C.C. Ghose, Ag. C.J.
1. This is a rule obtained by the Secretary of State for India in Council calling upon the opposite party, the Hindusthan Co-operative Insurance Society Limited, to show cause why an application filed in Court on 12th June 1931, praying for a review of the judgment and decree in First Appeal No. 30 of 1925 disposed of by B. B. Ghose and Panton, JJ., on 25th January 1929, should not be entertained, though filed out of time, and why the said judgment and decree should not be reviewed upon certain grounds stated in the said application or why such other or further order should not be made as to this Court may seem fit and proper.
2. The facts involved in the said appeal and in the application on which this rule was issued, shortly stated, are as follows: It appears that the Calcutta Improvement Trust formulated a schema, namely, Scheme No. 15 for the improvement of certain areas in Ballygunge. Thereafter a declaration was made and published under Section 6, Land Acquisition Act, notifying for acquisition of certain lands in that area for the purposes of the said scheme. The lands under acquisition were part of a larger area measuring about 162 bighas and they had been purchased by the Insurance Society on certain dates between August 1917 and May 1918. It further appears that the Insurance Society had prepared a scheme for developing their property as building sites with roads giving access thereto. As regards the land under acquisition, the Collector under the Land Acquisition Act valued the same at Rs. 32,000. The Insurance Society was dissatisfied with this valuation and also with the method of valuation adopted by the Collector. They accordingly applied for and obtained a reference to the Calcutta Improvement Tribunal under Section 18, Land Acquisition Act read with the relevant sections in the Calcutta Improvement Act. In then-Scheme No. 15 the Calcutta Improvement. Trust provided for a roadway 100 feet in width running' east to west and passing through the area belonging to the Insurance Society. It appears that at the hearing of the reference, the Calcutta, Improvement Tribunal accepted the valuation of the land under acquisition as made by the Collector and dismissed the reference. The Insurance Society being dissatisfied with the order made by the Calcutta Improvement Tribunal preferred an appeal to this Court being First Appeal No. 30 of 1925. That appeal came up for hearing as stated above before B. B. Ghose and Panton, JJ. The learned Judges came to the conclusion that the Insurance Society had become aware of the said Scheme No. 15 for constructing a road which was to run partly through the area belonging to the Society.
3. The learned Judges observed as follows in the course of their judgment:
The document I refer to is Ex. F, dated 10th August 1918, which contains the proceedings of a meeting of the directors of the society. From that document it appears that they became aware of the scheme of the Improvement Trust for building a road which was to run partly through the society's property and the construction of which was to be taken up as an urgent matter. Then it proceeds thus: 'This might have operated as a bar to the immediate sale of a considerable number of the society's proposed plots. It was however found possible to avoid this contingency by making this society's proposed development road in Scheme No. 2 follow the slightly different line of a road projected by the trust (thus avoiding all cross-roads in this scheme) and leaving out of the scheme a strip of land alongside the Improvement Trust drainage road alignment to which the Chairman of the Trust agreed. From this document, as well as the evidence of the Secretary of the society, Mr. S.N. Tagore, and that of Mr. G. K. Sircar, an Engineer examined on behalf of the society, it is apparent that it was their intention to drive a 40 feet broad road at or about the place which they knew was going to be acquired by the Trust. The disposition of the property should therefore be held to be building sites with a road 40 feet wide for allowing access to the sites that were going to be sold. The knowledge of the fact that the Improvement; Trust was going to build a 100 feet road by acquiring a part of their property induced the society to keep vacant a 100 foot broad plot of land. Bui that, I have already said, cannot be taken as the present disposition of the land. The question now is what should be the valuation of the land acquired. Sir Binod Mitter, on behalf of the Secretary of State argued that the matter should be sent back to the tribunal for working out the valuation. We are unable to agree with that suggestion in the particular case. The learned Advocate General, on behalf of the appellant, pointed out that the valuer on behalf of the Secretary of State has worked out the market value of the land according to the scheme as given by Mr. C. K. Sircar on behalf of the Society, and we are of opinion that, if that be taken as the proper valuation of the land acquired, the respondent has no right to complain. The valuation cannot, in any case, be lower than what was stated by the respondent's valuer, Satya Prokas Sircar. After deducting the value of the land for a 40 feet road and the cost of making the roadway, he has put the value of the land at Rs. 94,330, and it seems to me that that is the most equitable way of valuing the land acquired. It was contended on behalf of the appellant, that the valuation was increased by that witness during his cross-examination to one lakh odd. We have gone through his cross-examination, and it seems that that increase was made on a hypothetical basis and cannot be taken as a proper valuation. The appeal is, accordingly, allowed in part, the award of the Collector and the Tribunal is varied and the Society is allowed Rs. 94,000 as the market value according to the disposition of the land at the time of the declaration plus the statutory allowance and damages at the rate allowed by the Collector. Having regard to the fact that there has been a partial success on both sides, there will be no order as to costs in either of the Courts.
