Kifayatullah v. Executive Officer, Municipal Board, Bhopal
1955-09-16
MATHUR
body1955
DigiLaw.ai
ORDER : This is an application under O. 47 R. 1, Civil P.C., by Hafiz Kifayat Ullah, defendant, for review of the judgment and decree in Second Appeal No. 31 of 1954 passed on 29-11-1954 on the ground that there was a mistake or error apparent on the face of the record, in that ground No. 2 of the Memo, of appeal had escaped the attention, of the Court. Ground No. 2 of the memo of appeal, runs as below : "That the learned District Judge grievously erred in holding that the appeal before him was time barred. The appeal was within time. The decree was not framed till a considerable time after the judgment. The appellant was entitled under the law to get credit for the intervening period between the judgment and the decree." In support of this contention it was also said that during the hearing of the second appeal the learned counsel for the applicant had submitted many rulings in support of his assertion that the period intervening between the date of judgment and the actual signing of the decree was to be excluded u/s. 12, Limitation Act, from the computation of the period of limitation and consequently the appeal was beyond time. It was said that this aspect of the case was not at all touched by my predecessor and it would amount to a mistake or error apparent on the face of the record. 2. The above contention is based upon the presumption that my predecessor did not at all consider what period was to be excluded under S. 12, Limitation Act and if the appeal was presented within the prescribed period or not. On perusal of the judgment under review I am of opinion that the above presumption is not correct and that ray predecessor had expressed an opinion on these points though it may be added that in the judgment no reference was made to the case law in support of or against the contention of applicant-appellant.
On perusal of the judgment under review I am of opinion that the above presumption is not correct and that ray predecessor had expressed an opinion on these points though it may be added that in the judgment no reference was made to the case law in support of or against the contention of applicant-appellant. The relevant portion of para 7 of the judgment runs as below : "Now even if the copy of the decree had been obtained on 11-3-1950 and filed on 12-3-1950 the appeal should have been within time (90 days) excluding toe period requisite for obtaining the copy of the decree under S. 12, Limitation Act but when it was filed on 12-4-50 it was so filed on 113th day (excluding the above period) and the appeal was hopelessly barred by lime. It was therefore contended that the presentation of the memorandum of appeal filed on 7-3-1950 without a copy of the decree should be held to by valid and proper..... The above will clearly show that my predecessor had expressed his opinion that the appeal was hopelessly barred by time and in forming this opinion he had taken into consideration the provisions of S. 12, Limitation Act. In other words, therefore, para 7 of the judgment shows beyond a doubt that my predecessor had expressed his opinion on the two points which the applicant wants to reagitate by moving a review application. 4. As against this inference the learned counsel for the applicant has invited my attention in para 5 of the judgment in which no reference was made to the contention on these two points and wherein in sub-para (i) stress was laid on the contention as regards O. 1 R. 1, Civil P.C. It is true that while giving out the points urged on behalf of the applicant-appellant, no reference was made to the two points now pressed in the review application; but all the data with regard to these two points were given in detail in para 6 and the opinion was expressed in the first half portion of para 7 of the judgment under reference. It was urged on behalf of the applicant that para 6 and the first haft portion of para 7 were simply of an introductory nature while commenting upon the contention detailed in sub-para (1) of para 5 of the judgment.
It was urged on behalf of the applicant that para 6 and the first haft portion of para 7 were simply of an introductory nature while commenting upon the contention detailed in sub-para (1) of para 5 of the judgment. This contention does not at all appeal to me. In case the only point decided by my predecessor was whether the appeal would be deemed to have been properly presented if not accompanied with a copy of the decree, it was not necessary for him to give the various dates when the judgment was pronounced and applications were moved for copies of judgment and decree and when these copies were prepared and were delivered to the applicant. Similarly, it would not have been necessary to refer to S. 12, Limitation Act. On consideration of the judgment under reference I am definitely of opinion that my predecessor had given a finding as to whether the appeal was barred by time or not after giving a decision on the effects of S. 12, Limitation Act. 5. The words "mistake or error apparent on the face of record" have been interpretated by the various High Courts to include an apparent mistake on question of law on which there can be no two opinions. In case the law can be interpreted in two ways it is open for the Court to follow one view and not the other. Thus where the Court follows an opinion without giving its reasons it cannot be said that it has committed a mistake or error in following law. But where the wordings of the enactment are clear and they can be interpreted in only one manner it a contrary view is taken, it will be deemed to be a mistake which can be rectified by that Court itself if a review application is moved. 6. Coming to the nature of the present case it may be observed that there has been and there is still divergence of opinion on the interpretation of S. 12, Limitation Act. Patna, Bombay and Sind have taken a view favourable to the applicant while Allahabad had taken a view against him.
6. Coming to the nature of the present case it may be observed that there has been and there is still divergence of opinion on the interpretation of S. 12, Limitation Act. Patna, Bombay and Sind have taken a view favourable to the applicant while Allahabad had taken a view against him. The Allahabad case, 'Keshar Sugar Works, Bombay v. R.C. Sharma', AIR 1951 All 122 (FB) (A) is also a Full Bench case which was heard by five Judges, four of whom were of one opinion and the fifth was inclined to follow the view of Patna, Bombay and Sind. In other words, it must be held that the various High Courts have interpreted Section 12, Limitation Act in two different ways one of which could be useful to the applicant. When my predecessor took contrary view, that is, the view taken by the Allahabad High Court, the opinion formed by him cannot be said to be clearly wrong or one which can be deemed to be a mistake apparent on the face of the record. The mere fact that he did not refer to the rulings or give reasons in detail while accepting that opinion, cannot in any way assist the applicant. It is always desirable that the highest Court of law should give reasons in support of the decision or order to be passed but where reasons are not indicated it cannot be said that the order passed is illegal and should be upset by that very Court if a review application is moved. In my opinion the only remedy which lay open to the applicant was to move the higher Court, in accordance with the law and not to reagitate the same points before that very Court. 7. In the end it was also urged before me that from the tact that my predecessor admitted the review application it should be inferred that he was of the opinion that the two points now raised by the applicant had not been considered by him while pronouncing the judgment under reference. I cannot accept this contention. The review application was admitted after hearing one-sided argument put forward on behalf of the applicant. In the grounds of review it was nowhere indicated that the Allahabad High Court had taken a contrary view.
I cannot accept this contention. The review application was admitted after hearing one-sided argument put forward on behalf of the applicant. In the grounds of review it was nowhere indicated that the Allahabad High Court had taken a contrary view. The learned counsel had, as was to be expected, referred to only those cases which were favourable to him. My predecessor could, therefore, be of opinion, on hearing the - learned counsel for the applicant, that he had taken a view contrary to that of all the other High Courts and on this ground could think of admitting the review application. In fact it was conceded by the learned counsel to the applicant that at the time of admission of the review application it was not necessary for him to refer to the rulings in which a view against his client had been taken or expressed. Thus no inference in favour of the applicant can be drawn from the mere fact that the review application had been admitted by my predecessor. 8. The review application has thus no forces and is hereby dismissed. Costs on the parties. Application dismissed.