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Manindra Chandra Roy Chowdhury and anr. Vs. Balaram Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.725
AppellantManindra Chandra Roy Chowdhury and anr.
RespondentBalaram Das
Excerpt:
civil procedure code (act v of 1908), order xlvii, rule 2, 7 - period, grant of--appeal--jurisdiction of appellate court--civil procedure code (act xiv of 1882), section 373--suit, withdrawal of--liberty to bring suit. - .....successor in office of the judge who had made that order. the defendants forthwith appealed to the district judge under order 47, rule 7,-of the code of 1908. he held that the order of the court of first instance interpreted as an order granting an application for a review of judgment could not be supported, first, because the application for review had been made to the successor in office of the judge who had made the order in the first instance; and, secondly, because the application was barred by limitation. the learned district judge, however, although he took this view did not proceed to set aside the order. he held that the order might have been made by the court of first instance if an appropriate application had been made under section 151 of the code of 1908, and the court had.....
Judgment:

1. We are invited in this Rule to set aside an order of the Court below in affirmance of an order of the Court of first instance granting an application for a review of judgment. It appears that on the 31st March 1908, an order was made in the original suit by which an application for amendment of pleadings was granted. The application stated that certain parties and the claim to recover certain parcels of land against them had been improperly joined with the result that the suit as framed was open to objection on the ground of misjoinder of parties and causes of action. The plaintiff consequently prayed that the plaint might be amended by the omission of the names of those persons and the prayer for recovery of possession of several parcels of land. There was also a prayer that the plaintiff might be granted leave to bring a separate suit upon the same cause of action in respect of the claim, improperly joined and sought to be withdrawn. The order recorded, however, was that the plaint might be amended and no express mention was made of any permission granted to the plaintiff to bring a separate suit. Subsequently the plaintiff commenced a new action against the parties they omitted from the original litigation, in respect of the properties for which the claim had been withdrawn. Objection was taken by the defendants on the ground that as liberty had not been reserved to the plaintiff to bring a fresh suit, the action was barred under Section 373 of the Code of 1882. The plaintiff, therefore, applied on the 13th March 1909, for a review of the original order. This was granted on the 22nd May 1909, by the successor in office of the Judge who had made that order. The defendants forthwith appealed to the District Judge under Order 47, Rule 7,-of the Code of 1908. He held that the order of the Court of first instance interpreted as an order granting an application for a review of judgment could not be supported, first, because the application for review had been made to the successor in office of the Judge who had made the order in the first instance; and, secondly, because the application was barred by limitation. The learned District Judge, however, although he took this view did not proceed to set aside the order. He held that the order might have been made by the Court of first instance if an appropriate application had been made under Section 151 of the Code of 1908, and the Court had been invited to exercise its inherent powers. In this view, the District Judge ultimately dismissed with costs the appeal presented to him. We are now invited to set aside this order on the ground that for the reasons stated in the judgment of the District Judge, the order of the Court below cannot be maintained. This position has not been seriously contested on behalf of the opposite party, and, in our opinion, the view taken by the District Judge cannot be supported. Under Rule 7 of Order 47 of the Code of 1908, an appeal lies against an order granting an application for review of judgment on three specified grounds. The jurisdiction of the Court of appeal, therefore, in dealing with the matter under that Rule, is of a strictly restricted nature. As the learned District Judge found that the order of the Court of first instance was made in contravention of Rule 2 of Order 47 and further that the application for review was barred by limitation, he ought to have allowed the appeal presented to him and discharged the order of the Court of first instance. The result, therefore, is that this Rule must be made absolute and the order of the District Judge as also that of the Court of first instance set aside.

2. We may, however, point out that these proceedings have been throughout misconceived. The petitioner for review of judgment has proceeded on the assumption that the objection taken to the frame of the second suit is well-founded. In our opinion, there can be no reasonable doubt that the objection is groundless. When the plaintiff in the first suit applied for amendment of the plaint by striking out the names of certain persons as defendant and the prayer for relief against them in respect of certain parcels of land, and when this application was granted, the effect in substance was as if the suit had never been commenced against those parties in respect of the subject-matter of the litigation. In fact, if the plaint had not been amended and the objection of misjoinder of parties and causes of action had not been removed, the Court might have proceeded under Section 54, Clause (d) of the Code of 1882, read with Section 53, Clause (b)(iii), and in the event of a rejection of the plaint, a new suit might have been instituted under Section 56. In this view it would be needless for the Court to record an express order reserving liberty to the plaintiff to bring a fresh suit. The order for amendment of the plaint as recorded was a perfectly correct order, and the plaintiff is entitled to maintain the second suit notwithstanding the fact that he did not obtain express permission to do so. We think, therefore, that though this rule should be made absolute, there ought not to be any order for costs in these proceedings.


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