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Hari Ram and anr. Vs. Mt. Nathi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. (Review) Case No. 39 of 1950
Judge
Reported inAIR1952Raj39
ActsCode of Civil Procedure (CPC) , 1908 - Order 47, Rule 1
AppellantHari Ram and anr.
RespondentMt. Nathi and anr.
Appellant Advocate Murli Manohar, Adv.
Respondent Advocate Radha Mohan, Adv.
DispositionApplication allowed
Cases ReferredJai Narain Lachmi Narain v. G.I.P. Rly. Co.
Excerpt:
.....granted a decree merely on the ground of wilful neglect, there bad been a mistake or error apparent on the face of the record, or, at any rate, a sufficient reason for review analogous to such an error in that the decree of the trial court had been reversed with-cut that finding of the trial court being displaced. applicants is correct, and there is obviously something like an error apparent on the face of the record, inasmuch as it has been held that there was a sale in 1992 samwat without this court saying anything about the finding as to payment of interest......present application for review of the judgment was made, and the learned judges, who decided the appeal, issued notice. as the two learned judges are no longer judges of this court, the present application has come up before us for decision as to whether a review should be granted.5. the contention on behalf of learned counsel for the applicants is three-fold. he urges that while deciding issue no. 1, the learned judges did nob refer to certain material documents, which were on the record, and had been relied upon by the tria court in deciding this issue. these documents are the mortgage deed by mohan lal in favour of mst. nathi of asar badi 12, samwat 1992, and a receipt, ex. p. 1, from mohan lal to the applicants showing payment of interest upto samwat 1995. further, it is urged that.....
Judgment:

Wanchoo, C.J.

1. This is an application for review of a judgment of a Division Bench of this Court. The facts, which have given riae to this application, are these. A suit had been brought by Hari Ram and his eon, Sukanraj, for redemption of a mortgage, against Mohan Lal and Mt. Nathi. Mohan Lal was the original mortgagee, while Mt. Nathi was the person in possession of the house to be redeemed at the time the suit was filed. The case of the applicants was that Mt. Nathi was merely a sub-mortgagee, and they were, therefore, entitled to possession from her. Mt. Nathi's case, on the other hand, was that the house had been sold orally by Hari Ram to the original mortgagee, Mohan Lal, and thereafter Mohan Lal had mortgaged the house to her, and later made a sale deed in her favour. As such, she claimed to be the owner of the house.

2. The trial Court framed as many as ten issues, of which two, namely, issues NOS. 1 and 6, are relevant for present purposes. The first issue was :

'Whether the plaintiff Hariram as manager of the joint Hindu family sold the house in dispute to the defendant No. 1 for the benefit of the family in Sawan Samwat 1992?'

The sixth issue was 'Whether the plaintiffs paid interest up to the end of samwat 1995?' The trial Court found that Hari Ram had not sold the house to Mohan Lal. It also found that the plaintiffs had paid interest up to the end of Samwat 1995. Eventually it decreed the suit.

3. There was an appeal to this Court by Mst. Nathi, which came up for hearing before a Bench Consisting of Hon'ble Gupta and Trilochan Datt JJ. The judgment of the Bench, after reciting the facts, mentions the findings of the trial Court on the two issues given above, namely, that there was no sale in favour of Mohan Lal, and that interest had been paid up to samwat 1995, The Bench then went on to consider the first issue, and came to the conclusion that the sale in favour of Mohan Lal had been proved. Thereupon, the appeal was allowed, and the suit was dismissed. No finding was given on the issue, whether interest had been paid up to Samwat 1995, as the learned Judges did not think it necessary to go into the other points raised after their decision on the question of sale to Mohan Lal.

4. Thereafter the present application for review of the judgment was made, and the learned Judges, who decided the appeal, issued notice. As the two learned Judges are no longer Judges of this Court, the present application has come up before us for decision as to whether a review should be granted.

