(1) The petitioner in both the revision petitions (Civil Revisions No. 476-D of 1963 and 492-D of 1960) was the second defendant in Civil Suit No. 179/200, filed in the Court of the Senior Subordinate Judge, Delhi. It was a suit for dissolution of partnership and rendition of accounts alleging that a partnership-deed had been entered into on 5-9-1949 by the plaintiff (respondent No. 1 in Civil Revision No. 492-D of 1960 and respondent No. 2 in Civil Revision No. 476-D of 1962) with reference to the construction of 100 Miners Quarters at Bhuli Township (Dhanbad), the purpose mentioned in the partnership-deed, and also (as per the plaintiff's allegations and the case of R. S. Amar Nath Mehra, respondent No. I in Civil Revisions No. 476-D of 1962 and respondent No. 2 in Civil Revision No. 492-D of 1960) for the construction of two more items of work mentioned in paragraph 3 of the plaint. While the first defendant supported the plaintiff, the second defendant disputed that the partnership undertook any other work than what was mentioned in the partnership-deed and asked for a decree to be passed in his favor against the plaintiff and the first defendant. Issues were accordingly framed and the suit was posted for trial on 14-6-1960, on which date, the parties took time to compromise the matter. The case was accordingly adjourned, from that date, to 22-7-1960 and later to 23-7-1960 for compromise or for evidence being recorded. It was in these circumstnces that the plaintff filed a compromise petition on 20-7-1960 and the Court which recorded the presence of the first defendant also on that date, allowed the suit to be dismissed as witndrawn, as stated in that petition by the plaintif, without notice being ordered to the second defendant. No costs were awarded to any of the defendants. The second defendant nto only filed Civil Revision No. 492-D of 1960, but also filed, on 3-8-1960, an application to review the order allowing the plaintiff to withdraw the suit and dismissing the suit without costs, as withdrawn. It need only be noticed at this stage that the same learned Subordinate Judge, Shri Dalip Singh, who had dismissed the suit as withdrawn, himself ordered notice on the application for review which was subsequently heard by Shri B.K. Agnihotri. Shri Agnihotri allowed the review petition as against which the plaintiff filed an appeal to the Additional District Judge, Delhi, who accepted the appeal and dismissed the application for review. Civil Revision No. 476-D of 1967 is directed against the said appellate order; the said order is attacked as one having been made without jurisdiction on the ground that the appeal itself was nto competent. To complete the narrative, it has to be noticed that both the civil revisions came up before his Lordship Mr. Justice Ismail on 24-10-1967 and he allowed Civil Revision No. 492-D of 1960 and dismissed Civil Revision No. 476-D of 1962 as unnecessary. Defendant No. 1 applied for setting aside the said order of Ismail J. and the ground that he had nto been served. S.K.Kapur, J. by order dated 1-11-1968 allowed the application of the first defendant and directed a rehearing of both the civil revision petitions. They were accordingly posted before me and the learned counsel for the plaintiff as well as defendant Nos. 1 and 2 were heard.
(2) The scope of interference by a revision Court is now well settled. It may be on any or all of the grounds mentioned in section 115, Civil Procedure Code, which reads as under:-
'115.The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court in which no appeal lies thereto, and if such subordinate Court appears- '(a) to have exercised a jurisdiction nto vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.'
