JANKIRAM COMPANY Vs. CHUNILAL SHRIRAM

JUDGEMENT

(1.) This is a revision application against an order of the First Class Subordinate Judge at Sholapur dismissing the petitioner's application for a review of an order dismissing darkhast No. 1632 of 1936 on the ground that it was barred by limitation. His case is that he mentioned in the said darkhast that, he had previously filed darkhast No. 353 of 1932 and omitted to mention therein that he had also filed a second darkhast No. 978 of 1933, and that owing to this omission the Court dismissed darkhast No. 1632 of 1936 as being time barred, having been filed more than three years after the decision in darkhast No. 353 of 1932. The application was opposed by the judgment-debtor on the ground that prior to the filing of the application for review the applicant had preferred an appeal against the order made in darkhast No. 1632 of 1936. Following the decision in Balling V/s. Devasthan Fund Grondhale ( 31) A.I.R. 1931 Bom. 232 the lower Court has dismissed the application with costs. The applicant filed an appeal against the decision of which he now wants a review on 7 August 1937. One of the grounds of appeal as stated in his memorandum of appeal was: The lower Court failed to see that the endorsements on the decree showing that a previous darkhast No. 978 of 1933 was filed and decided within three years before the present darkhast. Thus the alleged "mistake or error apparent on the face of the record" (Order 47, Rule 1) on which the applicant now wants to rely was known to him at the time he preferred his appeal. The appeal having been preferred 154 days after the executing Court had dismissed darkhast No. 1632 of 1936, the appellant prayed by an application for excuse of the delay. This application was not granted, with the result that the Court made an order rejecting the appeal with costs on 18 March 1938. The present application for review was filed on 18 August 1937, i.e., only eleven days after the appeal had been filed. The lower Court has relied on Balling V/s. Devasthan Fund Grondhale ( 31) A.I.R. 1931 Bom. 232 in which it was held that when a party presents an application for review of a judgment after he had filed an appeal from the same, the review application is incompetent although the appeal may be subsequently withdrawn. There the petitioner, an unsuccessful plaintiff, had filed an appeal to the District Court and failed. He then preferred a second appeal to the High Court, and, while it was pending, filed in the District Court an application for review on the plea that he had discovered fresh evidence. After making the said application he withdrew his second appeal. It was argued on the basis of Pandu V/s. Devji ( 83) 7 Bom. 287 Ramappa V/s. Bharma ( 06) 30 Bom. 625 and Ram Prasad V/s. Asa Ram ( 21) 8 A.I.R. 1921 All. 197 that the withdrawal was tantamount to a non-preferring of the appeal and that, therefore, under Order 47, Rule 1, the review was competent. Order 47, Rule 1, so far as material, is to the effect 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, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his-knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. In that case the fresh evidence had been discovered by the petitioner before he had filed the second appeal or the application for review. Madgavkar J. observed (page 380): The question of the jurisdiction of a Court depends on the state of facts when the application was made, not on what occurs subsequently. On the date-when the present application for review was made, the appeal had not been withdrawn, and, therefore, both on the words of the section and on the decided cases the application for review was not competent.

(2.) A line of decisions commencing with Nanabhai Vallabhdag V/s. Nathabhai Haribhai ( 72) 9 Bom. H.C.R. 89 and ending with Pandu V/s. Devji ( 83) 7 Bom. 287 had decided that where there had been an appeal there still might be a review of the judgment of the Court against whose decree the appeal was preferred, provided the appeal to the higher Court was withdrawn Nanabhai Vallabhdag V/s. Nathabhai Haribhai ( 72) 9 Bom. H.C.R. 89 was a decision under Act 8 of 1859 of which Section 376 provided that any person considering, himself aggrieved by a decree of a Court of original jurisdiction from which no appeal shall have been preferred to a superior Court or by a decree of a District Court in appeal from which no special appeal shall have been admitted by the Sadar Court, may under the circumstances there indicated apply for a review of judgment by the Court which passed the decree. The case concerned a decree of a District Court in appeal. It was held that the-proper course was to permit the appellant to withdraw his appeal and thus regard it as. never having been admitted; and, it was further directed that on the permission to withdraw the appeal being granted the order by which the appeal had been admitted should itself be cancelled. This case was followed in Narayan V/s. Davudbhai ("72) 9 Bom. H.C.R. 238 At the date of the decision in Pandu V/s. Devji ( 83) 7 Bom. 287 the procedure in force was under Act 10 of 1877 of which Section 623 provided that any person considering himself aggrieved by a decree or order from which no appeal was-preferred might apply for a review of judgment. In spite of the change of language from the earlier provision (s. 376 of Act 8 of 1859) it was held that it was not going further than the decision in Nanabhai Vallabhdag V/s. Nathabhai Haribhai ( 72) 9 Bom. H.C.R. 89 to say that by the same process the appeal which was withdrawn might be treated as having never been preferred. Thus a fiction was created that the appeal which was withdrawn must be treated for purposes of Order 47, Rule 1, as though no appeal had been preferred. In Balling V/s. Devasthan Fund Grondhale ( 31) A.I.R. 1931 Bom. 232 their Lordships found it impossible to carry this fiction further and to say that even if the appeal had been withdrawn on a date subsequent to the filing of the application for review the appeal should be treated as never having been preferred. That, according to Madgavkar J., would be to countenance the violation of the express terms of the order with which in the present case, the petitioner could easily have complied, for it meant holding that though the application was not competent on the date on which it was made, it became subsequently competent by reason of the withdrawal afterwards. In an earlier case, Ramappa V/s. Bharma ( 06) 30 Bom. 625 the plaintiff having obtained a decree, the defendant had appealed; but that appeal had been summarily dismissed. Subsequently, the defendant applied for a review of judgment on the ground of discovery of new and important evidence. Here, again, the Court was invited to go beyond the decision in Pandu V/s. Devji ( 83) 7 Bom. 287 and to hold that even when an appeal is dismissed no appeal had been preferred within the meaning of Order 47, Rule 1. This the High Court refused to do. The judgment of Sir Lawrence Jenkins suggests that he did not altogether approve of the line of reasoning that had been adopted in Pandu V/s. Devji ( 83) 7 Bom. 287 Though the learned Judges in Nanabhai Vallabhdag V/s. Nathabhai Haribhai ( 72) 9 Bom. H.C.R. 89 had seen no material difference in the substitution of the word "preferred" for the earlier expression "admitted", Sir Lawrence Jenkins observed (page 630): There is undoubtedly a considerable difference between the two phrases: an admission of an appeal is an act of the Court, the preferring of an appeal is an act of the party.

