Shivappa Bin Parsa S... v. Ram Chandra Narsinh ..., Bombay High Court, Judgment, Law, casemine.com

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Case Number

Appeal No. 8 of 1920 from Order

Attorney(S)

G.S Rao, for the appellant.
Sir T.J Strangmanwith A.G Desai, for the respondents.

Judges

Sir Norman Macleod
Kt., C.J
Shah, J.

Acts

section 114 of the Code of Civil Procedure,
section 83 of the Bombay Land Revenue Code.
section 206 of the Code of 1882
Rule 11 of Order XLI
Order XLVII, Rule 1(1),
Rule 23 or Rule 25
Order XLI, Rule 27,
Order XLI, Rule 11,
Rule 7 of Order
Rule 7(1).

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Smart Summary

Factual and Procedural Background

The plaintiffs commenced a suit in 1913 for possession of certain property and mesne profits. The trial Court dismissed the suit on 26 November 1914. The District Judge affirmed that decree on 9 August 1915. The plaintiffs then applied for a review in the District Court (notice issued 27 September 1915) and simultaneously filed a Second Appeal in the High Court on 15 November 1915. The High Court summarily dismissed that Second Appeal under Order XLI, Rule 11, on 11 February 1916. On 16 June 1916 a rule was granted by a High Court judge apparently to entertain a review of the dismissal; the rule remained pending. Meanwhile the District Court proceeded with the plaintiffs' review application; after various proceedings the Assistant Judge directed that the appeal in the District Court should be reheard on its merits (13 November 1919). The defendants appealed from the District Court order directing rehearing and the High Court also considered the pending rule for review of its own dismissal of the Second Appeal.

Legal Issues Presented

Whether a District Court properly retains jurisdiction to entertain and proceed with an application for review of its own decree when the High Court has, by summary dismissal under Order XLI, Rule 11, disposed of a Second Appeal from that decree.
Whether the High Court should grant a review of its summary dismissal under Order XLI, Rule 11, under the provisions for review in Order XLVII (specifically Order XLVII, Rule 1(1)).
Whether the new evidence that the plaintiffs sought to produce in the District Court would, if admitted, have been likely to reverse the decree dismissing the plaintiffs' suit.
Procedural: assuming the District Court rehearing were permitted, whether the appellate Court should itself admit additional evidence or should send the case back to the trial Court for a fresh decision after recording fresh evidence.

Arguments of the Parties

Appellants' Arguments (defendants / respondents to review)

It was urged that once the High Court dismissed the Second Appeal under Order XLI, Rule 11, the application for review before the District Court became wholly incompetent and subsequent District Court proceedings were without jurisdiction.

