SHIVAPPA PASSA SAVADE Vs. RAMCHANDRA NARSISNH DESHPANDE

JUDGEMENT

(1.) This is an appeal from the decision of the Assistant Judge of Belgaunm, who allowed an application for a review of the judgment of the District Judge in Appeal No. 1 of 1915 and directed that it should be reheard of its merits.

(2.) The plaintiff's filed the suit in 1913 for possession of the suit property and masne profits. The trial Court dismissed the suit on the 2ti November, of 1914. The decree was confirmed by the District Judge on the 9 August of 1915. Thereafter the plaintiffs applied for a review and notice was issued on the 27 September of 1915. On the 15 November of 1915 the plaintiffs filed a second appeal is the High Court which was dismissed under Order XLI, Rule 11, on the 11 February of 1916. An application for & review of the order of dismissal was entertained on the 16 June of 1916 and a rule was granted, apparently on the ground that the plaintiffs application for a review of the judgment appealed against was pending. The application is the High Court was unfortunately allowed to remain undrsposd of, while the application in the District Court was proceeded with. A point was taken that as the second appeal had been dismissed the District Court could no longer entertain an application for a review of its own judgment. On the authority of Bapu, V/s. Vajir (1896) I.L.R. 21 Bom. 548, the District Judge held that the summary dismissal of an appeal left the decree of the lower Court untouched and therefore he had still jurisdiction to review that decree. He then directed that the question whether the plaintiffs had strictly proved the allegations upon which the prayer for review was baaed should be tried. On the 13 November of 1919 the Assistant Judge decided that the evidence which the plaintiffs sought to adduce was not only new, but also important; as having a very close and material bearing on the issues raised in the appeal, and that the appeal should be reheard on its merits. The appellant appeals against both decisions of the lower Court. On the first question it appears to be most unfortunate that the rule for review issued by the High Court was not first disposed of. If the review had been allowed and the order made under Order XLI, Rule 11 set aside the first question dealt with by the District Judge would not have arisen, for it is clear that an application for a review of a lower Court's judgment if made before an appeal from the same decision is disposed of can be proceeded with. It is equally clear that if the application for review in the District Court had been made after the dismissal of the second appeal, it would not have been entertained. If the argument of the District Judge were Bound an application for review of the lower Court's judgment could always be entertained whether made before or after an order under Order XLI, Rule 11, because the substantive decree is the decree of the lower Court oven after the dismissal of the appeal. The fact that in Bapu V/s. Vajir the High Court decided that an application to amend a decree, an appeal from which had been summarily dismissed, should be made to the lower Court, does not appear to decide the point before us. The Judges may very well have thought that an application to amend a decree under Section 206 of the Code of 1882 in the limited circumstances mentioned therein should be made to the Court which passed the decree, and not to the Court which summarily dismissed an appeal therefrom, and the ratio decidendi may have been that the decree of the lower Court continued to be the substantive decree, but that decision is not binding on us when having to determine an entirely different question, and it has been dissented from by the High Courts of Calcutta, Madras and Allahabad. There would be an end to all certainty in litigation, if a case could be reopened in the lower Court after an appeal to the High Court had been disposed of. This was the view taken by the Calcutta High Court in Pyari Mohan Kundu V/s. Kalu Khan (1917) I.L.R. 44Cal, 1011.S

(3.) In my opinion, therefore, as long as the appeal to the High Court stood dismissed, whether under Order XLI, Rule 11, or after hearing, no application for a review could be entertained or proceeded with in the lower Court. It is necessary, therefore, to deal with the rule granted by Batchelor J. on the 16 June of 1916. Neither in the application for review nor in the t applicants affidavit; are any grocuds stated on which the application could have been granted, but we may assume that it was mentioned to the learned Judge that an application for review was pending in the District Court. The plaintiffs of course should have asked the Court, when the second appeal came on for admission, either for leave to withdraw it or for a postponement until the result of the review proceedings had become known : In the matter of the petition of Nand Kishore (1909) I.L.R. 32 All. 71. and Raru Kutti V/s. Mamad (1895) I.L.R. 18 Mad. 480. The fact that they continued to press for the admission of the appeal, and incurred the risk of the appeal being dismissed, when they knew that they were asking the lower Court for a rehearing on fresh evidence, shows that the if legal advisers had no clear conception of the trouble which would arise from concurrent proceedings in two Courts. For if my view is correct and the District Judge was incompetent to review his own decree as long as the second appeal stood dismissed then all his proceedings in review have been without jurisdiction, and if we set aside the order under Order XLI, Rule 11, the application for review would have to be considered afresh in the lower Court. But in my opinion there is no sufficient reason within the meaning of Order XLVII, Rule 1(i) why we should grant a review of the order under Order XLI, Rule 11. If a party elects to proceed with an appeal and gets a decision against him, it is no ground for a review that if he had known the decision would go against him he would have taken a different course. No new facts had become known since the decision sought to be reviewed and that is really what the Legislature has ordained should be shown before a review can be granted. If the words for any other sufficient reason were read in their widest sense a review could always be granted on the same state of circumstances as existed at the time of the hearing, and there would be tin end to all finality of judicial proceedings.