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Case Number

Civil Review No. 6 of 1961

Advocates

Lal Narayan Sinha
Satyanand Kumar and Sadhu Saran Sahai
Raghunath Jim
Parmeshwar Prasad Sinha and Sushil Kumar Jha

Judges

R.K Choudhary, J.

Acts

provisions of Order 47, Rule 1, Order 41, Rule 31, Order 20, Rule 4(2), and Section 2(9) of the Code. Order 47,
Order 41, Rule 11, of the Code of Civil Procedure (hereinafter
Section 43 of the Bihar Hindu Religious Trusts Act
Order 41, R. II, of the Code and Rule of Order 41
Order 41, Rule 11(1), of the Code
Rule 1 of Order 47 of the Code
Order 47, Rule 1, of the Code.6.
Order 20, Rule 4(2), of the Code
Order 41, Rule 11, of the Code
Order 41, Rule 31, of the Code
Order 20, Rule 6, of the Code,
Order 47, Rule 1, of the Code
Section 151 of the Code.8.
Section 2(9) of the Code
Order 41, Rule 11(1),
Order 41, Rule 11,
Order 47, Rule 1,
Order 41, Rule

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Smart Summary

Case Summary — Review Application against order dismissing Second Appeal under Order 41, Rule 11 (CPC)

Factual and Procedural Background

This is an application by the defendants (petitioners) seeking review of this Court's order dated 9th December, 1960 which dismissed their second appeal (Second Appeal No. 927 of 1960) in limine under Order 41, Rule 11 of the Code of Civil Procedure (the Code). The plaintiffs (opposite parties 1 to 4) originally filed Title Suit No. 127 of 1958 in the Second Court of the Munsif at Samastipur seeking:

a declaration that the suit lands were their personal property;
that the declaration dated 13th June, 1958 under Section 43 of the Bihar Hindu Religious Trusts Act declaring the lands to be public trust property was illegal; and
a permanent injunction restraining the petitioners from taking possession.

The plaintiffs' initial case alleged their father, Punia Misra, had acquired the property in the benami name of their family deity. The petitioners maintained the lands were acquired by public subscription and that the deity named in the sale deed was not the plaintiffs' family deity.

At trial the defence was accepted and the plaintiffs' suit was dismissed. On appeal to the lower appellate Court the plaintiffs abandoned their contention that the lands were personal/private acquisitions and instead pressed that the property belonged to their family deity; the lower appellate Court accepted that contention and decreed the suit. The petitioners' second appeal to this Court was dismissed under Order 41, Rule 11. The present review application alleges that the junior counsel who argued the appeal for admission failed to press certain points of law which were apparent on the face of the record because the senior counsel was absent.

Legal Issues Presented

Whether an order dismissing an appeal under Order 41, Rule 11 of the Code is a "judgment" or "decree" within the meaning of the Code and therefore amenable to review under Order 47, Rule 1.
Whether omission by counsel (specifically failure of the junior counsel to press certain points of law) to argue a question of law at the time of admission of an appeal can amount to a "mistake or error apparent on the face of the record" justifying a review under Order 47, Rule 1.
Whether a decree can validly be granted in favour of a person (or to grant relief) when that person (or entity) was not a party to the suit (specifically: whether the plaintiffs could be granted relief that could only be granted if the deity had been made a party).

Arguments of the Parties

Petitioners' Arguments

The phrase "may apply for a review of judgment" in Rule 1 of Order 47 is used because the reasons given in a judgment may be considered, but the review is in truth of the decree or order itself.
An order dismissing an appeal under Order 41, Rule 11 is a "decree" on the merits and there cannot be a decree without a judgment; therefore the order in question is both a judgment and an order and is reviewable.
A formal written judgment is not required in cases where an appeal is dismissed under Order 41, Rule 11, and the requirement in Order 41 that the judgment be in writing has no application to such dismissals; consequently the absence of a formal judgment does not make the order non-reviewable.
The word "judgment" can properly mean "decree" in the relevant provisions of the Code.