Respondents' / Plaintiffs' Position

The plaintiffs sought to proceed with their review application in the District Court on the ground of discovery of new and important evidence; they also sought a review of the High Court's summary dismissal so as to remove the legal bar to the District Court review proceedings.
It was argued (or at least implied by the plaintiffs' conduct) that the review application was properly filed in the District Court before any appeal decision in the High Court was made, and that the pendency of the appeal when the review application was filed did not deprive the District Court of jurisdiction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bapu v. Vajir	That a summary dismissal of an appeal leaves the decree of the lower Court untouched; authority relied on by the District Judge.	The District Judge relied on this authority to hold he still had jurisdiction to review his decree. The High Court observed that Bapu v. Vajir concerned amendment under section 206 and did not bind them on the different question of review; the decision was distinguished and noted to have been dissented from by other High Courts.
Pyari Mohan Kundu v. Kalu Khan	Supports the view that a case should not be reopened in the lower Court after an appeal to the High Court has been disposed of.	Chief Justice Macleod cited the Calcutta High Court view in this case as consistent with his conclusion that the District Court could not proceed with review while the appeal dismissal stood. Justice Shah noted the opinion in this case was "entitled to weight" though not necessary to its original decision.
In the matter of the petition of Nand Kishore and Raru Kutti v. Mamad	Procedural expectation that appellants should seek withdrawal or postponement of appeal when concurrent proceedings exist.	Chief Justice Macleod referred to this petition to illustrate that the plaintiffs should have asked the High Court to withdraw or postpone the appeal when the Second Appeal came on for admission.
Narayan bin Sidoji v. Davudbhai valad Fatebhai	Addressed the interplay of appeal dismissal and subsequent review jurisdiction; cited in relation to when District Court has no jurisdiction after appeal dismissal.	Justice Shah cited this case as authority that if an application for review is made after the appeal from the decree is preferred to the High Court and dismissed by that Court, the District Court will have no jurisdiction to entertain the review.
Narayan Purushottam v. Laxmibai	Holds that pendency of a subsequently filed appeal does not necessarily deprive the lower Court of jurisdiction to hear a review properly made.	Justice Shah relied on this decision (with Chenna Reddi v. Peddaobi Reddi and Pyari Mohan Kundu) to show precedents where pendency of an appeal subsequently filed did not deprive the lower Court of jurisdiction to hear a review application.
Chenna Reddi v. Peddaobi Reddi	Same line as Narayan Purushottam: pendency of subsequent appeal does not automatically divest lower Court of jurisdiction to hear review properly filed.	Justice Shah cited this case among authorities supporting the limited concession that a properly filed review can be entertained by the lower Court while an appeal subsequently filed is pending.
Ramappa v. Bharma	Supports the proposition that if an application for review is made after the appeal is preferred and dismissed by the High Court, the District Court will lack jurisdiction.	Justice Shah cited this case alongside Narayan bin Sidoji to identify authorities where review cannot be entertained after appeal dismissal.
Narayan bin Sidoji v. Davudbhai valad Fatebhai (again)	Also cited by Chief Justice Macleod as an instance where the High Court has assisted applicants in review under certain circumstances.	Justice Shah noted that this judgment would show that the High Court has sometimes helped applicants by granting review; Macleod referenced the broader context of High Court practice though Macleod ultimately declined to grant review here.

Court's Reasoning and Analysis

The opinion contains two separately reasoned judgments (Macleod, C.J., and Shah, J.) that converge on the result though they approach certain points differently.

Macleod, C.J. — Reasoning

Macleod outlined the procedural history: trial dismissal (1914), District Judge confirmation (9 Aug 1915), review application in District Court (notice 27 Sept 1915), Second Appeal to High Court (15 Nov 1915) dismissed under Order XLI, Rule 11 (11 Feb 1916), High Court rule for review granted (16 June 1916) and left pending, while the District Court nevertheless proceeded with the review leading to an order for rehearing (13 Nov 1919).
He held that it was unfortunate the High Court's rule for review of its own summary dismissal was not disposed of first, because had that review been allowed the question before the District Judge would not have arisen.
Macleod analyzed the District Judge's reliance on Bapu v. Vajir and concluded that Bapu v. Vajir did not decide the present question (it involved amendment under section 206) and was not binding in the circumstances; some High Courts had dissented from its ratio.
He expressed the view that permitting the lower Court to reopen cases after an appeal to the High Court had been disposed of would undermine finality in litigation; he cited Pyari Mohan Kundu v. Kalu Khan as supporting that view.
Macleod concluded that as long as the appeal to the High Court stood dismissed (whether under Order XLI, Rule 11 or after hearing), no application for review could be entertained or proceeded with in the lower Court.
He then considered the High Court rule of 16 June 1916: the application for review of the High Court's dismissal did not state grounds or affidavits showing new facts; Macleod concluded there was no sufficient reason under Order XLVII, Rule 1(1) to grant review of the dismissal. He emphasized that review requires new facts that became known after the decision and that allowing review on the same state of circumstances would vitiate finality.
Macleod therefore proposed to discharge the rule of 16 June 1916.
Addressing the merits of the plaintiffs' original review of the District Judge's decree, Macleod examined the core factual dispute: whether defendants could take advantage of section 83 of the Bombay Land Revenue Code, and noted that possession by defendant's family since 1799 had been treated as admitted and supported a presumption of long possession. He found nothing in the documents plaintiffs sought to rely upon which could destroy that admission or prove origin of tenancy.
He concluded the fresh evidence plaintiffs sought to adduce would not have reversed the decree dismissing the suit; thus even if procedural defects were overlooked, the evidence would not have changed the result.
Accordingly, Macleod would allow the appeal, discharge the rule for review of the High Court's dismissal under Order XLI, Rule 11, and order that the plaintiffs pay the defendants' costs of all proceedings in all courts.
Lastly, Macleod observed that had the District Court rehearing been allowed, there would be procedural difficulty as to whether the appellate Court should admit additional evidence itself (Order XLI, Rule 27 did not apply) or send the matter back to the trial Court; he suggested logically the suit would have to return to the trial Court to record the fresh evidence and decide the issues anew.

