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Bhera v. Board Of Revenue
Structured Summary of the Opinion
Factual and Procedural Background
Three writ petitions were filed under Article 226 of the Constitution of India challenging actions of the Board of Revenue. The common factual-procedural matrix was that different learned Members of the Board of Revenue, following the Full Bench decision in Madhosingh v. Motilal, 1971 RRD 194, had declined to entertain or hear three review petitions filed by the petitioners. The reason given by the Board was that the judgments sought to be reviewed had been rendered by Members who were no longer attached to the Board, and therefore, under the Board's interpretation of Order 47, Rule 5 of the Code of Civil Procedure, the review petitions had to fail. The petitioners contended that the Board's reliance on Madhosingh's case was erroneous; the non-petitioners supported the Madhosingh view. The High Court considered these three writ petitions together and determined the correctness of the Board's interpretation of Order 47, Rule 5 and related statutory provisions.
Legal Issues Presented
- Whether Order 47, Rule 5 of the Code of Civil Procedure (which prescribes which judge(s) should hear a review application in a multi-judge court) should be interpreted to produce a total bar to review when the judge or judges who passed the decree or order sought to be reviewed are no longer attached to the court (for reasons such as transfer, retirement, death, resignation or prolonged absence beyond six months).
- Whether the Board of Revenue's power to review "any decree or order made by itself or by any of its members" (as expressed in Section 229 of the Rajasthan Tenancy Act) should be read as empowering the Board, as an entity, to entertain review applications even when the specific Member(s) who delivered the original order are not available to hear the review.
- Whether the Full Bench decision in Madhosingh v. Motilal (1971 RRD 194 (FB)) correctly interpreted Order 47, Rule 5 CPC and related authorities, or whether that decision should be held to be wrongly decided.
Arguments of the Parties
Petitioners' Arguments
- The petitioners contended that the view taken in Madhosingh v. Motilal (1971 RRD 194 (FB))—which effectively barred review if the Member(s) who passed the order were no longer attached to the Board—was erroneous.
Respondents' / Non-petitioners' Arguments
- The learned counsel for the non-petitioners supported the view in Madhosingh's case for the reasons given in that Full Bench decision, i.e., that Order 47, Rule 5 should be applied so that only the original judge(s) may hear the review when they remain attached and are not precluded from acting.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Madhosingh v. Motilal, 1971 RRD 194 (Full Bench, Board of Revenue) | Held that if the Member(s) who passed the decree or order sought to be reviewed are not attached to the Court, the right of review is totally barred (per interpretation of Order 47, Rule 5). | The court held that Madhosingh's Full Bench decision was wrongly decided, rejected its interpretation of Order 47, Rule 5, and quashed Board of Revenue orders that had followed Madhosingh. |
| Sirkar v. Valayudhan Ponnan, AIR 1953 Trav-Co 1 (Full Bench) | Reportedly took the view (adopted by some Members of the Travancore-Cochin High Court) that supported a restrictive interpretation of Rule 5 (basis for the Board's approach). | The opinion records that this authority formed the basis for the Board of Revenue's view, but the court preferred the contrary view and did not adopt Sirkar's restrictive interpretation. |
| Naravanan v. Raman, AIR 1953 Trav-Co 306 (Full Bench) | Expressed a view contrary to Sirkar, supporting a less restrictive interpretation of the rule governing review in multi-judge courts. | The court stated its respectful agreement with Naravanan's view and adopted that approach in preference to Sirkar/Madhosingh. |
| Chhaihu Ram v. Neki, AIR 1922 PC 112 (Privy Council) | Interpreted the "any other sufficient reason" limb of Section 114 CPC as causes analogous to discovery of new evidence or obvious error—thus supporting review to serve justice. | The court relied on this interpretation to emphasize that review is available for causes analogous to the first two grounds and to support a purposive approach to review remedies. |
| Frame v. Clement (1881) 18 Ch D 499 | Statutory interpretation principle: adopt an interpretation that makes the law uniform and remedies the evil the law targets; avoid technical or absurd readings. | The court quoted this authority to support a construction of procedural rules that preserves uniformity and prevents anomalous or unpredictable denial of substantive rights. |
| Mali Mohan Kanwar v. The State of Rajasthan, AIR 1967 Raj 264 | Addressed availability of review where at least one member of the court who heard the matter is available; indicates review may be heard by the available member. | The court relied on this decision to support the proposition that a review application should not be barred merely because some original member(s) are unavailable; if one member is available, he may hear the review. |
Court's Reasoning and Analysis
The court approached the matter by first placing the remedy of review in its legal context: review is a statutory remedy (a creature of statute) borrowed historically from equitable practice and governed by the provisions of the Code of Civil Procedure and any relevant substantive statutes (here, Section 229 of the Rajasthan Tenancy Act). It observed that Section 229 expressly permits the Board to review "any decree or order made by itself or by any of its members," which, in the court's view, indicates that the Board as an entity can exercise review power irrespective of which individual Member originally delivered the decree or order.