5. The contention on behalf of learned counsel for the applicants is three-fold. He urges that while deciding issue No. 1, the learned Judges did nob refer to certain material documents, which were on the record, and had been relied upon by the tria Court in deciding this issue. These documents are the mortgage deed by Mohan Lal in favour of Mst. Nathi of Asar Badi 12, Samwat 1992, and a receipt, EX. P. 1, from Mohan Lal to the applicants showing payment of interest upto Samwat 1995. Further, it is urged that though the learned Judges decided that Hari Ram had made a sale in favour of Mohan Lal, they did not decide the other parts of the first issue, namely, whether Hari Ram was a member of the joint Hindu family consisting of himself and his son Sukamraj, and had sold the house for the benefit of the family as its manager. Lastly, it has been urged that issue No. 6 was very intimately connected with issue No. 1 inasmuch as it was impossible that Hari Ram should have continued paying interest up to Samwat 1995, if he had sold the house to Mohan Lal in Samwat 1992 and the learned Judges should have decided that issue also along with issue No. 1, and that the position now is that though the finding of the trial Court on issue No. 1 as to sale has been set aside the finding as to payment of interest up to Samwat 1995 has not been set aside, and this leads to illogicality.

6. Learned counsel for the opposite party, however, contends that what the applicants wantis a mere re-hearing of the appeal, and that this should not be allowed, as there are no grounds, as provided in Order 47, Rule 1 of the Code of Civil Procedure, which entitle the applicant to a review. In particular, he urges that the mere fact that certain documents were not referred to in the judgment or that certain parts of a certain issue were not specifically decided would not entitle the applicants to a re-hearing, as this does not amount to an error apparent on the face of the record, which is the ground relied upon by the applicants.

7. So far as the first two contentions on behalf of the applicants are concerned, we are of opinion that they cannot prevail. Reliance was placed in this connection on Mahadeva Rayar v. Sappani, 1 Mad. 396. That was a case where a Munsif had overlooked an important document and the suit was dismissed. Thereafter, there was a review application on the ground that a certain document, which had an important bearing on the case, had been overlooked, and the Munsiff granted the review. On appeal, the Subordinate Judge held that the Munsif had acted ultra vires in granting the review. There was a second appeal to the High Court, which was allowed, and it was held that

'Where a Judge has, in deciding a case, omitted to consider the effect of important documentary evidence filed with the plaint which was not taken issue upon, and which materially affects the merits of the case, he is competent under Sections 876 to 378 of Act VIII [8] of 1859 to grant a review and rehear the case.'

8. The next case relied upon by learned counsel ie Mt. Rukhmabai v. Ganpatrao, A. I. R. (19) 1932 Nag. 177. In that case the trial Court passed a final decree for fore closure. Immediately after he had passed the order, he said, by another order, that he had omitted to notice certain facts, though they were on the record. He, therefore, directed the parties to appear before him again. Thereafter, he allowed a review of his previous order, and set it aside. There was an appeal to the District Judge, who allowed it, and held that the case did not disclose any reason for review under Order 47, Rule 1. In second appeal, the Judicial Commissioner's Court, Nagpur, held that:

'If an omission to notice one particular provision of law is a satisfactory ground for entertaining an application for review much more so is the omission to consider important facts which are on the record and which the Judge himself immediately on passing his order realized that he had overlooked, and which in his opinion would have led him to pass an order materially different Both are cases of an omission and not cases of misapplication or of taking a wrong view of the law on the fully considered facts of the case'.

9. So far as Mahadeva Rayar's case, (i Mad. 396), is concerned, we must respectfully say that it should no longer he considered good law. The basis for decision in that case appears in the last paragraph, which reads as follows :

'It appears to us that within the provision for good and sufficient reason' in Section 876, and within the provisions 'or otherwise necessary for the ends of justice' in Section 378, the Munsiff waa not only justified, but was bound to admitthe review, feeling, as he did, that it was necessary to ascertain whether his first decision was correct or not'.