Shah, J. — Reasoning (concurring)

Justice Shah summarized the procedural history similarly and identified that the result depended on whether the High Court should review its summary dismissal under Order XLI, Rule 11.
He noted the petition for review did not clearly state grounds and there was no affidavit explaining the circumstances of dismissal; nevertheless, he observed that the applicants sought to remove a legal bar to their District Court review proceedings.
Shah acknowledged precedents (Narayan Purushottam v. Laxmibai, Chenna Reddi v. Peddaobi Reddi, Pyari Mohan Kundu) that the mere pendency of a subsequently filed appeal does not always deprive the lower Court of jurisdiction to hear a properly filed review. He also cited authorities (Narayan bin Sidoji v. Davudbhai valad Fatebhai, Ramappa v. Bharma) that support the opposite proposition where review is filed after an appeal is preferred and dismissed.
Shah observed there is no decision squarely on whether a properly filed review becomes incompetent by virtue of a subsequent dismissal of the appeal under Rule 11; he regarded the Pyari Mohan Kundu view as entitled to weight but not decisive.
He concluded that the dismissal under Order XLI, Rule 11, does, in his view, cause the District Court to cease to have jurisdiction to proceed with the review petition (i.e., the dismissed appeal leaves the District Court without power to continue the review), and further found that the rule for reviewing the High Court's dismissal could not be justified as keeping the appeal pending simply because the rule was pending.
Justice Shah indicated that, personally, he might have been disposed to allow the High Court review in the interests of justice, but in view of his colleague (the Chief Justice) and the irregular procedure and lapse of time, he concurred in refusing the review and allowing the appeal from order.

Holding and Implications

Core Ruling: APPEAL ALLOWED. The rule for review of the High Court's dismissal of the Second Appeal under Order XLI, Rule 11, is discharged.

Direct consequences for the parties:

The District Court order directing a rehearing on the plaintiffs' review is set aside (i.e., the appeal from that order is allowed).
The High Court declines to review its own summary dismissal under Order XLI, Rule 11 in the circumstances of this case.
The plaintiffs are ordered to pay the defendants' costs of all proceedings in all the Courts.

Wider implications:

The opinion addresses the limits of a lower Court's jurisdiction to proceed with a review application once a High Court has dismissed an appeal under Order XLI, Rule 11. The Court emphasized finality of litigation and required that review of the High Court's order be supported by the statutory grounds for review (e.g., new facts). The Court noted procedural uncertainty about whether an appellate Court should itself take additional evidence or remit the matter to the trial Court if review and rehearing were allowed, suggesting that logically the trial Court should record fresh evidence and decide afresh. The decision applies existing authorities and reasoning to the facts and does not purport to create a new rule of law beyond the analysis in the opinion.

Appeal allowed.

Judgment delivered by Macleod, C.J., with a concurring opinion by Shah, J.

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Shivappa Bin Parsa Savade (Original Opponent), v. Ram Chandra Narsinh Deshpande And Another By Their Next Friend The Court Of Wards (Original Appicants),

Macleod, C.J:— This is an appeal from the decision of the Assistant Judge of Belgaum, who allowed an application for a review of the judgment of the District Judge in Appeal No. 1 of 1915 and directed that it should be reheard on its merits.