(3) Regarding the first ground postulated by section 115(a), it has since been decided by the Supreme Court in Prem Raj v. The D.L.F. Housing and Construction (Private) Ltd., (1) that if a decision of the trial Court is nto on a mere question of law but a decision on a question of law, upon which the jursdiction of the trial Court to grant the relief depends, then the High Court can interfere in revision. In other words, the order in such cases, which involves the jurisdiction of the trial Court, can be interfered with in revision because the trial Court could not, by an erroneous finding upon that question, confer upon itself ajurisdiction which it did nto possess. The third ground, namely, under clause (c) of section 115, of interference in revision is where the jurisdiction vested in the Court is exercised illegally or with material irregualrity. It would nto require any straining to hold that the trial Court in this case acted with material irregularity in calling the suit on a date to which it did nto stand adjourned (it stood adjourned to 23-7-1960, but was called on 20-7-1960) behind the back of the second defendant and allowed the suit to be withdrawn acting merely on the petition given by the plaintiff who had the support of the first defendant who was physically present. To allow this to stand would be to destroy the confidence of the public, in the sense of propriety with which Courts are always attributed. In this case, it has the additional disadvantage of injuring the second defendant's interest. It is well established that in partition and partnership suits, the other sharers, even though described ex nominee as defendants are virtually in the position of plaintiffs. In a partnership action even though the plaintiff asks for accounts to be rendered and prays for a decree in his favor, the defendant also can show that amounts are due to him from the plaintiff and can get decree for such sum as he may be able to prove. This position would be clear from the decision reported in Ram Charon v. Bulapi, (2) If any one of the defendants in such a suit wants to be transposed as a plaintiff on the plaintiff expressing his intention to withdraw his suit, he can apply to the Court to be transposed a plaintiff. By the plaintiff having the suit withdrawn behind the back of the second defendant, he was deprived of the opportunity of making such a request to the Court before he had decided the plaintiff's application asking for permission to withdraw the suit. Even in one of the decisions cited by Shri Sawhney, learned counsel for the plaintiff, (Bawa Bir Singh v. Bawa Manaraj Singh, (3) it was observed that no permission to withdraw a suit could be granted to the plaintiff after a defendant had applied to be transposed as plaintiff. Even apart from these considerations, it is obvious that the suit could nto have been allowed to have been withdrawn behind the back of the second defendant because, according to Order 23,Rule 1, sub-clause (3), the plaintiff shall be liable for such cost of the suit as the Court may award. It is certainly no answer to the second defendant's grievance to be told that he could have filed an appeal against the non-award of cost to him. In the first place, no appeal lies under Order 43 against an order permitting the plaintiff to withdraw the suit. hi this sense, the second defendant might have faced some difficulty if he wanted to file an appeal in so far as his costs were nto awarded. But it was nto the mere non-award of costs about which he was really aggrieved because according to him, (whether this is true or false), the truth of his case had to be ascertained only after trial of the suit; he had asked for a decree to be passed in his favor against the plaintiff. He was at least in the position of a co-plaintiff, even though he was described nominallly as a defendant, for he had at least an equal interest along with the plaintiff in the subject-matter of the suit and clause (4) of Order 23, Rule I, prevents the Court from granting permission to one of several plaintiffs to withdraw the suit without the consent of the others. It seems to me that when the court granted permission to withdraw the suit on 20-7-1960 it was nto apprised at all of the above aspects and had mechanically granted permission, probably without awareness of the fact that there was another party involved in the case, namely, the second defendant, who, according to this case, had prayed for certain reliefs in his favor, reliefs which could be granted to him in the suit. I do nto find it necessary to discuss the position at any greater length because it is so obvious that the Court acted with material irregularity in allowing the suit to be withdrawn and dismissing it without costs.
(4) The same result can fortunately be reached in this case by adopting another approach, which is the subject-matter of Civil Revision 492 of 1960. The learned counsel for the second defendant contends that no appeal lay as against the order of the trial Court allowing the review. This contention involves an examination of Order 47, Rules 4 and 7 as well as Order 43, Rule l(w). It has been stated by Rule 7 of Order 47 that an order of a Court rejecting an application shall nto be appealable, but an order granting an application can be objected to on the ground that the application was in contravention of the provisions of Rule 4. Rule 4 of Order 47 reads as under.-
'(1)Where it appears to the Court that there is nto sufficient ground for a review, it shall reject the application. (2) Where the Court is of opinion that the application for review should be granted it shall grant the same. Provided that- (a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for, and (b) no such application shall be granted on the ground of discovery of new matter of evidence which the applicant alleged was nto within his knowledge or could nto be adduced by him when the decree or order was passed or made, without strict proof of such allegation.'
(5) These provisions were considered by a Full Bench of the Hyderabad High Court reported as Gaddam Sita Ram Reddy v. Yerrasani Venkat Varada Reddy (4). It was held in that case that for the purposes of an appeal, Order 43, Rule I (w) and Order 47, Rule 7 should be read together and no appeal will lie from an order granting a review in cases other than those specified in Rule 7, clauses (a), (b) and (c). Of these sub-clauses, clause (a) was omitted in the year 1956. The principle, thereforee, is that unless there is a violation of Order 47, Rule 7 (b) and (c) (as they exist at the moment), there cannto be an appeal against an order- accepting a review application. Turning to Rule 4 of Order 47, there are two limitations imposed by Rule, sub-rule (2). They are
(A)no such application for review can be granted without notice to the opposite party, and (b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was nto within his knowledge and could nto be adduced by him when the decree or order was passed or made without strict proof of such allegation.
