Aribam Tuleswar Sharma v. Aribam Pishak Sharma — 1969 DIGILAW 42 (GAU)

ORDER In the writ petition No. 9 of 1962 filed by Aribam Tuleswar Sarma on 14-9-1962 against Irengbam Yaima Singh, Aribam Pishak Sarma, Aribam Ningol Ngambi Devi, and Pangabam Doya Singh, hereinafter referred to as the principal respondents, and seven officers of the Manipur Administration including its head, the Chief Commissioner, the prayers made were that the latter be commanded to recall the orders dated 11-8-1961 and 30th September 1961 by which he had settled certain Government plots adjoining Imphal - Kangchup road and situate within the Municipal limit of Imphal, with the principal respondents, and that the remaining six officers should be directed to discharge their statutory duties in the matter of evicting the principal respondents from the said plots. 2. Those prayers were granted by Shri Rajvi Roop Singh, the then Judicial Commissioner of this Court, by his order dated 25th of May 1965. The principal respondents having felt aggrieved filed an application on 2-7-1965 under Ss. 151 and 114 read with Order 47 Rule 1 of the Civil Procedure Code, hereinafter called the Code, praying for review of that order and for dismissal of the writ petition. Though the review application was made when Shri Rajvi Roop Singh was still in office, the application came up for decision before his successor Shri C. Jagannadhacharyulu who allowed the review application and simultaneously dismissed the writ petition by his order dated 7th December 1967. The writ petitioner Tuleswar Sarma then made an application on 14-2-1968 under Article 133 (1) (c) of the Constitution praying that a certificate be issued to the effect that the present is a fit case for appeal to the Supreme Court. This prayer was vehemently opposed by the principal respondents. 3. Shri C. Jagannadhacharyulu allowed the review application on two grounds, namely, (i) that Shri Rajvi Roop Singh had failed to take into consideration the documents Ext. A/1 and Ext. A/3 which had been placed on the record by the principal respondents, and (ii) that Shri Rajvi Roop Singh had erred in entertaining one joint writ petition against the principal respondents, who are four in number, despite the facts that they were in occupation of different plots and that the causes of action against those respondents had nothing in common. A/3 which had been placed on the record by the principal respondents, and (ii) that Shri Rajvi Roop Singh had erred in entertaining one joint writ petition against the principal respondents, who are four in number, despite the facts that they were in occupation of different plots and that the causes of action against those respondents had nothing in common. It was pointed out by Shri C. Jagannadhacharyulu that if the writ petitioner succeeded against the four principal respondents, not one but four separate writs shall have to be issued. In his opinion, the writ petitioner had "committed a patent illegality in filing a single writ petition questioning the various settlements made in favour of the various petitioners separately", and that Shri Rajvi Roop Singh "committed an error in allowing the first respondent (the writ-petitioner) to file a joint writ petition against the petitioners, whose cases are quite different". It was further mentioned that these facts constituted an error apparent on the face of the record. It may be mentioned here that Shri C. Jagannadhacharyulu did not mention in his order dated 7th December, 1967, under which provision of law he had exercised the power of review. 4. The first flaw which Shri Nandakumar Singh, representing the writ-petitioner, pointed out was that on accepting the review application the proper course for the Court to follow was to fix the writ petition for re-hearing and not to dispose of the writ petition along with the review application. In this connection Shri Nandakumar Singh placed reliance on Rule 8 of Order 47 of the Code. Evidently, this argument presumes that the review was made under O. 47, R. 1, of the Code. The opposite counsel, Shri Shyamsundor Singh, did not challenge that assumption during the course of arguments, though, in fairness to him, it must be stated that his stand was that review may have been ordered by the Court under Section 151 of the Code. Rule 8 provides that when an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit. According to this provision, the re-hearing of the original case has to be done after the review petition has been granted. According to this provision, the re-hearing of the original case has to be done after the review petition has been granted. This statutory provision is really sensible for while adjudicating the merits of the review application made under Rule 1 of Order 47, the attention of the Court and of the parties shall be concentrated in determining whether the conditions prescribed by that Rule for permitting review are satisfied and the data relied upon warrants acceptance of the prayer for review. That data may not in each case necessarily be decisive of the merits of the parent proceeding; its value and merit may be adjudged while re-hearing the parent case. This point is clearly brought out by the facts of the case reported in AIR 1952 Raj 39 , Hari Ram v. Nathi. In that case, A brought a suit for redemption of a house against the original mortgagee B and one C who happened to be in possession of that house. The defence set up was that A had sold the house