The court examined the language and purpose of Order 47, Rule 5 CPC. It construed the rule as primarily procedural and intended to give the judge or judges who originally passed the decree an opportunity to reconsider it if they remain attached to the court when a review application is presented. The six-month period referenced in the rule was interpreted as a permissible waiting period to allow return of the original judge(s), not as a provision that automatically destroys an applicant's right of review if the judge(s) thereafter cease to be attached or remain unavailable beyond that period.
The court rejected the Full Bench interpretation in Madhosingh that would create a "total bar" to review whenever the original Member(s) were not attached at the time of consideration. It explained that adopting such a technical construction would produce anomalous and unfair results, making the availability of review dependent on contingencies beyond the applicant's control (e.g., administrative transfers, retirements, death). The court invoked accepted principles of statutory construction (including authorities quoted from Frame v. Clement and Sutherland on Statutory Construction) to favor an interpretation of procedural rules that secures adjudication on merits and avoids absurdity.
The court relied upon prior contrary authorities (notably Naravanan v. Raman) and Mali Mohan Kanwar to conclude that the restrictive reading in Madhosingh was incorrect. It considered Mulla's commentary on Section 114 CPC and the Privy Council's Chhaihu Ram decision to emphasize that review exists to correct errors apparent on the face of the record, to admit newly discovered material, or for analogous sufficient reasons, and should not be defeated by purely technical readings of procedure.
On this basis, the court held that the Board's orders refusing to rehear the review petitions (having applied Madhosingh's interpretation) were legally unsustainable and required quashing and reconsideration in light of the correct interpretation of Order 47, Rule 5 and the statutory power of the Board under Section 229.
Holding and Implications
Core Ruling: All three writ petitions are accepted; the Full Bench decision in Madhosingh v. Motilal (1971 RRD 194 (FB)) is held to be wrongly decided for the purposes stated in this opinion, and the Board of Revenue orders impugned in the three writ petitions are quashed and set aside.
Direct consequences for the parties:
- The specific Board of Revenue orders dated 22-1-1971 (in writ petition No. 2032/71), 12-1-1972 (in writ petition No. 634/72) and 13-2-1973 (in writ petition No. 687/73) are quashed.
- The Board of Revenue is directed to rehear the review applications referred to in those matters in the light of the observations and legal conclusions set out in this opinion (i.e., applying the interpretation of Order 47, Rule 5 favored by this court).
- All three writ petitions are allowed; there will be no order as to costs.
Broader implications discussed by the court: The opinion emphasizes that a narrow, technical reading of a procedural provision that defeats substantive rights or produces unpredictable results must be avoided. The court preferred the construction that preserves the availability of review and allows the Board (as an entity) to exercise review jurisdiction even when the original Member(s) are not available, consistent with Section 229 of the Rajasthan Tenancy Act and the remedial purpose of Section 114 CPC. The court explicitly concluded that the Madhosingh Full Bench ruling had been wrongly decided for the reasons given in the opinion.
1. These three writ petitions under Article 226 of the Constitution of India raise an identical question and can be disposed of by a single judgment. Different learned Members of the Board of Revenue by their judgments of different dates following the decision of the Full Bench of the Board of Revenue in Madhosingh v. Motilal, 1971 RRD 194 declined to hear the three review petitions of the petitioners before us, on the ground that the judgments against which those review applications were made, were rendered by the Members who were no longer attached to the Board of Revenue and the petitions failed in view of the interpretation siven to Order 47, Rule 5 of the Code of Civil Procedure by the Full Bench of the Board of Revenue.
2. While the learned counsel for the petitioners before us contend that the view taken in Madhosingh's case 1971 RRD 194 (FB) (Board of Rev.) is erroneous, the learned counsel appearing for the non-petitioners supported it for the reasons given therein.
3. In Madhosingh's case 1971 RRD 194 (FB) (Board of Rev.) the view taken by the learned Members of the Board of Revenue has been expressed in para. 53 of the judgment, which reads:--
"To sum up, the conditions for Rule 5 of Order 47 of the Code of Civil procedure to come into play are (i) that the Member or Members or any one of them who passed the decree or order sought to be reviewed continues or continue to be attached to the Court at the time when the application for review is presented, and (ii) that such Member or Members is not or are not precluded i. e. prevented, by absence of other cause for a period of six months next after the presentation from considering the decree or order sought to be reviewed. If these conditions are satisfied, only the Member or Members referred to shall hear the application. They may hear it within the period of six months or even after the expiry of that period. No other Member or Members can in the circumstances (i. e. if the said conditions are satisfied) hear the application, either within the six months or even after the expiry of that period. In that event, the bar against other Members hearing the application is a total bar. This prohibition applies to both the stages of hearing of the application, namely the ex parte hearing stage for admission, and if the application is admitted, the subsequent stage of hearing both parties after notice."
