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Nathu Ram Friends Colony Co-operativehouse Building Society Limited Vs. Sardar Sohan Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous Appeal No. 850 of 1972 and First Appeal No. 14 of 1971
Judge
Reported inILR1973Delhi1109
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 47, Rule 1
AppellantNathu Ram Friends Colony Co-operativehouse Building Society Limited
RespondentSardar Sohan Singh
Advocates: S.N. Chopra and; S.K. Khanna, Advs
Cases ReferredUniversity of Delhi and Another v. Hafiz Mohd. Said and Others
Excerpt:
.....of a single bench of a high court presented by an advocate shall be signed by him and he shall certify that the grounds contained therein are good and sufficient grounds for the review sought. , the bench dismissed the first appeal as withdrawn, i would accept the word of a senior advocate like mr.prakash narain, j. (1) by this application under sections 151 and 152 of the code of civil procedure the applicant (nathu ram friends colony co-operative house building society ltd.) prays that a correction be made in the order dated 25th april, 1972 by which a bench of this court dismissed as withdrawn f.a.o. (os) 14 of 1971. the contention is that when the first appeal from the order came up for hearing it was not pressed in view of a full bench decision of this court in university of delhi and another v. hafiz mohd. said and others, f.a.o. (os) 6 of 1968 decided on 2nd march, 1972 (1) but somehow erroneously the order passed by the bench was that f.a.o. (os) 14 of 1971 is dismissed as withdrawn. the occasion to move this application arose when the appslicant applied for a certificate.....
Judgment:

Prakash Narain, J.

(1) By this application under Sections 151 and 152 of the Code of Civil Procedure the applicant (Nathu Ram Friends Colony Co-operative House Building Society Ltd.) prays that a correction be made in the order dated 25th April, 1972 by which a Bench of this Court dismissed as withdrawn F.A.O. (OS) 14 of 1971. The contention is that when the first appeal from the order came up for hearing it was not pressed in view of a Full Bench decision of this Court in University of Delhi and Another v. Hafiz Mohd. Said and Others, F.A.O. (OS) 6 of 1968 decided on 2nd March, 1972 (1) but somehow erroneously the order passed by the Bench was that F.A.O. (OS) 14 of 1971 is dismissed as withdrawn. The occasion to move this application arose when the appSlicant applied for a certificate of fitness to file appeal to the Supreme Court of India and it transpired that in view of the appeal having been withdrawn the question of filing a further appeal to the Supreme Court did not arise. At the hearing of the Supreme Court Application it was stated by the learned counsel for the applicant that the learned counsel who appeared in the first appeal had not withdrawn the appeal but had merely stated that he could not press the appeal in view of the Full decision in the case of University of Delhi and another ev. Hafiz Mohd. Said and others, (1) above referred to. Inasmuch as I did not recollect the exact words that were said by the learned counsel at the time when the first appeal from order had come up for hearing a direction was given that an affidavit of the learned counsel who appeared in the first appeal against order .should be filed. Thereafter an application, C.M. 850 of 1972, for amendment of the order dated 25th April, 1972 was moved and on that My Lord the Chief Justice and I passed an order on 26th May, 1972 to the effect that in as much as I did not recollect the exact words that may have been used by the counsel and the then learned Chief Justice had retired, it was not possible to accede to the request of the applicant made in the application which was merely ordered to be placed on the file.

(2) This application was again pressed by the applicant and inasmuch as it appeared to be an application by way of review a Bench of this Court on 15th September, 1972 ordered that the application should be dealt with by me alone as the other members of the Bench which had dismissed the first appeal had retired. The application was then laid before me sitting singly.

(3) The learned counsel for the respondent has raised four objections against the application, viz. (a) C.M. 850 of 1972, has already been disposed of by order dated 26th May, 1972 and nothing subsists which can be considered; (b) there is no complaint in the S.C.A. about the nature of the order passed on 26th May, 1972: (c) before I can hear C.M. 850 of 1972 the order of 25th May, 1972 passed by a Bench of this Court should be revised or recalled: and (d) the application is- under Sections 151 and 152 and Order 47 rule I Civil Procedure Code is not attracted.

(4) I shall first deal with these four objections. I do not agree with the learned counsel for the respondent that C.M. 850 of 1972 stood disposed of by the order of 26th May, 1972. Indeed, as the wordings of the order show the application was neither granted nor dismissed but was merely ordered to be placed on the file. In that view of the matter the application is still alive and has to be disposed of.

(5) That there is no complaint in the S.C.A. about the order of 26th May, 1972 is wholly irrelevant and extraneous to the consideration of the contention raised in this application.

(6) The contention that the order of 26th May, 1972 should first be revised is also untenable inasmuch as there is no effective order which was passed on 26th May, 1972 and, in any case. the order of the Bench dated 15th September, 1972 amounts to recalling the order of 26th May, 1972.

