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Noothalapati China Venkayya Vs. Perla Suryanarayana and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Reported inAIR1940Mad203
AppellantNoothalapati China Venkayya
RespondentPerla Suryanarayana and ors.
Cases Referred and Ayyaswami Chetty v. Official Receiver
Excerpt:
.....existence of the mortgage was disclosed in the written statement filed by defendants 1 and 2 in the court below. if he had not done so, then it would be a case of failure to exercise reasonable diligence which would preclude him from taking advantage of the provisions of order 47, rule 1. then it is contended on behalf of respondent 1 that there is no question of jurisdiction involved in this revision petition and that therefore the petition should be dismissed. in these circumstances, i hold that the order made by the lower court is clearly wrong......an incorrect statement contained in the judgment because the issue was not really given up by the learned pleader who appeared in the suit on behalf of the plaintiff. the records show that arguments were addressed to the learned district munsif on 30th july 1936 and on the very next day, namely, on 31st july 1936 the judgment was pronounced which contained this disputed statement. it is thus clear that the facts must have been fresh in the mind of the learned district munsif when he pronounced judgment. in the order granting the petition for review the learned district munsif states that the judgment does not contain any incorrect statement. he is quite positive that no arguments were advanced by the plaintiff's pleader on the issue in question. he also mentions the fact that this issue.....
Judgment:
ORDER

Kunhi Raman, J.

1. This is a petition presented against an order made by the learned District Munsif of Guntur in I.A. No. 2920 of 1936 in O.S. No. 552 of 1935 on the file of his Court. The application before the lower Court was for review of the judgment and decree passed by it in the suit mentioned above on 31st July 1936. The application has been granted by the Court below and this petition is presented on behalf of defendant 3 in the suit. The facts are briefly as follows : In the suit that was disposed of by the lower Court there was an issue framed in the following terms:

Whether the plea of defendant 3 regarding his sale is barred by res judicata by the decision in O.S. No. 370 of 1931 on the file of the District Munsif's Court, Guntur and A.S. No. 46 of 1934 on the file of the Sub-Court, Guntur.

2. In the judgment pronounced by the lower Court it was mentioned that this issue was not pressed at the time arguments were advanced by the learned advocates. The petition for review of the judgment and the decree alleged that this was an incorrect statement contained in the judgment because the issue was not really given up by the learned pleader who appeared in the suit on behalf of the plaintiff. The records show that arguments were addressed to the learned District Munsif on 30th July 1936 and on the very next day, namely, on 31st July 1936 the judgment was pronounced which contained this disputed statement. It is thus clear that the facts must have been fresh in the mind of the learned District Munsif when he pronounced judgment. In the order granting the petition for review the learned District Munsif states that the judgment does not contain any incorrect statement. He is quite positive that no arguments were advanced by the plaintiff's pleader on the issue in question. He also mentions the fact that this issue was raised as an additional issue at the time of the trial and he says that normally the plaintiff or his pleader would not have given up in this manner such an issue that was raised at the instance of the plaintiff. But what he states is that the plaintiff's pleader must have taken an erroneous view of the facts and that it was because of this erroneous view that the issue was not pressed at the trial. The error referred to is with regard to a mortgage of the northern portion of the suit property to an outsider. This was the portion allotted to the share of the plaintiff and what was contended before the lower Court was that if the plaintiff and his pleader were aware of the fact that the mortgage was only of the northern portion of the property and not of the entire property, they would certainly not have relinquished the point raised in the additional issue which was framed at their instance because the result of doing so would be highly prejudicial to the interest of the plaintiff.

3. On behalf of the petitioner before this Court, who was the respondent in the Court below, it is pointed out that there was express reference made in the written statements filed by defendants 1 and 2 in the lower Court to the fact that the suit property was subject to a mortgage in favour of a third party and that therefore there was no excuse for the plaintiff or his pleader saying that they were not aware of the existence of this mortgage. The learned advocate for respondent 1 here contends that the Court below has not stated in its order that the plaintiff's pleader had expressly given up the point involved in issue 2 but that on a perusal of the order made by the lower Court all that can be said is that no arguments were specifically addressed on this issue and that consequently the lower Court presumed that that issue was not pressed. I am not able to accept this contention as well founded. It is nowhere stated in the order that it was a mistake committed by the lower Court as the result of the plaintiff's pleader not addressing arguments on the issue in question. On the other hand, the following sentence that appears towards the end of the order seems to me to indicate clearly that the issue was not pressed by the learned advocate as the result of a mistake. The sentence is worded as follows:

The issue was specifically prayed for by the plaintiff and was got framed on the date of trial, and the judgment and decree copies necessary for the decision on that issue were all got exhibited, and it is not conceivable that the plaintiff would have given it up immediately but for the erroneous view of the vakil.

