Santi Kumar Jain and others Vs Anil Kumar Datta

@JUDGMENTTAG-ORDER

1. By this review application under O. 47, R. 1 of the CPC the defendants/petitioners have prayed for review of the judgment dated 10th December, 1990 passed by the Hon''ble Mr. Justice Amulya Kumar Nandi, as His Lordship was then, in Civil Order No. 1516 of 1988.

2. The original revision was directed against Order No. 249 dated 6-6-88 passed by the learned Munsif, Lal Bagh, District-Murshidabad in Title Suit No. 258 of 1978.

3. On behalf of the petitioners it was contended that previously there was an inspection and in the petition for inspection it was stated that the defendants removed the southern window, of east facing room and filled up that portion by brick on 22-3-88. It was found by the Commissioner that the allegation of the plaintiff was not correct.

4. By a second petition the plaintiff again prayed for local inspection alleging that the defendants had removed the window on the eastern wall of the southern room. That prayer was allowed by the learned Munsif, which was the subject matter in the revision.

5. Contention was raised for the petitioners before that Court that a second petition for inspection is not maintainable. That view was upheld by the revision Court. But the learned single Judge also held as under:--

"But here the points for inspection in two different petitions are completely different."

6. According to the present petitioners this observation or finding of the learned single Judge in revision is a mistake or error apparent on the face of the record.

7. The learned Advocate Mr. J. K. Gupta for the petitioners herein contended that the said finding and/or observation is a mistake or error apparent on the face of the record, and as such, the judgment should be reviewed.

8. His next contention was that as the review matter has been assigned to this Court by the Hon''ble Chief Justice due to non-availability of justice Nandi as he has superannuated there is no bar for the transferee Court in the instant case in my Court, to hear and dispose of the review application.

9. In support of his submission he relied on two decisions, to wit, Subbiah Vs. Muthuswamy, and Bhera and Others Vs. Board of Revenue and Others,

10. In case of Subbiah Vs. Muthuswamy, a single Judge of Madras High Court has held, inter alia, that "a practical and reasonable interpretation to be put upon the words occurring in 0.47, R. 1, C.P.C., viz., to the Court which passed the decree or made the order" would be to include within its scope also the court to which the proceeding stand transferred. Such an interpretation would make available the remedy conferred under O. 47, R. 1 of the C.P.C., to an aggrieved person and the transferee Court will also be free to deal with such an application when made before it. A contrary interpretation would not only prevent the remedy being availed of by an aggrieved person, but would also in some cases result in utter confusion and may render nugatory, the remedy itself.

11. Mr. Gupta further contended that R. 5 of 0.47 of the CPC will not operate as a bar inasmuch as the said R. 5 contemplates decree or order made by two or more Judges. In the instant case as the judgment or order has been passed by a single Judge R. 5 of 0.47 has no application.

12. In this connection he referred to the Rajasthan decision of Bhera''s case (supra) where it has been held that right of review is not totally barred if the Judge or Judges who heard the matter under review are not available for some reason.

14. Miss Jayashree, Banerjee the learned advocate for the opposite party, on the other hand, contended that if the Judge or Judges who passed the decree or order is/are not available in such event no other Judge can hear the review application in view of R. 5 of 0.47 of the Code of Civil Procedure.

15. In this connection Miss Banerjee relied on a Division Bench decision of the Calcutta High Court in case of Aubhoy Churn Mohunt v. Shamont Lochun Mohunt reported in 1989 (16) ILR 788 (sic). That is a case under Cl. 15 of the Letters Patent. In reference to Ss. 623, 627 and 629 speaking for the Bench Chief Justice Petheram has held at page 792 as under:--

"I do not think that it could be necessary for the matter to stand over, and I do not think that, if an application had been made to me, I should have had jurisdiction to hear it, and for this reason. The latter part of S. 627 of the Code provides that no other Judge or Judges of the Court, excepting the Judge or Judges who was or were parties to the original judgment, shall hear the application for review if the Judge or Judges or anyone of them still attached to the Court; So that it seems to me that although the Chief Justice of the Court has in general the duty cast upon him of appointing the Judges who are to constitute particular Benches for particular business, in these cases the Constitution of the Bench is taken out of his hands, and is provided for by the Code; for the Code says that the applications shall be heard by the Judge or Judges remaining attached to the Code by whom the original decree was given."

It will be apposite to mention here that R. 5 of 0.47 is the reproduction of S. 627 of the Old Civil Procedure Code, 1892.

16. In the second place Miss Banerjee contended that where an appeal against the judgment sought to be reviewed is available, a review in that cases is a bat. In this connection she relied on a Supreme Court decision in the case of Devaraju Pillai Vs. Sellayya Pillai, where it has been held if the party is aggrieved by the judgment of the single Judge sitting in second appeal the appropriate remedy for the party is to file an appeal against that judgment. A remedy by way of an application for review is entirely misconceived and if a single Judge entertains the application for review then he totally exceeds his jurisdiction in allowing the review, merely because he takes a different view on construction of the document.

17. Miss Banerjee contended that an appeal is maintainable under S. 109 of the CPC and under Art. 133 of the Constitution of India. In the instant case, according to her, as no appeal has been preferred and no leave has been prayed for from the High Court the review application is not maintainable.

18. In the third place she contended that review is not permissible on the ground that decision was erroneous of merit. In this connection she relied on a single Bench decision of this Court in the case of Chandmall Chopra and Another Vs. State of West Bengal, .

19. She further submitted that the review prayed for is on that the single Judge in the revision made a mistake or error apparent on the face of the record where he held that two applications for inspections are on two different points.

20. According to Mr. Gupta that is an error apparent on the face of the record while according to Miss Banerjee that is not an error apparent on the face of the record. That is a decision of the learned single Judge in that revision.

21. Having heard the learned advocates for the parties and considering the materials on record, I am of the view that this Court has the jurisdiction to entertain the review application inasmuch as the learned Judge, who had passed the judgment in the revisional application, Amulya Kumar Nandi, J. (as His Lordship then was) is no more available in this Court because of his superannuation and as such the ratio that has been laid in the case of Abhoy Charan Mohunt 1989 (16) ILR 788 (sic) (supra) will not be attracted in this case and the ratio that has been laid down in the case of Subbiah Vs. Muthuswamy, and Bhera and Others Vs. Board of Revenue and Others, will be applicable in this case.

22. The judgment complained of for which the review has been sought, is appealable under S. 109 of the CPC and also under Art. 133 of the Constitution of India. As such in view of the principle laid down in the case of Devaraju Pillai Vs. Sellayya Pillai, by the Supreme Court the review application is not maintainable. Regarding the merit of the application, the learned Judge held in revision that the two applications for local inspections are made on two different points. That is not an error apparent on the face of the record. That is the view taken by the learned single Judge in the revision. Even if it is assumed that that view is wrong, even then the review is not maintainable for the same in view of a single Bench decision of this Court in the case of Chandmall Chopra and Another Vs. State of West Bengal, .

23. I accordingly find no merit in this review application and hence the review application stands rejected.

24. There will, however, be no order as to costs.

25. Application dismissed.