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Opporti Padhi Vs. Paila Ujjulla and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1927Mad998
AppellantOpporti Padhi
RespondentPaila Ujjulla and anr.
Cases ReferredBrindaban Chandra v. Damodar Prasad
Excerpt:
.....on the record still i fail to see how such an error can be regarded as an error apparent on the face of the record. but the learned judges have said so and it is not necessary for me for the purpose of this second appeal to discuss that further, because it may be possible to regard such an elementary and clear rule of succession in hindu law as so well established that the error may even be described as an error apparent on the face of the record. in this case also it seems to me that the learned judges failed to give any effect whatever to the expression 'face of the record' appearing in the section and proceeded to hold that a review was competent merely on the ground that they were satisfied that an error of law had been made. any other view, it seems to me, would be to fail to..........committee, may be reviewed by the court on the ground that at the time of the granting of the review the decision of the judicial committee originally relied on by the high court had come to be explained by their lordships of the judicial committee themselves in a later case. with all respect again it is possible to doubt the correctness even of this decision. in this case also it seems to me that the learned judges failed to give any effect whatever to the expression 'face of the record' appearing in the section and proceeded to hold that a review was competent merely on the ground that they were satisfied that an error of law had been made. but here again i do not think it necessary for me to proceed at present on the doubt i entertain with regard to the correctness of the.....
Judgment:

Srinivasa Aiyangar, J.

1. The defendant in the action from which the second appeal has arisen has now taken the point that the judgment of the Court appealed against was one made on an application for review to the lower appellate Court. The plaintiff whose suit had been dismissed by the trial Court appealed to the lower appellate Court. In the first place his appeal was also dismissed. He thereupon applied to the lower appellate Court for review and the review was granted and in the place of the dismissal of the appeal a decree was made in favour of the plaintiff for possession of the property sued for. This is what the learned Subordinate Judge says with regard to the ground on which he granted the review:

The only ground urged for review was that the Court failed to note the decision in Subba Goundan v. Krishnamachari A. I. R. 1922 Mad. 112 quoted by the appellant's vakil, and wrongly noted the contention of the appellants in para. 5 of its judgment. After hearing both parties I have come to the conclusion that the appellant's contentions are correct. The appellants no doubt urged the contention mentioned in para 5 of this Court's judgment in the lower Court. In appeal they seem to have given up that contention and relied on the decision reported in Subba Goundan v. Krishnamachari A. I. R. 1922 Mad. 112 The decision helps the case of the appellants, and if it is followed the judgment of this Court cannot stand. I am of opinion that there are sufficient grounds for allowing review of the judgment, and I accordingly set aside the decree.

2. As pointed out by their Lordships of the Judicial Committee in the case of Chhajju Ram v. Neki A. I. R. 1922 P. C. 112 the power of the Court to grant review is circumscribed and limited by Rule 1, Order 47. It is there pointed out that it is only when new material is overlooked by excusable misfortune, mistake or error apparent on the face of the record that a review can generally be granted and that the expression 'other sufficient reason' following in the rule must be construed ejusdem generis and that the sufficiency required must be of a kind analogous to the two matters already specified in the rule. There is no question in this case of any new evidence.

