LAWS(MPH)-2002-3-127

RATAN LAL Vs. BARDI BAI & ORS.

Decided On March 05, 2002
RATAN LAL Appellant
V/S
Bardi Bai And Ors. Respondents

JUDGEMENT

(1.) IT is aptly said " A Judge must not alter the material of which the Act is woven, but he could and should iron out the creases". These famous words of Lord Denning are quoted with approval by the Supreme Court in P.Nalla Thampy Vs. B.L.Shanker (AIR 1984 SC 135). We are also here required to iron out some such creases which have surfaced on account of different of opinion between two Hon'ble Judges of the Division bench of this Court while deciding this Review petition arising from the order dated 28.6.2000 passed by Single Bench of this Court in Second Appeal No. 497/1998. Late Kanhaiyalal who has since died and now represented by the respondents, filed a Suit No.66 -A/1990 in the Court of Civil Judge, Class I, Khilchipur. against the present applicant Ratanlal and others for declaration and injunction in respect of certain agricultural lands The suit was decreed by the Trial Court on 25.6.1992 and the appeal (No. 38 -A/1997) filed by the defendants including the present applicant was also dismissed by 1st Additional District Judge, Rajgarh, vide his judgment and decree dated 21.7.1998. Out of the unsuccessful defendants, only the present applicant/defendant came in Second Appeal before this Court, learned Single Judge before whom the appeal came up for admission, dismissed the same in motion hearing in following terms : - Perused the record. No substantial question of law is involved adjudication. Dismissed. Applicant Ratanlal moved application under Order 47R.1 of the Code of Civil Procedure, seeking review of the aforesaid order of dismissal, mainly on the ground that no reasons were supplied by the learned Single Judge for dismissing the appeal so as to indicate that the Judge has applied his mind to the points raised in appeal memo. According to the applicant this conformity in the order stares in the face and manifests clear case of error, apparent on the face of the record.

(2.) INITIALLY the application for review was place before the Judge who dismissed the appeal but as the Judge was transferred, the matter, as per Rules, was placed before the division Bench of this Court. However, the two Hon'ble Judges who heard the review petition differed from each other and recorded conflicting opinions. The matter was initially sought to be referred to a third Judge, but as no question for such a reference was formulated by the Division Bench, the matter, by the order of Hon'ble the Chief Justice has been placed before the Full Bench. This is how the matter has come up before us and only on short but important question requiring determination is "whether non -supply of detailed reasons or as a matter of that even brief reasoning while dismissing the second appeal in motion hearing would be a case of mistake or error apparent on the face of record so as to constitute a ground for review"? We have heard Mr. M.G. Upadhyay, learned Counsel for the applicant and Mr. T.N. Singh, learned Counsel for respondents. Mr. Upadhyay, learned Counsel for applicant with his usual vehemence contended that the second appeal filed by the applicant should not have been dismissed in limine without assigning proper reasons. Even when the appeal was disposed of under Order 41R.11 of CPC, it was mandatory on the part of the Judge to have passed a speaking order so as to make it clear that he has applied his mind to the facts and features of the case and the grounds taken by the applicant in his memo of appeal, submitted the Counsel. Passing of an order in a cryptic manner like the one in hand, asserted the Counsel, is a mistake or error apparent on the face of the record and is, therefore, liable to be recalled. Mr. Upadhyay has cited a catena of rulings in support of his contentions, vide Mahadev ( : AIR 1972 SC 1932), Umakant ( : AIR 1973 SC 218), Peera,, 1966 (11) MPWN 151, and Jayanmti De,, 2000 (II) MPWN 209.

(3.) THE opposition is equal vehement. Mr. T.N. Singh, learned Counsel for respondents contended that this bench is not sitting in appeal to judge the correctness or otherwise of the order passed by learned Single Judge and the remedy of the applicant did not lie in moving application for review under Order 47R.1 of CPC. According to him, the present application is nothing but an appeal in disguise which this Bench is not competent to hear or allow. Before we proceed to consider the rival contentions, at the outset it needs to be mentioned that this Bench (FB) while hearing this review application is in no better position than the Bench (SB) which passed the order dated 26.6.2000 dismissing applicant's second appeal in limine, notwithstanding the fact that the said order was passed by a Single Judge and the present application is being heard by a Full Bench consisting of three Judges. Such an unusual course was inevitable because of peculiar fact situation, as already stated hereinbefore. We are conscious of our limits that we are substituting ourselves for the learned Judge who passed the order dated 26.6.2000 and we are expected to do nothing which the learned Judge himself could not have done while exercising power underR.1 of Order 47. In order to appreciate the rival contentions it would be useful here to read the relevant part ofR.1 of Order 47, which is as follows: -