The above view was taken by the learned Members on the basis of the decision of the Travancore-Cochin High Court reported in Sirkar v. Valayudhan Ponnan. AIR 1953 Trav-Co 1 (FB). In that case Sankaran, Gangadhara Menon, JJ. have taken the view which has been adopted by the Board of Revenue while Subramania Iyer, J. took a contrary view. Another Full Bench of the Travancore-Cochin High Court consisting of Sankaran, Govinda Pillai and Subramania Iyer, JJ. took a diametrically opposite view in Naravanan v. Raman, AIR 1953 Trav-Co 306 (FB).
4. We are in respectful agreement with the view taken in Naravanan's case AIR 1953 Trav-Co 306 (FB) and we shall presently state our reasons for so doing.
5. The remedy of review, which is a reconsideration of the judgment at the same level by which it was rendered, appears to have been borrowed from the Courts of Equity. There was no such remedy available at Common Law. This remedy has a remarkable resemblance with the remedy known as writ of error. Nevertheless, like appeal the remedv by way of a review is a creature of statute. Unless authorised by law expressly or by implication a right to ask for a review of a judgment delivered cannot be assumed. Therefore, in order to ascertain its authority and scope, reference will have to be made to the relevant statutes. The cases before us are revenue cases. Section 229 of the Rajasthan Tenancy Act lays down :--
"229. Power of review by Board and other Revenue Courts:-- Subject to the provisions of the Code of Civil Procedure. 1908 (Central Act V of 1908) :--
(1) the Board of its own motion or on the application of a party to a suit or proceeding, may review and may rescind. alter or confirm any decree or order made by itself or by any of its members; and (2) everv Revenue Court, other than the Board, shall be competent to review any decree, order or iudgment passed by such Court."
The aforesaid provision is subject to the provisions of the Code of Civil Procedure, 1908, but what is remarkable to be noticed in the above section are the words that the Board may review any decree or order made by itself or by any of its members. This is indicative of the fact that the review is done by the Board as an entity regardless of the fact that the judgment might have been rendered by any of its members. These words, in our opinion, help us immensely in taking the view that we are adopting.
6. The power of review is conferred by Section 114 of the Code of Civil Procedure, which circumscribes the conditions in which a review could be sought. Mulla in his commentary on the Code of Civil Procedure. 13th Edition 1967 at page 1668 says,---
"A partv aggrieved by a decree or a decision specified in Clause (1), (b) or (c) of Sub-rule (1) [see Section 114] may apply for a review in any of the following cases:
I. on the ground of discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the party or could not be produced by him at the time when the decree was passed or order made: or II. on account of some mistake or error apparent on the face of the record: or III. for any other sufficient reason."
In our opinion, the first case serves the cause of truth provided, the seeker of the remedv could not place it before the Court earlier despite diligence. The second ground impliedly recognises the universally accepted principle of human fallibility. If there is an error manifest on the record due to human failing it should not be permitted to perpetuate an error and thereby defeat iustice. The third ground has been interpreted by the Privy Council in Chhaiiu Ram v. Neki, AIR 1922 PC 112 to mean those causes which are analogous to the first two. Discovery of truth or human error or any other similar cause authorises a Court to reconsider its iudgment already rendered for the obvious purpose of serving the cause of iustice to the parties before it. Order 47, Rule 5 of the Code of Civil Procedure reads as follows:--
Order 47, Rule 5. Application for review in Court consisting of two or more Judges:-- Where, the Judge or Judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or anv of them shall hear the application, and no other Judge or Judges of the Court shall hear the same.
