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2015 DIGILAW 414 (MP)

Allauddin v. Sayra Bi

2015-04-09

S.R.WAGHMARE

body2015
JUDGMENT : S.R. Waghmare, J. 1. This review petition has been filed under Section 11 of the M.P. High Court Rules, 2008 for reviewing the order dated 21.01.2015 passed by this Hon'ble Court in M.A. No. 887/2014. 2. Counsel for the petitioner has vehemently urged the fact that the respondent Sayra Bi had filed the aforesaid appeal and had only prayed for setting aside the order dated 06.03.2014 in MJC No. 13/13 by First A.D.J., Sendhwa, Distt. Barwani. Counsel contended that the MJC had been filed by respondent Sayra Bi because an ex-parte decree had been passed against her in Civil Suit No. 3B/11 by the 02nd Additional District Judge, Sendhwa and the MJC had been filed for setting aside the ex-parte decree under Order 9 Rule 13. Unfortunately however this MJC had also resulted in a dismissal primarily on the ground of limitation since Sayra Bi had failed to take prompt action for setting aside the ex-parte decree. Counsel candidly admitted that by the order dated 21.01.2015 passed in Miscellaneous Appeal No. 887/2014, this Court had by way of clemency (since the respondent Sayra Bi was a Pardanashin woman and dependent on her lawyer for conducting her case) by imposing costs of Rs. 3,000/- had condoned the delay and set aside the order purely on humanitarian grounds. However, Counsel has vehemently urged before this Court that while allowing the appeal, this Court has in the impugned paragraph held thus:-- "In this light, (if) the delay is condoned and the Trial Court is directed to re-hear the matter. However, by remanding the same, loss shall be caused to the respondent No. 1. And hence, it is directed that the impugned judgment decree is set aside and the matter is remanded to the trial Court for a fresh decision in the matter." And Counsel submitted that such an order was adversely affecting the right of the petitioner plaintiff. However, by remanding the same, loss shall be caused to the respondent No. 1. And hence, it is directed that the impugned judgment decree is set aside and the matter is remanded to the trial Court for a fresh decision in the matter." And Counsel submitted that such an order was adversely affecting the right of the petitioner plaintiff. Counsel submitted that a valuable right had been accrued to the plaintiff by the judgment and decree passed in COS No. 3B/11 as already stated above and this Court had failed to consider that the respondent Sayrabi was only seeking setting aside of the order passed in MJC No. 13/13 and that would at the most restore the MJC but the judgment and decree could not have been setting aside in COS No. 3-B/11 and it is in this sense Counsel urged that this Court lacked the jurisdiction to set aside the judgment and decree while exercising powers under Order XLIII Rule 1 of the CPC. Counsel also vehemently urged that such an relief was not sought even by the respondent Sayra Bi in the Miscellaneous Appeal No. 887/14 and Counsel vehemently urged that this review petition be allowed and the impugned order dated 21.01.2015 be set aside and the fresh order be passed in the interest of justice. 3. Per contra Counsel for the respondents has vehemently urged the fact that this review petition was also delayed by period of 11 days and sufficient explanation has not been given by the petitioner as required under the provisions of law. Illness and routine old age cannot be a ground for condonation of delay. Coming to the main objection Counsel urged that a review petition should be allowed when the error is apparent on the face of the record and such an error, therefore, must be patent and should not require consideration and assessment of materials and evidences recorded in the case. Both the parties according to the Counsel for the respondents were heard on the occasion and the discretion exercised by the Court after hearing both the parties cannot be challenged only on the ground that one out of two views could be taken by the Court. And the petitioner has failed to make out any case warranting review of order. Both the parties according to the Counsel for the respondents were heard on the occasion and the discretion exercised by the Court after hearing both the parties cannot be challenged only on the ground that one out of two views could be taken by the Court. And the petitioner has failed to make out any case warranting review of order. Counsel relied on Smt. Meera Bhanja v. Nirmala Kumari Choudhary [ AIR 1995 SC 455 ] and Ishwar Dutt v. Gyan Chand [AIR 1998 Rajasthan 302]. 