Plaintiffs' (Opposite Parties') Arguments

Omission of argument on a point of law — even where an error is apparent on the face of the record — is not a ground for review of an order.
Reliance was placed on provisions of the Code (Order 47, Rule 1; Order 41, Rule 31; Order 20, Rule 4(2); Section 2(9)) to contend that what may be reviewed is a "judgment" (as defined) and the impugned order dismissing the appeal under Order 41, Rule 11 is not a "judgment" within that meaning because it lacks a statement of grounds, points for determination, decision thereon and reasons.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jamuna Prasad Rai v. Rajballam Rai, AIR 1937 Pat 349	That dismissal of an appeal under Order 41, Rule 11(1) has the finality characteristic of a "decree" and in substance expresses an adjudication that the appeal is without merit.	The Court relied on this decision to support its conclusion that an order dismissing an appeal under Order 41, Rule 11 can be treated as a decree and is appealable/reviewable accordingly.
Makhu Sahu v. Kamta Prasad Sahu, AIR 1934 Pat 341	That a simple order of dismissal may be passed if the appeal is not admitted and that it is not until after admission and hearing that a written judgment may be required; and that under Order 20, Rule 6 the decree must agree with the judgment.	Used to indicate that the absence of a formal written judgment does not render an order of dismissal under Order 41, Rule 11 outside the meaning of "judgment" for review purposes.
Davabhai Jiwandas v. Murugappa Chettiar, ILR 13 Rang 457; AIR 1935 Rang 267 (Full Bench)	That the word "judgment" (in the relevant Letters Patent clause) can mean a decree by which rights of parties are determined.	Cited to support the proposition that an order dismissing an appeal under Order 41, Rule 11 can be treated as a "judgment" (in the broader sense) and thereby be subject to review under Order 47, Rule 1.
Bhagwat Bhagat v. Tej Narain Singh, Civil Revn. No. 1031 of 1957 (unreported; disposed 26 Oct 1959, All)	That a gross error of law apparent on the face of the record can justify a review under Order 47, Rule 1 and also under Section 151 of the Code.	Relied on to support the view that where a gross error of law is apparent on the face of the record review jurisdiction can be exercised.
Kamla Prasad Chaudhuri v. Kunj Behari Mander, AIR 1922 Pat 119	That a mere omission to raise a point of law which might have led to a different result is not necessarily a "mistake or error apparent on the face of the record".	Cited by the opposite parties to argue omission is not automatically a ground for review; the Court acknowledged it but observed exceptions exist where the error is apparent.
Mst. Ayesha Bai v. Daleep Singh, AIR 1961 Raj 186	Discussed in relation to whether omission to raise a point is ground for review (noted as a Rajasthan case dealing with jurisdictional objection in review context).	The Court held this Rajasthan decision was not of assistance because that review concerned want of jurisdiction and the facts differ from the present case.
Anthony D'Costa v. Francis Roche Anthony, AIR 1962 Mad 304	That review cannot be granted on the mere ground that the particular counsel who appeared for a party failed to raise a particular point despite instructions.	Placing reliance by opposite parties was noted; the Court distinguished the present facts on the basis that the junior counsel filed an affidavit explaining why he did not raise the point.
Mt. Jamna Kuer v. Lal Bahadur, AIR 1950 FC 131	That if there is an error apparent on the face of the record, whether caused by counsel's mistake or court's oversight, it does not affect the jurisdiction to review the decision.	Cited to support the proposition that counsel's mistake does not bar the Court from reviewing its decision when an error is apparent on the face of the record.
Govinda Chettiyar v. Varadappa Chettiar, AIR 1940 Mad 17	That where counsel's misapprehension led a judge to an erroneous impression (and thus an error on the face of the record), such a situation is analogous to an error apparent on the face and can justify review under Order 47, Rule 1.	Relied upon to show that failure by counsel to urge arguments (because of misapprehension) can amount to an error apparent on the face of the record, justifying review.

Court's Reasoning and Analysis

The Court proceeded in two principal stages of analysis:

Whether the order dismissing the appeal under Order 41, Rule 11 is reviewable.
The Court examined statutory definitions and requirements: Section 2(9) (definition of "judgment"), Order 20, Rule 4(2) (contents of a judgment) and Order 41, Rule 31 (requirements for an appellate Court's judgment). Petitioners contended that the term "judgment" in Order 47, Rule 1 should be understood as including decrees or orders dismissing appeals under Order 41, Rule 11 and that a formal written judgment is not required in such dismissals. The Court agreed with the petitioners, reasoning that (a) an order dismissing an appeal on merits under Order 41, Rule 11 has the finality and adjudicatory character of a "decree", (b) there cannot be a decree without a judgment in substance, and (c) the absence of a formal written judgement does not preclude treating such an order as a "judgment" for review purposes. The Court relied on several authorities (including Jamuna Prasad Rai, Makhu Sahu and Davabhai Jiwandas) to support this conclusion and held that an order dismissing an appeal under Order 41, Rule 11 can be reviewed under Order 47, Rule 1.
Whether omission by counsel to argue a point of law justifies review.
The Court acknowledged precedents relied upon by the opposite parties which state that mere omission to raise a point of law is not necessarily an error apparent on the face of the record (e.g., Kamla Prasad Chaudhuri, and the Madras decision Anthony D'Costa). However, the Court identified that the authorities also recognize exceptions: where a gross error of law is apparent on the face of the record, review may be appropriate (Bhagwat Bhagat; Mt. Jamna Kuer; Govinda Chettiyar). The Court therefore framed the test: if the mistake of law is gross and apparent on the face of the record, a review can be granted regardless of whether the mistake occurred because of counsel's oversight or otherwise.
Application of the test to the present facts.
The Court scrutinised the pleadings and the relief actually granted. Although the plaint contained an averment framed "in the alternative" reserving a submission that even if the lands were deemed purchased on behalf of the deity the Hindu Religious Trust Act would not apply, there was never a prayer that the property be declared to be the property of the family deity. Before the lower appellate Court the plaintiffs abandoned their case of personal acquisition and relied solely on the contention that the property belonged to their family deity. The deity was not made a party to the suit. Notwithstanding that, the lower appellate Court decreed the suit and granted reliefs which, the Court observed, could not lawfully have been granted unless the deity had been made a party.

The Court concluded that a serious question of law arose — namely whether a decree can be granted in favour of (or to confer rights upon) a person or entity not a party to the suit. The Court held that had this point been put before it on the second appeal, the appeal would have been admitted. The Court found the error to be apparent on the face of the record and to be a gross error of law. On that basis the Court determined that review was justified.

Holding and Implications

Core Ruling: APPLICATION ALLOWED; the order of this Court dated 9th December, 1960 (dismissing Second Appeal No. 927 of 1960 under Order 41, Rule 11) is set aside and the second appeal is admitted.

Consequences and immediate effects:

The review application is allowed.
The impugned order dated 9th December, 1960 dismissing the second appeal under Order 41, Rule 11 is set aside.
The second appeal (No. 927 of 1960) is admitted for hearing; notices are to issue to the respondents in the appeal.
There will be no order as to costs.

Broader precedent: The Court applied established principles from prior case law to hold that (a) an order dismissing an appeal under Order 41, Rule 11 may be treated as a "judgment" or "decree" for purposes of review under Order 47, Rule 1, and (b) a gross error of law apparent on the face of the record justifies review even if it arose from counsel's omission. The opinion does not expressly state that it creates a new binding precedent beyond applying and reconciling existing authorities.

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Krishna Jee And Another v. Rajeshwar Mishra And Others Opposite Party.

1. This is an application by the defendants. The plaintiffs opposite parties 1 to 4 filed Title Suit No. 127 of 1958 in the Second Court of the Munsif at Samastipur for a declaration that the lands in suit were their personal properties and the order dated the 13th of June, 1958 passed by the authority under Section 43 of the Bihar Hindu Religious Trusts Act declaring the same to be public trust property was illegal, and for a permanent injunction restraining the petitioners from taking possession of the same. The case of the plaintiffs was that their father, Punia Misra, had acquired the property in the benami name of their family deity. The defence of the petitioners was that the suit lands were not acquired by the plaintiffs' family, but they were acquired out of public subscriptions and that the deity named in the sale deed is not the family deity of the plaintiffs. The trial Court accepted the pleas taken in defence and dismissed the suit of the plaintiffs. In an appeal in the lower appellate Court filed by them, the plaintiffs gave up their, case of the suit lands being their personal property and private acquisition, but pressed the appeal on the ground that the property belonged to the family deity and that the deity mentioned in the sale deed was their family deity. The lower appellate Court accepted this contention of the plaintiffs and decreed the suit. A second appeal, being Second Appeal No. 927 of 1960, was filed in this Court on behalf of the petitioners, but the same was dismissed in limine under Order 41, Rule 11, of the Code of Civil Procedure (hereinafter to be referred to as ‘the Code’). They have now filed the present application for review of the order dismissing the appeal under Order 41, Rule 11, of the Code on the ground that certain points of law which were apparent on the face of the record were not pressed by the junior Counsel, Mr. Sadhu Saran Sahai, who argued the appeal for admission in absence of the senior Counsel, Mr. K.K Sinha.