3. Then the question is whether the mere fact that the learned Judge in the Court of appeal failed to take into consideration a decision of this Court cited to him at the Bar could be regarded, as he seems to have thought, as a proper and sufficient ground for granting the review. My attention has been drawn by the learned counsel for the respondent to two judgments, one of which is of this Court, viz., Murari Rao v. Balavanath Dikshit A. I. R. 1924 Mad. 98 In that case the view was taken by the learned Judges that an error made by a Court in considering that the sister's sons of a deceased Hindu governed by Mitakshara law were preferential heirs to the nearest agnates was an error apparent on the face of the record. It is possible to doubt the correctness of that decision because though it may be regarded as an error appearing on the record still I fail to see how such an error can be regarded as an error apparent on the face of the record. In a statutory enactment every word used must receive its full and proper connotation in the construction. I doubt very much whether even such an error as the one that was under consideration in that case can properly be regarded as an error apparent on the face of the record. But the learned Judges have said so and it is not necessary for me for the purpose of this second appeal to discuss that further, because it may be possible to regard such an elementary and clear rule of succession in Hindu law as so well established that the error may even be described as an error apparent on the face of the record. But it cannot possibly be said that the error of law in this case can be regardad at all in the same light as the error which was the subject of consideration in that case or on the same level with a mistake made regarding such an elementary rule of succession. The question that arises for consideration in this case did not depend for its solution on any such elementary rule of succession but depended on various complicated matters of law and equity and after all it is difficult to say that there are not even with regard to the question itself decisions on either of the line, the same Court taking one view at one time and taking another view at other times. With regard to such a matter it seems to me that an error of law made by a Judge can scarcely be regarded as an error apparent on the face of the record. There can be no doubt that such an error as had been referred to by the learned Subordinate Judge was an error that would in the ordinary course be dealt with and be the subject of consideration in a proper and regular appeal from the dacree itself and I refuse to believe that by enacting the new section the legislature intended the deciding Court itself to sit in appeal over its own judgment and exercise the rights of a Court of appeal, The other case that was referred to and relied upon by the learned counsel for the respondent was the case of Brindaban Chandra v. Damodar Prasad : AIR1925Cal304 In that case the learned Judges held that a decision in a second appeal by the High Court, based on an interpretation of an earlier judgment of their Lordships of the Judicial Committee, may be reviewed by the Court on the ground that at the time of the granting of the review the decision of the Judicial Committee originally relied on by the High Court had come to be explained by their Lordships of the Judicial Committee themselves in a later case. With all respect again it is possible to doubt the correctness even of this decision. In this case also it seems to me that the learned Judges failed to give any effect whatever to the expression 'face of the record' appearing in the section and proceeded to hold that a review was competent merely on the ground that they were satisfied that an error of law had been made. But here again I do not think it necessary for me to proceed at present on the doubt I entertain with regard to the correctness of the decision. A misunderstanding of a judgment of the Judicial Committee may conceivably be on a different footing altogether from the mere omission of the Judge at the time of the case to consider one of the decisions cited for consideration before him.

4. The learned vakil for the appellant has addressed some argument to me with regard to the decision relying upon which the learnad Judge came to the conclusion that his original decision was wrong. But it seems to me unnecessary to refer to or consider that question at all. I am at present only called upon to decide whether this granting of the review by the learned Subordinate Judge was or was not proper having regard to the terms of the section laying down the rule with regard to the granting of review of judgments. It seems to me sufficient to say that the mere omission on the part of a learned Judge to consider a decision, however, regrettable, however wrong, cannot possibly be regarded as constituting an error apparent on the face of the record. Even assuming it to be an error that may be discovered from the record itself, it seems to me to be almost impossible to regard such error as an error apparent on the face of the record. Any other view, it seems to me, would be to fail to give proper significance to the two words 'apparent' and 'face' appearing in the section. I, therefore, come to the conclusion that this appeal should be allowed. The lower appellate Court was clearly wrong in granting the review. It is unfortunate that the proposal made on behalf of the respondent by the learned counsel for the respondent, that he had no objection even now to the suit being treated as one for partition and the case being proceeded with on the footing that the defendant would on partition be entitled to what may be found to be his proper share, should not have been accepted on behalf of the appellant. The review having been wrongly granted, it follows that the judgment made on review should be set aside. I, therefore, set aside the judgment passed on the review, and the decree originally passed in the appeal will, therefore, be restored. The respondent must pay the appellant's costs of this appeal.

5. In the view that I have taken no orders are necessary with regard to the Civil Misc. Petition put in for the reception of additional evidence and the same, therefore, is dismissed with costs.


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