to B and thereafter B had transferred the house to C. The trial Court found that A had not sold the house to B and that that was evident from the fact that A had paid interest to B after the alleged date of sale in the latters favour. The suit was consequently decreed by the trial Court. On appeal, the High Court reached the conclusion that the sale by A in favour of B was proved. However, no finding was given on the issue whether any interest had been paid by A to B after the alleged date of sale. The suit was consequently decreed by the trial Court. On appeal, the High Court reached the conclusion that the sale by A in favour of B was proved. However, no finding was given on the issue whether any interest had been paid by A to B after the alleged date of sale. The High Court consequently allowed an application for review made by A because no decision had been recorded in the appellate judgment on the issue respecting the payment of interest, and if, as held by the trial Court, A had paid interest to B after the alleged date of sale, that fact would militate against the finding in the appellate judgment that A had sold the house to B. In such circumstances, though the review was allowed and the decree of the High Court set aside for reason of an apparent error on the face of the record, yet no finding was given while accepting the review whether or not interest had been paid by A to B. That point was left open to be argued during the course of re-hearing of the appeal. While re-hearing the appeal, it is too obvious, the High Court could still reach the conclusion that the finding of the trial Court on that point was wrong. It would follow that the principles which, govern and the materials which are taken into consideration by the Court while deciding a review application are not necessarily identical with those which may weigh with it while adjudicating upon the merits of the parent proceeding. Put in other words, the considerations which influence the Court in deciding the review application can quite often be different from those which determine the fate of the parent proceeding. Hence, it would be only just that order allowing the prayer for review should first be recorded and re-hearing of the original case started thereafter. Moreover, while hearing the review application there is no notice to the party who had won the parent case that the merits of that case shall be adjudged in the light of fresh material sought to be brought in by the opposite party by means of the review application. It is for these reasons that I happened to remark above that provisions enacted in Rule 8 of Order 47 are eminently reasonable and sensible. 5. It is for these reasons that I happened to remark above that provisions enacted in Rule 8 of Order 47 are eminently reasonable and sensible. 5. In the instant case, the writ-petitioner had denied in the written statement filed in reply to the review application that documents Exts. A/1 and A/3 related to the plots in dispute. Shri C. Jagannadhacharyulu did not give any finding on this question of fact. He appears to have presumed that the documents relate to those plots. In fairness to him, the writ-petitioner should have been given an opportunity of addressing arguments in the writ case to explain his stand about the bearing of the documents A/1 and A/3 on the merits of writ petition after they had been admitted on acceptance of the review application. Such a procedure would have allowed full opportunity to the parties counsel to address the Court afresh on the merits of the writ petition itself. In view of non-compliance with the statutory provisions enacted in Rule 8 of Order 47, there has been real miscarriage of justice, specially in the context that the aforementioned question of fact raised by the writ-petitioner was neither referred to nor decided in the composite order by which the review application was granted and the writ petition dismissed. 6. Another point connected with the one referred to above may also be noticed. According to the finding of Shri C. Jagannadhacharyulu, the documents Exts. A/1 and A/3 pertain to the plots in the occupation of the principal respondents Nos. 1 and 2, namely, A. Pishak Sarma and I. Yaima Singh. The Court did not hold that there was any allotment in favour of principal respondents Nos. 3 and 4 other than the one made to them by the Chief Commissioner in the year 1961, nor it upheld the validity of the latter allotment. Consequently, it is not clear how the Court happened to equate the case of principal respondents Nos. 1 and 2 with that of principal respondents Nos. 3 and 4 and dismiss the writ petition even against the latter. 7. The main point canvassed in this application is whether an order made under Article 226 is open to review by the High Court. Broadly speaking, the problem can be looked at from three angles. 1 and 2 with that of principal respondents Nos. 3 and 4 and dismiss the writ petition even against the latter. 