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Madhya Pradesh High Court · body

2012 DIGILAW 1298 (MP)

Hameeda Begam v. Pooran Chand Jain

2012-12-17

J.K.MAHESHWARI

body2012
JUDGMENT : A preliminary objection has been raised by learned counsel appearing on behalf of the respondent No. 2 that after rejection of the review application against the judgment and decree passed by the Lower Appellate Court the revision under section 115 of Civil Procedure Code is not maintainable, therefore, it may be dismissed. 2. Shri M. Hafizullah, learned counsel appearing on behalf of the applicant facing such objection prays for time on 3-9-2012, which was granted. Again on 24-9-2012 time was sought for, however, by way of last opportunity two weeks further time was allowed. Today the case has been heard on the question of maintainability, even on asking time by Mr. Hafizullah, because it is pending since last about eight years. 3. Learned counsel for the applicant referring the provisions of section 115 of Civil Procedure Code contends that the High Court may call for the record of any case, which has been decided by any Court subordinate to High Court and in which no appeal lies thereto, and if such subordinate Court exercised a jurisdiction not vested in it by law; or have failed to exercise the jurisdiction so vested; or have acted in the exercise of its jurisdiction illegally or with material irregularity, against the order rejecting the application for review no appeal lies, therefore, the revision is maintainable. In support of such contention reliance has been placed on a judgment of Hon'ble the Apex Court in the case of Smt. Vidya Vati vs. Shri Devi Das, AIR 1977 SC 397 referring paragraph-7 of the said judgment it is contended that the order passed by the High Court rejecting the revision petition as not maintainable was found illegal. Learned counsel further relying upon the Division Bench judgment of this Court in the case of Anandi Prasad Dwivedi and am. vs. State of M. P., ILR (2010) M. P. 1904 has urged that as per Order 47, Rule 7 of Civil Procedure Code the order of rejection of the application is not appealable, therefore, in reference to the said judgment the revision may be maintained by this Court. 4. vs. State of M. P., ILR (2010) M. P. 1904 has urged that as per Order 47, Rule 7 of Civil Procedure Code the order of rejection of the application is not appealable, therefore, in reference to the said judgment the revision may be maintained by this Court. 4. Per contra Shri Akhilesh Jain, counsel representing the respondent No. 2 contends that the judgment and decree passed by the Lower Appellate Court is appealable as per section 100 of Civil Procedure Code and on filing such appeal if the Court is satisfied that the question of law is involved in any case it shall formulate that question and decide the same on merit. After passing the judgment and decree by the Lower Appellate Court review application was filed, which was rejected. However, the rejection thereof would entail the party to file an appeal as provided under section 100 of Civil Procedure Code. It is further submitted that the judgment of Hon'ble the Apex Court so relied upon by the applicant is not applicable because in the said case the review petition was allowed and thereafter the appeal as provided under Order 43, Rule 1 (w) of Civil Procedure Code. In the said context Hon'ble the Apex Court has held that the High Court was not justified in dismissing the revision as not maintainable. In the Division Bench Judgment of this Court also the question after rejection of the application for review against the judgment and decree was not in issue, therefore, the said judgments are also having no application in the facts and circumstances of the case. Moreso in the said case also application for review was allowed, therefore, the Court made certain observation in the light of the Order 47, Rules 1 and 7 of Civil Procedure Code. In that view of the matter it is submitted that in a case where the application seeking review of the judgment and decree has been rejected the recourse permissible to the applicant is to avail the remedy to file appeal and the revision is not maintainable. The order of rejection would not fall within the purview of the Phrase that 'no appeal lies' against order. 5. The order of rejection would not fall within the purview of the Phrase that 'no appeal lies' against order. 5. After hearing learned counsel appearing on behalf of the parties and on perusal of the record it is not in dispute that the appeal filed by the applicant was dismissed by the judgment and decree dated 29-8-2001 by Lower Appellate Court. Against the said judgment and decree a review application was filed by him, which was also rejected by the order impugned against which this revision has been preferred. The revision would lie before the High Court as specified under section 115 of Civil Procedure Code. The aforesaid provision is relevant, however, it is reproduced in the context of the Madhya Pradesh Amendment as under:- STATE AMENDMENTS Madhya Pradesh -- For section 115, substitute the following section, namely. - "115. Revision -- The High Court may call for the record of any cases which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears - (a) to have exercised a jurisdiction not vested in it by law; or (b) to have failed to exercise a jurisdiction so vested; or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit; Provided that the High Court shall not, under this section, vary or reverse any order made or any order deciding an issue, in the course of a suit or other proceedings except where :- (a) the order, if it had been made in favour of the party applying for the revisions, would have finally disposed of the suit or proceeding; or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. Explanation. --In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue in the course of a suit or other proceeding." 6. Explanation. --In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue in the course of a suit or other proceeding." 