. The danger, however, was pointed out by the learned Judge, that on the pretext of an error on the face of the record affecting an insignificant part of the decree the entire trial sometimes covering a wide field and involving an examination of innumerable witnesses and a scrutiny of countless documents will have to be reheard, though the trial was otherwise free from any defect. It was, however, held that the order complained of was within the review jurisdiction of the court and there was no material irregularity in the exercise of that discretion.

6. On the facts of the present case, I would hold that the Civil Judge had the jurisdiction to rehear the whole case on the granting of the review application and the jurisdiction has not been exercised with material irregularity or illegality. The revision petition is accordingly dismissed. But in the circumstances of the case the parties are left to bear their own costs.


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