As the marginal note of the rule indicates, it lays down the procedure for the consideration of a review application by a Court which consists of two or more Judges. In our opinion, this rule means nothing more than this that where the Judge or Judges or any one of the Judges who passed the decree or made the order, a review of which is applied for. continues or continue attached to the Court at the time when the application for a review is presented, such Judge or Judges alone shall hear the application, and no other Judfie or Judges of the Court shall hear the same. This rule shall be adhered to even if such Judge or Judges is or are precluded by absence or other cause for a period of 6 months next after the application from considering the decree or order to which the application refers. This rule cannot be interpreted to mean that the right of review is totallv barred if the Judfie or Judges who heard the matter under review are not available due to retirement, resignation, transfer, physical inability or death or for anv other reason (and) the applicant's right of review is lost The waiting period of six months is the limit upto which the review application may be kept pending in the prospect of the return of the Judge or Judges. The view which has been taken in Velavu-dhan's case, AIR 1953 Trav-Co 1 (FB) and which has been adopted in Madhosingh's case 1971 RRD 194 (FB) is that if for any reason such Judge or Judges is or are not available when such an application comes to be considered then the right of review itself is totallv barred. We regret, with respect, we are unable to agree with such a view. In our opinion, the intention of the Legislature was that if an error apparent on the face of the record is sought to be pointed out then Rule 5 provides that the Judge or Judges who had fallen into the alleged error should have an opportunity to reconsider it. The period of 6 months has been provided so that even at the expense of 6 months' delay if this rule could work it should be adhered to. It cannot be construed to mean that the right of review itself would stand negatived if for some reason such Judge or Judges ceased to occupy the position or are not available for anv length of time bevond 6 months. The language of the rule does not justify such an interpretation. Even if for the sake of argument we were to assume that the language of the rule is capable of such an interpretation which has been taken in Velayudhan's case or by the learned Members of the Board of Revenue, we would still reject such an interpretation for several reasons.
7. In Frame v. Clement, (1881) 18 Ch D 499 at p. 508, Jessel M. R. observed :--
"We ought to adopt that interpretation which will make the law uniform, and will remedv the evil which prevailed in all the cases to which the law can be fairly applied."
(Quoted in Craies on Statute Law. Seventh Edition at page 95) It would be anomalous to hold that the right of review would become unpredictable on the continuance or discontinuance of the Members of the Board of Revenue or the Judge of the Court. Such an interpretation would render the availability of the remedy dependent on circumstances over which an applicant has evidently no control. Faith in the rule of law itself gets disturbed when the availability of a relief becomes erratic.
8. Order 47, Rule 5 of the Code of Civil Procedure is basically a procedural statute. Sutherland Statutory Construction. Volume 3, (1943) Edition, para. 6802 makes the following significant observations :--
"Legislation designating the method of enforcing and establishing substantive rights, as a general rule, is enacted not for an end in itself, but to provide a better way of accomplishing an end. Statutes on procedure, then, have as their obvious purpose the providing of expeditious means whereby the plaintiff holding a cause of action may enforce his right, and the facilities whereby the defendant may interpose his defences. Therefore, the judiciary has generally been very gener ous in the treatment of statutes relating to procedure .....
An interpretation of a procedural statute which insures that a case will be considered on its merits so that substantive rights will be Presented is to be highly preferred. Mere technicalities should not be permitted to impede the trial of a case, and so an interpretation which is highly technical, or results in absurdity or iniustice is to be avoided."
9. It is easy to imagine that acceptance of an interpretation given by the Board of Revenue is likelv to lead to strange results and anomalies. The review application of an applicant, however good in law, will be lost if official exigencies force a certain Member of the Board of Revenue to leave that office; whereas another applicant similarly situated may not suffer, from such a handicap. Procedural law ig not erratic but is an instrument for the attainment of justice, and if the language can reasonably bear an interpretation of its uniform application, which in our opinion Order 47. Rule 5, Civil P. C. does, then such an interpretation alone can be given to it rather than an interpretation which tends to strange results and anomalies. A legal battle is ordinarily a conflict of interests and the procedural law is the accepted path on which would travel the process of settlement. This oath has for its foundation principles of natural justice, sound reason and good conscience. Any interpretation which detracts from the certainty of the path or makes it freakish, anomalous or uncertain has to be avoided because it will lend unpredictability to the process,
10. One word more and we have done. The learned Members of the Board of Revenue in Madhosinsh's case, 1971 RRD 194 (FB) have unfortunately not fully appreciated the full implications of Mali Mohan Kanwar v. The State of Rajasthan, AIR 1967 Raj 264. That case governed an altogether different situation and has not taken the view which supports the Board's decision. As a matter of fact this authority savs that even if one member of the Court out of those who heard the ease is available the review application should be heard by him alone. We respectfully agree with the view.
11. The net result is that Madhosingh's case, 1971 RRD 194 (FB) has been wrongly decided and resultantly the orders dated 22-1-1971' in writ petition No. 2032/71. dt. 12-1-1972 in writ petition No. 634/72 and dt. 13-2-1973 in writ Petition No. 687/73 passed by the Board of Revenue are quashed and it is directed to rehear the review applications in the light of the observations made above.
12. All the three writ petitions are accepted but there will be no order as to costs.
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