(3.) In at least two cases therefore this Court has refused to extend the fiction adopted in Pandu V/s. Devji ( 83) 7 Bom. 287 of treating the withdrawal of an appeal as equivalent to its never having been preferred. In the present case, Mr. Chitale invites me to extend the said fiction by treating the appeal dismissed on the ground of limitation as an appeal not preferred. He has further argued that when the intending appellant sought to prefer an appeal after the period of limitation there for had expired, he had to make an application in the first instance for excuse of the delay, and. that if that application was not granted, it ought to be held that the intending appellant was not enabled to prefer his appeal at all; so that there could be no question of the preferring of an appeal in such an event. Besides, he has pointed out that in Pandu V/s. Devji ( 83) 7 Bom. 287 Sargent C.J. had observed (p. 288): The intention of the law seems merely to be to prevent a party, against whom judgment has been passed, from availing himself of two remedies at one and the same time, and applying for a review while his appeal is pending. His contention is that the application for excuse of the delay in preferring an appeal not having been granted, it cannot be said that the party applying for review was availing himself of two remedies at one and the same time. Lastly, he has relied on the dictum of Barlee J. in Balling V/s. Devasthan Fund Grondhale ( 31) A.I.R. 1931 Bom. 232 (page 382): "... when there is no appeal on record he is entitled to the benefit of a fiction that none has been preferred." The argument is that where the application for the excuse of delay has not been granted it would be correct to say that there is no appeal on record, so that in the present case the appeal not having been admitted to the file of the Court, there should be no bar under Order 47, Rule 1. According to Mr. Chitale, before the appeal is admitted to the file it is only the memorandum of appeal that is presented to the Court and it is strictly inaccurate to speak of the presentation of the memorandum of appeal as the preferring of an appeal. I am unable to accept these arguments. Order 41, Rule 1, shows how an appeal is to be preferred: (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the appellate Court dispenses therewith) of the judgment on which it is founded. It is undeniable that in this case all the steps prescribed by this rule had been taken. There cannot be any doubt therefore that within the meaning of this rule the appeal had been duly, preferred. Under Section 3, Limitation Act: Subject to the provisions contained in Secs.4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence. It seems to me that the order on the appeal in this case must therefore be construed as a dismissal, and if that be so, it will be difficult to distinguish this case from Ramappa V/s. Bharma ( 06) 30 Bom. 625 in principle. It is not possible in my judgment to place dismissal of an appeal under Sec. 3, Limitation Act, on the same footing as its withdrawal. Order 47 gives a special privilege to an aggrieved litigant and must be strictly construed. Besides, where the plain terms of an enactment do not apply and the case law relied on is also not applicable, it is not competent to the Court to resort to what might appear to be the intention of the Legislature in order to interpret such terms. If it be permissible to speculate on the ground for the provision under Order 47, Rule 1, that one of the essential conditions must be that no appeal shall have been preferred, it seems to me that such ground is to be found in the fact that when after an appeal has been filed any new relevant matter is subsequently discovered, the aggrieved party can avail himself of the provisions of Order 41, Rule 27, so that there would be no need for a review; and if such matter be discovered after the appeal has been dismissed, that must be regarded as too late a stage. In this case the application for review was filed after the appeal had been filed at a time when it could not be predicted whether the application for the excuse of the delay would be granted or not. There was therefore clearly no jurisdiction in the Court to entertain such an application. As remarked in Balling V/s. Devasthan Fund Grondhale ( 31) A.I.R. 1931 Bom. 232 the question of the jurisdiction of a Court depends on the state of facts when the application was made and not what occurs subsequently. It was obviously impossible to argue, when the review application was filed, that the application for excuse of delay was such as could not be granted and that, therefore, no appeal |had been preferred. It seems to me that for the purposes of Order 47, Rule 1, no distinction can be drawn between the presenting of a memorandum of an appeal and the preferring of an appeal. Beyond what has been decided in Pandu V/s. Devji ( 83) 7 Bom. 287 it seems to me that the principle that where an appeal has been preferred there should be no review should not be whittled down or qualified in any way. The application therefore fails and the rule will be discharged with costs. Opponent 1 being dead his name should be struck off.