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2019 DIGILAW 1067 (KER)

Sree Narayana Dharma Paripalana Yogam, (S. N. D. P. Yogam), Kollam, Represented By Its General Secretary, Vellappally Natesan v. Sathyan M. S, S/o Sudayan

2019-12-13

N.ANIL KUMAR

body2019
ORDER : The petitioner (Sree Narayana Dharma Paripalana Yogam, Kollam) is not a party in C.R.P.No.219/2016 on the file of this Court. The petitioner has filed this application for leave to file a review petition in C.R.P.No.219/2016 dated 22.11.2018. 2. The civil revision petition was filed against the order dated 10.3.2016 in LA.No.1212/2016 filed under Section 8 of the Arbitration and Conciliation Act, 1996 in O.S.No.1569/2015 of the Principal Munsiff's Court, Ernakulam. The learned Munsiff allowed the said I.A. by order dated 10.3.2016 and referred the parties for arbitration which was challenged in revision. By order dated 22.11.2018, this Court set aside the impugned order holding that the application filed under Section 8 of the Act is not maintainable. 3. This Court considered the question as to whether the existence of an arbitration agreement as defined under Section 7 of the Arbitration Act is a condition precedent for exercise of power to appoint an Arbitrator/Arbitral Tribunal under Section 11 of the Act. Considering the facts and circumstances involved, this Court followed the dictum laid down in Vimal Kishor Shah & ors. v. Jayesh Dinesh Shah & Ors. [ (2016) 8 SCC 788 ] and held that in the absence of an arbitration agreement or mutual consent as defined under Section 7 of the Arbitration Act, the rules of the SNDP Yogam, including Rule 71, do not satisfy the requirement of Section 2(1)(b) and 2(1)(h) read with Section 7 of the Act. This Court further held that the rule cannot be construed as an Arbitration Agreement within the meaning of Section 7 of the Act. 4. The learned counsel for the petitioner Sri.A.N.Rajan Babu contended that the bylaw of SNDP Yogam is challenged in the CRP without the Junction of SNDP Yogam as a party to the suit. It is contended that SNDP Yogam is a non-trading company registered under the Indian Companies Act, 1956, now replaced by the Indian Companies Act, 2013. Section 10 of the Companies Act provides that the provisions contained in the memorandum and articles of association of a company shall be binding on the company and each of the members thereof. Thus, contents of the articles of association shall be observed by the members and the company as if an agreement signed by and between them, it has been submitted. Thus, contents of the articles of association shall be observed by the members and the company as if an agreement signed by and between them, it has been submitted. The plaintiffs in the suit are members of the SNDP Yogam and thus Rule 71 is binding on plaintiffs also. Thus, it is argued that Section 10 of the Companies Act, 2013 read with Rule 71 will satisfy the requirement of Section 2(1)(b) and 2(1)(h) read with Section 7 of the Arbitration and Conciliation Act, 1996. Hence the petitioner has filed this petition to grant leave to file the Review Petition in exercise of the powers under Section 151 of the Code of Civil Procedure. The learned counsel for the petitioner further submitted that the order passed by this Court in the C.R.P. is, though expressly against the party respondents, in effect and by implication, the order is made against the petitioner. Therefore, according to the learned counsel for the petitioner, the petition is maintainable before this Court. 5. The learned Senior Counsel for the respondents 1 to 18 Sri S.Sreekumar, by way of preliminary objection submitted that the petitioner has no locus standi to file a review petition before this Court as they were not parties to the proceedings in the suit or in the review petition. Therefore, the learned Sr.Counsel submitted that the application for leave to review may be dismissed in limine as not maintainable, without going into the merits or otherwise of the review petition submitted along with the application for leave to review. According to the learned Sr.Counsel a review petition can be filed only by a party to the suit in which the order sought to be reviewed has been passed and it cannot be filed by a third party. Hence it is contended that the petitioners are debarred from seeking review of an order in which they are not parties to the litigation. 6. Heard Sri. A.N.Rajan Babu, learned counsel for the petitioner and Sri.S.Sreekumar, learned Senior Counsel for respondent Nos.1 to 18. 7. This Court may now notice some of the judicial precedents in which Section 114 read with Order XLVII Rule 1 of the C.P.C. have been interpreted and limitation of the power of the civil court to review its judgment/order at the instance of a party, who is not a party to the suit or proceeding, have been identified. 8. 7. This Court may now notice some of the judicial precedents in which Section 114 read with Order XLVII Rule 1 of the C.P.C. have been interpreted and limitation of the power of the civil court to review its judgment/order at the instance of a party, who is not a party to the suit or proceeding, have been identified. 8. In Bharat Singh v. Firm Sheo Pershad Giani Ram and others [AIR 1978 Delhi 122] a Division Bench of the Delhi High Court interpreted Order XLVII Rule 1 of C.P.C. and observed the following:- "31. .............On the very reading of the Rule it is clear that a review application can be filed only by a party to the lis in which the order sought to be reviewed has been passed. It cannot be preferred by a third party. It was urged on behalf of the petitioner that the phrase "any person considering himself aggrieved" would include anyone who is adversely affected by the impugned order, whether that person is or is not party to the lis in which the impugned order has been passed. We do not agree. As will be apparent from a reading of the rule any person considering himself aggrieved by a decree or order may apply for review provided he can establish that he “from the discovery of new and important matters 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 decision was passed or order made." This postulates that the person applying for review has to satisfy two conditions, namely, that he is aggrieved by the order and also that he for the reasons mentioned was not in a position to bring that fact to the notice of the Court earlier which resulted in a wrong order being passed. If these two conditions are necessary before a review application can be moved, it follows that the review application has to be made by a person who was a party to the lis decided by the impugned order or decree." 