Skip to content


Mohammad Azamat Azim Khan Vs. Raja Shatranji and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberReview Appln. No. 2 of 1963
Judge
Reported inAIR1963All541
ActsCode of Civil Procedure (CPC) , 1908 - Order 47, Rule 1
AppellantMohammad Azamat Azim Khan
RespondentRaja Shatranji and ors.
Appellant AdvocateMohd. Naziruddin, ;S. Rahaman, ;Nisamuddin, ;Mohd. Ayub and ;Saghir Ahmad, Advs.
Respondent AdvocateAli Hasan, Adv. for Opposite Parties Nos. 1, 2, 3 and 5 and ;G.T. Wadhwani, Adv. for Opposite Party No. 7
DispositionReveiw granted
Excerpt:
civil - review - order 47 rule 1 of code of civil procedure, 1908 - review is maintainable when there is error apparent on face of record - amending act which came into force subsequently had the result of creating any mistake or error apparent on face of record - existence on date of judgment - held, not justified. - - then the only question that remains is whether the words were in section 4 on the date on which this court passed a decree or not and the answer to it is furnished by section 2 of the amendment act laying down clearly that those words are never to be deemed to have been there in section 4. that is the effect ever since the amending act came into force on 4-12-1962. if on or after that date a question arose as to what was section 4 it had to be answered as if the words.....desai, c.j. 1. this is an application for review of an order passed by this court on 27-11-1962 by which it rejected the applicant's revision application arising out of an order passed by a civil judge rejecting his application made under section 4 of the zamindar's debt reduction act for amendment of several simple decrees passed by a special judge under section 14 of the encumbered estates act, the applicant had contended in his application under section 4 that there were mortgaged properties charged under the decrees and this court held that no charge was created by the decrees and that consequently the applicant was not entitled to apply under section 4 of the zamindar's debt reduction act. this court accordingly maintained the dismissal of the application by the civil judge. on.....
Judgment:

Desai, C.J.

1. This is an application for review of an order passed by this Court on 27-11-1962 by which it rejected the applicant's revision application arising out of an order passed by a Civil Judge rejecting his application made under Section 4 of the Zamindar's Debt Reduction Act for amendment of several simple decrees passed by a Special Judge under section 14 of the Encumbered Estates Act, The applicant had contended in his application under Section 4 that there were mortgaged properties charged under the decrees and this court held that no charge was created by the decrees and that consequently the applicant was not entitled to apply under Section 4 of the Zamindar's Debt Reduction Act. This Court accordingly maintained the dismissal of the application by the Civil Judge. On 4-12-1962 Section 4 of the Zamindars' Debt Reduction Act was amended by Amendment Act No. XX of 1962 and the words 'charged under the decree'' occurring in Section 4 were deleted. Section 2 of the Amendment Act laid down that the Zamindars' Debt Reduction Act 'shall, as from the date of its enforcement, have effect, subject to the amendments made by this Act, as if this Act had been to force on all material dates'. The effect of this amendment was that the words 'charged under the decree'' were deemed always to have been omitted from Section 4, i.e. they were deemed to have been never present in Section 4. If those words were not there in Section 4 the view taken by this Court was admittedly wrong on the face of it. This Court took the view that the applicant had no right to apply for amendment because of those words 'charged under the decree' in Section 4 but if those words were to be deemed to have been never there it meant that the view taken by this Court was wrong on the face of it. So this application was made under Order 47, Rule 1 for review of the Order passed by this Court.

2. The question today is whether the judgment passed by this court on 27-11-1962 was erroneous on the face of the record or not. It is not in dispute that if the words 'charged under the decree' did not exist in Section 4 on the date on which this Court parsed the judgment his judgment would be erroneous on the face of the record. Then the only question that remains is whether the words were in Section 4 on the date on which this Court passed a decree or not and the answer to it is furnished by Section 2 of the Amendment Act laying down clearly that those words are never to be deemed to have been there in Section 4. That is the effect ever since the Amending Act came into force on 4-12-1962. If on or after that date a question arose as to what was Section 4 it had to be answered as if the words 'charged under the decree' did not exist in Section 4. That is the only meaning of the legal fiction involved in Section 2 of the Amending Act. It is immaterial that as viewed on 27-11-1962 when this Court passed the judgment it was correct; because by virtue of Section 2 of the Amending Act it had become incorrect and incorrect on the face of the record when viewed after 3-12-1962.

