Saraswatibai Mahadeorao Pawade v. Harishchandra Mahadeorao Pawade
2017-03-02
A.S.CHANDURKAR
body2017
DigiLaw.ai
JUDGMENT : A.S. Chandurkar, J. This appeal filed under the provisions of Order 43, Rule 1 (w) of the Code of Civil Procedure, 1908 (for short, the Code) takes exception to the order passed by the Appellate Court exercising review jurisdiction and allowing the review application by order dated 18/02/2015. 2. Facts relevant for adjudicating the present appeal are that the respondent No.1 is the original plaintiff, who has filed Regular Civil Suit No.97/2006 for partition and separate possession of joint family property. In said suit, the appellants raised a plea that all the properties of the joint family were not subject matter of the suit and therefore, the suit for partition was not maintainable. The Trial Court by upholding said objection, dismissed the suit on 16/02/2009. The respondents herein, therefore, filed an appeal under Section 96 of the Code challenging the said judgment. During the pendency of said appeal, the appellants therein moved an application below Exh.21 seeked to amend the plaint so as to incorporate the joint family properties that had been left out. The Appellate Court on 09/01/2014 rejected the said application. Thereafter, the appellants before the Appellate Court moved an application for review of aforesaid order. Subsequently, the said applicants also moved an application for condonation of delay in filing the review application. Both the applications were opposed by the appellants herein and by the impugned order, the Appellate Court condoned the delay, allowed the review application and thereafter proceeded to allow the application for amendment. Being aggrieved, the said orders have been challenged in this appeal. 3. Shri K. B. Zinjarde, learned counsel submitted that the Appellate Court exceeded its jurisdiction while allowing the review application. He submitted that the application for amendment was rejected by the Appellate Court on the ground that the amendment to the plaint was not permissible in view of proviso to Order 6, Rule 17 of the Code. There was no occasion to exercise review jurisdiction and take another view of the matter, especially when there was no error apparent on the face of record. Only on the ground that the appeal was likely to be dismissed if the amendment was not allowed, the review jurisdiction came to be exercised. It was urged that this exercise was beyond the scope of provisions of Order 47, Rule 1 of the Code read with Section 114 thereof.
Only on the ground that the appeal was likely to be dismissed if the amendment was not allowed, the review jurisdiction came to be exercised. It was urged that this exercise was beyond the scope of provisions of Order 47, Rule 1 of the Code read with Section 114 thereof. In that regard, the learned counsel placed reliance on the decision in the case of the Honourable Supreme Court in Kamlesh Verma v. Mayawati and ors. (2013) 8 SCC 320 . It was then submitted that by deciding the application below Exh.21, immediately after allowing the review application, the provisions of Order 47, Rule 8 of the Code had been violated. No opportunity was granted to the appellants to oppose the application below Exh.21. In that regard, he referred to Ground N of the memorandum of appeal to support his submission. It was, therefore, submitted that the impugned order was liable to be set aside. 4. There was no appearance on behalf of respondents on 1st March, 2017. There was no appearance on their behalf even today. 5. After hearing the learned counsel for the appellants, I am of the view that the impugned order cannot be sustained. It is to be noted that the Appellate Court while rejecting the application for amendment on 09/01/2014 had clearly observed that the plaintiff had failed to exercise due diligence while seeked amendment and hence, in view of proviso to Order 6, Rule 17 of the Code, the application was rejected. While exercising review jurisdiction, the learned Judge of the Appellate Court appears to have been impressed by the fact that absence of all joint family properties would result in dismissal of the appeal. The same can hardly be a reason to exercise review jurisdiction in the absence of any error apparent on the face of the record. In Kamlesh Verma (supra), the Hon'ble Supreme Court has observed that the expression "any other sufficient reason" would mean grounds that are analogous to the grounds stated in Order 47, Rule 1 of the Code. Review would not mean an appeal in disguise for correcting an erroneous decision. In the present case, the rejection of the application for amendment at the first instance, cannot be said to be vitiated on the ground that same resulted in an error apparent on the face of record.
Review would not mean an appeal in disguise for correcting an erroneous decision. In the present case, the rejection of the application for amendment at the first instance, cannot be said to be vitiated on the ground that same resulted in an error apparent on the face of record. It would be a different matter, if such error is corrected by the Appellate Court in exercise of appellate jurisdiction. The observations of the Appellate Court that the order refusing the amendment would deny relief to the plaintiff would therefore not be "any other sufficient reason" and thus cannot be a consideration for allowing a review application. 6. The impugned order further does not indicate the exercise of power by the Appellate Court under provisions of Order 47, Rule 8 of the Code. Under the provisions of Rule 8, though the Court has power to at once rehear the case after allowing the application for review, some reasons for doing so ought to have been indicated in the order. In the impugned order, there is no such mention as to why the Appellate Court at once, reheard the application for amendment. On this ground also, the impugned order cannot be sustained. 7. In view of aforesaid discussion, the following order is passed. ORDER (i) The order dated 18/02/2015 passed below Exhs.26 and 29 in Regular Civil Appeal No.39/2009 is quashed and set aside. The order passed below Exh.21 shall continue to operate. (ii) It is clarified that this Court has examined the correctness of the orders passed below Exhs. 21, 26 and 29 only on the touchstone of exercise of review jurisdiction by the appellate Court. The present adjudication would not preclude the original plaintiff from raising challenge to the order passed below Exh.21 in accordance with law. (iii) The appeal is allowed in aforesaid terms. No costs. Appeal Allowed.