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Hari Singh.Petitioner (In Person) v. Smt. S. Seth.
Factual and Procedural Background
This Letters Patent Appeal arises from an order dated 10.8.94 by a learned Single Judge refusing to review a judgment dated 8.1.87, in which the trial Judge held the suit to be not maintainable. The review application was rejected on the ground that a first appeal preferred by the plaintiff against the 8.1.87 judgment was dismissed by a Division Bench on 18.8.87 before the review application was disposed of. The trial Judge followed the Supreme Court decision in Thungabhadra Industries v. Government of A.P (AIR 1964 SC 1372), which held that if an appeal is disposed of before a review application is finally decided, the court loses jurisdiction to entertain the review. The appellant now challenges the refusal to review that judgment.
Legal Issues Presented
- Whether a review application under Order 47 Rule 1(a) CPC is maintainable after the appeal against the judgment sought to be reviewed has been dismissed prior to disposal of the review application.
- Whether a dismissal of an appeal in limine under Order 41 Rule 11(1) CPC without reasons constitutes a valid disposal that bars maintainability of a subsequent review application.
- Whether Section 153A CPC, which permits amendment of a decree after summary dismissal of an appeal, applies analogously to review applications under Order 47 Rule 1 CPC.
- The legal effect and distinction between review under Order 47 Rule 1 and amendment under Sections 152 and 153A CPC.
Arguments of the Parties
Appellant's Arguments
- The appellant contended that under Section 153A of the Code of Civil Procedure, 1908 (as amended in 1976), the review application is maintainable despite the dismissal of the appeal.
- The appellant argued that the appellate Court's judgment dated 18.8.87 was a brief, unreasoned dismissal ("The suit was misconceived and so is the appeal. Dismissed."), and thus not a proper judgment.
- The appellant relied on Kyi Oh and Another v. Ma Thet Pon (AIR 1926 P.C 29) to explain the concept of ‘omission’ in a judgment under Section 152 CPC, suggesting grounds to invoke Sections 152 or 151 CPC to correct the trial Court’s judgment.
- The appellant contended that since the appeal was dismissed in limine without reasons under Order 41 Rule 11(1) CPC, it should not be considered a valid disposal barring the review application.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Thungabhadra Industries v. Government of A.P (AIR 1964 SC 1372) | Jurisdiction of Court to entertain review petition ends if appeal is disposed of before review is decided. | The Court relied on this principle to hold that since the appeal was dismissed before disposal of the review application, the review application was not maintainable. |
| Kyi Oh and Another v. Ma Thet Pon (AIR 1926 P.C 29) | Definition and explanation of ‘omission’ in a judgment under Section 152 CPC. | The Court found this precedent irrelevant to the question of maintainability of review after appeal disposal, as it concerns only the meaning of omission. |
| Ramappa Bin Dareppa and another v. Bharma Bin Rama (ILR 30 Bombay 625, 1906) | Dismissal of appeal under Order 41 Rule 11(1) CPC precludes review application as appeal is considered ‘preferred’. | The Court applied this principle to hold that dismissal in limine under Order 41 Rule 11(1) CPC bars maintainability of review application. |
| Shivappa Parsa Savade v. Ramachandra Narasinha Deshpande (AIR 1922 Bombay 130) | Same as above regarding effect of dismissal of appeal under Order 41 Rule 11(1) CPC. | Reinforced the principle that dismissal of appeal under Order 41 Rule 11(1) CPC is a disposal barring review. |
Court's Reasoning and Analysis
The Court analyzed the procedural provisions governing review applications under Order 47 Rule 1(a) CPC, which permits review only if no appeal has been preferred from the decree or order sought to be reviewed. The Court applied the Supreme Court’s ruling in Thungabhadra Industries, emphasizing that if an appeal has already been filed and disposed of before the review application is finally decided, the Court loses jurisdiction to entertain the review.
In this case, although the review application was filed before the appeal, the appeal was disposed of before the review was taken up for disposal, thus barring the review. The Court rejected the appellant’s contention that dismissal of appeal in limine without reasons under Order 41 Rule 11(1) CPC is not a valid disposal, noting that the Supreme Court has not distinguished between dismissals with or without reasons for this purpose.