The plaintiffs filed the suit in 1913 for possession of the suit property and mesne profits. The trial Court dismissed the suit on the 26th November of 1914. The decree was confirmed by the District Judge on the 9th August of 1915. Thereafter the plaintiffs applied for a review and notice was issued on the 27th September of 1915. On the 15th November 1915 the plaintiffs filed a Second Appeal in the High Court which was dismissed under Order XLI, Rule 11, on the 11th February of 1916. An application for a review of the order of dismissal was entertained on the 16th June of 1916 and a rule was granted, apparently on the ground that the plaintiffs' application for a review of the judgment appealed against was pending. The application in the High Court was unfortunately allowed to remain undisposed of, while the application in the District Court was proceeded with. A point was taken that as the Second Appeal had been dismissed the District Court could no longer entertain an application for a review of its own judgment. On the authority of Bapu v. Vajir(1) the District Judge held that the summary dismissal of an appeal left the decree of the lower Court untouched and therefore he had still jurisdiction to review that decree. He then directed that the question whether the plaintiffs had strictly proved the allegations upon which the prayer for review was based should be tried. On the 13th November of 1919 the Assistant Judge decided that the evidence which the plaintiffs sought to adduce was not only new, but also important as having a very close and material bearing on the issues raised in the appeal, and that the appeal should be reheard on its merits. The appellant appeals against both decisions of the lower Court. On the first question it appears to be most unfortunate that the rule for review issued by the High Court was not first disposed of. If the review had been allowed and the order made under Order XLI, Rule 11, set aside the first question dealt with by the District Judge would not have arisen, for it is clear that an application for a review of a lower Court's judgment if made before an appeal from the same decision is disposed of can be proceeded with. It is equally clear that if the application for review in the District Court had been made after the dismissal of the Second Appeal, it would not have been entertained. If the argument of the District Judge were sound an application for review of the lower Court's judgment could always be entertained whether made before or after an order under Order XLI, Rule 11, because the substantive decree is the decree of the lower Court even after the dismissal of the appeal. The fact that in Bapu v. Vajir the High Court decided that an application to amend a decree, an appeal from which had been summarily dismissed, should be made to the lower Court, does not appear to decide the point before us. The Judges may very well have thought that an application to amend a decree under section 206 of the Code of 1882 in the limited circumstances mentioned therein should be made to the Court which passed the decree, and not to the Court which summarily dismissed an appeal therefrom, and the ratio decidendi may have been that the decree of the lower Court continued to be the substantive decree, but that decision is not binding on us when having to determine an entirely different question, and it has been dissented from by the High Courts of Calcutta, Madras and Allahabad. There would be an end to all certainty in litigation if a case could be reopened in the lower Court after an appeal to the High Court had been disposed of. This was the view taken by the Calcutta High Court in Pyari Mohan Kundu v. Kalu Khan(2).

In my opinion, therefore, as long as the appeal to the High Court stood dismissed, whether under Order XLI, Rule 11, or after hearing, no application for a review could be entertained or proceeded with in the lower Court. It is necessary therefore to deal with the rule granted by Batchelor J. on the 16th June of 1916. Neither in the application for review nor in the applicant's affidavit are any grounds stated on which the application could have been granted, but we may assume that it was mentioned to the learned Judge that an application for review was pending in the District Court. The plaintiffs of course should have asked the Court, when the Second Appeal came on for admission, either for leave to withdraw it or for a postponement until the result of the review proceedings had become known: In the matter of the petition of Nand Kishore and Raru Kutti v. Mamad. The fact that they continued to press for the admission of the appeal, and incurred the risk of the appeal being dismissed, when they knew that they were asking the lower Court for a rehearing on fresh evidence, shows that their legal advisers had no clear conception of the trouble which would arise from concurrent proceedings in two Courts. For, if my view is correct and the District Judge was incompetent to review his own decree as long as the Second Appeal stood dismissed then all his proceedings in review had been without jurisdiction, and if we set aside the order under Order XLI, Rule 11, the application for review would have to be considered afresh in the lower Court. But in my opinion there is no sufficient reason within the meaning of Order XLVII, Rule 1(1), why we should grant a review of the order under Order XLI, Rule 11. If a party elects to proceed with an appeal and gets a decision against him, it is no ground for a review that if he had known the decision, would go against him he would have taken a different course. No new facts had become known since the decision sought to be reviewed, and that is really what the Legislature has ordained should be shown before a review can be granted. If the words for “any other sufficient reason” were read in their widest sense a review could always be granted on the same state of circumstances as existed at the time of the hearing, and there would be an end to all finality of judicial proceedings.

