HARI KISHAN v. HOSHIAR SINGH — 1991 DIGILAW 141 (HP)

JUDGMENT V. K. Mehrotra, J.—This is an appeal under Order 43, Rule 1 (w) read with Order 47, Rule 7 (I) of the Code of Civil Procedure against an order passed by the learned District Judge, Una on 14th November, 1988 granting review of his earlier judgment dated 16th August, 1988 in Civil Appeal No 231 of 1985, and directing that the arguments in the appeal shall be heard afresh. The defendants, who were respondents before the learned District Judge in the appeal aforesaid, have filed this appeal as they are aggrieved by the grant of review of the earlier judgment of the learned District Judge, 2. The respondents in this appeal are the plaintiffs. They filed a suit seeking, inter alia, relief of demolition of some constructions raised by the defendants on a piece of land of which they were co-owners with the plaintiffs. The widow of one of the co-owners late Gurmit Singh, transferred part of the land in favour of Hoshiar Singh and Smt. Sheela Devi, two of the defendants The constructions had been raised by some co-owners on a part of the joint land, according to the findings recorded by the trial Court which dismissed the suit, without objection from the other co-owners. By his earlier judgment dated 16th August, 1988, the learned District Judge upheld that finding. In addition, what the learned Judge did was to hold that the constructions had been raised by some of the defendants on that part of the joint land which had fallen to their share in a private partition. The learned Judge felt that the fact of private partition stood established, inter alia, on account of an entry in the revenue record (Jamabandi for the year 1977-78 (Ext. A) that the co-owners who had raised the constructions on a part of the joint land were recorded in Hissadari possession thereof. 3. In the petition for review, supported by an affidavit of plaintiff Hoshiar Singh, it was stated in paragraph number two, inter alia, that the judgment of the learned District Judge deserved to be reviewed as it had been passed on erroneous assumption that there was private partition between the parties of the suit land since the defendants had pleaded that they were in Hissadari possession of the suit land alongwith the plaintiffs. 4. 4. After notice to the defendants and after hearing them, the learned District Judge took the view in the order under challenge in this appeal, that: "The judgment, in question, proceeds on a wrong-assumption that the respondents had raised the plea of private partition and this court has held in so many words that the respondent Nos. 1 to 4 having got the site, in question, in partition, are its exclusive owners and as such they have every right to build upon it" The learned District Judge also said that: "This court while delivering the aforesaid judgment laboured under a mistaken belief that by Hissadari possession the respondent Nos 1 to 4 meant that the site on which they had raised the construction had fallen to their share in a private partition among the owners. Therefore, this court gave the finding that the southern part of the Khasra, in question, was in exclusive ownership and possession of respondent Nos. 1 to 4 and as such the plaintiffs were not entitled to the relief claimed by them" 5. The learned Judge eventually held, in paragraph 8 of his order on the review application that : "In the light of the above discussed position I am of the view that the judgment, in question, calls for review Accordingly review petition is accepted and the judgment in question is recalled. The appeal is restored to files. Arguments in the appeal shall be heard afresh." 6. Shri Kuldip Singh has appeared before us in support of this appeal. He has urged that the learned Judge was not justified in directing the review of his judgment dated 16th August, 1988 in appeal in the circumstances of the present case, because even if it was to be held that the judgment proceeded upon an erroneous assumption that there was a private partition among the co owners, the decree upholding the dismissal of the suit was not liable to be interfered with. What was pointed out by Shri Kuldip Singh was that the learned District Judge had formulated various points for decision in the appeal of which point number three was "whether the constructions in question had been raised by the defendants despite protests by other co-owners as alleged or not", and the effect of a finding on this question. What was pointed out by Shri Kuldip Singh was that the learned District Judge had formulated various points for decision in the appeal of which point number three was "whether the constructions in question had been raised by the defendants despite protests by other co-owners as alleged or not", and the effect of a finding on this question. While dealing with this point, said Shri Kuldip Singh, it was held by the learned District Judge that even if it be assumed that the property was