The Court distinguished the power of amendment under Sections 152 and 153A CPC from the power of review under Order 47 Rule 1 and Section 114 CPC, holding that the former deals with correcting the decree to conform to the judgment, whereas the latter questions the correctness of the judgment itself. Thus, Section 153A’s provisions about amendment after summary dismissal of appeal do not apply to review proceedings.
The Court also held that the absence of reasons in the appellate dismissal under Order 41 Rule 11(1) CPC does not invalidate the judgment or its effect, as the High Court is not required to give reasons in such dismissals.
Finally, the Court found the appellant’s reliance on the concept of ‘omission’ in a judgment irrelevant to the maintainability of the review application after disposal of the appeal.
Holding and Implications
The appeal is dismissed.
The Court’s decision confirms that once an appeal against a judgment has been disposed of—even if in limine without reasons—the jurisdiction to entertain a review application against that judgment ceases. The ruling clarifies the distinction between review and amendment remedies and affirms that procedural dismissals of appeals are effective disposals barring review. This decision directly affects the parties by upholding the dismissal of the review application and does not establish any new precedent beyond reinforcing existing principles.
M. Jagannadha Rao, C.J— No orders are necessary on C.M No. 140/94 filed under Section 5 of the Limitation Act in this case.
2. This Letters Patent Appeal is filed against the order of the learned Single Judge dated 10.8.94 refusing to review the judgment dated 8.1.87 passed in the suit by the trial Judge holding the suit to be not maintainable. Review application was rejected on the ground that the first appeal preferred by the plaintiff against the judgment dated 8.1.87 in the suit was dismissed by a Division Bench of this Court on 18.8.87 before this Review application—though filed before the first appeal was preferred—is taken up for disposal. In other words, the review of the judgment in suit was refused because the regular appeal preferred against the judgment wasitself dismissed on 18.8.87 before the review application came up for dis-posal in 1994. It was held that the fact that the review was preferred earlier than the first appeal made no difference. The learned trial Judge followed the decision of the Supreme Court in Thungabhadra Industries v. Government of A.P (AIR 1964 SC 1 372) and in particular on the following observations therein:
“….that if before the application for review is finally decided, the appeal itself has been disposed of, the jurisdiction of the Court hearing the review petition would come to an end.”
3. The plaintiff in the suit whose suit has been held to be not maintainable and whose appeal and review applications have also been dismissed, has now filed this appeal against the order rejecting the review application.
4. The appellant, appearing in person, has contended before us that in view of Section 153A of the Code of Civil Procedure, 1908 (as amended in 1976), the review is maintainable. He contended that the judgment of the appellate Court dated 18.8.87 is a brief unreasoned one, reading:
“The suit was misconceived and so is the appeal. Dismissed.”
and is no judgment at all and it is permissible to invoke Section 152 or even Section 151 to correct the judgment of the trial Court dated 8.1.87 holding the suit as not maintainable. Counsel relied upon Kyi Oh and Another v. Ma Thet Pon (AIR 1926 P.C 29) to explain what is meant by ‘omission’ mentioned in Section 152 CPC.
5. We are of the view that, even assuming that an LPA is maintainable against the order of the learned Single Judge refusing to review the judgment in suit, there are no grounds made out by the appellant for taking a different view than the one taken by the learned Single Judge.
6. Under Order 47 Rule 1(a) CPC, an application for review of a judgment lies by any person aggrieved by a decree or order “from which an appeal is allowed but from which no appeal has been preferred.” The propositions have been laid down by the Supreme Court in Thungabhadra Industries' case, firstly that if before the making of an application for review, an appeal from the judgment sought to be reviewed has already been filed and is pending, then the Court has no jurisdiction to entertain the review application, secondly where the application for review is first made and thereafter an appeal is preferred (as done in this case), the review application can be disposed of provided the appellate Court has not disposed of the appeal before the review application is taken up for disposal. The present case falls within the second principle and the learned trial Judge rightly refused to hear the review application.