9. If these two conditions are necessary before a review application can be moved, it follows that the review application has to be made by a person who was a party to the lis decided by the impugned order or decree." 9. In Bangalore Development Authority v. P.Anjanappa (since deceased by L.Rs) [2004 A.I.H.C. 534 (Karnataka High Court)] a Single Bench of the Karnataka High Court while considering the question whether a review application can be filed by a party who is not a party to the proceedings, held as follows:- "11. The preliminary objection raised by learned counsel for private respondents need not detain me for long, in view of the settled legal position. It is now well-settled that a review application can be filed only by party to the lis in which the order sought to be reviewed has been passed. It cannot be preferred by a third party. Alternatively, the review petition cannot be filed by a party who is not a party to the suit. It is not in dispute nor it can be disputed that the petitioners in review petition No.752 of 2001 were not parties before the trial court nor parties to the proceedings before this Court in the MFA filed by BDA against the order passed by the trial court granting temporary injunction against BDA. Therefore, petitioners cannot seek review of an order in which they were not parties to the lis. Therefore, the review petition filed by allottees requires to be rejected. In view of this finding, it may not be necessary to consider the application filed by BDA under Order 1, Rule 10(2) of the CPC, wherein a prayer to transpose BDA, as petitioner 17 in the review petition filed by the private parties is made. Accordingly, the said application is rejected as unnecessary." 10. In C.P.Bharathi & another v. Anjanappa (deceased by LRs.) & Ors. Accordingly, the said application is rejected as unnecessary." 10. In C.P.Bharathi & another v. Anjanappa (deceased by LRs.) & Ors. [AIR 2007 Karnataka 31], a Single Bench of the Karnataka High Court distinguished the powers of the High Court under Article 226 of the Constitution of India and the powers under Order XLVII Rule 1 of CPC in a civil appeal in regard to the right of a person to maintain a review petition when he is not a party to the suit or to the appeal and observed as follows:- "From reading of Order 47 Rule 1 of Code of Civil Procedure, it is clear to the Court that review petition can be filed by a person against whom a decree or order is passed and a person who has not filed an appeal can also file an application by invoking jurisdiction under 47 Rule 1 of Code of Civil Procedure. On a careful reading of Order 47 Rule (1) (2) of Code of Civil Procedure, this Court is of the opinion that if a person is not a party to the suit and has not suffered a decree either by the trial court or by the appellate court cannot maintain the petition. In the circumstances, review petition filed by the petitioners is not maintainable as their case does not fall within the provisions of Order 47 Rule 1 of Code of Civil Procedure." 11. In Savithramma v. H.Gurappa Reddy and others [AIR 1996 Karnataka 99], a Single Bench of the Karnataka High Court reiterated the power of the court under Order XLVII Rule 1 of C.P.C. and held in paragraph 12 of the judgment as follows:- "Under normal circumstances, I would have straight way upheld this objection because it is well settled law that however much a third party may be interested or affected by a litigation, that such, intervention would not be permissible by way of a review petition at a post decisional stage." 12. In Sahara India Real Estate Corporation Ltd. others v. Securities and Exchange Board of India & another [ (2013) 2 SCC 730 ] the Supreme Court considered the scope of review under Order XLVII Rule 1 of C.P.C. and held as follows:- "4. These review petitions have been filed by an Association and others claiming that they are representing investors. The petitioners were not parties to the appeals. These review petitions have been filed by an Association and others claiming that they are representing investors. The petitioners were not parties to the appeals. The applicants, in our view, have no locus standi to move these review petitions. Further, no ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure read with Order 40 of the Supreme Court Rules, 1966 have been made out calling for review of our judgment." 13. It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment. However, review petition is necessarily confined to the parties to the original proceedings and that it is not open to a stranger to the proceedings to seek a review. 14. In Union of India (UOI) v. Nareshkumar Badrikumar Jagad & others (2018 (15) SCALE 255), the Apex Court exercised review jurisdiction by virtue of Article 137 of the Constitution of India which reads thus:- "137. Review of judgments or orders by the Supreme Court subject to the provisions of any law made by Parliament or any Rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it." 15. The power to frame Rules by the Apex Court is posited in Article 145 of the Constitution of India. As per Rule 1 of Order XLVII of the Supreme Court Rules framed under Article 145, the Apex Court can review its judgment or order on the grounds mentioned in Order XLVII Rule 1. The power of the Apex Court to review the Judgment or order at the instance of a third party is not available to an ordinary civil court. Needless to say that such an intervention would not be permissible by way of a review petition at a post decisional stage in the civil revision petition at the instance of a third party who is not a party to the lis before the court below. 16. The principles which can be culled out from the above judgments are, (i) It is well settled law that review proceedings are to be strictly confined to the scope and ambit of Order XLVII Rule 1 of C.P.C. (ii) There are definite limits to the power of review. 16. The principles which can be culled out from the above judgments are, (i) It is well settled law that review proceedings are to be strictly confined to the scope and ambit of Order XLVII Rule 1 of C.P.C. (ii) There are definite limits to the power of review. (iii) Review Petition can be filed only by parties to the lis in which the order sought to be reviewed has been passed. It cannot be preferred by a third party. (iv) Even if a third party is affected by a litigation, intervention could not be permissible by way of review petition at a post decisional stage. (v). Petitioner being a stranger to the lis is not bound by the order passed in the Civil Revision Petition. In the light of the above, the application for leave to file review in C.R.P.No.219/2016 is dismissed as not maintainable. Ordered accordingly.