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L. Ganga Prasad v. Mst. Saroop Dei
Structured Summary of the Opinion by P.L. Bhargava, J.
Factual and Procedural Background
The plaintiff-respondent, Shrimati Sarup Dei, owned a shop in village Dhanaura, pargana Hasanpur, district Moradabad. On 6 May 1945 she let the shop to the defendant-appellant, Ganga Prasad, for one year at an annual rent of Rs. 125. After the lease term expired the defendant did not vacate the premises. The plaintiff instituted a suit for ejectment on 9 August 1946.
On 29 March 1947 the trial Court dismissed the ejectment suit on the ground that it was barred by Section 3 of the United Provinces (Temporary) Control of Rent and Eviction Act, No. 3 of 1947. The plaintiff filed an application for review on 2 April 1947, pointing out that the Act had not been made applicable to Dhanaura. The trial Court, after review, set aside its dismissal and decreed the suit. The defendant appealed to the Civil Judge, Moradabad; that appeal was dismissed. The present opinion arises from the defendant's subsequent appeal, which the Court addressed and ultimately dismissed with costs.
Legal Issues Presented
- Was the plaintiff's application for review properly presented in accordance with Rule 2 of Order 47 of the Code of Civil Procedure?
- Whether an application for review may be entertained to correct an error of law, or whether review is limited to errors apparent on the face of the record under Order 47, Rule 1?
- Whether the subsequent notification making the U.P. (Temporary) Control of Rent and Eviction Act, 1947 applicable to Dhanaura during the pendency of the appeal affected the decree for eviction under Sections 14 and 15 of that Act?
Arguments of the Parties
Appellant's Arguments
- The application for review was not properly presented because it was presented to the Munsarim (the court official) rather than directly to the Presiding Officer, contrary to Rule 2 of Order 47 of the Code of Civil Procedure; Munro v. The Cawnpore Municipal Board was relied upon.
- No application for review can be entertained to correct an "error of law"; reliance was placed on authorities including Chajju Ram v. Neki, Balkrishan v. Mt. Bundia, Thakur Kishun Chand Singh v. Munshi Makund Sarup, and Ranbir Prasad v. Sheobaran Singh to support the proposition that review is not a vehicle to re-argue or correct debatable legal questions.
- During the pendency of the appeal the U.P. (Temporary) Control of Rent and Eviction Act, 1947 was made applicable to Dhanaura; therefore, by operation of Sections 14 and 15 of that Act no decree for eviction could be executed or passed against the tenant.
Respondent's (Plaintiff's) Arguments
- The application for review correctly drew the trial Court's attention to the fact that the U.P. Act had not been made applicable to Dhanaura; therefore the dismissal based on Section 3 of the Act was in error.
- The oversight by the trial Court in failing to notice the statutory limits on the Act's applicability amounted to an error apparent on the face of the record and was therefore correctible by review.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Munro v. The Cawnpore Municipal Board | Observation that an application should be presented to the Judge and not to the Munsarim (in the circumstances of that case). | The Court distinguished the case on its facts (deficiency of stamp and limitation consequences) and held Munro inapplicable to the present facts; thus Munro did not invalidate the review presentation here. |
| Chajju Ram v. Neki | Interpretation of "any other sufficient reason" in Order 47, Rule 1 — review reasons must be analogous to those specified in the Rule. | Cited by the Court to outline limits on review jurisdiction; the Court nevertheless found the present mistake to be within Order 47, Rule 1 as an error apparent on the face of the record. |
| Balkrishan v. Mt. Bundia | Review is not the forum to raise a new proposition of law that needs argument and authorities; such points are not fit for review. | Relied on by appellant; the Court used it to frame the general rule but distinguished the present case as involving an obvious oversight of statutory text rather than a new debatable point of law. |
| Thakur Kishun Chand Singh v. Munshi Makund Sarup (A.I.R. 1938 All. 308 = A.L.J. 347) | Erroneous view of law on a debatable point or wrong exposition/application does not constitute an error apparent on the face of the record for review. | Cited to illustrate limits on review; the Court held the present error was different in kind — an obvious oversight of a statutory provision — and thus correctible. |