4. There is no doubt at all from this sentence that the issue was given up and that it was done as the result of an error on the part of the advocate. In an old case reported in Sabapathi v. Subraya (1878) 2 Mad. 58 which arose under the corresponding provision relating to review contained in Section 376, Civil P.C., Act 8 of 1859, the wording of which is much wider than the wording of Order 47, Rule 1 of the present Code, the learned Judges expressed themselves strongly against the granting of review in circumstances similar to those in the present case. In the course of the judgment they say:

The question was apparently abandoned, and if upon no other ground, we would think that, upon that ground alone, the review asked for should not be granted.... A party who not only had art opportunity of raising a question, but who did raise it in appeal and on argument abandoned it,, cannot under ordinary circumstances be allowed to agitate the question on review.

5. In the present case also there was an abandonment of a specific question involved in an issue that was raised at the instance of the plaintiff and according to the order of the Court below such abandonment took place as a result of an erroneous view taken by the plaintiff's pleader. There is no extraordinary or special feature alleged in the present case which would warrant inter-1ference under Order 47, Rule 1, although the point was given up as the result of a mis-1take committed by the advocate. Respondent 1's learned advocate then points out that the fact that it was the northern portion of the suit property that was mort 1 gaged to a third party was not known either to the plaintiff or his pleader at the time that the concession was made in the lower Court and that therefore since the plaintiff found out this fact subsequently it must be regarded as a new fact that was discovered subsequent to the judgment of the lower Court. This aspect of the case was evidently not put before the lower Court. It is not open in such circumstances for the learned advocate to raise it for the first time here. As pointed out by the learned advocate for the petitioner, had this question been raised in those terms in the Court below the short answer of the petitioner here would have been that had the plaintiff or his pleader exercised reasonable diligence, they would certainly have found out that it was the northern portion of the property that was subject to a mortgage in favour of a stranger. This argument is well founded, because the existence of the mortgage was disclosed in the written statement filed by defendants 1 and 2 in the Court below. It is not therefore open to the plaintiff to plead ignorance of the mortgage. When he was aware of the mortgage it was his business to have ascertained whether the mortgage was of the entire property or of only the northern portion of it. If he had not done so, then it would be a case of failure to exercise reasonable diligence which would preclude him from taking advantage of the provisions of Order 47, Rule 1. Then it is contended on behalf of respondent 1 that there is no question of jurisdiction involved in this revision petition and that therefore the petition should be dismissed. The learned advocate states that the lower Court had jurisdiction to decide -whether there was sufficient reason to review the judgment under Order 47, Rule 1 and that even if an erroneous decision was arrived at on this question by the lower Court, it cannot be said that it had no jurisdiction to make the order. The petitioner's learned advocate answers by citing the decision of the Privy Council reported in Chajju Ram v. Neki A.I.R. (1922) P.C. 112. Their Lordships point out in this decision that

any other sufficient reason used in Order 47, Rule 1 must be interpreted as meaning a reason sufficient on grounds at least analogous to those specified immediately previously.

6. They go on to say that 'such an interpretation excludes from the power of review conferred the course taken by the Second and Third Division Benches' of the Lahore High Court in that case. Prom this it is clear that the matter involves a question of jurisdiction. Where the Court below has interfered when there was no sufficient reason for granting a review under Order 47, Rule 1 it is certainly a case in which a question of jurisdiction is incidentally involved and in such a case according to the decisions of this Court it is permissible to interfere in revision under Section 115, Civil P.C. In view of this aspect of the matter it is not necessary to refer to another argument advanced on behalf of respondent 1 that since provision is made in Order 43, Rule 1(w) for appealing against an order made under Order 47, Rule 1 a revision petition ought not to be entertained. It is conceded that the appeal referred to can lie only in the case specified in Order 47, Rule 7. If a question of jurisdiction is involved which will not be covered by the provisions of that rule, then there is nothing wrong in the aggrieved party coming to this Court in revision under Section 115, Civil P.C. The case reported in Kyone Hoe v. Kyon Soon Sun A.I.R. (1925) Rang. 314 cited by the learned advocate for respondent 1 in support of his contention that the order of the lower Court is correct, does not really help him. That was a case where the Court was acting under a misapprehension as to a representation made by an advocate. The case in Nagabushanam v. Jagannaikulu A.I.R. (1925) Mad. 1031 and Ayyaswami Chetty v. Official Receiver, Coimbatore A.I.R. (1932) Mad. 63, also cannot be regarded as authorities which would support the view taken by the lower Court that it is a fit case for granting a review of judgment under Order 47, Rule 1.

7. It is obvious that there will be no finality to the decision of a Court if after judgment is pronounced the parties or advocates are allowed to come forward and say that a certain argument was addressed or given up in the course of the trial as the result of their not remembering certain material facts. If applications for review are allowed on such grounds, there will be no end to legal proceedings. The aggrieved party may have other remedies open to him but so long as the case does not fall within the purview of Order 47, Rule 1 it will not be correct to allow an application for review. In these circumstances, I hold that the order made by the lower Court is clearly wrong. It is accordingly set aside and the petition for review is dismissed. Respondent 1 shall pay the costs of the petitioner in this civil revision petition.


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