RAM BAKSH Vs. MTRAJESHWARI KUNWAR

JUDGEMENT

(1.) This is an appeal under Order 43, Rule 1(w) against an order granting an application for review, In order to appreciate the points raised in this appeal, it is necessary to set out the relevant facts.

(2.) It appears that Mt. Rajeshwari. Kunwar obtained a decree for arrears of rent against the appellant Ram Baksh for Rs. 319/12/- on 7 June 1931. This decree became final. In execution of the decree, ejectment of Ram Baksh appears to have been ordered on 23 August 1932, but actual possession was given to the decree-holder by the Amin on 26 November 1932, on which date Ram Baksh also deposited the decretal amount with the Amin. Against the order of ejectment, Ram Baksh went in appeal to the Commissioner who, however, held that the appeal lay to the civil Court and on Slat March 1933, ordered the return of the memorandum of appeal for presentation to the proper Court. Thereupon the appeal was filed in the Court of the District Judge who dismissed it on 23 July 1935, on the ground that it was barred by time. The learned District Judge while dismissing the appeal went on to pass a curious order to the effect that the decretal amount deposited by Ram Bux on 26 November 1932, should be refunded to him. Against the order directing the refund of the decretal amount there was an appeal by Mt. Rajeshwari Kunwar to the High Court. It was dismissed on 7 April 1937, on the ground that no appeal lay. Thereafter on 22nd May 1937, a civil suit was filed by Mt. Rajeshwari Kunwar for a declaration that the order of the District Judge directing a refund of the decretal amount deposited was illegal and without jurisdiction. This suit was dismissed, but ultimately it came up to this Court and at the stage of a Letters Patent appeal this Court while holding that declaration of the type Sought could be given, went on to observe that the order of the District Judge directing a refund of the amount in question was manifestly wrong and the proper remedy against it was to apply for a review of the order. The Letters Patent appeal was decided on 12 April 1943. Apparently, in view of the observations made by this Court, an application for a review of the order of the District Judge dated 23 July 1935, was made on 30 September 1943. It was, however, made not to the Judge who passed the order sought to be reviewed but to his successor in office. This application was supported by an affidavit in which all the relevant facts were set out. Art. 173 of the Limitation Act prescribes a period of 90 days from the date of the order for an application for a review of a judgment. This application for review was obviously very much delayed. Paragraphs 22, 23 and 24 of the affidavit aforementioned, therefore, sought to explain the circumstances in which all this delay had taken place. Notice was issued to the opposite party but no counter affidavit appears to have been filed. The learned District Judge, on a consideration of the circumstances of the case and more particularly in view of the detailed statements contained in the affidavit accompanying the application for review, felt satisfied that the applicant before him had bona fide taken all such steps as her legal advisers had told her to take and that she had acted throughout diligently. In view of these considerations, the delay in the presentation of the application was condoned by him. On the merits, in view of the observations of this Court in the Letters Patent appeal, the learned Judge held that the order relating to the refund of Rs. 849/12/- was manifestly wrong. He accordingly directed that the portion of the judgment of the learned District Judge dated 23 July 1935, relating to the refund of this amount be deleted and the decree passed by him be also amended in accordance therewith. Against the order of the learned Judge Ram Baksh has come up in appeal to this Court.

(3.) We have heard learned Counsel for the appellant at great length. He has strongly contended, in the first instance, that the application for review was filed long after the expiration of the period of limitation and was without sufficient cause. His contention is that in the circumstances of this case the respondent-the applicant for review-was not entitled to the benefit of Section 5 and 14 of the Limitation Act and that the learned Judge of the Court below was entirely in error in condoning the delay. In this connection, learned Counsel has invited our attention to the case in Secy. of State V/s. Hindustan Co-operative Society Ltd where, according to the contention of the learned Counsel, the facts were similar and the Calcutta High Court declined to allow condonation of delay in making an application for review. Obviously, whether sufficient cause has been made out for condoning the delay in making an application for review must necessarily depend upon the facts and circumstances of each individual case. The circumstances in which the delay in the presentation of the application for review took place are clear from a mere recital of the events as they happened in this case. Moreover, the affidavit filed in support of the application particularly paras. 22, 23 and 24, clearly explains the circumstances in which this delay took place. It seems to me clear that the applicant for review in this case acted throughout diligently and bona fide took all steps which she was advised to take by her legal advisers. In this view of the matter, the learned Judge acted very rightly in condoning the delay and entertaining the application for review.