SADHUNATH Vs. SULTAN NATH

JUDGEMENT

(1.) AGAINST the orders of the learned Division Bench dated 17-8-71 passed in second appeal under sec. 224 of the Rajasthan Tenancy Act the present review petition was filed under sec 229 of the Rajasthan Tenancy Act on 8. 11. 71.

(2.) AS one of the learned Members constituting the Division Bench who pronounced the order dated 17. 8. 71 ceased to be attached to the Board consequent to his transfer, the review petition was being heard by the remaining learned Single Member. On 26-3-74 the learned Single Member referred the following question of law for the decision of a Larger Bench: "whether a review petition would be entertainable when before its institution a writ petition has already been filed against the impugned order before the High Court. "

(3.) THE respective contentions of the learned counsel for the parties and other learned Members of the Bar were considered and the record of the case perused. Order 47 Rule 1 CPC provides that any person considering himself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred may file a review petition on certain grounds specified therein. In the present case the petitioner feeling aggrieved against the orders of the learned Division Bench dated 17-8 71 filed a writ petition before the High Court which was dismissed summarily on 15-10-71. THE petitioner then filed the present review petition on 8. 11. 71. THE word 'appeal' has not been defined in the C. P. C. In AIR 1932 P. C. 165 it has been held that any application by a party to an appellate court asking it to set aside or revise a decision of a subordinate court court is an appeal within the ordinary acceptation of the term and that it is no less an appeal because it is irregular or incompetent. In AIR 1971 Bombay 45 it has been held that the word 'appeal' in Rule 1 of Order 47 includes a revision any application made to the superior court for reversing the order of the inferior court. Where a revision application is dismissed the lower court's decree merges in the decree made by the High Court in its revisional jurisdiction and the lower court cannot, after merger of its own order, review the same. In AIR 1914 Privy Council 66 it was held that an order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognises authoritatively that the appellant had not complied with the conditions under which the appeal was open to him and that therefore he was in the same position as if he had not appealed at all. In AIR 1952 Bombay 165 it was held that it is only a judicial determination that the order of the lower court becomes merged in the decision of the court of appeal. But no merger takes place when the court of appeal does not judicially determine the appeal but dismisses it on any preliminary ground like limitation or maintainability. THEn, on the dismissal by the appellate court, the order that still stands is the order of the lower court and not the order of the court of appeal. In AIR 1952 Supreme Court 192 it was held that the writs under Article 226 of the Constitution of India are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record and such act, omission error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made. In AIR 1967 Supreme Court 1401 it was held that the jurisdiction of the High Court under Article 226 of the Constitution is extraordinary and has to be used sparingly. In spite of the very wide terms in which the jurisdiction is conferred, there are certain recognised limitations on this power. THE jurisdiction is not appellate and it cannot be a substitute for the ordinary remedies of law. Nor is its exercise desirable if facts have to be found on evidence. In AIR 1968 Supreme Court 985 it was held that as the orders summarily dismissing the writ petition were not speaking orders no question of res judicata could arise and the case did not fall within the rule laid in AIR 1967 Supreme Court 1457 THE scope of an appeal under Article 136 is much wider than a petition under Article 226 In an appeal under Article 136 the Supreme Court could go into the question of facts as well as law whereas the High Court in writ petition could have only considered questions which could have been strictly relevant in an application for a writ of certiorari. An appeal under Article 136 against an order can succeed even if no case is made out to issue a writ of certiorari. Hence leave could not be revoked on this ground. In AIR 1964 Supreme Court 1372 it was held that there is a distinction which is real, though it might not always be capable of exposition between a mere erroneous decision which could be characterised as vitiated by error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record could be made out In 1967 RLW 548 it was held that no review can be granted where revision filed against the order was dismissed by the High Court as now the order sought to be reviewed has merged in the order of the High Court. In this case the plaintiff filed a suit for permanent injunction against the defendant on 29th April, 1963. At his instance a temporary injunction was granted against them under Order 39 Rules 1 and 2 CPC by the trial court against which the defendants preferred an appeal. This appeal was heard by the learned District Judge who decided it by his order dated 8-1-65. He maintained the order of temporary injunction but modified the terms which had been imposed by the trial court in favour of the defendants. THE defendants filed a revision application before the High Court against the appellate orders of the District Judge. THE High Court dismissed the revision petition summarily on 29-1 65. It was held that no review could lie before the learned District Judge as the order of the District Judge has now merged in the order of the High Court. In AIR 1970 Supreme Court 1 it was held as under: 'where, on its revisional jurisdiction being invoked against the order of the appellate Court under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the High Court dismisses the revision, after hearing both the parties the order of the appellate court becomes merged with the order made in revision, and, thereafter, the appellate order cannot be challenged or attacked by another set of proceedings in the High Court under Articles 226 or 227 of the Constitution. THE principle of merger of orders of inferior courts would not become affected or inapplicable by making any distinction between a petition for revision and an appeal. (1965) 67 Bom LR 690, Reversed (1956) 58 Bom LR 344, Overruled; AIR 1962 SC 1513 & AIR 1955 SC 633, relied on.