6. Bare reading of the aforesaid it is apparent that the High Court shall have power to call for the record of any case, which was decided by any Court subordinate to it and against which no appeal lies. The revisional jurisdiction may further be exercised by the High Court if the subordinate Court exercise the jurisdiction not vested on him or failed to exercise the jurisdiction so vested or acted in exercise of its jurisdiction illegally with material irregularity. Subsection (2) makes it clear that the High Court shall not in exercise of the revisional jurisdiction vary or reverse any decree or order against which an appeal lies either to the High Court or in any Court subordinate thereto. However, in the context of the aforesaid provision and in the facts of the present case where after passing the judgment and decree by the Appellate Court and on rejection of the application for review filed by any of the parties where the appeal lies or not. If the appeal lies, then revision would not be maintainable and if appeal does not lie then revision would be maintainable. As per Order 47, Rule 1 of Civil Procedure Code it is clear that if any person considering himself aggrieved by a decree or order from which an appeal is allowed, but from which no appeal has been preferred and the said party from discovery of new and important matter or evidence which, after the exercise of due diligence was not in 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, desire to obtain a review of judgment to the Court which passed the decree or made the order, sub-rule (2) makes it clear that if the party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant. Thus, it is clear that under sub-rule (1) or Order 47 of Civil Procedure Code review against the judgment and decree is maintainable when the appeal has not been preferred. Sub-rule (1) of Rule 4 confers the power to the Court that where it appears to the Court that there is no sufficient ground for a review, it shall reject the application while sub-rule (2) specified for the reasons on which the application can be granted. Rule 7 deals the contingency that on rejection of the application the said order shall not be appealable, while order granting application may be objected to, at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit. Thus, Rule 7 makes it clear that the order rejecting the application is not appealable as per the Order 43, Rule 1(w) of Civil Procedure Code. The aforesaid appeal is by way of objection to order granting an application of review. Thus, it is clear that as per the Rules 1 and 7 of Order 47, Civil Procedure Code, the order rejecting the application shall not be appealable. Thus, the word appealable in the context of filing an appeal having not allowing application to raise the objection, which is specified under Order 43, Rule 1, Civil Procedure Code, and is having nothing to do with the regular appeal as specified under section 96 or 100 of Civil Procedure Code. 7. The judgment of Hon'ble the Apex Court in the case of Smt. Vidya Vati vs. Shri Devi Das (supra) relied upon by the learned counsel appearing on behalf of the applicant was in a case wherein the review application was allowed by the said judgment to which the appeal lies to this Court as specified under Order 43, Rule 1(w) of Civil Procedure Code, however, to maintain the said revision the finding of the High Court was found unsustainable while in the present case position is entirely different. Thus analogy drawn in the said judgment is having no application in the present case. So far as the judgment of this Court in the case of Anandi Prasad Dwivedi and anr. Thus analogy drawn in the said judgment is having no application in the present case. So far as the judgment of this Court in the case of Anandi Prasad Dwivedi and anr. vs. State of M. P. (supra) is concerned, it is also the case where against the judgment and decree passed by the Lower Appellate Court directing remand, review petition was filed that was granted, setting aside the judgment and decree. However, the Court referring the provision under Order 47, Rules 1 and 7 of Civil Procedure Code has observed that the recourse as permissible to the Lower Appellate Court while passing the order on the application for review was specified under Rule 8 of Order 47 of Civil Procedure Code and not otherwise. In such circumstances the judgment so relied upon by the learned counsel for the applicant in having no application in the facts of the present case. 8. In the present case after passing the judgment and decree by the Appellate Court application for review was filed, which was rejected. The consequence thereof is the judgment and decree passed by the lower Appellate Court has not been interfered with in review. In such circumstances the judgment and decree passed by the Lower Appellate Court has been maintained dismissing review against which the appeal would lie as per section 100 of Civil Procedure Code. In this context it is necessary to observe that after rejection of the application if the revision is maintained then as per section 115 of Civil Procedure Code the High Court shall not vary or reverse any decree or order against which any appeal lies before the Court under the Code of Civil Procedure. In the present case after rejection of the application for review the said order will merge into the basic judgment and decree passed by lower Appellate Court, which is appealable, therefore, the revision cannot be maintained and the only recourse is permissible under section 100 of Civil Procedure Code to appreciate to assail the original judgment and decree. 9. In view of the foregoing discussion, in the considered opinion of this Court the revision filed by the applicant is not maintainable, however, the preliminary objection raised by non-applicant No. 2 is hereby upheld. Consequently, this revision is hereby dismissed with the observation that applicant may take recourse as permissible under the law. 9. In view of the foregoing discussion, in the considered opinion of this Court the revision filed by the applicant is not maintainable, however, the preliminary objection raised by non-applicant No. 2 is hereby upheld. Consequently, this revision is hereby dismissed with the observation that applicant may take recourse as permissible under the law. In the facts of the case, parties to bear their own cost. Revision dismissed.