Though the question relates to the correctness or incorrectness of the judgment delivered on 27-11-1962, it comes up for decision today, i.e., after 3-12-1962 and the law after 3-12-1962 is that Section 4 must be read without those words. When this section is so read today it must be held that the judgment passed by this Court after reading those words in the section was clearly erroneous. Therefore, though the question is of correctness or incorrectness of the judgment passed on 27-11-1962, it is to be decided today and when it is to be decided today it must be decided in accordance with the law existing today. According to that law the judgment pronounced on 27-11-1962 was erroneous on the face of the record.

3. The instant case is to be distinguished from a case in which a view taken by a Court is found to be erroneous subsequently by a superior court; in that case it may not be said that the view taken by the lower court was erroneous on the face of the record because the view taken by the superior court is not given a retrospective effect. It is true that the superior court simply interprets the law and that the law so interpreted existed when the lower court interpreted it itself, but when the lower court interpreted it, it was not free from doubt and the decision given by the superior court at a later date did not remove the doubtful features of the law with retrospective effect. If the law was not free from doubt when the lower court decided it, it cannot be said that its decision was erroneous on the face of the record. In the present case the Amending Act has been given retrospective effect with the result that this Court, when deciding today what was Section 4, has to assume as real all consequences and incidents flowing from the Amending Act being given retrospective effect. In other words, this court has to assume today, and proceed on the footing, that on 27-11-1962 Section 4 did not contain the words 'charged under the decree''. No such effect arises from a subsequent decision given by a superior Court.

4. If a law is amended but without retrospective effect then also the position is different. The judgment pronounced before the amendment cannot be said to be erroneous merely because the law is amended subsequently. The reason is that the amended law did not exist and was not deemed to exist when the decision was given and, therefore, it was not incorrect.

5. The opposite party referred us to Inre K. Vasudevan : AIR1944Mad238 which does not contain any discussion of thelaw at all. Moreover the application for review itself was barred by time and the Courtrefused to extend the period for limitation underSection 5. Once it refused to extend the periodof limitation there arose no question whether theorder passed previously was erroneous on theface of the record or not.

6. I do not see any substance in the argument that if a judgment which was correct on the date on which it was pronounced could be reviewed because the law on which it was based was amended with retrospective effect, it would mean reopening of all judgments. As was pointed out by Sri Naziruddin, it would mean reopening of only those judgments which could be reopened either on an appeal or on a review application, for both of which there is a prescribed period of limitation. A judgment is liable to be reopened only if the period for filing an appeal from it or for applying for a review of it has not expired. So long as an appeal can be filed or an application for review can be filed it can be reopened in view of the amended law and the amended law can and must be given its retrospective effect. In this very case if the applicant files an appeal in the Supreme Court it is not disputed that the appeal will be allowed at once. The very fact that the appeal will be allowed at once shows that it is a case of apparent error on the face of the record. There cannot be a clearer case of an error apparent on the face of the record than that, in which the appellate court would set aside the judgment as soon as the appeal is filed without any discussion of the law.

7. I, therefore, am of the view that there was an apparent error of law on the face of the record in the judgment pronounced by this Court and this application should be granted. No order about costs.

Katju, J.

8. I agree with the view which has been expressed by Hon'ble the Chief Justice.

Beg, J.

9. I disagree with the view taken by my learned brothers with regard to the maintainability of the review application. In the present case the judgment of this Court was delivered on 27-11-1962. The U.P. Zamindars' Debt Reduction (Amendment) Act (Act XX of 1962) (hereinafter called the Amending Act) received the assent of the President on 27-11-1962. The Amending Act was published in the Gazette on the 4th December, 1962 and came into force on that day. It must, therefore, be held that the Amending Act was not in force on the date on which this Court pronounced its judgment.

10. On behalf of the applicant it was strenuously argued before us that the Act was in force on the date on which the review application was heard. On the date of the hearing of the application, therefore, there was a mistake or an error apparent on the face of the record, and the case was covered by Order XLVII, Rule I of the Code of Civil Procedure.

11. I find it difficult to accept this argument. The matter would depend on the reply to the question as to whether for the purpose of determining the question of existence of mistake or error apparent on the face of the record, the Court should look at the situation as it existed on the date on which the judgment sought to be reviewed was delivered or on the date on which the review application came up for hearing. In my opinion the relevant date for determining the question as to whether the said defects are existent is the date on which the judgment was delivered by this Court, and not the date of the hearing of the review application. If the judgment is considered to be correct according to the situation existing on the date of its delivery, then in my opinion, it cannot be said that the judgment became incorrect as a result of the happening of any subsequent event. It is no doubt true that the Act which made the amendment was a retrospective Act. That, however, does not mean that the judgment which was perfectly correct on the date on which it was delivered became erroneous as a result of the subsequent legislation. In fact, it can be said that the subsequent legislation recognized the fact that the principal Act sought to be amended had some flaws or defects, and the Amending Act was brought into existence for the purpose of removing these defects. The defect, if any, was not in the judgments but in the principal Act itself.