I would therefore discharge the rule of the 16th June of 1916.

However, as all the judgments of the lower Court are before us I should like to say that it does not appear that any case was made out for the review of the original judgment of the District Judge. The real question at issue was whether the defendants could take advantage of section 83 of the Bombay Land Revenue Code. It was proved that they and their ancestors had been on the land since 1799 and there was no evidence with regard to the origin of their possession, which clearly went far enough back into antiquity to gave rise to the presumption that their possession was co-extensive with the plaintiffs' title. Whether the plaintiffs were owners of the soil or only grantees of the land revenue, a point to which the learned Assistant Judge seems to have attached such great importance, is absolutely immaterial in determining the nature of defendant's possession, and considering that it appears from the judgment of the Court in first appeal that all parties took it as admitted that the defendant's family had been in possession since 1799 at least, there is nothing in the documents which the plaintiffs now seek to rely upon which could destroy the effect of that admission or prove the origin of the tenancy.

Therefore, however much I might be inclined to overlook any matters of defective procedure in order that the issues between the parties might be finally determined on the materials now alleged to be available, it seems obvious that the evidence which the plaintiffs seek to produce would not result in a reversal of the decree dismissing the plaintiffs' suit.

The appeal, therefore, must be allowed and the rule for review of the decision of this Court dismissing the appeal under Order XLI, Rule 11, discharged. The plaintiffs must pay the defendant's costs of all proceedings in all the Courts.

A question might have arisen if the order for rehearing of the appeal in the District Court had been allowed to stand, whether the appellate Court should have admitted the additional evidence or sent the case back to the trial Court. The proper procedure is by no means clear. The evidence would not have been additional evidence which an appellate Court can take itself under Order XLI, Rule 27, nor would Rule 23 or Rule 25 apply, and it seems to me that the logical result of the appellate Court granting the review would be that the suit would have to go back to the trial Court for a fresh decision of the issues after recording the fresh evidence.

Shah, J.:— In this case the District Court decided the appeal on the 9th August 1915 against the plaintiffs. The plaintiffs then filed an application for review in the District Court on the ground of discovery of new and important evidence on the 20th September and a rule was granted on the 27th September. On 15th November the plaintiffs filed a Second Appeal in this Court. This appeal was summarily dismissed under Order XLI, Rule 11, on the 11th February 1916. An application for a review of this order dismissing the Second Appeal was made and a rule was granted. That rule is still pending.

After obtaining this rule the plaintiffs proceeded with the review petition in the District Court. That Court held on the 22nd July 1918 that it had jurisdiction to deal with the petition in spite of the dismissal of the Second Appeal. The application was then transferred to the Assistant Judge, who heard it on the merits, made the rule absolute and directed a rehearing of the appeal on the 13th November 1919.

The defendants have appealed from this order. We have now heard the appeal from order and the rule on the application for review in the Second Appeal.

In my opinion the result of the appeal must ultimately depend upon the view which we take of the plaintiffs' application for the review of the dismissal of their Second Appeal. I shall, therefore, first deal with the review petition.

The petition does not clearly state the grounds for review, and there is no affidavit as to the circumstances under which the appeal came to be dismissed. It is obvious, however, that the applicants seek to get rid of the dismissal of the appeal, which might stand in their way as regards the review proceedings in the District Court. There is no substantial difference between an appeal dismissed under Rule 11 of Order XLI and an appeal withdrawn in the result, except as regards its effect on the right of the appellants to apply for a review of the lower appellate Court's decree. By asking this Court to review its order of dismissal, the appellants do not ask us to adjudicate the merits of the appeal in any different sense but seek merely to get rid of a legal bar to their review application, which when it was made to the District Court was in order. For the purpose of the review here, it must be assumed, and in the present case the assumption would not be without justification in view of the conclusion reached by the lower appellate Court on the merits of the review petition, that the applicants may have reasonable grounds to apply for a review of the decree of the District Court. Under such circumstances this Court has usually not refrained from helping the applicant, as the judgment in Narayan bin Sidoji v. Davudbhai valad Fatebhai would show. The discretion must be exercised with reference to the circumstances of each case as to whether it is requisite in the interests of justice to grant a review. Speaking for myself I should be disposed to allow the review asked for. But my Lord the Chief Justice is not prepared to grant the review: and in view of the irregular procedure adopted by the applicants, and the lapse of time, I am not prepared to dissent from that conclusion. The result, therefore, is that the application for review must be rejected.