| Ranbir Prasad v. Sheobaran Singh | The mere possibility of a different view on questions of law is not a ground for review. | Referenced by the Court in discussing limits on review; distinguished because the instant case involved an omission of an express statutory provision visible on the record. |
| Kamta Chaudhri v. Lal Chandra Mooh Pratap Bahadur Pal (I.L.R. 1945 All. 680 = A.L.J. 223) | If a mistake is obvious due to failure to notice a section of an Act, the obvious error may be corrected by the Court. | Adopted by the Court to support the proposition that the trial Court could correct its oversight on review when it had failed to notice a statutory provision governing applicability. |
| Parmarath Gir v. Krishna Dayal Gir (A.I.R. 1933 All. 517 = A.L.J. 1318) | Court has inherent power to rectify its own inadvertent errors; revocation of an erroneous order needs no cause other than the irregularity itself. | Used to support the availability of review (or inherent power) to rectify inadvertent errors on the face of the record. |
| Mt. Jamna Kuer v. Lal Bahadur (1950 S.C.J. 117) | Where an error is apparent on the face of the record (whether by counsel's mistake or court oversight), the Court can and should correct it on review rather than force an appeal. | Cited to reinforce that an apparent error visible on the record is properly corrected on review and that the cause of the error (oversight or counsel's mistake) is immaterial. |
| Ali Akbar v. Khurshed Ali (I.L.R. 27 All. 695) | An application for review granted for "any other sufficient reason" — sufficiency of the reason for granting review is not a ground of appeal under the corresponding provision. | Cited to show that Rule 7 of Order 47 does not make an appeal lie against the sufficiency of the reason for granting review; thus the order granting review was not vulnerable on that ground. |
| Rup Lal v. Ram Swamp | Held that Section 15 (of the U.P. Act) does not apply to cases of the nature under consideration. | Relied upon by the Court to conclude that Section 15 could not assist the appellant; the Court held that subsequent application of the Act to Dhanaura during the appeal did not invalidate the decree already passed. |
Court's Reasoning and Analysis
The Court addressed the appellant's contentions in sequence and explained the legal reasoning and application of precedent and statutory provisions as follows.
-
Presentation of the Review Application:
The appellant's primary procedural objection was that the review application was presented to the Munsarim rather than to the Presiding Officer in contravention of Rule 2 of Order 47 CPC. The Court examined the record and found no evidence that the application had been presented to the Munsarim. Instead, the order sheet indicated the application had been presented in open Court, was ordered to be put up in the presence of counsel, objections were filed the same day, and a hearing date was fixed the next day. Even accepting, arguendo, that the application had been routed through the official channel to the judge, the Court held that Rule 2 requires that applications for review be made to and disposed of by the judge who passed the decree; presentation through the official channel did not render the application invalid. The Court distinguished Munro on the facts: in Munro there was an insufficient stamp and a limitation issue; hence that authority did not invalidate the presentation here.
-
Scope of Review — Error of Law vs. Error Apparent on the Face of the Record:
The appellant argued that review cannot be used to correct an "error of law," relying on multiple authorities that limit review to errors apparent on the face of the record and exclude debatable points of law or new propositions requiring argument. The Court surveyed the cited decisions (Chajju Ram, Balkrishan, Thakur Kishun Chand Singh, Ranbir Prasad) and acknowledged the established principle that review is not a vehicle for re-argument of debatable legal questions or for raising new legal propositions.
Applying that principle to the facts, the Court found that the trial Court's initial judgment had overlooked express statutory text: Sub-section (2) of Section 1 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (which limited the Act's applicability to municipal/cantonment areas, contiguous notified areas and accommodations within one mile, and allowed extension by Gazette notification). The trial Court had failed to note that Dhanaura, although a Notified Area, was not contiguous to any municipal or cantonment area and that the Act had not been made applicable to Dhanaura at that time. The Court characterized that omission as an obvious oversight — an error apparent on the face of the record within the meaning of Order 47, Rule 1.
