Research › Browse › Judgment

Rajasthan High Court · body

1989 DIGILAW 161 (RAJ)

Firm Kirpram Ganeshilal v. Vijay Kumar

1989-03-10

M.C.JAIN

body1989
JUDGMENT 1. - This revision petition has been filed against the order of the learned Additional District Judge, No. 2, Sri Ganganagar dated January 21, 1989 by which he dismissed the application of the defendant petitions moved under Section 151 and Order 47, Rule 1, Code of Civil Procedure (here in after referred to as the 'Code') and Section 14(4), Rajasthan Premises (Control of Rent and Eviction) Act, 1958 (here in after referred to as the 'Act') and also application moved under Section 5, Limitation Act for reviewing the order dated December 9, 1985 striking out his defence and condoning the delay for depositing the amount of rent determined. The facts of the case giving rise to this petition may be summarised thus. 2. The plaintiff non-petitioner instituted a suit against the defendant petitioner for his eviction on various grounds including the ground of default in payment of rent. On July 30, 1985, the learned Additional District Judge Provisionally determined the amount of Rs. 33, 105.13 as rent etc. It was not paid within fifteen days. An application for extension of time for payment was made by the defendant petitioner. By order dated September 2, 1985, two months time was further granted. The petitioner did not make payment even within the extended period, i.e. by October 14, 1985 On November 25, 1985 the petitioner again moved an application for extension of the time for the payment of the said amount After hearing both the parties, the trial court dismissed the application by its Order dated December 9, 1985, holding that time cannot be extended beyond three months in view of the express provisions of Sub-section (4) of Section 13 of the Act. By the same order, the petitioners defence against the eviction was struck out. An appeal against this order was filed in this Court. It was dismissed on January 30, 1986, D B. Civil Special Appeal No. 8/86 was filed by the defendant petitioner against this decision. It was also dismissed by a Division Bench on February 10, 1986. The judgement is reported in 1986 RLW 333 = 1986 RLR 236. The defendant petitioner also filed Special Leave Petition No. 4035/86 before the Hon'ble Supreme Court. It was dismissed on April 3, 1986. It was also dismissed by a Division Bench on February 10, 1986. The judgement is reported in 1986 RLW 333 = 1986 RLR 236. The defendant petitioner also filed Special Leave Petition No. 4035/86 before the Hon'ble Supreme Court. It was dismissed on April 3, 1986. In the year 1988 the defendant petitioner moved an application under Section 151 and Order 47, Rule 1 of the Code and Section 13(4) of the Act for reviewing the earlier order dated December 9, 1985 by which the defence was struck out and another application under Section 5 of the Limitation Act for condonation of delay for depositing the said amount of Rs 33,105 83. The plaintiff respondent seriously opposed both the applications. After hearing the learned Counsel for the parties, the trial court dismissed both the applications by its lengthy order dated January 30, 1989 which has been challenged in this revision petition. 3. It has been contended by the learned Counsel for the defendant petitioner that the judgment of the Division Bench of this Court dated February 10, 1986 reported in (1986 RLW 33 = 1986 RLR 236) has been overruled by the Full Bench in the case of Vishandas v. Savitri Devi, 1988(1) R.L.R 1 (F.B) = AIR 1988 Raj. 198 (FB) and it has been held by the Full Bench that the provisions of Section 13(5) of the Act are directory and not mandatory. He further contended that this position would be deemed to be prevailing when the trial court struck out the defence by its order dated December 9, 1985 and as such the petitioner is entitled to get it reviewed. He also contended that the Full Bench has also held that the provisions of Section 5 of the Limitation Act are applicable and the delay can be condoned for depositing the amount of rent. He lastly contended that the learned trial court seriously erred in not invoking the provisions of Section 151, CPF for reviewing its order and not allowing the application moved under section 5 of the Limitation Act. He relied upon 1987 All. 319; 1977 ALJ 171; 1982 (2) WLN 141; and . 4. In reply it has been contended by the learned Counsel for the plaintiff non-petitioner that the provisions of Order 47, Rule 1 and Section 151, Civil Procedure Code are not applicable and the learned trial court has rightly dismissed the applications. He relied upon 1987 All. 319; 1977 ALJ 171; 1982 (2) WLN 141; and . 4. In reply it has been contended by the learned Counsel for the plaintiff non-petitioner that the provisions of Order 47, Rule 1 and Section 151, Civil Procedure Code are not applicable and the learned trial court has rightly dismissed the applications. He also contended that the order striking out the defence dated December 9, 1985 stood merged in the order of the Hon'ble Supreme Court and there was no question of its review after its merger. He relied upon 1984 WLN 324, 1967 RLW 548 and Deshraj v. Omprakash and Anr. 1983 (2) RLR 173. 