2. An objection has been taken on behalf of the plaintiff-respondents that the omission of argument on a question of law, even though there may have been an error apparent on the face of the record, is not a ground for review of an order. In support of this contention, reliance has been placed by the learned Counsel for the plaintiffs opposite parties on the provisions of Order 47, Rule 1, Order 41, Rule 31, Order 20, Rule 4(2), and Section 2(9) of the Code. Order 47, R. 1, so far as is relevant for the purpose of the present case, provides that any person considering himself aggrieved—“(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed…… on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.”

3. It has been contended that what has to be reviewed is the judgment, and not the decree or order itself. It is submitted that the order dismissing the appeal under Order 41, Rule 11, of the Code is not a ‘judgment’ within the meaning of the Code and, therefore, the review application is not maintainable. “Judgment” has been defined in Section 2(9) of the Code as meaning “the statement given by the Judge of the grounds of a decree or order.” According to Order 20, Rule 4(2), of the Code a judgment has to contain, a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. Order 41, Rule 31, of the Code lays down that. The judgment of the Appellate Court shall be in writing and shall state (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. On the basis of these provisions, it has been urged that the order dismissing the appeal under Order 41, Rule it, of the Code is not a judgment, inasmuch as it does not contain any statement of the grounds of the order, nor does it contain either the points for determination or the decision thereon or the reasons for the decision.

4. Counsel for the petitioners has, however, urged that the expression “may apply for a review of judgment” used in Rule 1 of Order 47 of the Code has been used, because, in reviewing the decree or order, the reasons given in the judgment have to be considered; but really the review is of the decree or the order itself. It has also been contended that it is too well established by now that the order dismissing an appeal under Order 41, Rule 11, of the Code on merits is a “decree” and there cannot be a decree without a judgment. It is submitted, therefore, that the order dismissing an appeal itself is both judgment and order. It has also been urged that a formal judgment is not required to be written in an appeal which is dismissed under Order 41, R. II, of the Code and Rule of Order 41 has no application to such a case. It has also been submitted that the word “judgment” itself means “decree”. In my opinion, the contentions raised on behalf of the petitioners are well founded and must prevail.

5. The contention that the order of dismissal under Order 41, Rule 11, of the Code on merits is a decree is supported by a decision of this Court in Jamuna Prasad Rai… v. Rajballam Rai…., AIR 1937 Pat 349. It has been pointed out in that case that the dismissal of an appeal under Order 41, Rule 11(1), of the Code has so far as the Court pronouncing it is concerned, the finality which is an essential ingredient in the definition of “decree” in Section 2(2); and, in substance, it expresses an adjudication within that definition, to the effect that the appeal is without merit. It was further pointed out that the dismissal of an appeal under Order 41, Rule 11(1), is, therefore appealable as a decree. It has also been held by a Bench of this Court in Makhu Sahu v. Kamta Prasad Sahu*, AIR 1934 Pat 341 that a simple order of dismissal may be passed if the appeal is not admitted and it is not until after admission) and after hearing that a judgment is required. Under Order 20, Rule 6, of the Code, the decree, has to agree with the judgment. It is, therefore, apparent that the absence of a formal judgment does not make an order dismissing an appeal under Order 41, Rule 11, of the Code not to be a judgment within the meaning of Order 47, R. 1, of the Code. In a Full Bench decision of the Rangoon High Court in Davabhai Jiwandas v. Murugappa Chettiar, ILR 13 Rang 457 : (AIR 1935 Rang 267 (FB)), it was held that the word “judgment” in clause 13 of the Letters Patent means and is a decree in a suit by which the rights of the parties at issue in the suit are determined. It is, therefore, held that an order dis-1 missing an appeal under Order 41, Rule 11(1), of the Code can be reviewed under Order 47, Rule 1, of the Code.