joint, still an injunction of mandatory nature could not be issued for the demolition of constructions because no lawful protest appeared to have been raised against the constructions by the co-owners. In coming to this conclusion, the learned District Judge has placed reliance upon a decision of Allahabad High Court in Darshan Lal and others v. Harkesh Singh and others, AIR 1951 All 338, in which the view taken was that where the co-owners did not object to the raising of a construction, their implied consent can be presumed and they cannot ask for the demolition of construction on joint land through mandatory injunction. As a matter of law, what was urged by Shri Kuldip Singh was that even if the learned District Judge was of the view that he had erred in assuming that there was private partition between the co-owners of the land in suit, the decree for demolition could not be passed in respect to the constructions raised on a part thereof in the circumstances aforesaid. As such, the learned District Judge cannot be said to have exercised the power of review in consonance with the principles of law. 7. One of the grounds contemplated by Order 47, Rule 1, Civil Procedure Code for grant of review is that the decree was passed by the Court on account of an error apparent on the face of record. The order of learned District Judge, granting review, clearly shows that he was of opinion that the judgment given by him in the appeal proceeded on an erroneous assumption that there was private partition and that the entry of Hissadari amounted to an evidence of that private partition. The learned District Judge says so expressly in the order granting review. Clearly, therefore, the order made by him was within the fore-corners of Order 47, Rule 1, Civil Procedure Code. The learned District Judge says so expressly in the order granting review. Clearly, therefore, the order made by him was within the fore-corners of Order 47, Rule 1, Civil Procedure Code. Before passing it, the learned Judge, admittedly, heard the parties. As such, he made strict compliance with Order 47, Rule 4 (2) proviso (a). 8. The decision of a Court, on proof of existence of one of the reasons enabling it to do so within the meaning of Order 47, Rule 1, C. P. C, to grant review is generally a matter of discretion with it. This is the view taken by several High Courts For example, in Sm. Sarajubala Guha and another v Aswini Kumar Ghosh and others, AIR 1946 Cal 530, a Full Bench of Calcutta High Court said (in paragraph 16) : "In our opinion, the Legislature, through the successive Codes, seems to have felt the matter of a review of judgment more and more to the discretion of the Judge. It has enjoined that a review should be granted only in cases where one or more of the grounds specified in the Code exist, but at the same time it has provided that if the Judge himself thinks that his decision should be reconsidered, the exercise of his discretion cannot itself be made the subject of an attack on the ground of the non-existence of sufficient reasons ..." And, (paragraph 17) that : "It can hardly be said that if such be the intention of the Legislature, it has left the parties to the arbitrary will of the Judge without any remedy The parties are only affected by the ultimate decision and since an appeal will always lie from that decision, any errors of fact or law can, in most cases, be corrected in that appeal, without going behind to see whether the review was rightly or wrongly granted .." 9. In Mahabir Prasad v. Collector of Allahabad, AIR 1914 All 44, an application for review was dismissed by the Civil Judge on two grounds, namely, (1) that on the face of it, did not disclose any good ground for review, and (2) that even if the new and important evidence alleged to have been discovered by the applicant were to affect the decision as to his legitimacy the decree will still stand good on the other issue in the case, viz the want of proper notice. The decision was assailed before the High Court in a revision petition under section 115, Civil Procedure Code. A Division Bench dismissed the revision and observed : "In our opinion the provision relating to review contemplates grounds which would alter or cancel the original decree." 10. The decision would seem to suggest that in the opinion of the Allahabad High Court a Court, which had passed a decree, was not bound to review its decision even if it were to find that there was some good ground to grant review thereof. 11. Similarly, in Devji Vastha and others v. Dhanji Nanji, AIR 1952 Kutch 45, Vakil J. C. took the view that : "When a judgment is based on two grounds, each of which independently of the other is sufficient to sustain it, a review of the judgment cannot be granted even though it is shown that there was an error apparent on the face of the record in basing the judgment on one of the two grounds." 