4. The Secretary of State thereafter applied for and obtained leave to appeal to Ilia Majesty in Council against the judgment and decree of B. B. Ghose, J., and Panton, J. Leave was granted on 2nd July 1929. At the time when the Secretary of State obtained the said leave, the Insurance Society, who were of opinion that a larger sum of money should have been allowed on account of compensation, also applied for and obtained a similar leave to appeal to His Majesty in Council. The two appeals to His Majesty in Council were numbered 16 and 19 of 1929 and were disposed of by their Lordships of the Judicial Committee on 20th March 1931. Their Lordships held that the appeals were incompetent and they accordingly dismissed the same on the ground that the statute did not provide for an appeal to His Majesty in Council, having regard to the circumstances disclosed on the record.
5. It is stated on behalf of the Secretary of State that the fact of the dismissal of the said appeals by their Lordships became known in Calcutta about the end of April or at any rate in the first week of May 1931. There is some dispute about this as is evidenced by an affidavit made by Mr. Surendra Madhub Mallick, an Advocate of this Court, but for the purposes of this Rule we shall proceed on the footing that the Secretary of State became apprised of the fact of the dismissal of the said appeals in the first week of May 1931 and pay no attention to Mr. Mal-lick's affidavit which ought not to have been made.
6. It is now alleged on behalf of the Secretary of State in the present claim that in taking the figure Rs. 94,330 as the estimate of the value of the land acquired after making the necessary deductions including the cost of constructing a roadway, the learned Judges (B. B. Ghose and Panton, JJ.) fell into an error, namely, that the Government expert referred to in the said judgment arrived at the said figure allowing a road 1,600 feet long and 40 feet wide, whereas as a matter of fact the Government expert calculated the value on Mr. C. K. Sircar's lay out as shown in Ex. 22 which provided only for four small roads of 100 feet long, two only 40 feet wide and two others 20 feet wide, covering a total road space of 16 cottas 10 chattaks 30 square feet. In this connexion attention is drawn by the Secretary of State to the evidence of the Government expert as also to the deposition of Mr. C. K. Sarcar, and it is claimed by the Secretary of State that giving effect to the findings of the learned Judges as regards the principle of valuation, the value of the land in question could not possibly exceed Rs. 40,000.
7. In the events which have occurred the Secretary of State claims that the present application, in view of the provisions of Sections 5 and 14 (2), Limitation Act, should be hold to be in time and that on the merits it may be held that there is an error apparent on the face of the record, namely, that the said figure of Rs. 94,330 was arrived at not after allowing for a 40 feet road of the entire length of 1,600 feet, but on C. K. Sircar's lay out which provided for only four small roads each 100 feet long of which two were of 40 feet wide and the other two 20 feet wide.
8. The present application is strenuously resisted on behalf of the Insurance Society on the ground that the application itself is hopelessly barred by limitation. It is argued on their behalf that the Secretary of State has not given any explanation whatsoever as to why the following period of delay should be excused under Section 5, Limitation Act, namely, the period from 25th January 1929 when the judgment of this Court was pronounced on the appeal itself, and 22nd April 1929 when the Secretary of State applied for leave to appeal to His Majesty in Council, and the period from 20th March 1931, when their Lordships pronounced judgment and 12th June 1931, when the present application for review was filed in Court. It is further submitted on behalf of the Insurance Society that the period between 22nd April 1929 and 20th March 1981 cannot be excused under the provisions of Section 14 (2), Limitation Act. On the merits, the Insurance Society contend that there has been no error whatsoever apparent on the face of the record as claimed by the Secretary of State.
