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The Nalagarh Dehati Co-operative Transport Society Ltd., Nalagarh Vs. Beli Ram Etc. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Review Nos. 17, 13 to 16 and 18 of 1976
Judge
Reported inAIR1981HP1
ActsCode of Civil Procedure (CPC) , 1908 - Order 47, Rule 1; ;Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantThe Nalagarh Dehati Co-operative Transport Society Ltd., Nalagarh
RespondentBeli Ram Etc.
Appellant Advocate Inder Singh, Adv.
Respondent Advocate M.G. Chitkara and; B.B. Vaid, Advs.
Cases ReferredRameswaraswami Varu v. R. Ramalinga Raju
Excerpt:
- .....that the failure to take notice of an existing judgment of the supreme court* amounts to an error apparent on the face of the record since it is law under article 141 of the constitution. it is submitted that where a judgment of the supreme court overrules the judgment of a high court which was the basis of judgment sought to be reviewed, the supreme court judgment demonstrates the error which then becomes apparent.6. order xlvii of the code of civil procedure deals with review. the relevant part of rule 1 reads:'(i) any person considering himself aggrieved --(a) by a decision on a reference from a court of small causes, from which no appeal has been preferred,(b) by a decree or order from which no appeal is allowed, or(c) by a decision on a reference from a court of small causes,.....
Judgment:

V.D. Misra, C.J.

1. The following question has been referred to the Full Bench :

'Whether it is a mistake or error apparent on the face of the record within the meaning of Order 47, Rule 1, C.P.C. in any of the following contingencies:

(i) Where after a judgment is pronounced by a court, the Supreme Court or a larger bench of the same court renders a decision taking a different or contrary view on a point covered by the said judgment; or

(ii) Where the court so pronouncing a judgment has, for whatever reason, missed to take into consideration a decision of the Supreme Court or a High Court taking a different or contrary view on a point covered by the said judgment.'

2. Under Section 55 of the Punjab Cooperative Societies Act, 1961 (the 'Act') the respondents raised disputes with the petitioner. These disputes were referred to arbitration. Awards were given against the petitioner. Under Section 63 (a) of the Act the awards could be executed as decrees of a civil court. Applications for executions were, therefore, made in the court of senior Sub Judge. The property belonging to the petitioner was attached. Objections under Section 47, Civil Procedure Code, were filed by the petitioner. These objections were dismissed on the ground that an executing court could not go behind the decree. The petitioner appealed to the District Judge with no better results. The matter was brought to the High Court in second appeal.

3. Various contentions were raised before a learned single Judge of this court. It was, inter alia, contended that Clause 1 (a) of Section 87 of the Act having been deleted by the Himachal Pradesh Cooperative Societies (Amendment) Act, 1972, the award could no longer be executed as a decree. The learned Judge negatived the contention in view of Section 4 (e) of the Himachal Pradesh General Clauses Act, 1968. A reference was made to a Full Bench decision of East Punjab High Court in Ram Singh v. The Crown, AIR 1950 East Punj 25. Two Supreme Court decisions were relied upon. These are : Nani Gopal Mitra V. State of Bihar, AIR 1970 SC 1636 and Javantilal Amarathlal v. The Union of India, (1971) 1 SCWR 424. The learned Judge while repelling petitioner's contention that the awards were without jurisdiction relied upon the judgment of the Supreme Court in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman. AIR 1970 SC 1475.

4. The petitioner seeks review on the grounds that the case of Ram Singh (supra) has been overruled by the Supreme Court in Gopi Chand v. Delhi Administration, AIR 1959 SC 609; decision of the Supreme Court in Bhavan Vaja v. Solanki Hanuni Khodaji Mansang AIR 1972 SC 1371 was not noticed; and that Nani Gopal Mitra's case (supra) was not properly appreciated.

5. It is contended that the failure to take notice of an existing judgment of the Supreme Court* amounts to an error apparent on the face of the record since it is law under Article 141 of the Constitution. It is submitted that where a judgment of the Supreme Court overrules the judgment of a High Court which was the basis of judgment sought to be reviewed, the Supreme Court judgment demonstrates the error which then becomes apparent.

