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1999 DIGILAW 499 (KER)

Karthy v. Parukutty

1999-10-14

M.R.HARIHARAN NAIR

body1999
Judgment :- M.R. Hariharan Nair, J. This revision is preferred by the plaintiff in O.S.64 of 1985 of the Munsiffs Court, Kozhikode-II. The order in LA. 5913 of 1988 in the above suit is impugned herein. 2. The question that falls for consideration is whether the filing of an appeal by one of the parties and disposal thereof will detrimentally affect the right of another party to get a review of the judgment under 0.47 R.1 of the Code of Civil Procedure? 3. The basic facts concerned may be stated here: The re vision petitioner filed O.S.64 of 1985 seeking partition with regard to the assets left behind by her paternal grand mother Ichira who died in the year 1956. The parties are governed by the Hindu Mithakshara Law and the question of date of death of Ichira assumed importance. 4. If her death was after 17.6.1956 when the Hindu Succession Act came into effect, the plaintiff would be entitled to get 5/16 shares whereas if she had died before the said date as alleged by the defendants, the plaintiff would not be a sharer at all. The plaintiff could not prove the precise date of death to the satisfaction of the trial court and consequently, the suit was dismissed. She has now armed herself with the required death certificate which according to her, shows that the death of Ichira was on 23.8.1956; that is after the commencement of the Act. She therefore, filed I. A. 5913 of 1988 before the trial court in November, 1988, seeking review of the judgment rendered in the case and requesting to pass a decree in terms of the plaint. 5. The second defendant in the suit claimed himself to be a grandson of Ichira and sought division of 1/4 share due to him. That was resisted on the ground that his grandmother was not Ichira, but only the second wife of Ichira's husband. The trial court rejected the second defendant's contention and refused to allot any share to him. Aggrieved by that decision entered in the judgment passed in the case, second defendant filed an appeal in January, 1989. That was ultimately dismissed on 8.10.1991. The trial court rejected the second defendant's contention and refused to allot any share to him. Aggrieved by that decision entered in the judgment passed in the case, second defendant filed an appeal in January, 1989. That was ultimately dismissed on 8.10.1991. What, emerges from the above set of facts is that the plaintiff s application for review had been filed at a time when there was no appeal challenging the judgment; but before the review petition was dismissed as per the impugned order on 6.11.1993, the second defendant's appeal against the very same judgment had been considered by the appellate court and disposed of. 6. The Court below considered the review petition of the plaintiff filed as I. A. 5913 of 1988 in the light of the provisions in 0.47 R.1 of the CPC and dismissed the same on entering a finding that the judgment of the trial court sought to be reviewed by the plaintiff had already merged in the decree of the appellate court and that no more review was therefore, possible by the trial court. It is the legality, regularity and propriety of this decision, that is impugned herein. 7. It will be useful to quote here the pro visions in the CPC relating to review. It is the legality, regularity and propriety of this decision, that is impugned herein. 7. It will be useful to quote here the pro visions in the CPC relating to review. S.114 of the CPC provides as follows: "Review:- Subject as aforesaid, any person considering himself aggrieved (a) by a decree or order from which an appeal is allowed by this Code, but for which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit." Order 47 Rule 1 of the Code of Civil Procedure is to the following effect Application for review of judgment (1) any person considering himself aggrieved (a) by a decree or order from which an appeal is allowed by this Code, but for which no appeal 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 (exercising small cause jurisdiction) 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 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." 8. What is clear from the aforesaid provisions is that a party who has not appealed from a decree or order may apply for review of the judgment irrespective of the pendency of an appeal filed by some other party. The Circumstances where such an application would not be maintainable are: i. Where the ground raised in the appeal by the other party is common to the ground raised by the review petitioner. ii. The Circumstances where such an application would not be maintainable are: i. Where the ground raised in the appeal by the other party is common to the ground raised by the review petitioner. ii. Where the review petitioner is a respondent in the appeal filed by the other party and can present the case raised in the review before the appellate court as well. 9. From a plain reading of the aforesaid provisions, the review sought by the petitioner herein can be maintained irrespective of the filing of the appeal by the second defendant subsequently, if the petitioner is able to show that the grounds raised by the second defendant in the appeal were not common to those raised in the review petition and also if the prayers in the review petition could not have been presented by the petitioner to the appellate court in the appeal filed by the second defendant. But then, another question which is not specifically mentioned in the aforesaid provision also appears to emerge and that is whether the trial court can deal with the petition once the decree passed by it has merged in the judgment of the appellate court. 10. The learned counsel for the revision petitioner relied on two decisions in support of his case in this regard. Ramlal Thakur & Ors. v. Mangal Chaudhury & Ors. (AIR 1953 Patna 208) was a case where the suit was decreed in September 1948; but the decree as to mense profits was confined to one of the properties mentioned in the plaint alone. The defendants, therefore, filed an application for review. This learned Munsiff allowed the review sought for and directed that the plaintiffs should get possession of the particular plot and the other sharers including the review petitioner could recover possession of the other plots. Recovery of mesne profits as sought in the review petition was also allowed. The correctness of the grant of the review petition was challenged before the Patna High Court, based on the filing of the appeal by another party and a remand having been ordered by it. The High Court noted that though the review petitioner was a party to the appeal filed by the other defendants he could not have preferred the contentions raised in the review petition before the appellate court without the review petitioner himself filing an appeal. The High Court noted that though the review petitioner was a party to the appeal filed by the other defendants he could not have preferred the contentions raised in the review petition before the appellate court without the review petitioner himself filing an appeal. Since no such appeal was filed by the review petitioners, it was open to them to file an application for review. 