9. We are by no means sure that on the merits the Secretary of State has no grievance. As far as we can make out from the record before us, the position of affairs was as follows: The Insurance Society purchased a large area of land and proceeded to develop the same as building sites. In 1918 they came to know that the Calcutta Improvement Trust intende 1 to run a 100 feet east to west road through their land and they prepared a lay out incorporating this road and leaving a vacant strip of 100 feet for a roadway. The Collector held that this was land over which the owners of plots adjacent to it had rights of way and that it was not building land, and he awarded compensation on that basis. The Calcutta Improvement Tribunal upheld the finding of the Collector. This Court however set it aside and found that the Society's intention had been to run a 40 feet cast to west road which the Calcutta Improvement Trust subsequently made a 100 feet road. Their Lordships' finding was that the disposition of the property should be held to he building sites with a 40 foot wide road for allowing access to the sites that wore going to be sold. The learned Judges stated that the value of the land should not be less than what was stated by the Government valuer after deducting the value of land for a 40 feet road and the cost of making the roadway. He (the Government valuer) according to the Judges, put the value of the land at Rs. 94,330 and it seemed to the Judges that this was the most equitable way of valuing the land.
10. It is reasonably clear to our minds from the record that the valuation of Rs. 94,330 by the Government expert was not the valuation of the land after deducting the land for a 40 feet road and the cost of making the roadway, but it appears to have been the valuation of the land as building sites according to the lay out by the Insurance Society's export Mr. C. K. Sircar which did not show a 40 feet east to west road, hut only one or two-short lengths 40 feet and 20 foot north to south roads. The contention on behalf of the Secretary of State is that as the learned Judges found that there must be an east to west road but that its width should be restricted to 40 feet they should have found the value of the land to be about Rs. 31,075 plus l/5th of the said amount, the aggregate amounting to Rs. 37,290. We are of opinion that on the merits there is a great deal to be said on behalf of the Secretary of State and that it does appear that the learned Judge fell into an error in arriving at the figure Rs. 94,330 on the assumption made by them and that the Secretary of State had a real grievance.
11. But be that as it may, for the reasons about to be given we are of opinion that it is not possible for us, on the facts placed before us, to hold that the present application does properly come within Section 5 and Section 14 (2), Lim. Act and that the delay which was taken place should therefore be excused. Now it appears that immediately after the judgment of this Court had been pronounced, the Secretary of State became aware of the mistake which according to him had been made by the learned Judges who disposed of the said appeal. This is apparent from the grounds taken in the appeal to His Majesty in Council. But the Secretary of State now says that as he had been advised to file an appeal to His Majesty in Council, he did not apply for review of judgment at that time. This is a position so extraordinary and so strange that we feel some difficulty in believing that the Secretary of State could have been so advised by any responsible lawyer. It is also claimed on behalf of the Secretary of State that he had good grounds for believing that an appeal lay to His Majesty in Council and that at no time prior to 20th March 1931 did he become aware of the fact that an appeal to His Majesty in Council was incompetent and that under the law there could be no such appeal. In passing, we may remark that the Secretary of State knew at all .material times that his right to appeal to the Privy Council was being contested and would be contested before the Privy Council. It is also claimed on behalf of the Secretary of State that there has not been any undue delay between 20th March 1931 and 12th June 1931.
12. As regards the period between 20th March 1931 and 12th June 1931 we are not prepared to say that the delay has been such as cannot be excused, if it stood by itself, under Section 5, Lim. Act. But the delay between the two dates mentioned above does not stand by itself; the period between these two dates has got to be taken along with the period which elapsed since the date when judgment was pronounced by B. B. Ghose and Panton, JJ. and must be considered in relation thereto. Now on the facts stated it cannot be maintained that the Secretary of State discovered the error in question after the pronouncement of the judgment of their Lordships. Indeed it is not disputed and it cannot be disputed that the Secretary of State was aware of the error referred to above immediately the judgment of this Court was pronounced. It is incomprehensible as to why steps were not immediately taken to apply for review of judgment. The learned Judges, if their attention had been drawn at that time, would no doubt have considered the matter and would have been in a position to pass suitable orders; but instead of that the Secretary of State took the extraordinary step of including in his grounds of appeal to His Majesty in Council the ground relating to the matter now under discussion and chose to content himself by taking that ground with full notice of the precarious nature of the right to appeal to the Privy Council and trusting to the chances of the litigation in which he had been engaged see in this connexion Order 47, Rule 1, Clause (a), Civil P.C.