4. Counsel for the respondents also urged the fact that once the appeal had been filed under Order 43 Rule 1(d) of CPC by Sayrabi, this Court would have ample jurisdiction under Section 107 of the CPC. Counsel submitted that dismissal of the application of the respondent Sayra Bi under Order 9 Rule 13should be considered as a dismissal simpliciter and should not be compared with a dismissal on merits. The appellate Court i.e. the present Court, therefore, had the jurisdiction to consider the case for remand either after hearing the matter afresh on the application or it can also set aside the ex-parte decree on being satisfied that the appellant was prevented by a sufficient cause to appear before the Court as required under Order 9 Rule 13 of CPC. Counsel vehemently urged that both the parties were heard at length and this Court was satisfied about the sufficiency of the cause which prevented respondent Sayra Bi from appearing in the main suit also and hence the ex-parte decree was set aside. 5. Counsel also submitted that the word "shall" as used in Order 9 Rule 13 of CPC casts a duty on the Court that on being satisfied about the sufficiency of the cause for non-appearance it had to set aside the ex-parte decree also. Besides Counsel submitted that merely remanding the matter for a fresh decision in the MJC and for considering the application under Order 9 Rule 13 all over again on remand, would certainly defeat the purpose of Order 43 Rule 1-D of the CPC and the trial Court would again go through the sufficiency of the cause for non-appearance before the trial Court in the Civil Suit No. 3B/11. Counsel submitted that the cardinal principle i.e. "procedure is hand maid of justice" and should not be used to abuse the process of Court. Counsel submitted that the cardinal principle i.e. "procedure is hand maid of justice" and should not be used to abuse the process of Court. Merely raising technical objections would not do substantial justice between the parties, besides Counsel urged that the petitioner has wrongly stated that relief was not claimed by the respondent Sayra Bi in the appeal. The relief clause in the appeal is reproduced for convenience thus:-- "appeal may kindly be allowed and after setting aside the impugned order passed by the learned Trial Court, the application filed by the appellant under Order IX Rule13 of CPC may kindly be allowed." 6. On considering the above submissions, I find that the powers of this Court in a review are very much limited and the errors have to be apparent on the face of the record. Once the Court has consciously comes to the conclusion that there was sufficient cause shown by the respondent Sayrabi then it was definitely clothed with the jurisdiction to consider the effect of setting aside the impugned order. In this light it is important to consider the explanation of Order 9 Rule 13 of CPC. The Order 9 Rule 13 of CPC clearly indicates that if any appeal against ex-parte decree has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under Order 9 Rule13 of the CPC for setting aside the ex parte decree and hence the Court could not have passed inconsequential or ineffective orders which would serve no purpose or cannot be implemented under the provisions of law. Just setting aside the impugned order passed in MJC No. 13/13 would have been of no use to the present respondent Sayrabi. 7. The same contention could not have been raised by the appellant in the First Appeal in case she could have appeal against the ex-parte judgment and decree passed in Civil Suit No. 3B/11 and having considered this, the Court has passed the impugned order and it cannot be said that this Court has not considered the effect of simply restoring the MJC. Besides the important fact that should not be lost sight of is that by way of clemency and the fact that the respondent was a Pardanashin lady who was solely dependent on her lawyer the appeal had been allowed and the judgment and decree passed in the Civil Suit had also been set aside. On this ground alone, the Court had very well considered the fact that reverting the matter to the MJC would again result in a dismissal since the lower Court was not satisfied with the sufficiency of the cause shown by the appellant and to do substantial justice between the parties as already stated in the order this Court had set aside the judgment and decree passed in Civil Suit No. 3B/11. 8. Thus placing reliance on Heeralal & others v. Shiv Kumar and another [ 2010(I) MPWN 27 ] the Court had held that the review powers are very limited and the Court cannot, therefore, act as an appellate Court. The jurisdiction of this Court cannot be invoked even if the order is erroneous and even if the grounds under Order 47 Rule 1 are not existing, the review is not maintainable. This Court also feels that the complaint of the petitioner pertains to a purely procedural error if at all and cannot be remedied under the review jurisdiction. 9. Also placing reliance on a very recent judgment of the Apex Court in the matter of D.R. Somayajulu v. Attili Appala Swamy and others [ (2015) 2 SCC 390 ] the Apex Court had held that the High Court had erred in exercising of its review jurisdiction and it was not justified in setting aside its own order and the High Court order had been set aside and thus I find that it would be improper to pass orders which cannot be implemented in its truest spirit and do not give substantial justice to both the parties. In this view also the review must fail. The petition is, therefore, dismissed as being without merit. No costs. CC as per rules.