The Court reinforced this conclusion by reference to authorities supporting correction of obvious oversights (Kamta Chaudhri; Parmarath Gir) and the Federal Court decision (Mt. Jamna Kuer) that an error apparent on the face of the record should be corrected on review rather than forcing a party to appeal.
-
Appealability of the Order Granting Review:
The Court observed that Rule 7 of Order 47 lists specific grounds on which an appeal lies against an order granting a review application. Those do not include a challenge to the sufficiency of the reason for granting review. The Court cited Ali Akbar v. Khurshed Ali to show that the sufficiency of the reason is not a ground of appeal under the corresponding provision (Section 629 of the old Code). Consequently, the order granting the review could not be successfully impugned on the ground that the reason for allowing the review was insufficient.
-
Effect of Subsequent Notification Making the Act Applicable to Dhanaura:
The appellant argued that while the appeal was pending the U.P. Act had been made applicable to Dhanaura and that Sections 14 and 15 thus barred the decree for eviction. The Court analyzed the statutory text:
- Section 14: No decree for eviction passed before the commencement of the Act shall be executed against a tenant while the Act remains in force except on grounds in Section 3 — the Court noted this stage had not been reached and Section 14 did not bear on the present point.
- Section 15: In suits for eviction pending on the date of commencement (1 October 1946), no decree for eviction shall be passed except on grounds in Section 3. The Court observed that although the present suit was pending on 1 October 1946, the suit was not governed by the Act when the decree for eviction was passed (because the Act had not then been made applicable to Dhanaura), and therefore the subsequent notification making the Act applicable could not affect a decree already passed. The Court cited Rup Lal v. Ram Swamp for the proposition that Section 15 does not apply to cases of this nature.
Holding and Implications
APPEAL DISMISSED.
Direct effect on the parties:
- The trial Court's order granting review and decreeing the suit for ejectment stands; the appeal by the defendant-appellant was dismissed with costs.
- The Court held that the omission by the trial Court to notice the statutory limits on the U.P. Act's applicability was an error apparent on the face of the record and was properly corrected on review.
- The subsequent making of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 applicable to Dhanaura during the pendency of the appeal did not invalidate the decree already passed; Sections 14 and 15 do not assist the appellant in this circumstance.
Broader precedent: The opinion relied extensively on established limits of review jurisdiction (distinguishing between debatable legal questions and errors apparent on the face of the record) and on authorities permitting correction of obvious oversights. The Court did not indicate that it was laying down a new legal principle but applied existing authorities to the facts before it.
P.L Bhargava, J.:— Shrimati Sarup Dei, the plaintiff-respondent, is the owner of a shop in village Dhanaura, pargana Hasanpur, in the district of Moradabad. On May 6, 1945, she had let out the shop to Ganga Prasad, the defendant-appellant, for one year on a yearly rental of Rs. 125. After the expiry of the term of the lease the shop was not vacated by the defendant. Accordingly, on August 9, 1946, the plaintiff instituted the suit, which has given rise to this appeal, for ejectment of the defendant from the shop. On March 29, 1947 the trial Court dismissed the suit for ejectment on the ground that it was barred in view of the provisions of Section 3 of the United Provinces (Temporary) Control of Rent and Eviction Act (No. 3 of 1947).
2. The plaintiff thereupon filed an application for review., on April 2, 1947. She pointed out that Act 3 of 1947 had not been made applicable to Dhanaura, where the shop was situate. As the suit was not, in fact, governed by the provisions of the said Act, the trial Court granted the application for review, set aside the dismissal of the suit and decreed the same. The defendant preferred an appeal which came up for hearing before the Civil Judge of Moradabad. That appeal was dismissed; hence this appeal.
3. Learned counsel for the appellant has, in the first place, contended that the application for review was not properly presented, in as-much as it was presented to the Munsarim of the Court, while, under Rule 2 of Order 47 of the Code of Civil Procedure, it should have been made to the Presiding Officer of the Court. In this connection reliance has been placed upon a decision of this Court in Munro v. The Cawnpore Municipal Board.1 I, however, see no force in this contention—firstly, because there is nothing on the record to show that the application was presented to the Munsarim.