6. Order XLVII of the Code of Civil Procedure deals with review. The relevant part of Rule 1 reads:

'(I) Any person considering himself aggrieved --

(a) by a decision on a reference from a Court of Small Causes, from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) .....

Explanation -- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for review at such judgment.'

It is obvious that the grounds of review are :

(i) discovery of new and important matter or evidence which despite due diligence was not within the knowledge or could not be produced :

(ii) mistake or error apparent on theface of the record; and

(iii) any other sufficient reason. It is now well settled that 'any other sufficient reason' has to be read ejusdem generis. It has to be something analogous to the first two conditions and not only for the purpose of doing justice between the parties Chhajju Ram v. Neki, AIR 1922 PC 112.

7. The first part of the question relates to a situation where the subsequent judgment of the Supreme Court or a larger Bench of the same Court takes a view contrary to the one taken in the judgment under review. In other words, the judgment when given was perfectly good. There was no error apparent on the face of the record. It is the happening of a subsequent event which renders the judgment erroneous. This cannot bp a ground of review. The purpose of review, inter alia, is to correct an apparent error which should not have been there when the judgment was given. In Rajah Kota-giri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao, (1900) 27 Tnd App 197 (PC) Lord Davey said :

'the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event.'

8. In Raja Shaturanjit v. Mohammad Azmat Azim Khan, AIR 1971 SC 1474, the judgment-debtor applied for reduction of the decretal amount under Section 4 of the U. P. Zamindars' Debt Reduction Act. 1952. Application was rejected. Appeal to the High Court also failed. However, shortly thereafter said Section 4 was amended with retrospective operation. Now the judgment-debtor applied for review of the judgment of the High Court because of the retrospective amendment of the law. The application was allowed. The decree-holder appealed to the Supreme Court. One of the questions raised was that the High Court could not review its judgment. The Supreme Court, after approving the aforementioned statement of law by Lord Davey, observed thus :

'Counsel for the appellant submitted that when the High Court decided the matter, the High Court applied the law as it stood and subsequent change of law could not be a ground for review. The appellant's contention is not acceptable in the present case.....it is not a subsequent law. It is the law which all along was there from 1952. The deeming provision is fully effective and operative as from 25 May. 1953 when the 1952 Act came into force. The result is that the Court is to apply the legal provision as it always stood. It would, therefore, be error on the face of the record. The error would be that the law that was applied was not the law which was applicable.'

9. It is thus plain that where a judgment of the High Court is sought to be reviewed on the ground that a larger Bench of the same Court has taken a different or a contrary view, it cannot be said that there is a mistake or error apparent on the face of the record. The subsequent decision only shows that the previous decision was erroneous. And simply because a judgment happens to be wrong is not a ground of review on the ground that there is a mistake or error apparent on the face of the record,

10. The Federal Court in Hari shankar v. Amath Nath, AIR 1949 FC 106. after referring to the case of Chhajju Ram (AIR 1922 PC 112) (supra) observed thus :

'That a decision is erroneous in law is certainly no ground for ordering review. If the Court has decided a point and decided it erroneously, the error could not be one apparent on the face of the record or even analogous to it. When, however, the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order 47, Rule 1, Civil Procedure Code.'

11. A single Judge of the Gujarat High Court in Patel Naranbhai Jinabhai v. Patel Gopaldas Venidas, AIR 1972 Guj 229, ruled that a court cannot review its error on the ground that the decision has been rendered doubtful in view of a subsequent decision of the High Court.

