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Anantharaju Shetty Vs. Appu Hegade - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1919)37MLJ162
AppellantAnantharaju Shetty
RespondentAppu Hegade
Cases ReferredIn Kala Mea v. Herperink I.L.R.
Excerpt:
.....to it by statute. sitarama rao proceeds on the ground that no party should be condemned unheard and when such a procedure has been adopted, the court has inherent power to reconsider its decision......review and petitioner has accordingly supported his claim to one with reference to (1) the code of civil procedure (2) the inherent power of the court.3. as regards the code there is nothing in the act to apply its provisions and they can be applicable, if at all, only with reference to section 141 of the code itself. that section however does no nore than provide for the procedure to be adopted by courts of civil jurisdiction in dealing with matters before them. it does not authorize an appeal, since that would not be a mere matter of procedure, but the recognition of substantive right, which must be conferred in explicit terms. damodara menon v. kittappa menon i.l.r. (1911) mad. 16 : 21 m.l.j. 613. and similarly it confers no right to a review. for we have not been shown how the one.....
Judgment:

Oldfield, J.

1. The only question we have to decide is whether a District Jude can at the instance of a party review an order passed by him under Section 10 of Act XX of 1863.

2. The Act contains no explicit provision for a review and petitioner has accordingly supported his claim to one with reference to (1) the Code of Civil Procedure (2) the inherent power of the Court.

3. As regards the Code there is nothing in the Act to apply its provisions and they can be applicable, if at all, only with reference to Section 141 of the Code itself. That section however does no nore than provide for the procedure to be adopted by Courts of civil jurisdiction in dealing with matters before them. It does not authorize an appeal, since that would not be a mere matter of procedure, but the recognition of substantive right, which must be conferred in explicit terms. Damodara Menon v. Kittappa Menon I.L.R. (1911) Mad. 16 : 21 M.L.J. 613. And similarly it confers no right to a review. For we have not been shown how the one right stands on a different footing from the other.

4. To turn to the alternative ground for petitioner's claim, that the power or duty to review an erroneous decision is inherent in the Court, he has supported it mainly with reference to Syed Tuffozool Hossein Khan v. Ragunath Persad (1871) 14 M.I.A. 44. I referred to the material dicta in that case in my judgment in Muthia Chettiar v. Bava Sahib : AIR1915Mad392 and I am still of opinion that the Court's action, which the judicial Committee then approved, consisted merely in the recognition that previous proceedings authorised by it were void. I may now add that the case can be regarded on the widest construction only as authorising the Court to repudiate its previous proceedings on the ground that they were without jurisdiction, Debi Baksh Sing v. Habib Shah I.L.R. (1913) All. 331 being similarly decided in very similar circumstances or alternatively on the ground referred to in the judgment that a mistake had been made through inadvertence. Again in Kala Mea v. Harperink I.L.R. (1908) Cal. 323 the right to review was recognised, because the proceedings were vitiated by the fraud or misrepresentation of an officer of the Court.

5. These cases however merely constitute exceptions to a rule which is otherwise well established; and the facts in none of them in any degree resemble those alleged before us. For the rule that a Court cannot review its own decision, except so far as it is permitted to do so by statute is of general authority, since it is recognised alike in England, for instance in Drew v. Willis (1891) 1 Q.B.D. 450 and in India in David Nadar v. Manikka Vachaka Pandarasannathi (1909) 19 M.L.J. 725 : 33 Mad. 65, Lala Prayag Lal v. Jai Narayan Singh I.L.R. (1895) Cal 419 and Baijnath Ram Goenka v. Hand Kumar (1913) I.L.R 40 Cal. 552. (P.C.). And here the petitioner has alleged only that, if he had had a better opportunity of laying his case before the lower court, he would have been able to adduce evidence, which would have resulted in a different decision.

6. In these circumstances there was no ground on which the lower court could be asked to review its order. The Civil Revision Petition must therefore be dismissed with costs.

Seshagiri Aiyar, J.

7. I am of the same opinion.

8. The question raised in the order of the learned District Judge is a very important one and I shall therefore say a few words. The ground has been cleared considerably after hearing the very able arguments of Mr. Sitarama Rao who appeared for the counter-petitioner.