11. The said decision was followed by the Andhra Pradesh High Court in Velegcdapudi Savimmma v. Kambhampati Satyanarayanamurthy(AIR 1960 A.P.81). It was held that 0.47 R.1 confers a right upon a litigant to present an application for review; that it is a general right available to a party under certain circumstances and that it is only in a case where an appeal is not filed, that an application for review would be maintainable. It was also held that O.47 R.1(ii) would apply to a case where a party who has not himself appealed against any portion of the judgment of the trial court seeks review and that such a party would not be precluded from seeking the remedy provided under sub-r.(ii) by the pendency of an appeal by one of the other parties except where the ground of such appeal is common to the appeal and to the re view petition and where, as a respondent in that appeal, he could present to the appellate court the cause on which he seeks the review. It was also held that if the last two conditions are satisfied, the pendency of an appeal preferred by one of the parties would not disable him from invoking sub-r.(ii) and that there is no further condition that the application for review should be accepted before the appeal preferred by the co-party is disposed of as contended by the counsel by the counsel for the respondents therein. 12. Though not cited by the revision petitioner, I find it necessary to refer to certain decisions of the Supreme Court on the subject as well. State of Maharashtra and Anr. v. Shri Prabhakar Bhikaji Ingle (JT1996 (3) SC 567) dealt with a case where a review petition was filed in the Administrative Tribunal at a time when SLP was pending before the Supreme Court. After dismissal of the SLP on 25.8.1995 the Administrative Tribunal reviewed its judgment on 2.11.1995. State of Maharashtra and Anr. v. Shri Prabhakar Bhikaji Ingle (JT1996 (3) SC 567) dealt with a case where a review petition was filed in the Administrative Tribunal at a time when SLP was pending before the Supreme Court. After dismissal of the SLP on 25.8.1995 the Administrative Tribunal reviewed its judgment on 2.11.1995. The Supreme Court found that the said exercise of power was deleterious to judicial discipline and that after confirmation of the Tribunal's judgment in the SLP no power for review existed. The reason given was that the Tribunal's order had merged in the order of the Supreme Court. It was held in the same judgment that if the Tribunal had no knowledge of the dismissal of the SLP it might in certain circumstances, review its earlier order. M/s. Thungabhadra Industries Lid. v. The Government of Anhdra Paradesh (AIR 1964 SC 1372) dealt with a case where, after filing of the review petition, the petitioner filed SLP which was dismissed on ground of limitation. The impact of the dismissal of the delay petition was considered by the Supreme Court and it was found that the impact was that the SLP never came on the file of the Supreme Court. It was therefore, found that the review petition was maintainable and it deserved to be considered on merits. It was also held in the said decision that the crucial date is the date of application for review and if on that date no appeal was actually filed, a review would be maintainable and it can be disposed of notwithstanding the pendency of a later appeal. But here, again, this is subject to one more condition namely, that if before the disposal of the review petition, the appeal happens to be disposed of the jurisdiction of the Court for hearing the review would cease. 13. S.N. Dharma Sangam Trust v. Swami Prakasananda (1991 (1) KLT 829 (SC) dealt with a case where review application was filed after the dismissal of the SLP. It was held that once the appellate court passed an order the order passed by the High Court stands merged with the appellate order of the Supreme Court and that thereafter, the High Court is devoid of jurisdiction to review its earlier order. It was also held that even if dismissal of the SLP was in limine, it would operate as a final order between the parties. It was also held that even if dismissal of the SLP was in limine, it would operate as a final order between the parties. 14. What emerges from the dicta i n the aforesaid decisions is that subsequent filing of an appeal by a co-party would not ipso facto take away the jurisdiction of the lower court to consider and dispose of the review, unless that court had information that the appeal has been disposed of. If the disposal is on the merits, the principle of merger may apply.' One thing is clear. If the review petition was filed before the filing of the appeal and if the disposal of the appeal was without notice to the review petitioner, it may not affect his rights. In such a case, the principle of merger may not apply as far as the review petitioner is concerned. 15. In the instant case, the appeal was filed after the filing of the review petition. It is also pointed out that the question raised by the second defendant in the appeal was entirely different from the question raised by the review petitioner and that in the nature of the appeal brought forth by the second defendant there was no question of the review petitioner being able to present his case now raised in the review petition before the appellate court. 16. It is also contended that the disposal of the appeal filed by the 2nd defendant was in limine and not on merits. These are all aspects to be gone into in the light of proper evidence. Definitely production of the appeal memo filed by the second defendant and the judgment of the appellate court will have much significance while considering the maintainability of the review petition. 17. In the circumstances, I am of the view that the order of dismissal of the review petition passed in the case without going into the above questions of law and fact is sustainable and it is accordingly set aside. The case is remanded to the Munsiff s Court, Kokhikode-II for a reconsideration of LA. 5913 of 1988 in the light of the position of law discussed above and to pass fresh orders on merits after hearing both sides. Civil Revision Petition is disposed of as above.