BINDA SAHNI ALIAS BINDE SAHNI Vs. HARINARAIN SAHNI

JUDGEMENT

(1.) Along with this Civil Review application an application for condonation of delay under Section 5 of the Limitation Act was also filed by the present petitioners. Notice was issued to the opposite parties both in the Limitation matter as well as the review application-itself.

(2.) No one has chosen to contest either the application for condonation of delay or the civil review application on its merits. On the facts as borne out by the records of this case and stated at the bar by Mr. T.K. Jha, learned counsel for the petitioners, the following facts emerge. There were six plaintiffs in the Trial Court, namely, (1) Harinarain Sahni (opposite party No. 1); (2) Ram Narain Sahni (opposite Party No. 2); (3) Shivnarain Sahni (Opposite Party No. 3) ; (4) Binda Sahni alias Binde Sahni (Petitioner No. 1) ; (5) Parmeshwar Sahni (Petitioner No. 2) and (6) Jagarnath Sahni (Petitioner No. 3). They had instituted the suit for declaration of their title and confirmation of possession, in the alternative recovery of possession, on the basis of a title common to all of them. The suit was dismissed by the Trial Court. The present petitioners as well as opposite party Nos. 1 to 3 (i. e. all the plaintiffs) filed an appeal before the lower appellate court which was numbered as Title Appeal No. 91 of 1973. The suit was dismissed by the lower appellate court. Thereafter opposite party Nos. 1 to 3 preferred an appeal in this Court which was registered as Second Appeal No. 191 of 1977. The other plaintiffs not having joined the appeal as the appellants were made respondents 13 to 15 in the second appeal aforesaid. This Court on 19th December, 1980 reversed the judgment and decree passed by the courts below and decreed the plaintiffs' suit. But since the present petitioners were not the appellants nor did they appear through any counsel at the stage of the final hearing of the second appeal, it was not brought to the notice of this Court that they were also entitled to the same decree under the provisions of Order XLI Rule 4 of the Code of Civil Procedure (hereinafter referred to as the Code). Order 41 Rule 4 of the Code lays down, inter alia, that in such cases if the decree appealed from proceeds on any ground common to all the plaintiffs any one of the plaintiffs may appeal from the whole decree, and the appellate court may reverse or vary the decree in favour of all the plaintiffs. It would bear repetition to say that nobody appeared at the time of the hearing of the second appeal bringing to the notice of the Court that there were some respondents, namely, the present review petitioners who were the co-plaintiffs along with the appellants of the second appeal aforementioned. In such a situation it was held by the Federal Court in the case of Sri Hari Sankar Pal and another \. Anaih Nath Mitter and others (AIR 1949 Federal Court 106) that this sort of an omission on the part of the Court to consider the clear provision of Order 41 Rule 33 when the original judgment was passed ; and such omission, which appeared on the face of the judgment, constituted a sufficient ground analogous to those mentioned in Order 47 Rule 1 and that therefore the Court was not incompetent to reconsider the matter after the judgment of it so desired. It is true that the language of Order XLIRule 4 or for that matter Order XLI Rule 33 is merely an enabling provision yet in order to do substantial justice between the parties the Court shall not refrain from exercising its power of review where judicial conscience of the Court is aroused. It cannot be said that if a decision is erroneous in law it is a ground for ordering review. If the Court has decided a point and decided it erroneously the error could not be one apparent on the face of record or even analogous to it. When, however, the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order XLVII Rule 1 of the Code. In Hari Sankar Pal's case (supra) the Federal Court had taken note of the fact that the provisions of Order XLI Rule 33 were merely enabling provisions which enable the appellate Court to exercise certain powers in favour of a party who had not filed the appeal if the circumstances of the case and the interest of justice so require. Although the Court cannot be compelled to make an order under this rule, yet if the appellate Court, while it allows the appeal, refuses to make any order in favour of a non-appealing party, whose position is identically the same as that of the successful appellant, without applying its mind to provisions of Order XLI Rule 33 of the Code and without considering whether it should or should not exercise its power under that rule, the Court is incompetent to rectify its omission and reconsider the matter if and when brought to its notice by way of an application for review.

(3.) On the facts and in the circumstances of this case, therefore, I allow the application filed under Section 5 of the Limitation Act and condone the delay in filing the application. Further more, this review application is allowed and the decree passed in favour of appellants Nos. 1 to 3 of the Second Appeal aforementioned shall enure to the benefit of the review petitioners, who were respondents 13 to 15 in that appeal, who claim to have a joint cause of action and a title common to all the plaintiffs. There shall, however, be no order as to costs. Appeal allowed.