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Fasahat Ullah Khan and anr. Vs. Maula Bux - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in146Ind.Cas.231
AppellantFasahat Ullah Khan and anr.
RespondentMaula Bux
Cases Referred and Sunder v. Habib Chick
Excerpt:
civil procedure code (act v of 1908), order xliii, order xlvii, rules 2, 7 - application for review on ground of mistake on face of decree--judge finding that there was an error of that nature--appeal from order--competency of. - - the defendant, therefore, made an application for review of the order on the ground that there was a mistake or error appellant on the face of the record in that the and which was the subject-matter of the suit was the same original 19 bighas which had formed the original tenancy enjoyed by the defendant......is argued by dr. faruqi that there has been a contravention of rule 4 and that under clause (b) to rule 7 an appeal will lie for that reason. the provisions of rule 4 are, however set forth under clause (a) and (b) of the proviso, neither of which has any bearing on the question in the present case. i am not prepared to hold that clause (6) of rule 7 would make any order granting an application for review liable to appeal. clause (b) provides that there shall only be an appeal when the order appealed against is in contravention of rule 4, and it can only be in contravention of rule 4 if it breaks one of the provisions of that rule. dr. faruqi has also asked me to consider the appeal as an application in revision, but there is nothing in it which will attract the provisions of section.....
Judgment:

Kendall, J.

1. This appeal arises out of the following circumstances. The plaintiff applicants as zamindars sued the defendant-respondent for arrears of rent at the rate of Rs. 110 per annum and the defence was that the proper rent was Rs. 50 per annum. The trial Court finding that there had been an oral agreement between the parties to raise the rent from Rs. 50 to Rs. 110, decreed the plaintiffs' suit but the lower Appellate Court (the District Judge) found that the rent could not be raised by such an oral agreement under Section 69 of the Tenancy Act. He further found, however, that the tenant had made encroachments and that the agreement really referred to a separate tenancy or at any rate it was not confined to the original 19 bighas in regard to which the tenant had originally entered on an agreement with the zamindars. He, therefore, allowed the appeal. The defendant, therefore, made an application for review of the order on the ground that there was a mistake or error appellant on the face of the record in that the and which was the subject-matter of the suit was the same original 19 bighas which had formed the original tenancy enjoyed by the defendant. The District Judge Mr. G.O. Allen who was not the same Judge who had passed the appellate decree allowed the application for review holding.

If the error is not apparent on the face of the record, it, is certainly of that nature

and it is from this order that the present appeal is made.

2. A preliminary objection has been advanced that no appeal lies, and I am of opinion, that this must prevail. The cases in which an appeal will lie against an order granting an application for review are enumerated in Rule 7 of Order XLVII. It has certainly been argued that whatever the provisions of Order XLVII are and appeal will lie against an order passed in review under the provisions of Clause (w) of Rule 1 of Order XLIII, and there is a decision of the Bombay High Court in Daso Keshav Panahbhavi v. Karbasappa Kariyappa Mudhol 94 Ind. Cas. 591 : 27 Bom. L.R. 1446 : A.I.R. 1926 Bom. 121 to which reference has been made in support of this argument. But I think it is clear that the provisions of Order XLVII which contains rules specifically framed to govern procedure in regard to applications for review, and which, moreover follows later in the Code than Order XLIII, must modify the provisions of Order XLIII. If any authority is needed for such a conclusion it is supplied by the cases of Shaukat Ali v. Shakila Bano : AIR1926All492 and Sunder v. Habib Chick 60 Ind.Cas. 81 : 18 A.L.J. 838 : 2 U.P.L.R. (A) 283 both of which are decisions of Benches of this High Court.

3. Under Rule 7 of Order XLVII an appeal will lie from the order of the court granting an application in contravention of the provisions of Rule 2 and it has been sought to show that the order of the District Judge in the present case was passed in contravention of Rule 2. I have described above the circumstances in which the application was made. Rule 2 lays down certain provisions for the presentation of an application for review. Such an application may be made on one of more of three grounds as provided in Rule 1:

4. (a) the discovery of new and important matters.

5. (b) Some mistake or error apparent on the face of the record, and

6. (c) Such (any?) other sufficient reason, and Rule 2 merely provides that if the application is made on ground (c) it shall be made to the Judge who passed the decree or made the order sought to be reviewed. In the present case the application was not made on ground (c) but on ground (b) vis., that there was a mistake or error apparent on the face of the decree, though as a matter of fact the Judge has not found that there was a mistake or error apparent on the face of the record, but merely that there was an error of that nature. However that makes no difference, because the application was made to the Judge who passed the decree and he issued notice, but t he case was ultimately decided by his successor, Mr. Allen, who had authority under Rule 2 to decide it on the notice issued by his predecessor even if the application could be held to be one made on ground (c) I must therefore, hold that Rule 2 has not been violated.

7. It is argued by Dr. Faruqi that there has been a contravention of Rule 4 and that under Clause (b) to Rule 7 an appeal will lie for that reason. The provisions of Rule 4 are, however set forth under Clause (a) and (b) of the proviso, neither of which has any bearing on the question in the present case. I am not prepared to hold that Clause (6) of Rule 7 would make any order granting an application for review liable to appeal. Clause (b) provides that there shall only be an appeal when the order appealed against is in contravention of Rule 4, and it can only be in contravention of Rule 4 if it breaks one of the provisions of that rule. Dr. Faruqi has also asked me to consider the appeal as an application in revision, but there is nothing in it which will attract the provisions of Section 115, Civil Procedure Code. 'As the Judge found that there was an error which may not be apparent on the face of the record but was of that nature', and would, therefore, come under the heading of 'any other sufficient reason,' as set forth in Rule 1 of Order XLVII, he was certainly not acting without jurisdiction or irregularly in the exercise of his jurisdiction in reviewing the order passed by his predecessor.

8. The result is that I must admit the force of the preliminary objection and hold that no appeal will lie. The appeal is, therefore, dismissed with costs.


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