7. The main point canvassed in this application is whether an order made under Article 226 is open to review by the High Court. Broadly speaking, the problem can be looked at from three angles. Shri Shyamsundor Singh, appearing for the principal respondents, submitted that the provisions of Order 47 Rule 1 apply to an order made under Article 226. Alternatively he urged, the power of review can be exercised under Section 151 of the Code. Thirdly, he argued on the authority of Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 , that the power of review inheres in the High Court respecting cases decided under Article 226. It is in order to mention that the review application by the principal respondents was made under Section 151 and Order 47 Rule 1 of the Code, and that it was not asserted or claimed in the review application that the High Court is possessed of inherent right to review the orders made under Article 226. Shri Nandakumar Singh, representing the writ-petitioner, submitted on the other hand that since review was not sought in exercise of the inherent powers of the High Court and since there is sharp conflict in the judicial opinion on the point whether the High Court can review its order made under Article 226 by virtue of Order 47, Rule 1 or Section 151 of the Code, an authoritative pronouncement by the Supreme Court is urgently required to put an end to that controversy and as such the present is a fit case for appeal to the Supreme Court. I find considerable merit in this submission of Shri Nandakumar Singh. 8. In the case of Shivdeo Singh AIR 1963 SC 1909 (supra) the point urged before the Supreme Court was that the High Court has no power of review respecting orders made under Article 226. The Supreme Court observed, while repelling that contention, that "It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it". The Supreme Court observed, while repelling that contention, that "It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it". Respecting the specific case before the Supreme Court it was observed that the review by the High Court was justified because while making the first order the High Court had committed breach of the principle of natural justice requiring that no adverse order should be made against a person who is not a party to the proceeding. The principle enunciated by the Supreme Court would, therefore, appear to be that the High Court being a Court of plenary jurisdiction has the inherent power of review to prevent miscarriage of justice or to correct grave and palpable errors committed by it, such as, when there has been non-compliance with the principles of natural justice. As stated above, this Court reviewed the order dated 20th May 1965 on the basis that Shri Rajvi Roop Singh had failed to take into consideration the documents Exts. A/1 and A/3 though they had been placed on the record by the principal respondents in support of their defence, and that the writ petitioner could not have brought one writ challenging the validity of four separate orders made by the Chief Commissioner in favour of the principal respondents. However, a reference to the counter affidavit jointly filed on behalf of principal respondents would bring out that it was not their contention that apart from the settlement orders made in their favour in 1961 there was any other settlement or allotment standing in their names. Nor did they contend in that counter affidavit that one joint writ challenging the validity of four separate orders was not maintainable. The order dated 20th May 1965 made by Shri Rajvi Roop Singh is also silent respecting those points, and so it looks obvious that those points were not raised before him. In the background of these established facts, it can be legitimately contended on behalf of the writ petitioner that the principal respondents could not have claimed review on the basis of submissions which had not been adopted by them in their counter-affidavit. In the background of these established facts, it can be legitimately contended on behalf of the writ petitioner that the principal respondents could not have claimed review on the basis of submissions which had not been adopted by them in their counter-affidavit. The writ petitioners counsel was consequently justified in making the submission before me that if a party has not founded his claim or defence on a particular plea, he cannot be heard subsequently to assert that either injustice had been done to him or that the Court had gone wrong in not taking such claim or defence into consideration while making the final order. Hence, the prayer for review by the principal respondents could not be founded on the inherent right possessed by the High Court to review its orders. 9. That judicial opinion in India is sharply divided on the point whether the High Court has power of review under Order 47 Rule 1 admits of no doubt. Order 47, Rule 1 does not apply directly to the orders made under Article 226. Its application can be invoked only by the aid of Section 141 of the Code. Section 141 states that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction. Apparently, only the procedure prescribed by the Code can, at the best, be made applicable to the writ proceedings. The right of review, however, falls in the category of a substantive right and not a procedural matter. There is complete unanimity in the judicial opinion on the point that like the right of appeal the right of review cannot be assumed unless it is expressly given by a statute or by some provision having the force of law. Hence, there appears to be substance in the contention that the right of review respecting writ proceedings cannot be claimed under Order 47 Rule 1 with the help of S. 141 of the Code. It is in order to mention that, Article 137 of the Constitution enacts that the Supreme Court shall have power to review any judgment pronounced or order made by it, of course, subject to the provisions of any law made by Parliament or any rules