The appeal from order must necessarily be considered on the footing that the dismissal of the Second Appeal stands. It is clear that the appeal must be considered subject to the limitations contained in Rule 7 of Order XLVII. It is also clear that the order made by the lower appellate Court is not open to any of the objections mentioned in Rule 7(1). The application was made in time, it is found to satisfy the requirements of Rule 4 and the order is made in accordance with the provisions of Rule 2. I do not think that it is open to us to go into the merits of the order beyond the scope of the objections stated in Rule 7.

It is urged, however, that the application for review became wholly incompetent when the High Court dismissed the Second Appeal, and that the subsequent proceedings are without jurisdiction.

It is clear on the admitted facts that; the review petition was in order when it was presented to the District Court. Under section 114 of the Code of Civil Procedure, the plaintiffs were entitled to apply for a review of the decree of the District Court as at the date of the application no appeal was preferred to this Court. It is also clear that the mere fact of their having preferred the Second Appeal did not create any bar in the way of their proceeding with the application. It has been held that the pendency of the appeal subsequently filed would not deprive the lower Court of its jurisdiction to hear the application: see Narayan Purushottam v. Laxmibai, Chenna Reddi v. Peddaobi Reddi and Pyari Mohan Kundu v. Kalu Khan(3). It is also indisputable that if an application for review were made to the District Court after the appeal from the decree sought to be reviewed is preferred to the High Court and dismissed by that Court, the District Court will have no jurisdiction to entertain the application: see Narayan bin Sidoji v. Davudbhai valad Fatebhai(4), and Ramappa v. Bharma(5). The question that arises in this appeal is whether an application properly filed becomes incompetent in virtue of the subsequent dismissal of the appeal under Rule 11 of Order XLI by the High Court. There is no decision on this point. The opinion expressed in Pyari Mohan Kundu v. Kalu Khan on this point was not necessary for the decision of the case. That opinion, however, is entitled to weight. It seems to me rather anomalous that the Court which has jurisdiction to deal with a review application properly made to it, should cease to have jurisdiction to proceed with it because of an order in the appeal from that decree of the Court, which leaves the decree untouched, and which has not the effect of confirming or varying that decree. The observations in Bapu v. Vajir as to the effect of summary dismissal of an appeal on the decree appealed from ought to have the same force in a case like the present. It is true that the application in Bapu v. Vajir was one for an amendment of the decree and not for a review thereof. A review application is subject to certain statutory limitations which do not apply to an application for an amendment of the decree. It is clear that after the appeal is summarily dismissed, it is difficult to predicate, as required by the provisions of the Code, that no appeal has been preferred from the decree sought to be reviewed. It is difficult to extend the concession in favour of the party seeking a review beyond the stage to which the decisions of the type of Narayan Purushottam v. Laxmibai have carried it. Though it may be somewhat anomalous it seems to me that in virtue of the dismissal of the appeal under Rule 11 by this Court, the District Court ceased to have jurisdiction to proceed with the review petition, which was quite in order, when it was made.

Though it has not been suggested in argument, I have considered whether the pendency of the rule issued on the application to this Court for a review of the dismissal of the appeal, could justify our holding that the appeal was pending during all that time. If the appeal can be legitimately treated as pending while the rule was pending in this Court; the position would be covered by the decisions to which I have referred. But I do not think that without straining language beyond all reasonable limit, the appeal which was dismissed can be held to be pending simply because the rule on the review petition was pending. In form and in substance the appeal was disposed of, when it was dismissed.

Without expressing any opinion on the merits of the application for review in the District Court, the appeal from order must be allowed. Accordingly I concur in the order proposed by the Chief Justice.