6. It has then been contended by learned Counsel for the opposite parties that, if a question of law has not been argued at the time of the admission of an appeal, it is not a ground for review. In support of this contention, reliance has been placed on the cases of Kamla Prasad Chaudhuri v. Kunj Behari Mander, AIR 1922 Pat 119, Mst. Ayesha Bai v. Daleep Singh, AIR 1961 Raj 186 and Anthony D'Costa v. Francis Roche Anthony, AIR 1962 Mad 304. In the Patna case it was held that a mere omission to raise a point of law which, had it been raised, might and probably would have brought about a different result, is not necessarily “a mistake or error apparent on the face of the record”. But their Lordships also pointed out that there may be such cases in which; under certain circumstances, review can be granted if the error is apparent on the face of the record. The case of Rajasthan in my opinion is of no assistance to the opposite parties, because in that case the review was sought for on the ground of lack of jurisdiction and it was held that where there was no inherent lack of jurisdiction objection on the ground of want of jurisdiction cannot be allowed to be agitated in a review after the appeal was heard on merits. In the Madras case it was held that a review cannot be granted on the mere ground that the particular Counsel who appeared for a party failed to raise a particular point in spite of instructions. In the present case, however, as the facts stated above show, the appeal was to be argued by the senior Counsel. Mr. K.K Sinha but, as he could not be available, it was argued by a junior Counsel, Mr. Sadhu Saran Sahai. He has filed an affidavit that he did not argue the point as the appeal had to be argued by the senior Counsel, but as he was busy in another Court, he had to argue it as the case was called out for hearing under Order 41, Rule 11, of the Code.

7. In an unreported decision of this Court, in Bhagwat Bhagat v. Tej Narain Singh, Civil Revn. No. 1031 of 1957, disposed of on the 26th October, 1959 (All), it was pointed out that, if the gross error of law is of such a kind which can be characterised as an error of law apparent on the face of the record, it would justify a review of the judgment not only under Order 47, Rule 1, but also under Section 151 of the Code.

8. In Mt. Jamna Kuer v. Lal Bahadur, AIR 1950 FC 131, it was pointed out that where there is an error apparent on the face of the record, whether the error occurred by reason of the Counsel's mistake or it crept in by reason of an oversight on the part of the Court, is not a circumstance which can affect the exercise of jurisdiction of the Court to review its decision. In Govinda Chettiyar v. Varadappa Chettiar, AIR 1940 Mad 17, Patanajali Sastri, J. (as he then was) held that where, owing to the misapprehension the Counsel for the respondents did not urge all his arguments in support of the finding recorded in favour of his client by first Court and the Judge was led thereby to form an erroneous impression that he had no arguments to meet the points raised by the appellant's Counsel, it was analogous enough to an error apparent on the face of the record to be a sufficient reason for a review under Order 47, Rule 1, of the Code and hence the decree of the Judge passed on rehearing the appeal could be sustained as one made on review.

9. On a consideration of the authorities referred to above, my view is that, if the mistake of law is gross and apparent on the face of the record, a review can be granted.

10. The question that comes then to be determined is whether in the present case there was any error apparent on the face of the record. The suit as already stated, was filed by the plaintiffs opposite parties for a declaration that the suit property was their personal property acquired id the name of the deity. The deity was not a party to the suit. No doubt, in paragraph of the plaint, the plaintiffs averred as follows: “That maintaining fully what has been stated above and without admitting anything to the contrary it is so submitted in the alternative that even if the lands detailed below be deemed to have been purchased on behalf of Bhagwatiji, the same being the family deity of Punia Misser the Hindu Religious Trust Act cannot apply to such lands.” Never any prayer was made that the property be declared to be the property of the family deity. The plaintiffs before the lower appellate Court abandoned their case of the suit property being their personal property and the only argument on their behalf was that the suit property is the property of their family deity. The suit, however, has been decreed in favour of the plaintiffs giving them all the reliefs that they claimed which could not, under any circumstance, be granted, unless the deity was a party to the suit. The suit is neither by the deity nor by the plaintiffs on behalf of the deity. A serious question of law, therefore, arises in the case whether a decree can be granted in favour of a person who is not a plaintiff in the suit. If that question could have been raised in this Court, there is no doubt that the appeal must have been admitted. The error, therefore, is apparent on the face of the record and certainly if such a decree could not be granted, the error is a gross one. In that view of the matter, I feel that the order dismissing the second appeal under Order 41, Rule 11, of the Code should be reviewed. The result, therefore, is that the application is allowed, the order of this Court dated the 9th December, 1960, passed in Second Appeal No. 927 of 1960 under Order 41, Rule 11, of the Code is set aside and the appeal is admitted. Let the appeal now be heard and notices issue to the respondents in the appeal. In the circumstances, there will be no order as to costs.

FH/CWM/D.V.C

11. Application allowed.

Krishna Jee And Another v. Rajeshwar Mishra And Others Opposite Party.

Case Summary — Review Application against order dismissing Second Appeal under Order 41, Rule 11 (CPC)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Plaintiffs' (Opposite Parties') Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Krishna Jee And Another v. Rajeshwar Mishra And Others Opposite Party.

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