Srimati Garabini Kamarin v. Suraja Narain Singh, Patna High Court, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Case Number

Letters Patent Appeal No. 23 of 1922.,L.P.A No. 23 of 1922

Advocates

Sailen Nath Butt, for the appellants.
Nitai Chandra Ghosh, for the respondents.

Judges

Dawson Miller, C.J
Mullick, J.

Acts

provisions of rule 2 or of the provisions of rule 4 of the Order. Rule 2
section 376 of the Civil Procedure Code of 1859 (Act VIII of 1859)
SECTION 42 SPECIFIC RELIEF ACT
rule 7 of Order XLVII of the Civil Procedure Code,
Order XLVII, rule 7, of the Civil Procedure Code,
rule 2 of Order XLVII or of section 626
Order XLVII, rule 7, coupled with rule 4
section 170 of the Bengal Tenancy Act
Order XLVII, rule 7,
Order XXI, rule 90,

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Smart Summary

Factual and Procedural Background

This opinion arises from an application for review of a trial court's decree and subsequent appeals from orders connected with that review. The review was originally granted by the permanent Munsif (after proceedings before an Additional Munsif and merger of courts), apparently on the ground that a Full Bench decision of the High Court (the ruling in Asarfi Singh v. Ram Khelawan Singh) had not been placed before the Munsif at the first trial. The order granting the review was impugned on appeal to a Subordinate Judge and then in the High Court. The litigation concerns a rent suit in which a landlord obtained a decree against a recorded tenant (allegedly collusive) and the status and remedies available to a transferee of a portion of a non-transferable occupancy holding who claims possible prejudice from that decree. The High Court judges considered (a) whether the order granting review was properly open to challenge in appeal under the Civil Procedure Code (specifically Order XLVII, rules 1, 2, 4 and 7), and (b) on the merits whether the plaintiffs (transferees) had a maintainable cause of action against the landlord where no present loss had been shown.

Legal Issues Presented

Whether, under Order XLVII of the Civil Procedure Code (particularly rule 7 read with rule 4), respondents were precluded from questioning the propriety of an order granting a review in an appeal from the final decree.
Whether a judgment proceeding upon an incorrect exposition of the law constitutes a "mistake or error apparent on the face of the record" (i.e., is such an error a ground of review under Order XLVII, rule 1).
Whether the discovery of a binding authority (a Full Bench decision) not placed before the trial court constitutes "new and important matter or evidence" within the meaning of Order XLVII, rule 1 and, if so, whether strict proof that it could not have been produced at the original hearing was required under rule 4.
Whether a transferee of a portion of a non-transferable occupancy holding, who has not suffered present damage, may maintain a suit for a declaration that a decree obtained by the landlord against the recorded tenant is void (including whether Section 42 of the Specific Relief Act affords such a remedy absent actual damage).
Whether a decree obtained by collusion between landlord and tenant, without proof of damage to the transferee, gives the transferee a cause of action against the landlord.

Arguments of the Parties

Appellants' Arguments

It was contended that Order XLVII, rule 7 of the Civil Procedure Code limits the grounds upon which an order granting an application for review may be objected to in appeal and therefore precluded the respondents from questioning the propriety of the review order in this case.
The appellants argued that the order granting review had been made on the ground of a mistake or error apparent on the face of the record (rather than discovery of new evidence) and so was final and not open to attack in the appeal from the decree.
It was contended that the decisions of the Munsif and of the Subordinate Judge on appeal accurately interpreted the law as laid down in Asarfi Singh v. Ram Khelawan Singh, and that the Full Bench ruling supported the grant of review or the relief obtained.