12. We may also refer to the observations of a Division Bench contained in a decision of the Patna High Court in Harballav Prasad Chowdhury and others v. Jagballav Prasad Chowdhury and another, AIR 1940 Pat 7, to the effect that : "Sub rule (1) does not obviously apply as it refers to a case where the Court rejects the application. It cannot be interpreted to mean that its provision is contravened if the Court grants the application though there is not sufficient ground for a review. Whether there is no such ground must appear to the Court which hears the application If the Court considers that the application should be granted, the case falls under sub-rule 2....” 13. It cannot be interpreted to mean that its provision is contravened if the Court grants the application though there is not sufficient ground for a review. Whether there is no such ground must appear to the Court which hears the application If the Court considers that the application should be granted, the case falls under sub-rule 2....” 13. Once a Court comes to the conclusion that the review should be granted, it has the further discretion to decide whether it would re-hear the entire matter or would hear it only on some limited aspects. The discretion is absolute. The provisions of Order 47 do not disclose any restriction on the scope of enquiry after the Court decides to review its earlier order We find ourselves in agreement with the observations made by the Allahabad High Court in Inderjit Singh v. Sahu Chheda Lal and another, AIR 1964 All 359, where, after noticing decisions of various High Courts, a learned Single Judge summarised the legal position to be that there is no limit restricting the scope of enquiry and the entire case can be re-opened. The matter is one of discretion with the Court which directs the review. 14. The consequence of an order directing the review clearly is that the decree passed earlier is vacated. The legal position in this respect is not in doubt We may only refer to the decision of Supreme Court in Sushil Kumar Sen v. State of Bihar, AIR 1975 SC 1185, where it was said that: "It is well settled that the effect of allowing an application for re view of a decree is to vacate the decree passed. The decree that is subsequently passed on review, whether it modifies, reverses or confirms the decree originally passed, is a new decree superseding the original one...," 15. If, as we hold, the learned District Judge had the discretion to decide whether he would re-hear the appeal in its entirity or limit the hearing only to some specific aspects, we would be loath to interfere with the discretion in our appellate jurisdiction. Normally, a discretionary order does not merit interference by the appellate Court, unless it is felt that the discretion has been exercised unreasonably and contrary to judicial principles. Normally, a discretionary order does not merit interference by the appellate Court, unless it is felt that the discretion has been exercised unreasonably and contrary to judicial principles. To borrow the words of the Supreme Court in Uttar Pradesh Co-operative Federation Ltd. V. Sunder Bros., Delhi, AIR 1967 SC 249: "In dealing with the matter raised before it at the appellate stage the appellate Court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Courts exercise of jurisdiction As is often said, it is ordinarily not open to the appellate Court to substitute its own exercise of discretion for that of the trial judge ; but if it appears to the appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the appellate Court to interfere with the trial Courts exercise of discretion...." 16. May be, as urged with some emphasis by Shri Kuldip Singh, the decree passed by the learned District Judge on 16th August, 1988 would have remained effectively the same even if the conclusion about private partition of the property in suit recorded by the learned District Judge was founded upon the erroneous assumption referred to by him in the order granting the review, yet, the learned District Judge having decided to re hear the appeal afresh in its entirity in his discretion, it would not be proper for this Court to interfere with that decision, for it cannot be said that the discretion was exercised capriciously or that the view taken by the learned District Judge in this respect was unreasonable in law. 17. In sum, we are of opinion that the order under challenge does not merit interference. It is upheld and the appeal is dismissed. Parties are, however, left to bear their own costs of this Court. 18. The parties shall appear before the learned District Judge on 1lth November, 1991. 17. In sum, we are of opinion that the order under challenge does not merit interference. It is upheld and the appeal is dismissed. Parties are, however, left to bear their own costs of this Court. 18. The parties shall appear before the learned District Judge on 1lth November, 1991. The record of the Court below shall be sent to it so as to be available there by that date. Appeal dismissed.