4. On the other hand, the order sheet goes to show that the application was presented in Court and it was ordered to be put up in the presence of the counsel for the parties. The defendant filed an objection on the same day, viz., April 2, 1947. On the next day, the Court fixed a date for the disposal of the application.
5. Learned counsel for the appellant has pointed out that in the Court below it was admitted that the application for review was presented to the Munsarim, but there is no reference to any such admission in the judgment of the learned Civil Judge. It appears that the learned Judge proceeded to dispose of the argument advanced on behalf of the appellant in regard to the proper presentation of the application on the assumption that it had been presented in the office and not in Court.
6. Secondly, even if it were to be assumed that the application for review, which was addressed to the “Judge who passed the decree” was put up before him, through the official channel—the Munsarim and the Reader—it is not possible to hold that on that account the application was not properly presented. All that Rule 2 of Order 47 of the Code of Civil Procedure requires is that an application for review of a decree upon some ground other than the discovery of such new and important matter or evidence as is referred to in Rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to and disposed of by the judge who passed it and not by his suecessor, except in cases where notice has been ordered to be issued by the Judge who passed the decree.
7. In Munro's case, no doubt, there is an observation at page 59 that
“the application should have been presented to the Judge and not to the Munsarim;”
but those observations were made in entirely different circumstances. In that case, an application for review had been presented to the Munsarim within 90 days of the decree. The application was insufficiently stamped. The Munsarim reported that the stamp on the application was insufficient. There was some dispute between the Government Pleader and the Munsarim as to whether or not the stamp was sufficient. In the meantime the period of ninety days expired. After the proper stamp duty had been paid a question arose whether there was a proper presentation within 90 days. It was pointed out that the application was not fit to be received within ninety days by reason of the deficiency of stamp and it was barred by limitation, under the circumstances, after ninety days.
8. In the next place, it has been argued on behalf of the appellant that no application for review could be entertained or granted to correct an “error of law.” Reliance has been placed on the following decisions; (1) Chajju Ram v. Neki;2 (2) Balkrishan v. Mt. Bundia;3 (3) Thakur Kishun Chand Singh v. Munshi Makund Sarup A.I.R 1938 All. 308 = A.L.J 347. and (4) Ranbir Prasad v. Sheobaran Singh.5
9. In Chajju Ram's case review of judgment was sought on the ground that the learned Judges ought not to have admitted the additional ground of appeal and that they were misled into holding that the facts found by them disentitled the plaintiffs to a decree. The review was granted by Judges who had not decided the appeal in the first instance. Their lordships of the Privy Council, while interpreting the words “any other sufficient reason” appearing in Order 47, Rule 1 of the Code of Civil Procedure, pointed out that they meant a reason sufficient on grounds at least analogous to those specified immediately previously.
10. In the next case of Balkrishna, the review was sought on the ground that, when the plaintiffs released a part of the property mortgaged from their claim, they were not entitled to put the entire burden of the mortgage debt on the other property. This was a new proposition of law, which was sought to be argued in review. The learned Judges, who decided that case, observed that the point of law, which was sought to be raised, was a point which could only be established after argument and reference to authorities, and that it was not a point which was apparent on the face of the record, nor was the point so simple as to carry conviction when stated.
11. In Thakur Kishun Chand Singh's case it was pointed out by this Court that an erroneous view of law on a debatable point or wrong exposition of the law or a wrong application of the law cannot be considered a mistake or an error apparent on the face of the record.
12. In the last case of Ranbir Prasad it was held that the fact that a different view on certain questions of law is possible is hardly any ground for review.
