JANAKI NATH HORE Vs. PRABHASINI DASI

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for possession of land upon declaration of title by purchase at an execution sale and for mesne profits. The Court of first instance dismissed the suit; upon appeal the District Judge has reversed that decision and has made a decree for ejectment in respect of the first seven parcels of land. On the present appeal the propriety of the decision of the District Judge has been assailed as erroneous in law. But before we deal with the questions which arise in the appeal, we have to examine two preliminary objections taken on behalf of the plaintiff-respondent.

(2.) The appeal was lodged in this Court on the 31st July 1913. On the 1st December 191,i the appeal was summarily dismissed under Rule 11, Order XLI, of the Code by Carnduff and Richardson, JJ. On the 28th February 1914, an application was made by the appellants for a review of this order. The application was heard ex parte on the 8th April 1914. The result was that the previous order of dismissal was recalled and an order was made to the following effect: "The appeal will be heard; let the record be sent for and issue the usual notices".

(3.) On behalf of the respondent, two objections have been urged against the validity of this order, namely, first, that it is inoperative because made in contravention of Rule 4 of Order XLVII of the Code, which requires that no application for review shall be granted without previous notice to the opposite party to enable him to appear and be heard in support of the decree or order a review of which is applied for; and, secondly, that if the order be assumed to have been properly made without notice, the appellants are restricted to the single ground upon which the application for review was based. In our opinion, there is no substance in either of these contentions. As regards the first objection, it need not be disputed, to use the language of Lord Macnaghten in the case of Mahomed Zahuruddin v. Nuruddin 14 M.L.J. 7, that, as a general rule, no order of review can be made without previous notice to the person in possession of the decree which is to be reviewed. But the substantial question is, who is the opposite party upon whom notice of the application should have been served in this case. The expression opposite party is not defined in the Code, but it may be taken to mean the party interested to support the order sought to be vacated or modified upon the application for review. Now, what was the order in the present case which was sought to be recalled by the appellants and what was the order which they endeavoured to get substituted in lieu thereof. The order which they prayed might be recalled was to the effect that the appeal be summarily dismissed; and the order which they wished to have substituted in its place was that notice of the appeal be served upon the respondent and that the appeal be heard on the merits after the record had been received. Can it be contended reasonably that the respondent was the opposite party within the meaning of the expression in the proviso to Rule 4 of Order XLVII, that he was in fact interested to appear and support the order of summary dismissal, when the only order sought to be substituted therefore was that the appeal be heard in his presence? In our opinion, the question must be answered in the negative. If we acceded to the contention of the respondent, the result would be that he would be subjected to needless harassment from which the Legislature intended to protect him by the introduction of Rule 11, Order XLI of the Code. If it is obligatory upon the Court to issue notice upon the respondent when an application is made to review an order of dismissal under Rule 11 of Order XLI, the respondent must appear in answer to the Rule to support the order of dismissal without the record before the Court; and if the Rule is made absolute and the appeal directed to be heard in the presence of the respondent, he would have to appear a second time to support the decree under appeal. This result could never have been intended by the Legislature. The view we take is in accord with that adopted in Joy Coomar Dutta Jha v. Esharee Nund Dutta Jha 10 B.L.R. 155 : 18 W.R. 475, where it was ruled that an application for review of an order of dismissal under Section 25 of Act XXIII of 1861), which corresponds to Rule 11 of Order XLI of the present Code could be granted without the issue of any notice to the respondent. That procedure has been followed in numerous cases in this Court during the last 40 years, though we are informed that latterly in one or two solitary instances, amongst which may be mentioned Abdul Hakim v. Hem Chandra Das 30 Ind. Cas. 165 : 42 C. 433, the view has been taken that notice of the application for review should be issued upon the respondent. We are clearly of opinion that what has been the practice of the Court for a long series of years is in conformity with the law and that we should not depart from it. We may further point out that if the objection urged by the respondent were well founded, we could not give effect to it; for as was pointed out in the case of Haldhur Jha v. Syed Shah Mahammad Ashraf Alam 25 Ind. Cas. 880 : 22 C.L.J. 95 where a similar objection was unsucessfully taken, the point must be urgred before the Division Bench which granted the review; it is that Bench alone which can consider the propriety of the order previously made and either maintain or vacate the original order of dismissal. The respondent has made a faint attempt to develop an anology between an ex parte order granting a review and an ex parte order directing that an appeal be registered though filed beyond the period of limitation or on a memorandum insufficiently stamped: on this basis, it has been argued that in the former, precisely as in the latter, class of cases the respondent is not bound by the order made in his absence and is competent to question its validity when the appeal is called on for final disposal in his presence. But, plainly, there is no real analogy between the two classes of cases. It cannot be maintained for a moment that the order in the present case was made without jurisdiction and we are not prepared to adopt the view indicated in Abdul Hakim v. Hem Chandra Das 30 Ind. Cas. 165 : 42 C. 433 that the order made without notice is a nullity. Even if the contention of the respondents that notice is essential is well founded, it shows at best that the order has been made irregularly or with material irregularity in the exercise of the jurisdiction possessed by the Judges who granted the review. That order, consequently, can neither be ignored nor vacated by us. But it is not necessary to deal with this aspect of the case in fuller detail, because in our opinion the order was properly made, though notice of the application for review was not served on the respondent.