(6) Neither clause (b) nor clause (c) was violated in this case. thereforee, there can be no question of any violation of the of the principles embodied in Rule 4 of order 47. All that sub-rule (2) to Rule 4 states is that the Court shall grant the review if it is of opinion that the application should be granted. The powers, thereforee, of a Court in reviewing a previous order are only limited by the factors mentioned in clauses (a) and (b). If either clause (a) or clause (b) is violated, then under Rule 7 Order 47, an appeal would certainly lie because in such cases' the principles of Rule 4 may be stated to have been violated. Since the substantive provision for appeal, as against the acceptance of review application, is rule 7 of Order 47, appealability being a matter of statute, is to be confined to the eventualities postulated by Rule 7. Rule 7, thereforee, in this context has to be read along with Rule 4, for Rule 7 itself refers to a contravention of the provisions of Rule 4, and Order 43, Rule I (w) talks of an appeal against an order under Rule 4. It is explicit, thereforee, that there could have been no appeal in this case.
(7) Shri Sawhney, learned counsel for the plaintiff, on the other hand has brought to my notice certain observations of his Lordship Rajamannar, C.J. in Ananthalak shmi v. The Hindustan Investment and Financial Trust Ltd. (5). The observations relied upon occur at p. 929 column 2. It was expressly stated by the learned Chief Justice that he was nto deciding this question in that case. There is, however, an observation, which is clearly an obiter to the following effect:-
'SOif the Court does nto reject the application where there is no sufficient ground for review but grants the application, then it contravenes R.4. We do nto see any justification for construing 'R.4' in R.7(l)(b) as confined to R.4(2). we do nto think it necessary to finally decide this question,
(8) I have already referred to the words employed in the relevant provisions and shown now the Court has no power to allow a review except in the two cases (a) and (b) stated in sub-rule (2) of Rule 4 of Order 47. Shri Sawhney had, however, drawn my attention to a decision to the Tranvancore-Cochin High Court reported in Francis v. Ouseph, (6) in which a Bench of the Travancor-Cochin High Court followed the above-said observations in Anantalakshmi's case as well what was stated to have been held in Radha Krishna Das v. Behi Madhab Das (7). All that was observed in the Calcutta case was that it was nto necessary to file an appeal against the ultimate decree passed in the suit after the application for review was led. It was urged in that case, in appeal agaist an order allowing the review application, that no appeal having been filed against the ultimate decree which had been passed there should be no interference in that appeal. It was held that once the appeal was allowed, the later decree also would consequently fall. It is important to notice that no objection to the maintainability of the appeal against the order allowing the review was taken and hence it was nto necessary in that case to decide that question at all. There was no reference to earlier Division Bench decision in Surya Narain Chowdhary v. Kunja Bahary Mal and others (8) which held that the grounds on which an order granting review can be set aside in appeal are limited. The Travancore-Cochin High Court did nto give any reason itself for the view it took, except to follow Air 1957 Mad 927 and : AIR1932Cal552 .
(9) On the other hand, the decision of the Full Bench of the Hyderabad High Court AIR 1954 Hyd 166 as well as the later decision of the same Court in Oudtala Vankat Narhai v. Oudtala Narsu Bai (9) following Pt. Kailash Narain Bakshi v. Pt. Raj Kumar Bakhashi, (10) have held that if a review application is allowed on the ground of an error apparent on the face of the record, no appeal lies. The Oudh decision, followed among others, the decision of a Division Bench of the Allahabad High Court, (reported in Shaukat All v. Shakila Ram) (11) it was specifically held by that Division Bench that the appeal against an order granting a review will be confined to the disgard of Rule 4 of Order 47 and nto to any matter on which the granting of review is based'. A similar view was taken by a Division Bench of the Bombay High Court in Shidramappa Refanshidappa v. Gurshantappa Shandrappa (12) as well as by a single Judge of the Lahore High Court in Kesho Ram Dass and V. Bhagwan & another (13). I am in respectful agreement with the view taken by these decisions which hold that an appeal lies against an order granting review only in cases where the provisions of Rule 4 of Order 47 have been violated and nto in any other case where there is nto violation of the provisions of Rule 4 of Order 47 CPC.
(10) There can also be no hardship in such a view being accepted because the remedy of the party lies, in such circumstances in appealing against the ultimate decree, if one is to be passed against that party. The order of Shri Agnihotri was a perfectly just and proper order. He referred to the various lacunas which were patent on the record and setting aside those errors he held the second defendant to be patently injured and accordingly granted the review sought for. This order thereforee, was on the basis of the errors patent on the face of the record. The said order was nto appealable. In this view, the order of the learned Additional District Judge setting aside the order of Shri Agnihotri was one without jurisdiction and has to be set aside. It follows, thereforee, that the suit has to be taken on file and proceeded with according to law. Both the revisions petitions are allowed, but in the circumstances without costs.
(11) Before I take leave of these revision petitions I would direct that the suit should be taken up and disposed of expeditiously, having regard to the fact that these revision petitions have been pending for nearly seven years.
(12) Parties are directed to appear before the trial Court on 30th May, 1969.