(7) The application on its face shows that it is under Sections 151 and 152 Civil Procedure Code and for reasons, I will state hereafter. Order 41 rule I Civil Procedure Code . is not attracted. The only question would be whether the order dismissing the first appeal can be modified or changed under the provisions of Sections 151 and 152 of the Code of Civil Procedure.

(8) Order 47 rule I deals with the powers and circumstances under which a review application lies. Just as there is no fight of appeal and it cannot be assumed unless expressly given by statute or by rules having the force of statute there is no right in a party to claim review or an order passed by the Court unless expressly given by the statute or by rules having the force of statute. Section 114 Civil Procedure Code read with Order 47 rule 1 expressly gives the right of review in certain cases. The applicant has not invoked any of these provisions in the application. Apart from this, as laid down in rule 10 of Chapter 1-A of Volume 5 of the High Court Rules and Orders, every application for review of a judgment or order of a Division Bench or of a Single Bench of a High Court presented by an Advocate shall be signed by him and he shall certify that the grounds contained therein are good and sufficient grounds for the review sought. No Advocate shall be heard in support of an application for review of any such judgment or order unless and until he has certified in the manner above prescribed the grounds already taken or any amended grounds of application. In the present application I do not find any such certificate appended to it. thereforee, the application cannot be treated as one under Order 47 rule I Civil Procedure Code nor can. the learned counsel for the applicant be allowed to press it as such. Faced with this situation Mr. S.N. Chopra, the learned counsel for the applicant, urged that although the application in terms is not one under Order 47 rule I Civil Procedure Code the principles analogous to the principles of Order 47 rule I Civil Procedure Code would be attracted. As I have already observed earlier, there is no right of review given to a party unless conferred by statute or statutory rules. If the right is under statute or statutory rules then the right is exercisable strictly in conformity with the statute or the statutory rules, as the case may be, and one cannot travel beyond them. thereforee, the application will have to be treated as one under sections 151 and 152 Civil Procedure Code alone, as indeed it is so stated in the application.

(9) Section 151 Civil Procedure Code saves the inherent powers of the Court and those powers are to be exercised to do justice between the parties or in other words to see that no injustice is done. If by some inadvertent mistake or misunderstanding gross injustice is done to a party, it is obligatory on the part of courts to see that the injustice done is undone. In that view of the matter if really what transpired when the first appeal came up for hearing was that in view of the Full Bench decision of this Court there was no point in the counsel for the appellants pressing his appeal and the appeal was in consequence not pressed and so dismissed then. to say that the appeal was withdrawn would be gross injustice for the appellant would be denied the opportunity to seek his remedy by way of appeal to the Supreme Court. If, on the other hand, the appeal was rightly dismissed as withdrawn no occasion arises for asserting that the appeal was dismissed on account of misunderstanding resulting in injustice being done to anyone.

(10) Although at this point of time I have no clear recollection of what exactly transpired when sitting with Hardayal Hardy, J., the Bench dismissed the first appeal as withdrawn, I would accept the word of a Senior Advocate like Mr. S.N. Chopra, which has not been seriously disputed by the learned counsel for the respondent that what actually happened was that the appeal was called up for hearing, the counsel got up and said that in view of the Full Bench Judgment in the case of University of Delhi and another, (1) the appeal could not be pressed before a Bench of this Court and that thereafter the counsel left the Court room and the order was dictated under misapprehension that the appeal was withdrawn, I will, thereforee, exercising my inherent powers recall the order dismissing the appeal as withdrawn.

(11) Section 152 empowers the Court to correct any clerical or arithmetical mistake in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. The power of correction under this section thus is left to the discretion of the Court to be exercised in view of the peculiar facts of each case and even where the correction sought to be made does not strictly fall within the ambit of Section 152 Civil Procedure Code ., the Court has inherent power to amend its orders. No doubt as a general rule a judgment, decree or final order, once drawn up and signed cannot be subsequently altered, varied or amended in any manner even with the consent of the parties except on review or under Section 152 yet no mistake, omission or slip can be allowed to perpetuate an unwarranted or misconceived injustice, lf inadvertently an order is recorded conveying one meaning whereas the order that should have been recorded was to be different it can always be corrected under Section 152 Civil Procedure Code (See Air 1915 Allahabad 322 (2) and Air 1938 Madras 573).

(12) In this view of the matter I rescind the order dated 25th April, 1972 passed by a Bench of this Court whereby F.A.O. (OS) 14 of 1971 was dismissed as withdrawn and order as under:-

'THE question raised in this appeal is concluded against the appellant by a decision of this Court in University of Delhi and another vs. Hafiz Mohd. Said & Others, F.A.O. (OS) 6 of 1968 decided on 2nd March, 1972. Counsel for the appellant states that the decision of the Full Bench is binding on the Bench. The appeal is consequently dismissed. No. orders as to costs.'

(13) C.M. 850 of 1972 is thus accepted but in the circumstances of the case there will be no order as to costs of this application.


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