13. We can find nothing in the circumstances disclosed which can induce us to excuse the period between the date when the judgment was pronounced and the date when leave to appeal to His Majesty in Council was applied for. And in the circumstances of the present case, we are not prepared to hold that the Secretary of State has made out any good ground for the contention he has put forward, namely that the period between the date when leave to appeal to His Majesty in Council was applied for and the date when their Lordships of the Judicial Committee pronounced judgment should be excused on the ground that the Secretary of State was engaged in a bona fide manner in carrying on the litigation. We are not prepared to say that because the then Sir-Lancelot Sanderson, C.J. and Walmsley, J. had given leave to appeal to His Majesty in Council in a. previous case that in itself was sufficient to warrant the conclusion that as a matter of law an appeal to His Majesty in Council in the circumstances disclosed in the present record was competent and that the Secretary of State had any good ground for believing that the mistake such as it was might be rectified; by their Lordships of the Judicial Committee. This is not and cannot be treated as an application for amendment of decree.
14. In this view of the matter the only conclusion to which we can come is that a sufficient case has not been made out for excusing the period between the date when leave to appeal to His Majesty in Council was applied for and the date when their Lordships of the Judicial Committee pronounced judgment. But assuming that this period can, even at the risk of straining the matter in favour of the Secretary of State be condoned under Section 14 (2), Lim. Act, the earlier period has got to be taken along with the time which has elapsed till 12th June 1931 when the present application for review was filed in Court, and on consideration of the entire circumstances it is impossible for us to hold that the application itself can be brought within the, purview of Section 5, Lim. Act. Under these circumstances, much as we regret the conclusion it is impossible for us to afford any relief to the Secretary of State and we are of opinion that this Rule must be discharged. There will be no order for costs.
15. I agree with the learned Chief Justice in the conclusion he has arrived at in this case. I regret 1 have to come to the conclusion that the Rule obtained by the Secretary of State for review of the judgment of B. B. Ghose and Panton, JJ. must be discharged on the ground of limitation for the merits of the Rule seem to my mind to be in favour of the applicant's contention. But this is a conclusion we have been constrained to arrive at for though the merits of the Rule are in favour of the applicant for review the opposite party in this Rule, viz., the; Hindusthan Co-operative Banking Society have acquired a valuable right by reason of the statute of limitations. It is not necessary to restate the facts as they have been stated with very great lucidity in the judgment just delivered by the learned Chief Justice.
16. It appears that the judgment of the High Court, which is sought to be reviewed, was delivered on 25th January 1929. On 22nd April 1929 the Secretary of State applied for leave to appeal to His Majesty in Council and in the grounds of appeal a specific ground was taken to the effect
that the valuation made by the High Court in modification of the Collector's award and Tribunal's decision is not supported by the decision and finding arrived at by the Honourable Court in its judgment, that it was the intention of the society to drive a 40 feet broad road at or about the place which they knew was going to be acquired by the trust in view of the evidence in the case': see Gr. No. 10, p. 302 of the Privy Council Paper Book.
17. This ground was also taken in other forms in grounds 13 and 14 which are to the following effect:
13. For that at least 40 feet ought to have been excluded on the Honourable Court's finding about the disposition of this strip; and (14) for that this Honourable Court is in error in referring to 20 feet and 40 feet north to south road as shown in Ex. 22 as a 40 feet road.
