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Oraivukandiyil Parkum Elavana Tholan and anr. Vs. Palankandi Kunhikutty - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1913)24MLJ93
AppellantOraivukandiyil Parkum Elavana Tholan and anr.
RespondentPalankandi Kunhikutty
Cases ReferredKozhihot Sriman Vikraman v. Madathil Ananta Patter I.L.R.
Excerpt:
.....to accede to the arguments of the respondents' counsel. 540 of 1910 decided in november 1911. 5. in these circumstances we do not think that we should support the order of the district judge, which was clearly passed without jurisdiction......the grant of review. when order 43 rule 1(w) provides an appeal against an order under order 47 rule 4 granting an application for review, it can only mean an order under order 47 rule 4(ii), because, as already stated, clause (1) relates to the rejection of an application for review and not to the granting of an application for review. taking it then that an appeal lies under order 43 rule 1(w) only where an order is passed granting an application for review under order 47 rule 4(ii), we have further to see whether there is any other provision in the civil procedure code allowing appeals against orders granting review. order 47 rule 7(1) provides for an appeal against such an order if (a) it is in contravention of the provisions of rule 2 (b) it is in contravention of the provisions.....
Judgment:

1. Defendants Nos. 2 and 3 are the petitioners before us. The suit was brought by the plaintiffs for recovery of lands leased to the Defendant's Karnavan. The defendants claimed the value of improvements. The lease was made in 1885, that is before the first Malabar Tenants Improvements Act came into force in January 1886. The Marupat provided for certain rates of compensation to be paid in respect of cocoanut trees, areca, jack trees and pepper vines to be planted by the tenants. The Munsif following the Full Bench case of Randipurayil Kunhisore v. Narothi Kunhi Kannnan I.L.R. (1907) M. 1 held that the contract between the parties governed the rate of compensation to be allowed to the defendants and decreed compensation according to the rates provided for in the marupat, Exhibitit A. His judgment was pronounced on the 28th October 1910. After he pronounced judgment there was reported Sriman Vikraman v. Ananda Patter I.L.R. (1910) M. 61, the decision of a Division Bench of this Court which contained an observation that the Full Bench Decision in Randipurayil Kunhisore v. Narothi Kunhi Kunnan I.L.R. (1907) M. 1 did not prevent a tenant from claiming compensation for improvements according to the Act of 1886 even though the marupat or lease was effected before January 1886. On the strength of this decision, the defendants applied to the Munsiff for a review of judgment in the beginning of March 1911. The review was granted by the learned District Munsiff. The plaintiff applied to the District Court against the order granting the review. The learned District Judge reversed the Munsiffs order on the ground that sufficient cause had not been shown by the defendants for the grant of a review, that the Full Bench ruling in Randipurayil Kunhisore v. Narothi Kunhi Kunnan I.L.R. (1907) M. 1 clearly held that the tenant who came under a lease dated before January 1886 could claim only the contract rates for the improvements, that the observations relied on in Kozhikot Sriman Vikraman v. Madathil Ananta Patter I.L.R. (1910) M. 61 was obiter and could not override the decision in Randipurayil Kunhisore v. Narothi Kunhi Kunnan I.L.R. (1907) M. 1 and that therefore the District Munsif was wrong in granting the review. The defendants have put in this Revision Petition to the High Court on the ground that no appeal lay to the District Court against the Munsif's order granting the review and hence the District Judge acted in that jurisdiction in entertaining and deciding it.

2. The question for our decision is whether this contention is correct. Order 43 Rule 1(w) of the Civil Procedure Code allows an appeal from an order under Order 47 Rule (4) granting an application for review. Order 47 Rule 4 comprises two clauses of which the first clause relates to the rejection of an application for review and the second clause relates to the granting of an application for review and contains also provisos (a), (b) and (c) which lay down the conditions for the grant of review. When Order 43 Rule 1(w) provides an appeal against an order under Order 47 Rule 4 granting an application for review, it can only mean an order under Order 47 Rule 4(ii), because, as already stated, Clause (1) relates to the rejection of an application for review and not to the granting of an application for review. Taking it then that an appeal lies under Order 43 Rule 1(w) only where an order is passed granting an application for review under Order 47 Rule 4(ii), we have further to see whether there is any other provision in the Civil Procedure Code allowing appeals against orders granting review. Order 47 Rule 7(1) provides for an appeal against such an order if (a) it is in contravention of the provisions of Rule 2 (b) it is in contravention of the provisions of Rule 4 (thus repeating the provisions of Order 43 Rule 1(w), and (c) on the ground that the application was made after the expiration of the period of limitation prescribed therefor and without sufficient cause.

3. Clauses (a) and (c) do not apply to the present case, and we are again thrown back upon Order 47 Rule 4(ii). We may add that the same view was taken recently by a Division Bench of this Court in C.M.A. No 195 of 1910 to which one of us was a party. The remaining question for consideration is whether in this case the District Munsif's order was in contravention of any of the three provisions of Order 47 Rule 4(ii). It is clear that it is not. That being so no appeal lay against his order granting the application for review. The same view was taken by all the four High Courts under the corresponding provisions contained in Section 626 of the old Civil Procedure Code. (See the case of Manundra Chandra Roy Chowdhury v. Balaram Das (1909) 11 C.L.J. 161, in which the whole matter is dealt with exhaustively). We must therefore hold that the learned District Judge had no jurisdiction to entertain the appeal.

4. Mr. Madhavan Nair the learned Counsel for the Respondent, urged before us that even if the District Judge had no jurisdiction to entertain the appeal, we should not interfere in decision with his order dismissing the application for review because his order was right on the merits and the Munsif's order granting the review was wrong on the merits. The Learned Counsel's contention was (a) that the observations in Kozhihot Sriman Vikraman v. Madathil Ananta Patter I.L.R. (1910) M. 61, on which the Munsif relied were obiter, (b) that Rundipurayil Kunhisore v. Narothi Kunhi Kannan I.L.R. (1907) M. 1 clearly decided that the tenant under a lease granted before January 1886 was bound by the terms of his contract and could not rely upon the provisions of the Improvements Act. If the question of law was clearly beyond doubt we might be disposed to accede to the arguments of the respondents' counsel. But the view taken in Kozhihot Sriman Vikraman v. Madathil Ananta Patter I.L.R. (1910) M. 61 has been followed in S.A. No. 540 of 1910 decided in November 1911.

5. In these circumstances we do not think that we should support the order of the District Judge, which was clearly passed without jurisdiction. If the District Judge's view is right and the District Munsif's view wrong, the plaintiffs will have their remedy by an appeal against the final decree which will be passed by the District Munsif. On the view then, that the District Judge entertained without jurisdiction the appeal from the Munsif's order granting the review application, we set aside his order and restore that of the District Munsif. The parties, will in the circumstances bear their own costs in the District court and in this Court.


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