Krishna Jee v. Rajeshwar Misra — 1964 DIGILAW 94 (PAT)

Judgment R.K.Choudhary, J. 1. This is an application by the defendants. The plaintiffs opposite parties I to 4 filed Title Suit No. 127 of 1958 in the Second Court of the Munsif at Samastipur for a declaration that the lands in suit were their personal properties and the order dated the 13th of June, 1958 passed by the authority under Sec. 43 of the Bihar Hindu Religious Trusts Act declaring the same to be public trust property was illegal, and for a permanent injunction restraining the petitioners from taking possession of the same. The case of the plaintiffs was that their father, Punia Misra, had acquired the property in the benami name of their family deity. The defence of the petitioners was that the suit lands were not acquired by the plaintiffs family, but they were acquired out of public subscriptions and that the deity named in the sale deed is not the family deity of the plaintiffs. The trial Court accepted the pleas taken in defence and dismissed the suit of the plaintiffs. In an appeal in the lower appellate Court filed by them, the plaintiffs gave up their case of the suit lands being their personal property and private acquisition, but pressed the appeal on the ground that the property belonged to the family deity and that the deity mentioned in the sale deed was their family deity. The lower appellate Court accepted this contention of the plaintiffs and decreed the suit. A second appeal, being Second Appeal No. 927 of 1960, was filed in this Court on behalf of the petitioners, but the same was dismissed in limine under Order 41, Rule 11, of the Code of Civil Procedure (hereinafter to be referred to as the Code). They have now filed the present application for review of the order dismissing the appeal under Order 41, Rule 11, of the Code on the ground that certain points of law which were apparent on the face of the record were not pressed by the junior Counsel, Mr. Sadhu Saran Sahai, who argued the appeal for admission in absence of the senior Counsel, Mr. K. K. Sinha. 2. Sadhu Saran Sahai, who argued the appeal for admission in absence of the senior Counsel, Mr. K. K. Sinha. 2. An objection has been taken on behalf of the plaintiff-respondents that the omission of argument on a question of law, even though there may have been an error apparent on the face of the record, is not a ground for review of an order. In support of this contention, reliance has been placed by the learned Counsel for the plaintiffs opposite parties on the provisions of Order 47, Rule 1, Order 41, Rule 31, Order 20, Rule 4(2), and Sec.2(9) of the Code. Order 47, Rule 1, so far as is relevant for the purpose of the present case, provides that any person considering himself aggrieved-- "(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed...... 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." It has been contended that what has to be reviewed is the judgment, and not the decree or order itself. It is submitted that the order dismissing the appeal under Order 41, Rule 11, of the Code is not a judgment within the meaning of the Code and, therefore, the review application is not maintainable. "Judgment has been defined in Sec.2(9) of the Code as meaning "the statement given by the Judge of the grounds of a decree or order." According to Order 20, Rule 4(2), of the Code a judgment has to contain, a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. Order 41, Rule 31, of the Code lays down that "The judgment of the Appellate Court shall be in writing and shall state) (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Order 41, Rule 31, of the Code lays down that "The judgment of the Appellate Court shall be in writing and shall state) (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. On the basis of these provisions, it has been urged that the order dismissing the appeal under Order 41, Rule 11, of the Code is not a judgment, inasmuch as it does not contain any statement of the grounds of the order, nor does it contain either the points for determination or the decision thereon or the reasons for the decision. 3. Counsel for the petitioners has, however, urged that the expression "may apply for a review of judgment" used in Rule 1 of Order 47 of the Code has been used, because, in reviewing the decree or order, the reasons given in the judgment have to be considered; but really the review is of the decree or the order itself. It has also been contended that it is too well established by now that the order dismissing an appeal under Order 41, Rule 11, of the Code on merits is a "decree" and there cannot be a decree without a judgment. It is submitted, therefore, that the order dismissing an appeal itself is both judgment and order. It has also been urged that a formal judgment is not required to be written in an appeal which is dismissed under Order 41, Rule 11, of the Code and Rule 31 of Order 41 has no application to such a case. It has also been submitted that the word "judgment" itself means "decree". In my opinion, the contentions raised on behalf of the petitioners are well founded and must prevail. The contention that the order of dismissal under Order 41, Rule 11, of the Code on merits is a decree is supported by a decision of this Court in Jamuna Prasad Rai V/s. Rajballam Rai, AIR 1937 Pat 349. In my opinion, the contentions raised on behalf of the petitioners are well founded and must prevail. The contention that the order of dismissal under Order 41, Rule 11, of the Code on merits is a decree is supported by a decision of this Court in Jamuna Prasad Rai V/s. Rajballam Rai, AIR 1937 Pat 349. It has been pointed out in that case that the dismissal of an appeal under Order 41, Rule 11(1), of the Code has, so far as the Court pronouncing it is concerned, the finality which is an essential ingredient in the definition of "decree" in Sec.2(2); and, in substance, it expresses an adjudication within that definition, to the effect that the appeal is without merit. It was further pointed out that the dismissal of an appeal under Order 41, Rule 11(1), is, therefore, appealable as a decree. It has also been held by a Bench of this Court in Makhu Sahu V/s. Kamta Prasad Sahu, AIR 1934 Pat 341 that a simple order of dismissal may be passed if the appeal is not admitted and it is not until after admission and after hearing that a judgment is required. Under Order 20, Rule 6, of the Code, the decree has to agree with the judgment, It is, therefore, apparent that the absence of a formal judgment does not make an order dismissing an appeal under Order 41, Rule 11, of the Code not to be a judgment within the meaning of Order 47, Rule 1, of the Code. In a Full Bench decision of the Rangoon High Court in Dayabhai Jiwandas V/s. Murugappa Chettiar, ILR 13 Rang 457: (AIR 1935 Rang 267) (FB), it was held that the word "judgment" in Clause 13 of the Letters Patent means and is a decree in a suit by which the rights of the parties at issue in the suit are determined. It is, therefore, held that an order dismissing an appeal under Order 41, Rule 11 (1), of the Code can be reviewed under Order 47, Rule 1, of the Code. 4. It has then been contended by learned Counsel for the opposite parties that, if a question of law has not been argued at the time of the admission of an appeal, it is not a ground for review. 