made under Article 145. It is in order to mention that, Article 137 of the Constitution enacts that the Supreme Court shall have power to review any judgment pronounced or order made by it, of course, subject to the provisions of any law made by Parliament or any rules made under Article 145. There is no constitutional provision giving the power of review to the High Court in respect of proceedings under Article 226. Hence, there is much to be said in favour of the proposition that the High Court has no statutory powers of review in regard to orders "made under Article 226. Further, there is no consensus of judicial opinion in India on the point whether or not writ proceedings are "proceedings in any Court of civil jurisdiction". Though it was held in the case of Annam Adinarayana v. State of Andhra Pradesh. AIR 1958 Andh Pra 16, that an application under Article 226 is a proceeding in a Court of civil jurisdiction and as such section 141 of the Code applies to such proceedings, the Calcutta High Court took a contrary view in the case of M/s. Bharat Board Mills Ltd. v. Regional Provident Fund Commr. AIR 1957 Cal 702 , by holding that the jurisdiction which the High Court exercises under Article 226 is a special and limited jurisdiction and so the provisions of S. 141 are not attracted to writ cases. The Madras High Court expressed the opinion in the case of Management of Rain Bow Dying Factory v. Industrial Tribunal, AIR 1939 Mad 137, that Section 141 of the Code does not apply to writ proceedings inasmuch as such proceedings cannot be held to be in the nature of a civil suit. Therefore, the matter is not free from doubt whether the piovisions of Order 47 Rule 1 can be invoked in reference to writ proceedings with the help of section 141 of the Code. Hence, I have no hesitation in holding that a really good case has been made out by the writ-petitioner for grant of a certificate enabling him to file an appeal in the Supreme Court. 10. Before proceeding to consider the next point canvassed by Shri Nandakumar Singh, I may state that apart from the objection that the documents Ext. A/1 and Ext. 10. Before proceeding to consider the next point canvassed by Shri Nandakumar Singh, I may state that apart from the objection that the documents Ext. A/1 and Ext. A/3 do not relate to the plots in dispute, there is no material to support the conclusion that the leases mentioned therein are continuing till this day. If such were the stand of the principal respondents, there could have been no occasion for their feeling panicky when the Settlement Officer adopted measures to evict them as trespassers. They could have opposed their eviction on the basis of their possession founded on lease agreements instead of rushing to the Chief Commissioner with the prayer that the plots should be settled with them. 10-A. This brings us to the consideration of the merits of second ground on which the review application was accepted and the writ petition dismissed, namely, that the writ-petitioner could not have challenged the validity of four different orders made by the Chief Commissioner settling the plots with the principal respondents in one joint writ petition. In support of that ground Shri C. Jagannadhacharyulu placed reliance on the authorities reported in Mandir Thakar Dawara Dhuri v. State of Pepsu, AIR 1955 Pepsu 159, Sri Shanmuga Rajeswara. Sethupathi v. State of Madras, AIR 1957 Mad 570 , Bankim Chandra Chakravarty v. Regional Provident Fund Commissioner, AIR 1958 Pat 314 , and Bishwaranjan Bose v. Honorary Secretary, Ram Krishna Mission, AIR 1958 Pat 653 . The first point that has to be emphasised in this connection is that in the counter affidavit none of the respondents to the writ petition including the principal respondents had raised the objection that consolidated writ petition challenging the four distinct orders was not maintainable. Shri Rajvi Roop Singh was not at fault, therefore, in not taking note of such an objection while disposing of the writ petition. Hence, it is doubtful if such a point could be raised for the first time in the review application. The proper course to follow, it seems, was to crave leave for appeal to the Supreme Court. Secondly, the judicial opinion is divided on the point whether the provisions of the Code bearing on the joinder of parties and the causes of action apply to the writ petition. The proper course to follow, it seems, was to crave leave for appeal to the Supreme Court. Secondly, the judicial opinion is divided on the point whether the provisions of the Code bearing on the joinder of parties and the causes of action apply to the writ petition. If those provisions apply to writ petitions, then the consolidated petition made by Tuleshwar Sharma may have legal justification in view of O. 2, R. 3, of the Code. The authorities relied upon by Shri C. Jagannadhacharyulu undoubtedly lend support to the view taken by him. However, it was held in the case of Manindra Nath Pal v. Municipal Commissioners of Baranagore Municipality, AIR 1956 Cal 291 , that where mandamus is sought by several persons having different causes of action, the provisions of Order 1 of the Code would apply by analogy. Again, in the case of Subodh Chandra v. Union of Tripura, AIR 1962 Tripura 7, the view taken was that the writ applications are in the nature of civil proceedings and as such the provisions of Orders 1 and 2 of the Code may apply in appropriate cases by virtue of section 141 of the Code. In face of this judicial conflict it is only just and proper that the matter should be taken to the Supreme Court for an authoritative pronouncement. 