13. In this case, the trial Court, when it delivered its first judgment, overlooked the express provisions of Sub-section (2) of Section 1 of the U.P (Temporary) Control of Rent and Eviction Act, 1947, that the Act was applicable to Municipal and Cantonment Areas, to Notified Areas contiguous to such Areas and to accommodation situated within one mile of such Areas, and it could be made applicable by the Provincial Government to other areas by a notification issued in the official Gazette; and the fact that Dhanaura, which is a Notified Area, is not contiguous to any Municipal or Cantonment Area, and the Act had not till then been made applicable thereto. The omission was due to an oversight; and, as soon as the Court's attention was invited to the provisions aforesaid it became obvious that there was a mistake apparent on the face of the record, within the meaning of Rule 1 of Order 47 of the Code of Civil Procedure. It was not an error of the kind referred to in any of the authorities relied upon by the appellant's learned counsel. It was an error which was obviously due to an oversight and which the Court was entitled to correct upon an application for review, or even in exercise of its inherent powers. In Kamta Chaudhri v. Lal Chandra Mooh Pratap Bahadur Pal I.L.R 1945 All. 680 = A.L.J 223. it was pointed out that
“if the mistake is an obvious one due to failure to notice a particular section of an Act or part of such a section, it would be too much to say that the obvious error could not be corrected by the Court.”
14. In an earlier decision of this Court in Parmarath Gir v. Krishna Dayal Gir A.I.R 1933 All. 517 = A.L.J 1318. it was observed;
“For the revocation of an erroneous to no sufficient cause other than the irregularity of the order itself need be considered, and the Court has inherent power to rectify, its own errors inadvertently committed.”
15. In Mt. Jamna Kuer v. Lal Bahadur 1950 S.C.J 117. it has been held by the Federal Court that,
“When an error is found to be one apparent on the face of the record, whether it occurred by reason of the counsel's mistake or had crept in by reason of an oversight on the part of the Court is not a circumstance which could affect the exercise of jurisdiction of Court to review its decision……where the Court finds that a mistake has in fact crept into a judgment it would be appropriate for it to correct it on a petition for review rather than drive a party to an appeal to a higher Court.”
16. I, therefore, see no force in the second contention either.
17. Apart from the fact that there is no merit in the second contention, I may say that the order granting the application on the ground that there was an error apparent on the face of the record could not be objected to in appeal. Rule 7 of Order 47 of the Code allows an appeal against an order granting an application on the ground that the application was
(a) in contravention of the provisions of Rule 2.
(b) in contravention of the provisions of Rule 4; or
(c) after the expiration of the period of limitation prescribed therefor and without sufficient cause.
18. None of these conditions exists in the present case. In this connection I may refer to a decision of this Court in Ali Akbar v. Khurshed Ali I.L.R 27 All. 695. where an application for review of judgment had been granted for “any other sufficient reason” and the sufficiency or otherwise of the reason for granting it was not considered a ground of appeal within the meaning of Section 629 of the Code of Civil Procedure 1882, which corresponds to Rule 7 of Order 47 of the present Code.
19. Lastly, it has been pointed out by the appellant's learned counsel that during the pendency of this appeal, the U.P (Temporary) Control of Rent and Eviction Act, 1947, was mode applicable to Dhanaura and, as such, in view of the provisions of Sections 14 and 15 of the said Act, no decree for eviction can be passed Section 14 only lays down that
“No decree for the eviction of a tenant from any accommodation passed before the date of commencement of this Act shall, in so far as it relates to the eviction of such tenant, be executed against him as long as this Act remains in force, except on any of the grounds mentioned in Section 3.”
20. That stage has not yet reached and Section 14 has no bearing on the point raised by the learned counsel. Section 15 lays down:
“In all suits for eviction of a tenant from any accommodation pending on the date of the commencement of this Act, no decree for eviction shall be passed except on one or more of the grounds mentioned in Section 3.”
21. The section refers to suits which were pending on the date of the commencement of this Act, viz., October 1, 1946, and in which a decree for eviction had to be passed. The present suit was, no doubt, pending on October 1, 1946, but it was not governed by the said Act when the decree for eviction was passed. The fact that during the pendency of this appeal the provisions of the Act have been made applicable to Dhanaura cannot affect the decree for eviction which has already been passed. In my opinion, Section 15 of the Act cannot help the appellant. That Section 15 does not apply to cases of this nature has been held by this Court in a recent decision in Rup Lal v. Ram Swamp.10 For the reasons stated above, I see no force in this appeal and dismiss it with costs.
22. Appeal dismissed.
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