7. So far as the contention that the first appeal was dismissed in limine under Order 41 Rule 11(1) CPC and that too without giving reasons, and therefore it is no disposal in the eyes of law, is concerned, we are of the view that the Supreme Court, in Thungabhadra Industries' case, has made no distinction between the disposal in limine or after notice or between a dismissal of the appeal with reason's and one without reasons. Nor is there any such specific provision in Order 47 Rule 1 CPC stating that a disposal in limine under Order 41 Rule 11 CPC or without reasons is to be ignored or that such a disposal will not come in the way of the disposal of the review application even it be after the disposal of the appeal.
8. Two other principles are also equally well-settled. The dismissal of an appeal under Order 41 Rule 11 (1) CPC in limine precludes the Court from which the appeal is preferred, from entertaining an application for review of the decree because it cannot be said in such a case that no appeal has been ‘preferred’ within the meaning of Section 114 and Order 47 Rule (1) CPC. (See Ramappa Bin Dareppa and another v. Bharma Bin Rama ILR 30 Bombay 625 (1906); Shivappa Parsa Savade v. Ramachandra Narasinha Deshpande (AIR 1922 Bombay 130). There is no difference between an appeal disposed of on merits or under Order 41 Rule 11(1) CPC. The second principle is that a review application filed before an appeal is preferred, cannot be taken up for consideration in case the appeal against the judgment or order sought to be reviewed, has been disposed of in limine under Order 41 Rule 11(1) CPC before the review is disposed of.
9. Learned counsel for the appellant sought to rely on Section 153A which deals the power of the Court to amend the decree or order where an appeal is summarily dismissed under Order 41 Rule 11(1) CPC. The provision says that an application for amendment can be entertained by the Court which passed the decree or order even after the dismissal of the appeal therefrom under Order 41 Rule 11 (1) CPC. It is argued that the same principle must apply in cases falling under Order 47 Rule 1 for review. In our opinion the submission is not correct firstly because the provisions for amendment in Sections 152 and 153A CPC are different from the provisions for Review contained in Section 114 and Order 47 Rule 1 CPC. They deal with different powers. Section 153A is intended to resolve a conflict of opinion in the High Courts as to the power of the Court to take up an amendment application under Section 152 where an appeal against the decree/order has been disposed of in limine under Order 41 Rule 11(1) and has no bearing whatsoever on the power of review.
10. In fact, a review under Order 47 Rule 1 and amendment under Section 152 are totally different concepts. In the case of a review, the correctness of the judgment decree or order is in question, while in the case of an amendment of decree, the correctness of the judgment is assumed and the jurisdiction is for bringing the decree in conformity with the judgment. Again where a review is allowed, the case has to be reheard on merits but not if an amendment is allowed. In the case of review, a fresh decree is passed while in the case of an amendment the same decree is to be amended.
11. The contention that the judgment of the High Court dismissing the appeal in limine without reasons is no judgment is also incorrect. Order 41 Rule 11(4) says that the High Court while dismissing an appeal in limine need not give reasons. The Sub-clause says:
“Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.”
This is in contrast with Order 41 Rule 31 which deals with a judgment after notice to respondents and that judgment is required to give reasons. So far as Order 41 Rule 11(1) is concerned, it is now statutorily made clear that while disposing of an appeal under Order 41 Rule 11(1) CPC, so far as the High Court is concerned, there is no requirement for giving reasons. While it might be very desirable to give reasons, the fact that the High Court, while acting under Order 41 Rule 11 has not given reasons, does not vitiate the judgment nor can an appellant whose appeal is so dismissed claim that it is is no judgment.
12. So far as the decision in Kyi Oh v. Ma Thet Pon (AIR 1926 P.C 29) relied upon by the appellant is concerned, that deals with the question as to what is an omission in a judgment and has no relevance to the question of maintainability of the review application after the appeal is disposed of. Nor is there any need to deal with the alternative prayer (at p. 78 of the paper book) contained in the amended memorandum of grounds. The point raised is that a decree must be directed to be drawn up in respect of the appellate judgment where the appeal is disposed of under Order 41 Rule 11(1). It is true that Order 41 Rule 11(1) requires a decree to be drawn up but even if it is drawn up, the review application cannot become one maintainable in law, on the facts of the present case.
13. For the aforesaid reasons, this appeal is dismissed.
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