11. The general rule that there should be a separate petition for each writ claimed appears be a rule dictated by considerations of practical convenience and is probably warranted by the special nature of the writ proceedings. This is not at any rate a rule of law. Therefore, an objection founded on this rule must be taken in the parent proceeding and at the earliest possible opportunity. In the instant case such an objection was taken only when the review application was filed and never before. Hence, I have my doubts that it could be adopted at such a belated stage and by means of a review application. In all the four authorities relied upon by Shri C. Jagannadhacharyulu, such objection was raised in the writ petition itself and therein lies the distinction between those cases and the case in hand. 12. In the Pepsu authority relied upon by Shri C. Jagannadhacharyulu, reference was made to the following statement of law mentioned at page 783, para 1325, of Halsbury, Vol. 12. In the Pepsu authority relied upon by Shri C. Jagannadhacharyulu, reference was made to the following statement of law mentioned at page 783, para 1325, of Halsbury, Vol. IX, Second Edition: "Two or more persons cannot join in a single application for a writ of mandamus to enforce separate claims. There must be separate applications for separate writs, and this although the several applicants are successors in the office in respect of which the claims arise". This very passage was relied upon in the case of Bishwaranjan Bose AIR 1958 Pat 653 (Supra) as well. Apparently, this passage does not appear to cover our case inasmuch as here the writ petition was filed by one person and not two or more persons. Moreover, the Pepsu High Court did not dismiss the writ petition in its entirety. It allowed, instead, one months time to the petitioner to make up his mind to what cause of action out of 14 he shall confine his writ petition. In my opinion, that was an eminently just procedure to follow if only because it helped cutting short the multiplicity of proceedings. Therefore, even if this Court was of the considered opinion that the joint writ petition challenging the validity of four separate orders was not maintainable, in fairness to the writ-petitioner he should have been given an opportunity to amend the petition so as to confine it to one such order. I think this consideration also justifies the prayer made for taking the matter in appeal to the Supreme Court. 13. The conclusions recorded above may now be briefly summarised. They are: (1) There was no compliance with the provisions of Rule 8 of Order 47 while accepting the review application; (2) Before passing the composite order allowing the review application and dismissing the writ petition, the Court did not give notice to the writ petitioner that it would take into consideration the practical bearing of the documents Exts. A/1 and A/3 on the merits of the writ petition while deciding the review application; (3) There is no material on the record to sustain the contentions that Ext. A/1 and Ext. A/3 pertain to any of the plots in dispute or that the lease agreements mentioned therein are still in operation; (4) At any rate, since admittedly Ext. A/1 and Ext. A/1 and Ext. A/3 pertain to any of the plots in dispute or that the lease agreements mentioned therein are still in operation; (4) At any rate, since admittedly Ext. A/1 and Ext. A/3 relate only to two out of four plots, and since the impugned order, dated 7-12-1967, upholds the finding of Shri Rajvi Roop Singh that the Chief Commissioner could not have settled the plots with the principal respondents, there is no justification for dismissing the writ petition respecting the other two plots; (5) The review was not claimed on the basis of inherent right of the High Court to review its order made under Art. 226, nor it is clear from the order dated 7th of December 1967 that the review was allowed on that footing; (6) There is sharp conflict between the various High Courts in India on the point whether the provisions of Order 47 R. 1 can be invoked respecting an order made under Article 226 with the aid of S. 141 of the Code, and as such an authoritative pronouncement by the Supreme Court is required to settle that controversy. In this respect two points require determination, namely, (i) whether writ proceedings are "proceedings in any Court of civil jurisdiction", and (ii) whether the expression "procedure" used in Section 141 can cover a prayer for review; and (7) That the conflict of judicial opinion between the various High Courts on the point whether the procedural provisions of the Code, such as those enacted in Orders I and II, can be availed of in connection with writ cases urgently requires settlement by the Supreme Court. In view of these vital points that call for determination, I feel satisfied that this is a fit case for appeal to the Supreme Court and so direct that a certificate do issue in terms of clause (c) of Art. 133 (1) of the Constitution. The applicant may well have also claimed the certificate under Art. 132 (1), for substantial questions of law as to the interpretation of the Constitution do arise in the case. Tuleshwar Sharma shall get costs of this application from the principal respondents. Advocates fee Rs. 50/-. Leave to appeal to Supreme Court granted.