12. A Division Bench of the Kerala High Court in Board of Revenue v. P. K. Syed Akbar Sahib, AIR 1973 Ker 285, was called upon to decide whether a subsequent decision of the larger Bench as well as that of Supreme Court taking a contrary view would amount to an error or mistake apparent on the face of the record. After discussing the existing case Law, Mulla's 13th Edition of the Civil Procedure Code was referred to with approval thus :

'At page 1672, the learned author observes that it is no ground for review that the judgment proceeds on an incorrect exposition of the law, or of a ruling which has subsequently been modified or reversed or that the law has been laid down differently in a later decision. Nor is a subsequent change in the law a ground for review unless it is retrospective in its operation.'

The court rejected the contention that a subsequent binding decision proclaims and declares the law as it ever was, and therefore, with retrospective effect, and that it stands on the same footing as a subsequent legislation with retrospective effect. It observed :--

'Nor can we regard these as amounting to the discovery of a 'mistake' or an 'error apparent on the face of the record'. While we agree that the reversal or variance or the overruling of a judicial decision by a subsequent one amounts to discovery of an error or a flaw in the reasoning of the decision reversed, varied or overruled we are unable to hold that in every such case there is an 'error apparent on the face of the record'.'

13. But a contrary view was taken by a Division Bench of this Court in Sat Pal Sabharwal v. The H. P. Financial Corporation, Simla, ILR (1976) Him Pra 34. It was held that the decision given by the Supreme Court being the law of the land under Article 141 of the Constitution, (the error) amounts to an error apparent on the face of the record. The reason given was that the error has been made apparent by the declaration rendered by the Supreme Court, With due respects to the learned Judges, we cannot agree. Article 141 lays down : 'The law declared by the Supreme Court shall be binding on all courts within the territory of India.' Evidently, before the law is declared by the Supreme Court, the courts have a right to give their own exposition of law. It may turn out to be wrong. Simply because the decision is erroneous cannot be said to be a good ground for review. The error, as already discussed, was not there when the decision was given. We do not agree that the subsequent decision of the Supreme Court is on the same footing as a subsequent legislation with retrospective effect.

14. However, the explanation added by Act 104 of 1976 to Rule 1 of Order XLVII. has laid the controversy to rest. It. came into effect on 1st February, 1977. It has given a statutory recognition to the view that reversal of the decision on a question of law by subsequent decision by a superior Court shall not be a ground for review of such judgment. It makes no distinction between the subsequent decision given by the Supreme Court or any other superior Court. In our opinion. therefore, a subsequent decision of the Supreme Court or a larger Bench of the same court taking a contrary view on the point covered by the judgment does not amount to a mistake or error apparent on the face of the record.

15. The second part of the question relates to a situation where a court has failed to notice an existing contrary decision of the High Court or the Supreme Court on a point covered by its judgment. Now the failure to notice a decision on a question of law of the Supreme Court, which is the law of the land under Article 141 of the Constitution, is not the same thing as failure to notice a binding decision of the High Court. So we would divide the question into two parts : (a) failure to notice a decision of the Supreme Court: (b) failure to notice a binding decision of the High Court.

16. Failure to notice an existing decision of the Supreme Court on a question of law results in not applying the law which should have been applied. Therefore, a contrary decision given on such a question would amount to a mistake or error apparent on the face of the record, The error would be obvious and no elaborate reasoning would be necessary to find it.

17. In The Selection Committee for Admission to the Medical and Dental College, Bangalore v. M. P. Nagaraj, AIR 1972 Mys 44, a similar question came up for decision before the Division Bench-In that case the parties had failed to bring it to the notice of the court that the Supreme Court had overruled an earlier decision of Mysore High Court, The result was that the court following the overruled decision dismissed the writ petition. On an application for review on the ground that there was a mistake or error apparent on the face of the record inasmuch as the court had failed to notice the decision of the Supreme Court, the Bench held thus :

'Article 141 of the Constitution provides that the law declared by the Court shall be binding on all courts within the territory of India. Hence, where there is a decision of the Supreme Court bearing on a point and where a Court has taken a view on that point, which is not consistent with the law laid down by the Supreme Court, it needs no elaborate argument to point to the error and there could reasonably be no two opinions entertained about such error.'

The Bench applied the test laid down by Rajagopala Iyengar, J., in Tungabhadra Industries Ltd v. Govt. of Andhra Pra-desh, AIR 1964 SC 1372, that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made.

18. However, failure to notice a binding decision of the High Court does not amount to a mistake or error apparent on the face of the record. It is true that the decision is binding but the Hish Court does not lay down the law as is done by the Supreme Court. The result, therefore, would be that the judgment would be wrong or erroneous. The decision on the question of law in that judgment would be wrong. Therefore, the court will have no jurisdiction to review its decision simply on the ground that it is contrary to the binding decision of the High Court.

19. A similar question came up for decision before a Division Bench of the Patna High Court in Garabini Kumarain v. Surji Narain Singh, AIR 1924 Pat 250. It was held that failure to take notice of a decision of the High Court by a Munsif does not amount to an error apparent on the face of the record or falls under the heading 'any other sufficient cause'. The reason given was that the failure to take notice of the judgment, of the High Court amounts to wrong exposition of law.

20. A single Judge of the Nagpur High Court in Pestonji v. Ganpat. AIR 1925 Nag 288, came to a similar conclusion that failure to take notice of a decision of a superior court is no ground for reviewing the judgment. A single Judge of Calcutta High Court in Dewan Singh v. Gopal Singh, AIR 1973 Cal 302, took the same view,

21. A Division Bench of the Punjab and Haryana High Court in Roop Kishore v. Firm Raghbir Singh Baboo Ram, (1966) 68 Punj LR (Suppl) 268, ruled that nonavailability of the law laid down by the High Court to the counsel for either side on the earlier occasion, is not an error apparent on the face of the record.

22. A single Judge of Kerala High Court in Thadikulangra Pylee's son Pathrose v. Ayyazhiveettil Lakshmi Amma's son Kuttan, AIR 1969 Ker 186 held that a binding decision by a superior court given before or after the judgment sought to be reviewed, cannot be a ground for review.

23. a contrary view was taken by a Division Bench of the Madras High Court in M. Murari Rao v. Balavanth Dikshit, AIR 1924 Mad 98. It was held that failure of the District Judge to notice a judgment of the High Court on the question involved in the suit was an error apparent on the face of the record. We have perused this judgment. The only r eason given by the court is :

'to hold otherwise would be to multiply litigation, for naturally the aggrieved party would appeal and the error would have to be corrected by the appellate court rather than in the Court of First Instance.'

With all respects to the Hon'ble Judges, we do not agree. The multiplicity of litigation is not, and has never been, a ground for review. We find that a single Judge of that Court in Opporti Padhi v. Paila Ujjulla, AIR 1927 Mad 998, however, came to the conclusion that a mere omission on the part of a Judge to consider a decision, however regrettable, however wrong, cannot possibly be regarded as constituting an error apparent on the face of the record. Again, another single Judge of that High Court in The Corporation of Madras v. P. G. Aruna-chalam, AIR 1974 Mad 288, held that the failure of the petitioner to refer to a decision of the court due to inadvertence was not a ground for reviewing the order A single Judge of Andhra Pradesh High Court in Rameswaraswami Varu v. R. Ramalinga Raju, AIR 1960 Andh Pra 17, was of the view that failure to take notice of the judgment of a superior Court amounts to an error apparent on the face of the record. We find that the learned Judge followed Murari Rao's case (AIR 1924 Mad. 98) (supra) with which we have differed.

24. The result is that we will answer the first part of the question in the negative, that is, a subsequent decision of the Supreme Court or a larger Bench of the same court rendering a decision taking a different or contrary view on a point covered by the said judgment, does not amount to a mistake or error apparent on the face of the record. The answer to the second part of the question is that failure of the court to take into consideration an existing decision of the Supreme Court taking a different or contrary view on a point covered by its judgment would amount to a mistake or error apparent on the face of the record. But a failure to take into consideration a decision of the High Court would not amount to any mistake or error apparent on the face of the record.

25. We now direct that the review petitions be placed before the respective Judges for decision.


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