RAM GOPAL Vs. MAYA DEVI

JUDGEMENT

(1.) I have heard the learned counsel for the defendant, applicant and in my view the judgment, whereby I decided the second, appeal cannot be said to suffer from some mistake or error apparent on the face of the record and there is no other sufficient reason warranting a review of the said judgment. Learned counsel drew my attention to proviso to rule 12 of Chapter V and he wanted me to decide whether in view of the said proviso this review petition should be heard by a Division Bench or it can be decided by the same judge who heard the appeal. When this point was raised before me I directed the office to submit a report and the office has reiterated its view which was originally submitted by the stamp Reporter by his report dated 8th February, 1978, that this review petition is liable to be decided by the same single judge who decided the appeal and not by a Division Bench. The relevant proviso to the aforesaid rule is as follows. "Provided that no application for the review of a judgment of one judge who is precluded by absence or other cause for a period of six months next after the presentation of the application from considering the decree or order to which the application refers, shall be heard or disposed of except by a Bench of two or more judges; and that no application for the review of a judgment of two or more judges any one or more of whom is or are precluded by absence or other cause for a period of six months next after the presentation of the application from considering the decree or order to which the application refers, shall be heard or disposed of except by a Bench consisting of the same or a greater-number of judges." In my view, a judge cannot be said to be precluded from considering the decree or order in question by absence or other cause for a period of six months next after the presentation of the application merely on the ground that such application for review has not been listed before the judge concerned for a period of six months from the date of the presentation of the review application. If the judge concerned is available and sitting singly during the said period of six months, then it cannot be said that he is precluded from considering the decree or order concerned. It is not necessary to say anything in respect of a situation where the judge concerned may be sitting in a Division Bench because that is not a situation which may be said to be present in the instant case. So far as I was concerned, I was sitting singly and, therefore, I do not think that it can be said to be a situation where I was precluded by absence or other cause for a period of six months next after the presentation of application for review from considering the decree or order concerned. In the instant case the review application was made on 5th January, 1978, but there was some deficiency in respect of the court fee paid and the same was made good on 16th February, 1978, as is clear from the office report dated 27th February, 1978. Thereafter, the office did not list the review application. However, as I stated above, during this period I was sitting singly and, therefore, it cannot be said, as I stated above, that I was precluded from considering the decree or order concerned. In this view of the matter, the proviso to the rule aforesaid does not apply and, therefore, I hold that this review is cognizable by me. The review application is accordingly dismissed.