12. This matter can be approached from another angle. According to the provisions of Order XLVII, Rule 1, the mistake or error which would entitle a party to a right of review is 'some mistake or error apparent on the face of the record'. In determining, therefore, whether there is a mistake or error apparent on the face of the record in the judgment sought to be reviewed, the Court is confined to the record of the case itself. It is not open to the Court to travel beyond the bounds of record for the purpose of discovering whether there is any error or mistake in the judgment sought to be reviewed. The Amending Act was not even in existence on the date of the judgment. An amending legislation passed subsequent to the date of judgment would obviously be an extraneous matter. In other words, it would be a matter not on record but beyond the record. It would, therefore, not be justifiable to say that the Amending Act which came into force subsequently had the result of creating any mistake or error which would be apparent from the record of the case as it existed on the date of judgment.

13. From this point of view, the question whether the subsequent legislation is retrospective or not would hardly be material for the purpose. In either case the legislation which seeks to amend the law having come into existence subsequent to the date of judgment, would be a matter extraneous to the record and, therefore, irrelevant for the purpose of determining the question whether there was a mistake or error apparent on the face of the record. Further, on the date on which the Court pronounced its judgment, it could only enforce the law as it stood on that date. It could not apply or enforce the Amending Act which was not in force on that date, and which came into force subsequently. In fact, if the Court had taken notice of the provisions of the Amending Act, it would be committing a mistake or error, since it would be enforcing an Act not in force on the date of judgment.

14. On behalf of the applicant it is strenuously contended that the amended law having been given retrospective effect, it should be deemed to be in force from the date of the commencement of the principal Act. This argument, again, ignores the fact that the law gained this rebounding force only on the date on which the Amending Act was passed. On the date on which the judgment was passed it did not possess this quality. The Amending Act, therefore, cannot be pressed into service for the purpose of vitiating a judgment, which was perfectly correct on the date on which it was delivered, on the ground of any alleged mistake or error which was non-existent on the date of its pronouncement.

15. On behalf of the applicant it is also argued that if an appeal is filed from the judgment of this Court the appellate Court would be entitled to take notice of the amendment in the law and give effect to it. This is no doubt so. From that, however, it does not follow that the position of a Court while entertaining an application of review is the same as that of a Court while hearing and entertaining an appeal. The Code of Civil Procedure has carved out several types of proceedings that any arise out of the original proceedings. These further proceedings may be broadly classified under the categories of appeal, reference, revision and review. Each of them is quite different from the other, and the conditions applicable to each of them vary.

The ambit of power of a Court functioning as an appellate Court is far wider than that of a Court acting as a Court of revision or that of a Court acting as a Court of review. Whatever the position might be so far as the remedy of appeal is concerned, there can be no doubt that, so far as the relief of review is concerned, the law has placed stringent restrictions on the powers of a Court dealing with a review application. These conditions have to be strictly fulfilled to make an application of review maintainable. The said conditions are laid down in Order XLVII, Rule 1 of the Code of Civil Procedure. The powers of the Court entertaining an application of review are circumscribed within the strict limits specified therein.

16. While discussing the difference between the reliefs of review and appeal as provided in the Code of Civil Procedure (Act V of 1908) their Lordships of the Judicial Committee in the case of Chhajju Ram v. Neki, 49 Ind App 144 : (AIR 1922 PC 112) stated as follows :

'It will be observed that the question with which their Lordships have to deal is one concerned not with appeal to a Court of appeal, but with review by the Court which had already disposed of the case.'

Subsequently, their Lordships observed as follows :

'For it is obvious that the Code contemplates procedure by way of review by the Court which has already given judgment as being different from that by way of appeal to a Court of appeal. The three cases in which alone mere review is permitted are those of new material overlooked by excusable misfortune, mistake or error apparent on the face of the record or 'any other sufficient reason.'

Their Lordships then observed that the above three cases are definitive of the limits within which review is permitted in the Code of Civil Procedure.

17. The view taken by me in this case would find support from the observations of their Lordships of the Privy Council in the case of Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao, 27 Ind App 197. In this case while dealing with section 623 of the Code of Civil Procedure of 1882 (Act No. XIV of 1882) the provisions of which in regard to review of judgments were analogous to that Order XLVII, Rule 1 of the Code of Civil Procedure (Act V of 1908), their Lordships observed as follows :

'In the opinion of their Lordships, the ground of amendment must at any rate be something which existed at the date of the decree, and the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event.'

