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1953 DIGILAW 32 (PAT)

Baikunthesh Prasad Singh v. Ganesh Ram

1953-02-19

B.P.JAMUAR, V.RAMASWAMI

body1953
Judgment Ramaswami, J. 1. Miscellaneous Appeal 267 of 1951 is brought against the order of the 1st Additional Subordinate Judge of Arrah by which he set aside an order of the Court dismissing a title appeal for default, in exercise of his powers under Order 47, Rule 1, Civil P. C. 2. Civil Revision application 554 of 1951 is filed by the same petitioners as an act of precaution. 3. The material facts are not in dispute. Against the judgment and decree dated 11-2-47, of the 2nd Additional Munsif of Buxar, the respondent preferred an appeal in the Court of the District Judge, Shahabad. The appellants had preferred a cross-objection regarding mesne profits. The appeal and the cross-objection were fixed for hearing before the District Judge on 7-6-1950. On that date, the Judge was engaged in hearing a sessions trial for which reason the appeal was adjourned for hearing to 20-7-1950. Before the date, however, an order was made for transferring the appeal to the Court of the Additional Subordinate Judge. On 20-7-1950, the Additional Subordinate Judge was engaged in hearing a part-heard title suit. The appeal was adjourned for hearing to the 21-7-1950. The appeal was called out on that date; but the lawyer for the respondent submitted that he had no instructions, and made a note to that effect in the order-sheet. The cross-objection, was, however, pressed, and after hearing argument on the cross-objection, the learned Subordinate Judge adjourned the case to the 26-7-1950, on which date he pronounced judgment dismissing the appeal for default and allowing the cross-objection. On 10-10-1950, the respondent filed an application under Order 41, Rule 19 for restoring the title appeal. It was argued on behalf of the appellants that the application was barred under Article 168, Limitation Act. The learned Subordinate Judge felt the force of the argument, but nevertheless treated the application under Order 41, Rule 19 as one for review under Order 47, Rule 1. He allowed the application as an application for review subject to the condition that the respondent paid a cost of Rs. 75/- to the appellants and also paid half the amount of Court-fee payable for the appeal within a period of fifteen days from the date of the order. 4. In the course of a careful argument, Mr. He allowed the application as an application for review subject to the condition that the respondent paid a cost of Rs. 75/- to the appellants and also paid half the amount of Court-fee payable for the appeal within a period of fifteen days from the date of the order. 4. In the course of a careful argument, Mr. Ugrah Singh, who appears on behalf of the appellants, submitted, in the first place, that the learned Subordinate Judge has treated the application under Order 41, Rule 19 as an application for review, and an appeal was, therefore, competent against the order passed by the learned Subordinate Judge in this case. The Subordinate Judge proceeded on the footing that there was discovery of a new and important matter within the meaning of Order 47, Rule 1, and, therefore, the application for review should be granted. It was submitted by learned Counsel that the order of the learned Subordinate Judge is wrong. It was contended that the Subordinate Judge was erroneous in treating the application for restoration of the appeal as an application for review solely on the ground that the application under Order 41, Rule 19 would be barred under Article 168, Limitation Act. The submission of learned Counsel on this point is supported by the authority of - Dco-dip Singh V/s. Gopal Singh, AIR 1917 Pat 673 (A) in which it was held by a Bench of this Court that, where a remedy was open to a party under Order 9, Rule 9 by an application for setting aside an order dismissing a suit, the party in default cannot be permitted to evade the rule of limitation by applying for review under Order 47, Rule 1. The decision proceeded on the principle that, where a special provision has been provided in a statute, the parties litigating should have recourse to that provision, and not to a general provision. 5. Mr. Ugrah Singh also challenged the order of the learned Subordinate Judge on the further ground that the case does not fall within the meaning of the terms of the Order 47, Rule 1, and an application for review ought not to have been allowed, Mr. Krishna Prakash Sinha, who appears on behalf of the respondent, attempted to show that there was justification on the part of the Subordinate Judge in allowing the application for review. Krishna Prakash Sinha, who appears on behalf of the respondent, attempted to show that there was justification on the part of the Subordinate Judge in allowing the application for review. It was contended by learned Counsel that the fact that the respondent was not informed of the date of the transfer of the appeal from the file of the District Judge to that of the Subordinate Judge would be a ground for review as specified in Order 47, Rule 1. It was argued that the case may not be tantamount to discovery of a new and important matter or mistake or error apparent on the face of the record but would be tantamount to "any other sufficient reason" within the meaning of Order 47, Rule 1. I am unable to accept this argument. It was clearly held by the Judicial Committee in --Chhajju Ram V/s. Neki, AIR 1922 PC 112 (B) that the phrase "any other sufficient reason" cannot be construed in an absolute sense but must be construed in the context and the setting of the language of Order 47, Rule 1 to mean "reason sufficient on grounds at least, analogous to those specified in the rule." Upon the facts found in the present case, it is impossible to hold that the circumstance that the transfer was not notified to the respondent, or that the respondent was not aware of the transfer in proper time before the hearing of the appeal, is a ground sufficient to bring the case within the ambit of Order 47, Rule 1. This view is supported by the reasoning of the learned Judges in --Mahadeo Govind V/s. Lakshminarayan, AIR 1925 Bom 521 (C) and -- Jnanadasundari V/s. Pramodasundari, AIR 1934 Cal 116 (D). 6. For these reasons, I think that the order of the learned Subordinate Judge should be overruled, and the application filed by the respondent for restoration of the appeal should be dismissed. The appeal is, accordingly, allowed; but there will be no order as to costs. The civil revision application is not pressed, and is, accordingly, dismissed. Jamuar, J. 7 I agree.