4. It has then been contended by learned Counsel for the opposite parties that, if a question of law has not been argued at the time of the admission of an appeal, it is not a ground for review. In support of this contention, reliance has been placed on the cases of Kamla Prasad Chaudhuri V/s. Kunj Behari Mander, AIR 1922 Pat 119; Mst. Ayesha Bai V/s. Daleep Singh, AIR 1961 Raj 186 and Anthony DCosta V/s. Francis Roche Anthony, AIR 1962 Mad 304 . In the Patna case it was held that a mere omission to raise a point of law, which, had it been raised, might and probably would have brought about a different result, is not necessarily "a mistake or error apparent on the face of the record". But their Lordships also pointed out that there may be such cases in which, under certain circumstances, review can be granted if the error is apparent on the face of the record. The case of Rajasthan, in my opinion is of no assistance to the opposite parties, because in that case the review was sought "for on the ground of lack of jurisdiction and it was held that where there was no inherent lack of jurisdiction objection on the ground of want of jurisdiction cannot be allowed to be agitated in a review after the appeal was heard on merits. In the Madras case it was held that a review cannot be granted on the mere ground that the particular Counsel who appeared for a party failed to raise a particular point in spite of instructions. In the present case, however, as the facts stated above show, the appeal was to be argued by the senior Counsel. Mr. K. K. Sinha, but, as he could not be available, it was argued by a junior Counsel, Mr. Sadhu Saran Sahai. He has filed an affidavit that he did not argue the point as the appeal had to be argued by the senior Counsel, but as he was busy in another Court, he had to argue it as the case was called out for hearing under Order 41, Rule 11, of the Code. 5. In an unreported decision of this Court, in Bhagwat Bhagat V/s. Tej Narain Singh, Civil Revn. 5. In an unreported decision of this Court, in Bhagwat Bhagat V/s. Tej Narain Singh, Civil Revn. No. 1031 of 1957, disposed of on the 26th October, 1959 (All), it was pointed out that, if the gross error of law is of such a kind which can be characterised as an error of law apparent on the face of the record, it would justify a review of the judgment not only under Order 47, Rule 1, but also under Sec.151 of the Code. 6. In Mt. Jamna Kuer V/s. Lal Bahadur, AIR 1950 FC 131, it was pointed out that where there is an error apparent on the face of the record, whether the error occurred by reason of the Counsels mistake or it crept in by reason of an oversight on the part of the Court, is not a circumstance which can affect the exercise of jurisdiction of the Court to review its decision. In Govinda Chettiyar V/s. Varadappa Chettiar, AIR 1940 Mad 17, Patanajali Sastri, J. (as he then was) held that where, owing to the misapprehension the Counsel for the respondents did not urge all his arguments in support of the finding recorded in favour of his client by first Court and the Judge was led thereby to form an erroneous impression that he had no arguments to meet the points raised by the appellants Counsel, it was analogous enough to an error apparent on the face of the record to be a sufficient reason for a review under Order 47, Rule 1, of the Code and hence the decree of the Judge passed on rehearing the appeal could be sustained as one made on review. 7. On a consideration of the authorities referred to above, my view is that, if the mistake of law is gross and apparent on the face of the record, a review can be granted. 8. The question that comes then to be determined is whether in the present case there was any error apparent on the face of the record. The suit as already stated, was filed by the plaintiffs opposite parties for a declaration that the suit property was their personal property acquired in the name of the deity. The deity was not a party to the suit. The suit as already stated, was filed by the plaintiffs opposite parties for a declaration that the suit property was their personal property acquired in the name of the deity. The deity was not a party to the suit. No doubt, in paragraph 11 of the plaint, the plaintiffs averred as follows: "That maintaining fully what has been stated above and without admitting anything to the contrary it is also submitted in the alternative that even if the lands detailed below be deemed to have been purchased on behalf of Bhagwatiji, the same being the family deity of Punia Misser the Hindu Religious Trust Act cannot apply to such lands." Never any prayer was made that the property be declared to be the property of the family deity. The plaintiffs before the lower appellate Court abandoned their case of the suit property being their personal property and the only argument on their behalf was that the suit property is the property of their family, deity. The suit, however, has been decreed in favour of the plaintiffs giving them all the reliefs that they claimed which could not, under any circumstance, be granted, unless the deity was a party to the suit. The suit is neither by the deity nor by the plaintiffs on behalf of the deity. A serious question of law, therefore, arises in the case whether a decree can be granted in favour of a person who is not a plaintiff in the suit. If that question could have been raised in this Court, there is no doubt that the appeal must have been admitted. The error, therefore, is apparent on the face of the record and certainly if such a decree could not be granted, the error is a gross one. In that view of the matter, I feel that the order dismissing the second appeal under Order 41, Rule 11, of the Code should be reviewed. 9. The result, therefore, is that the application is allowed, the order of this Court dated the 9th December, 1960, passed in Second Appeal No. 927 of 1960 under Order 41, Rule 11, of the Code is set aside and the appeal is admitted. Let the appeal now be heard and notices issue to the respondents in the appeal. In the circumstances, there will be no order as to costs.