The same view was taken by a Division Bench of the Madras High Court in : AIR1944Mad238 . In this case a Bench consisting of Wads-worth, J. and Patanjali Sastri, J. subsequently a Judge of the Supreme Court of India and later on the Chief justice of India, observed as follows :

'It seems to us clear that the passing of the Amending Act, even though it changes the law with retrospective effect, is not a sufficient reason for re-opening matters which have already been decided on the basis of the law as it stood before the amendment'.

18. A similar argument advanced in the case of Sarfaraj Khan v. Ramchandra, AIR 1924 Nag 70 was summarily brushed aside by the Court with the following observation :

'For, it is settled law that the grounds for a review must be something which exist at the time of the decree and there is no authority that review 'can be granted because of the happening of some subsequent event.'

19. Similarly, a Bench of the Bombay High Court consisting of Fawcett and Patkar, JJ., in the case of Gyanaji Pomaji v. Ningappa Marbasappa, ILR 52 Bom 434 : (AIR 1928 Bom 308) held that :

'In the case of a decision that was right when it was made, an alteration in the law, the result of subsequent legislation, cannot be deemed to be new and important matter within the meaning of Order XLVII, Rule 1. Civil Procedure Code, 1908, Nor can a review be entertained in such a case on the ground that the alteration in the law constitutes 'other sufficient reason' within the meaning of that rule.'

20. Strong reliance on behalf of the petitioner was placed on a solitary case of a Bench of the late Chief Court of Oudh reported in Kalloo v. Nathu Sah AIR 1934 Oudh, 445. In this case the legal question that arose before a learned Judge of the Chief Court at the time of the hearing of the case was the same as the one that arose in a previous case, an appeal from which was pending for disposal before the Privy Council. In this situation, a request was made by the learned counsel appearing in the case that the hearing of the case might be adjourned pending the final decision of the said legal question by their Lordships of the Privy Council, as the decision of the Privy Council would constitute an authoritative pronouncement of law on the question that was in issue before the Chief Court. The learned Judge hearing the case did not consider it necessary to adjourn it, but in dismissing the appeal, he made an express reservation to the effect that in the event of the view which was taken by him being overruled by their Lordships of the Privy Council, the party concerned could apply for review.

The view taken by their Lordships of the Privy Council in their judgment, which was subsequently given, happened to be contrary to the view taken by the learned Judge. In these circumstances, the learned Judge entertained the review application and allowed it. Thereafter, a special appeal was filed against the judgment of the learned single Judge. This appeal was dismissed by a Bench consisting of Srivastava, Ag. C. J. and Thomas, J. The Bench while referring to the judgment of the learned single Judge observed as follows :

'The learned Judge did not consider it necessary to adjourn the case, but in dismissing the appeal remarked that it would be open to the appellant, in the event of the view hitherto taken by this Court being overruled by their Lordships of the Judicial Committee, to apply for a review of his judgment. Accordingly, when the decision in Lasadin v. Gulab Kunwar, AIR 1929 Oudh 536, was reversed by their Lordships of the Judicial Committee the plaintiff made an application to Kisch, J., for review of his judgment and decree passed in the appeal. The learned Judge granted the application. He was of opinion that, having made provision in his judgment for the plaintiff applying for review in the event of the decision of their Lordships of the Judicial Committee being contrary to the order passed in the case, he was bound to implement his own decree.'

The above facts make it quite clear that there 13 no analogy between this case and the present one. There was no such reservation in the judgment by this Court in the present case nor was any such understanding given by the Court. Apart from that, it is also important to note that the law which the Privy Council interpreted existed on the date on which the judgment under review was given. The law was the same. Only the interpretation of the existent law was given subsequently. In the present case, however, the relevant law itself did not exist on the date of the passing of the judgment. In another portion of the same judgment the Bench while referring to the case of 27 Ind App 197 (PC) (Supra) referred to above, observed as follows :

'In AIR 1922 P.C. 112, it was held by their Lordships of the Judicial Committee that the words 'any other sufficient reason' mean a reason sufficient on grounds at least analogous to those specified immediately previously. In ILR 24 Mad 1 : 27 Ind App 197 (PC) their Lordships of the Judicial Committee discussing the meaning of the words 'any other sufficient reason' as used in Section 623 of the old Civil P.C., which corresponds to Order 47, Rule 1 of the present Code, remarked that the ground of amendment must at any rate be something which existed at the date of the decree.' The above observations made in the case cited on behalf of the petitioner, therefore, instead of helping the petitioner go to nullify the contention put forward on his behalf.

21. For the above reasons, I see no merit in this review application and would dismiss it with costs.

22. In accordance with theorder of the majority, this review application isgranted. No order about costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //