Sheikh Sadaruddin v. Sheikh Ekramuddin — 1913 DIGILAW 276 (CAL)

JUDGMENT 1. This is an Appeal by the first Defendant under cl. 15 of the Letters Patent against a judgment of Mr. Justice Digambar Chatterjee in a suit for arrears of rent. The question in controversy between the parties was, whether the relationship of landlord and tenant had been proved to exist between them. The Court of first instance answered this question in favour of the Defendant and dismissed the suit. Upon appeal, the Subordinate Judge reversed this decision on the 30th of April 1908 and made a decree in favour of the Plaintiff. An application for review of judgment was presented to the Subordinate Judge and notice was directed to be issued thereupon. The application, however, came to be heard by his successor on the 28th of November 1908. The latter officer granted the application for review and directed that the appeal be reheard. The appeal was then reheard on the 23rd of February 1909, and the decision of the Court of First Instance was affirmed. The Plaintiff then appealed to this Court and contended before Mr. Justice Chatterjee that it was beyond the authority of the Subordinate Judge to set aside on review the judgment of his predecessor, because that judgment had been attacked on only one ground which might justify its modification but not its reversal in its entirety. This contention had found favour with Mr. Justice Chatterjee and he has based his decision upon the cases of Byjnath Sahoy v. Wuzeer Narain 24 W.R. 427 (1875) and Dhuronidhar Sen v. The Agra Bank I. L. R. 5 Cal. 86 (1879). In the view he has taken, Mr. Justice Chatterjee has set aside the judgment of the Subordinate Judge and made a decree in favour of the Plaintiff for a share of the amount claimed as arrears of rent. This decision is now challenged before us on two grounds, first, that in an appeal against the final decree, the propriety of the order whereby the review was granted by the Subordinate Judge could be challenged only on the grounds specified in sec. 629 of the CPC of 1882, and, secondly, that the Subordinate Judge acted properly in the exercise of his jurisdiction when he set aside the entire judgment of his predecessor. 2. In our opinion both these contentions are well-founded. 629 of the CPC of 1882, and, secondly, that the Subordinate Judge acted properly in the exercise of his jurisdiction when he set aside the entire judgment of his predecessor. 2. In our opinion both these contentions are well-founded. Sec. 629 provides that "whenever an application for review is admitted, the admission may be objected to on one or more of three specified grounds, namely, first, that the admission has been made in contravention of the provisions of sec. 624; in other words, that the application for review has been granted by a Judge other than the Judge who delivered the original judgment and on a ground other than the discovery of some clerical error apparent on the face of the record or the discovery of new and important matter or evidence, secondly, that the admission has been made in contravention of the provisions of sec. 626, namely, that the application has been made without previous notice to the Opposite Party or that it has been granted on the ground of the discovery of new matter or evidence without strict proof that such new matter or evidence was not within the knowledge of the applicant at the original trial, or that the application has been granted by a Judge other than the Judge who delivered the judgment and without the issue of a notice by the Judge. Thirdly, that the application has been granted after the expiration of the period of limitation prescribed therefor and without sufficient cause. In the case before us it cannot be reasonably contended that the ground on which the propriety of the order of the Subordinate Judge is challenged falls within any of the grounds specified in sec. 629. Consequently, the appeal is infructuous. 3. If the order of the Subordinate Judge was made without jurisdiction the course open to the party aggrieved was to invite this Court to revise the order under sec. 115 of the Civil Procedure Code. That course, however, was not adopted. Consequently it was not open to Mr. Justice Chatterjee to set aside the decree of the Subordinate Judge on the ground that he had granted the application for review without jurisdiction. This view is in accord with that taken in Gopala Aiyar v. Ramasami Sastrial I. L. R. 31 Mad. 49 (1907). 4. That course, however, was not adopted. Consequently it was not open to Mr. Justice Chatterjee to set aside the decree of the Subordinate Judge on the ground that he had granted the application for review without jurisdiction. This view is in accord with that taken in Gopala Aiyar v. Ramasami Sastrial I. L. R. 31 Mad. 49 (1907). 4. Apart from this question, however, the Appellant must succeed on she ground that the order of the Subordinate Judge was right on the merits. 5. It has been broadly contended before us by the Respondent that when an application for review of judgment has been granted, the Court at the rehearing is restricted to the particular ground on which the review was granted. This view was sought to be supported by reference to the cases of Hurro Chunder Chuckraburtty v. Ram Kissore Chuckraburtty W. R. [1864] 142, Byjnath Sahoy v. Wuzeer Narain 24 W. R. 427 (1875) and Dhuronidhar Sen v. The Agra Bank I. L. R. 5 Cal. 86 (1879). As regards the first and second cases mentioned, it may be a matter for discussion whether they have any application at all. They were decided under Act VIII of 1859, sec. 380 of which provided that "when an application for a review of judgment is granted, a note thereof shall be made in the register of suits or appeals (as the case may be), and the Court shall give such order in regard to the rehearing of the suit as it may deem proper in the circumstances of the case." The view may reasonably be entertained that this authorises the Court either to rehear the case as a whole or to rehear special points in connection therewith. As regards the case of Dhuronidhar Sen v. The Agra Bank I. L. R. 5 Cal. 86 (1879), it was decided when the Act of 1877 was in force, and the language of that Code is identical with that of sec. 630 of the Code of 1882. It is consequently necessary to examine what was precisely decided in the case of Dhuronidhar Sen v. The Agra Bank I. L. R. 5 Cal. 86 (1879). The case then before the Court was heard by a Full Bench of three Judges under sec. 15 of the Letters Patent, a review of judgment was obtained and the case was reargued before a Full Bench differently constituted. 86 (1879). The case then before the Court was heard by a Full Bench of three Judges under sec. 15 of the Letters Patent, a review of judgment was obtained and the case was reargued before a Full Bench differently constituted. When the case came to be heard, Mr. Justice Jackson observed that the Vakil for the Appellant was not entitled to raise a particular question on the ground that the question had not been raised when the case came up before the Full. Bench before ; in other words, that the question raised would not be entertained because it had not been pressed at the previous hearing before the Full Bench. Sir Richard Garth, C.J., observed on the other hand that the Vakil for the Appellant was only entitled to go into points on which the rule granting the review was allowed, that the particular matter sought to be pressed was not mentioned when the rule was argued and that therefore the Court could not enter into it at that sage. This observation of the learned Chief Justice possibly supports the contention of the Respondent, but we are of opinion that what was really intended to be decided was that it was competent to the Court in its discretion to refuse to entertain a question which had not been placed before the Court when the review was granted. Besides, we do not know the terms of the order by which the rule was made absolute, and it has not been shown to us that by that order the whole case was re opened. On the other hand, we observe that reliance was placed on behalf of the Appellant upon the decision in Sainal Ran Chhod v. Dullav Dvarka 10 B.H.C.R. 360 (1873). The learned Judges did not express their dissent from this decision. In that case the Bombay High Court observed that it was the invariable rule in that Court that when a review had been admitted the whole case was reopened and this view was recently accepted as settled law in the case of Emperor v. Naryan Raghunath Patki ILR 32 Bom. 111 at p. 120 (1907). In our opinion, upon a fair construction of sec. 111 at p. 120 (1907). In our opinion, upon a fair construction of sec. 630 of the Code of 1882, the view cannot possibly be maintained that when an application for a review has been granted the Court is restricted at the rehearing to a consideration of that question alone which has been argued upon the rule for review. Sec. 630 provides that "when an application for a review is granted a note thereof shall be made in the register and the Court may at once rehear the case or make such order in regard to the re-hearing as it thinks fit." It is plain that the expression "rehear the case" means rehear the whole case. If the case is to be reheard only upon special points, the order must be made under the latter part of the section which authorises the Court "to make such order in regard to the rehearing as it thinks fit." This was the view taken in the case of Hurbans Sahye v. Thakoor Purshad I. L. R. 9 Cal. 209 (1882), where, upon the authority of the decision of the Judicial Committee in Bhugwandeen Doobey v. Myna Baee 11 M. I. A. 487 (1867), it was ruled that where a review of judgment is granted on a particular ground, the Court is not bound to rehear the whole case under sec. 630 of the CPC : it is in the discretion of the Court to rehear the whole case or only the particular point on which the rule has been granted." This, however, is a question which does not arise in the case before us. The Subordinate Judge made the application for a rule to grant a review absolute. He set aside the whole judgment of his predecessor and directed the appeal to be reheard. It is contended that he had no jurisdiction to do so. This contention is clearly unfounded and if it were adopted, great injustice might be done to a party litigant. To take one illustration only suppose in a suit for possession, the claim is resisted by the Defendant on two grounds, limitation and res judicata. The Court decides the question of limitation in favour of the Defendant, and dismisses the suit. The question of res judicata is not determined. To take one illustration only suppose in a suit for possession, the claim is resisted by the Defendant on two grounds, limitation and res judicata. The Court decides the question of limitation in favour of the Defendant, and dismisses the suit. The question of res judicata is not determined. An application for a review is made by the Plaintiff on the ground that the decision upon the question of limitation is erroneous, and that application is successful. What is to happen ? Is not the case to be reheard, in other words, is not the question of res judicata which was left undetermined at the previous hearing to be investigated ? Take another case : Suppose that in this very litigation the Court decides the question of limitation against the Plaintiff, but the question of res judicata in his favour and dismisses the suit. It is not open to the Defendant to appeal against the decree made in his favour, nor is it open to him to apply for a review of that decree. The Plaintiff makes an application for a review, and satisfies the Court that the decision upon the question of limitation is erroneous. Is it not open to the Defendant to argue that the decision upon the question of res judicata is also erroneous, and that the suit ought to have been dismissed on that ground alone ? The theory that the Court is restricted to the particular point urged in support of the application for review can be supported only on the basis of an entirely untenable theory, namely, that the points that arise for decision in a case are all entirely separable from each other and that they are contained, each in a water-tight compartment. On the other hand it happens in many cases the decision on one issue may be connected with the decision on another issue, and the reversal of the decision upon one issue may seriously affect the decision on another issue. To hold, when a review is granted on consideration that the decision upon a particular point is erroneous, that the Court is restricted to the reconsideration of that point and that point alone, and cannot reconsider the case as a whole, would be to place upon sec. To hold, when a review is granted on consideration that the decision upon a particular point is erroneous, that the Court is restricted to the reconsideration of that point and that point alone, and cannot reconsider the case as a whole, would be to place upon sec. 630 an interpretation which is not justified by the language used by the Legislature and which is calculated to impede the administration of justice. We hold therefore that the view taken by Mr. Justice Chatterjee as to the authority of the Subordinate Judge to grant the application for review in its entirety cannot be supported. The result is that this Appeal is allowed, the decree of Mr. Justice Chatterjee set aside and that of the Subordinate Judge restored. The Appellant is entitled to his costs in both appeals in the High Court.