9. It was argued by the learned vakil for the petitioner that as under the ruling of the Judicial Committee in Balakrishna Udayar v. Vasudeva Aiyar I.L.R. (1917) Mad 793 the District Judge in filling up a vacancy under Section 10 of Act XX of 1863 is acting judicially, his orders are clothed with all the rights and are subject to all the disabilities which attach to his judgments in an ordinary civil action. I do not think this result follows from the judgment of the Privy Council. District Judges in this Presidency have jurisdiction to hear and determine cases under special acts. In some of them, the procedure to be followed is prescribed. In others, the Civil Procedure Code is referred to as regulating procedure. Where neither of these provisions exist, the District Judge if he is asked to deal with the subject judicially should act on the principle of audi alteram partem, take such evidence as may be tendered and decide the matter according to well recognised principles of jurisprudence. Such a disposal does not necessitate the application of all the provisions of the Code of Civil Procedure to his procedure and conclusions.

10. It was next argued that Section 141 of the Code of Civil Procedure is indicative of a general enunciation of principle by the legislature that to all the judicial proceedings, the Civil Procedure Code is applicable. The section only empowers the Judge to regulate judicial trials by rules as to summoning of witnesses etc., which are to be found in the Code and not that the Code is to be applied in its entirety to such proceedings, including power of appeal and of review.

11. The last argument related to the inherent power of a judicial officer to review his own judgment. It is settled law that a case is not open to appeal unless the Statute gives such a right. The power to reveiw must also be given by the Statute. Prima facie a party who has obtained a decision is entitled to keep it unassailed, unless the legislature has indicated the mode by which it can be set aside. A review is practically the hearing of an appeal by the same officer who decided the case. There is at least as good reason for saying that such power should not be exercised unless the statute gives it, as for saying that another tribunal should not hear an appeal from the trial Court unless such a power is given to it by statute. This was the view taken by Lord Esher in Drew v. Willis (1891) 1Q.B. 150 In Charles Bright and Co. Ltd. v. Seller (1904) 1 K.B. 6 and in Hessian v. Jones (1914) 2 K.B. 421 the same principle was enunciated. The decision in the Bolivar (1916) 2 A.C. 203 as pointed out by Mr. B. Sitarama Rao proceeds on the ground that no party should be condemned unheard and when such a procedure has been adopted, the Court has inherent power to reconsider its decision.

12. The course of decisions in this country has followed the same line. In David Nadar v. Manikka Vachaka Desika Gnana Sambhanda Pandara Sannathi I.L.R. (1909) M. 65 in which the question was whether a Collector can review his order under the Revenue Recovery Act, this Court following Drew v. Willis (1891) 1 Q.B. 450 held that the right to review is not an inherent power. Lala Prayag Lal v. Jai Narayan Singh I.L.R. (1895) Cal. 419 is to the same effect. In Baijnath Ram Goenka v. Nand Kumar Singh I.L.R. (1907) Cal. 677 a similar view was taken. When that case was taken before the Privy Council, Lord Atkinson in the course of the argument and in the short judgment that he delivered on behalf of the Board declared in explicit terms that the power to review is not inherent in a Court. Mr. Sitarama Eao with characterisitic frankness drew our attention to Syud Tufuzool Hossein Khan v. Rughoonath Pershad (1871) 14 M.I.A. 40 as sounding the other way. After reading that judgment I am convinced the Judicial Committee did not intend to lay down that a Court has power to review its own judgment even though there is no law empowering it to do so. It was pointed out in that case that the order was an invalid one; that is to say, it was an order which the court had no jurisdiction to pass. That decision is of the same class to which the Bolivar (1916) 2 A.C. 203 belongs. Another Privy Council case in Debi Baksh Singh v. Habib Shah I.L.R. (1913) All. 331 proceeds on the ground that a Court has power to correct mistakes into which it has been led by inadvertence. In Kala Mea v. Herperink I.L.R. (1908) Cal. 363 the auction-purchaser was misled by the misrepresentations of the court officers. The Judicial Committee held that a Court should be careful to see that it does not contribute to the inflicting of injuries on persons who come before it believing that the Court and its officers would act honestly. These cases do not affect the present question.

13. In a review, in short, a party generally claims a reconsideration of the decision on the ground either there is some fresh evidence or a new pronouncement of law or some new matter which if taken into account would have affected the attitude of the court regarding the matter in dispute. Such a consideration is analogous to what happens on the hearing of an appeal and is not analogous to proceedings in which for fraud or inadvertence, the court is permitted to set aside its Order I am therefore of opinion that a District Judge has no power to review his own decision passed under ft. 10 of the Religious Endowments Act. It is unnecessary to consider the further argument of Mr. Sitarama Rao whether Section 9 of Act XX of 1863 is applicable to orders passed by the District Judge under Section 10 of the same Act.

14. I agree that the petition should be dismissed with costs.


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