5. Order 47, Rule 1 of the Code runs as under: "(1) Application for review of judgment (1) Any person considering himself aggrieved. (a) by a decree or order from which an appeal if allowed but from which no appeal is has been preferred; (b) by a decree or order from which no appeal is allowed; or (c) by a decision on a reference from a Court of small Causes, and who, from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of record, or for any other sufficient reason, or order made against him, may apply for a review of judgment to the court which passed the decree or made the order; (2) A party who is not appealing from a decree or order may apply for a review of judgment not withstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applied for the review. Explanation :The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment." Admittedly, an appeal was filed by the defendant-petitioner against the order dated December 9, 1985 in this Court and it was dismissed by Single Bench on January 30, 1986. As such the above quoted Clause (a) was fully attracted and these provision could not be invoked forgetting the said order reviewed. 6. The review petition is based on the ground that the judgment dated February 10, 1986 of the Division Bench (1986 RLW 333), dismissing the Special Appeal of the defendant petitioner, has been over ruled by the Full Bench in the case of Vishandas v. Savitri Devi AIR 1988 Raj. 198 = 1988(1) RLR 1 . The above quoted explanation prohibits review on this ground. The decision given in State of UP v. Raghunath Singh 1976 ALJ 171 was given before the amendment of the Code by Civil Procedure Code (Amendment) Act, 1976. This explanation was added by this Amendment Act. 7. The learned Counsel for the defendant petitioner has laid a great stress on the inherent power of the Code for reviewing the said order in this interest of justice It has been held in Sankatha Singh v. State of UP. AIR 1962 SC 1208 at page 1209, Para 9, as follows: "Inherent power cannot be extended to do what the Code specifically prohibits the court from doing." 8. It has been observed in Arjunsingh v. Mohinder Kumar, A.I.R. 1964 S.C. 993 as follows: "It is common ground that the inherent power of the court cannot over ride the express provisions of the law. It has been observed in Arjunsingh v. Mohinder Kumar, A.I.R. 1964 S.C. 993 as follows: "It is common ground that the inherent power of the court cannot over ride the express provisions of the law. In other words, if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessarily implication exhaust the scope of the powers of the Code or the jurisdiction that may be examined in relation to a matter, the inherent powers of the court cannot be invoked in order to cut across the powers conferred by the Code, The prohibition contained in the Code need not be expressed but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates." 9. It has been observed in Cotton Corporation of India v. linked Industrial Bank AIR 1983 SC 1292 at page 1281 para 22, as under: "...and it must be remembered that inherent powers of the court cannot be invoked to nullify or stultify a statutory provision." The provisions of Section 151 of the Code cannot be invoked in this cast: because of the express prohibition contained in the explanation of Order 47, Rule 1 of the Code. The learned trial court rightly dismissed the review petition,, holding that the provisions of Section 151 and Order 47, Rule 1 of the Code are not applicable. It has been held in Deshraj v. Omprakash 1988 RLR (2) 173 , that: the decision of the Full Bench reported in 1988(1) RLR 1 cannot helps tenant to raise the controversy afresh. 10. The facts of the cases Ramesh Chander v. Manmohan Singh 1988 (2) WLN 141 = 1988(2) R.L.R. 1984 , Jagannath Prasad v. District Judge. A.I.R. 1987 Allahabad 317 and Manmohan Kaur v. Suryakant 1989 SC 291 are quite different and distinguishable. In none of these reported cases there was no point regarding review of an earlier order. Only after the review of the order dated December 9, 1985, the question regarding condonation of delay for depositing the amount determined would arise. 11. There is also great force in the contention of the learned Counsel for the plaintiff non-petitioner that the order of the trial court striking out the defence has merged into the order of the Hon'ble Supreme Court. 11. There is also great force in the contention of the learned Counsel for the plaintiff non-petitioner that the order of the trial court striking out the defence has merged into the order of the Hon'ble Supreme Court. Admittedly, defendant petitioner filed special leaved petition against the decision of the Division Bench (1986 RLW 333) and it was dismissed by the Hon'ble Supreme Court. The point which was under consideration before the treat court was also under consideration for decision before the Division Bench of this Court and also before the Hon'ble Supreme Court in the Special Leave Petition. Thus the order of the trial court striking out the defence dated 9-12-1985 stood merged in the order of the Superior Courts. Thereafter the order dated December 9, 1985 could not be reviewed by the trial court. This there is no force in the revision petition.) Consequently, the revision petition is dismissed with costs. Revision dismissed with costs. *******