We may point oat that the words 'or otherwise necessary for the ends of justice' do not now appear in Order 47, Rule l, and further, that the words for good and sufficient reason' have been substituted by the words 'any other sufficient reason', and it is now well settled, after the decision of their Lordshipa of the Privy Council in Chajja Ram v. Nek, 49 Ind. App. 144, that these words 'any other sufficient reason' should be interpreted as meaning a reason sufficient on grounds at least analogous to those specified immediately previously. The fact, therefore, that certain documents are not referred to in a judgment is, in our opinion, no reason for granting a review, and it would be very difficult to draw a distinction between important documentary evidence and documentary evidence which is not important. The recent decisions of various High Courts are practically all one way, and it has been laid down that the mere fact that a Judge has not in terma referred to certain evidence in favour of one party or the other is cot a sufficient reason for granting a review. Eeference in this connection may be made to Raghu Singh v. Krishna Dayal, A. I. R. (11) 1924 Pat, 258 (2), Mottai Goundan v. Ramaswami Ayyangar, A. I R. (20) 1933 Mad. 290 and Ranbir Prasad v. Sheobaran Singh, A. I. R. (26) 1939 ALL. 619.

10. So far as the Nagpur case is concerned, it has, in our opinion, no application to the circumstances of the present case, for, in that case, there was obviously an error apparent on the face of the record, inasmuch an certain undisputed facts, which were on the record, had not been taken into consideration. The applicant, therefore, cannot claim review on the ground that two documents were not referred to by the bench, or that all the parts of issue No. 1 were not decided.

11. In support of the third point, learned counsel for the applicants relies on Jai Narain Lachmi Narain v. G.I.P. Rly. Co., A. I. R. (17) 1930 Lah 37. That was a case where suit had been filed against a railway company for recovery of money, as one bale of cloth sent from Sholapur to Delhi was found missing. The railway company put up two defences, (i) that there had been no wilful neglect on their part or on the part of their servants, and (2) that the missing bale had been stolen from the running train. The trial Court held that no wilful neglect on the part of the railway company or its servants had been proved, and further that even if there had been any wilful neglect the circumstances pointed to theft from the running train, and the railway was not, therefore liable under the risk note. The trial Court also negatived theft by railway servants. The suit was, therefore, dismissed. On appeal the Additional District Judge agreed with the finding of the trial Court that there had been no theft by any railway servant, but he was ofopinion that there had been wilful neglect of the railway. On the question whether there had been theft or robbery from the running train, he gave no clear finding in his original judgment. Eventually, he accepted the appeal and decreed the suit. Then there was a review application on the ground tbat the Judge had not decided the question whether there had been theft from the running train, and that the decision of this question was necessary before a decree could be granted against the railway. The review was granted, and the decree was eventually set aside. The matter was then taken in appeal to the Lahore High Court, where it was urged that these facts did not justify a review, as they did not come within the grounds specified in Order 47, Rule 1. It was held by the High Court that inasmuch an the District-Judge had not decided the question of theft from the running train, and even then granted a decree merely on the ground of wilful neglect, there bad been a mistake or error apparent on the face of the record, or, at any rate, a sufficient reason for review analogous to such an error in that the decree of the trial Court had been reversed with-cut that finding of the trial Court being displaced.

12. Learned counsel for the applicants argues that his case is exactly on all fours with the facts of this case. He urges that there were two issues before the trial Court viz., (1) whether there had been a sale by Hari Ram in favour of Mohan Lal in Samwat 1992, and (2) whether Hari Ram had paid interest up to Samwat 1995, and both these issues had been decided in the applicants' favour by the trial Court. The Division Bench upset the finding of the trial Court in the matter of sale, but said nothing in the matter of interest. It is urged that it stands to reason that Hari Ram would not have paid interest up to Samwat 1995, if the sale had been made in Samwat 1992, and that there is an error apparent on the face of the record, or, at any rate, a sufficient reason for review analogous to such an error, inasmuch as the decree of the trial Court had been reversed without the finding of the Srial Court as to interest having been displaced. We are of opinion that this contention of learned counsel for the; applicants is correct, and there is obviously something like an error apparent on the face of the record, inasmuch as it has been held that there was a sale in 1992 Samwat without this Court saying anything about the finding as to payment of interest. We, therefore, grant the review. The appeal will now be fixed in due course for hearing, on the merits.


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