18. Although those grounds were raised in the Secretary of State's petition for leave to appeal to His Majesty in Council it seems somewhat strange that no attempt was made for applying for review of judgment, on a ground which it is now alleged was apparent on the face of the record. The Hindusthan Society was not satisfied with the amount, enhanced by the High Court and they wanted a greater increase of the compensation money and they applied for review on 22nd April 1929 and after that also made an application for leave on 17th May 1929. It appears to me that the scheme of the order relating to review in the Civil Procedure Code is that in those cases in which an appeal lies the application for review should be filed before the appeal is lodged. In this case, at any rate the Secretary of State thought that an appeal would lie to His Majesty in Council against the order of the High Court and in this view they were fortified by the decision of Sanderson, C. J. and Walmsley, J., in a previous case and as a matter of fact it was also so held by the learned Chief Justice (Sir George Rankin) when he granted leave to appeal in this case. I fail to understand why in these circumstances the application for review was not made prior to the filing of the application for leave. There seems to be no reasonable excuse for this course. The advisers of the Secretary of State knew then that in their view two remedies were open, one an application for review of judgment and the other an appeal. The Secretary of State knew as appears from the affidavit of Mr. Surendra Nath Tagore that their right to appeal to His Majesty in Council was being contested by the Society. They knew also that the question was raised before the Judges who were dealing with the leave application and must have anticipated that this objection as to the competency of the appeal would be repeated before their Lordships of the Judicial Committee of the Privy Council. In these circumstances it is difficult to understand why the Secretary of State was not advised to take the course which the law suggests that in - appealable cases the review application should be filed before the appeal is lodged: see Order 47, Rule 1, Clause (a), Civil P.C.
19. I felt some doubt in the course of argument if an application for review would lie after the appeal had been dismissed by their Lordships of the Judicial Committee on the ground that the appeal to their Lordships was incompetent. It had been held in some cases that when an appeal, has been preferred before the application for review and the appeal had been dismissed no application can be made for review of the decree. In a case relied on by the learned Advocate-General in the course of argument it has been laid down that a party against whom a decree has been passed is precluded after dismissal of the appeal under Order 41, Rule 11 from applying for a review: see Ramappa v. Bharina  30 Bom. 625. The same view has been taken in Hariganu v. Hariganu A.I.R. 1929 Bom. 225 but it has been contended on behalf of the Secretary of State that these cases are distinguishable from the present as in the present case there is no decision by their Lordships of the Privy Council on the merits of the appeal and the effect of their Lordships' order is to declare that they had no jurisdiction to entertain the appeal. There is some substance in this contention of the Secretary of State but it is not necessary to express any final opinion in the view which we have taken on the question of limitation. Regarding the merits of the review application I had some doubt in the course of argument as to whether the ground of review was not the misapplication of the evidence of C. K. Sarkar and the Government valuer by the learned Judges, and if that was so there was no ground for review within the meaning of Order 47, R. (1) of the Code, but on further consideration I was of opinion that it is possible to regard the ground having regard to the findings of the learned Judges read with the evidence of C. K. Sarkar and the Government valuer as an error apparent on the face of the record. It is not the case of a rehearing for the purpose of seeing whether a different conclusion on the merits should be adopted, but an application for varying the judgment which would have been different if the apparent error had been discovered.
20. I would therefore rest my decision on the ground that no explanation has been given as to why the review was not filed between the date of judgment and the application for leave to His Majesty in Council. The Secretary of State might have pursued both the remedies simultaneously and in the ordinary course of human events one would have expected that application should have been made a day before the time limited by law on half the court-fee to the learned Judges who decided the appeal who might have yet matters right, if they were convinced of the apparent error on the face of the record and this period has to be taken into account for considering whether sufficient cause has not been made out for extending the period of limitation. I am of opinion that no sufficient cause has been made out and the rule must be discharged.
21. The learned senior Government Pleader has then sought to induce us to treat this application as an application for the amendment of the decree or judgment under Section 152, Civil P.C. I am of opinion that this contention cannot be accepted. This is not merely an error in calculation but at any rate the two depositions referred to and the findings have to he considered before the error could be discovered. The learned Judges have put down the sum of Rs. 94,000 odd in their judgment and in doing so have overlooked the effect of the Government valuer's evidence. In these circumstances this cannot be treated as an arithmetical error as to be capable of being corrected under Section 152, Civil P.C. If we had been of opinion that the application of the Secretary of State was not barred by limitation it is doubtful if we might not have to rehear the appeal instead of rectifying the judgment and decree in this proceeding for review.
22. It is said that the Secretary of State was mislead by a mistake in law that an appeal was competent and did not file the application for review in the hope that the same relief would be granted in appeal but a mere mistake in law is not per se sufficient for asking the Court to exercise its discretion under Section 5, Lim. Act: see the decision of the Judicial Committee in Brij Indar v. Kanshi Ram A.I.R. 1917 P.C. 156 and it has been already said that there was no reasonable cause for not filing both the appeal and review.