Respondents' Arguments

The respondents (and the High Court judges who agreed with them) argued that the grant of review was irregular because a review based on the discovery of an intervening Full Bench decision is effectively a claim that the original judgment proceeded upon an incorrect exposition of the law, which, following the Privy Council decision in Chhajju Ram v. Neki (1922), is not a ground of review under Order XLVII, rule 1.
They further contended that, even if the discovery of the Full Bench decision were treated as "new and important matter," rule 4 of Order XLVII requires strict proof that the matter was not within the applicant's knowledge or could not have been produced at the time of the original decision; no such proof was supplied and, given that the Full Bench decision was published in authorised law reports four months before the trial, ignorance could not be accepted.
On the merits, respondents argued that the plaintiffs (transferees) had suffered no present loss and therefore had no cause of action against the landlord; a suit against the landlord would only lie where the transferee could show actual damage or a direct challenge to his possession (as in the contrasting case of Lala Brahmdeo Lal v. Sheo Prasad Lal).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chhajju Ram v. Neki (Privy Council, 1922)	Holds that where the ground of review is that the judgment proceeded upon an incorrect exposition of the law, such a ground is not available under Order XLVII rule 1; the third ground ("any other sufficient reason") must be analogous to the first two.	The court treated this decision as dispositive: it concluded that a wrong exposition of law is not a ground of review and therefore the appellants could not rely on "error on the face of the record" to justify the review; the Privy Council authority was used to set aside the order granting the review.
Sharup Chand Mala v. Pat Passee	Supports the view that a wrong application of the law may constitute an error on the face of the judgment.	The opinion noted that some Indian decisions support this view but treated the matter as conclusively resolved by the Privy Council in Chhajju Ram, limiting the precedential weight of Sharup Chand Mala in the present context.
Asarfi Singh v. Ram Khelawan Singh (Full Bench)	Full Bench decision relied upon by the applicants for review; relevant to the question of whether a transferee can challenge a landlord's decree against a recorded tenant.	The court held that the facts of the present case were not governed by the Full Bench decision because that decision was based on a finding that the plaintiff there had suffered loss; hence the Full Bench ruling did not justify the relief claimed by the plaintiffs here.
Gananath Satpathy's case (Division Bench)	Decision of a Division Bench followed by the Additional Munsif.	The court observed that following a Division Bench decision was not an apparent error on the face of the record and that even if a Full Bench had overruled the Division Bench, that would not be a sufficient ground for review; thus following the Division Bench did not make the review mandatory to set aside.
Dayamaype's case (Full Bench)	Addresses rights of a transferee of a portion of a non-transferable occupancy holding — e.g., transferee may apply under Order XXI, rule 90 to have a sale set aside for irregularity but cannot prevent sale by depositing arrears under section 170.	The court relied on this Full Bench ruling to explain the transferee's remedial options and to support the conclusion that a transferee cannot sue the landlord for a declaration that a decree against the recorded tenant is void unless the transferee shows actual damage caused by the landlord's act.
Lala Brahmdeo Lal v. Sheo Prasad Lal	Illustrates circumstances where a transferee, having deposited decretal amount under section 170 of the Bengal Tenancy Act and acquired a mortgage lien and possession, has a direct relationship with the landlord and can challenge a collusive decree.	The court contrasted that case with the present facts: because in Lala Brahmdeo Lal the transferee had become directly involved with the landlord (mortgage lien and possession), a suit was maintainable; by contrast, in the present case no such relationship or damage was shown.

Court's Reasoning and Analysis

The Court's analysis proceeded in two major strands: (A) procedural reviewability under Order XLVII of the Civil Procedure Code, and (B) the substantive question whether the transferees had a cause of action against the landlord in the absence of demonstrable damage.

(A) Procedural reviewability under Order XLVII

The judges examined Order XLVII as a whole: rule 1 lists the grounds for review (discovery of new evidence, mistake or error apparent on the face of the record, or any other sufficient reason); rule 4 (proviso (b)) requires strict proof when the ground is discovery of new matter; rule 7 limits the grounds upon which an order granting review may be objected to in appeal.
Dawson Miller, C.J., adopted the Privy Council's analysis in Chhajju Ram v. Neki (1922): a judgment said to have proceeded upon an incorrect exposition of law does not fall within the first two grounds of rule 1, and the third ground must be analogous to the first two. Consequently, a wrong exposition of law is not a proper ground of review.
Because the review in this case was granted on the ground that the Munsif relied on case law which had been modified by a subsequent Full Bench decision (i.e., an allegation of wrong exposition of law), the Privy Council authority precluded characterizing that as an "error on the face of the record." As such, appellants could not successfully argue that the review was properly granted on that basis.
Even if the petitioners' claim were recast as discovery of new matter (the Full Bench decision), rule 4 required strict proof that the decision was not within the applicant's knowledge or could not have been produced at the trial. No such proof was given; the Full Bench decision had been published in authorised law reports approximately four months before the trial, and the Court held that ignorance of that decision could not justify granting a review under rule 4.
Mullick, J., examined historical provisions and precedent to conclude that an order granting a review could be examined in an appeal against the final decree where the ground for review was not a permitted ground under the rules, and therefore the High Court was entitled to consider the propriety of the Munsif's order.

(B) Substantive analysis on collusion and transferee's rights

The judges examined whether, assuming collusion between landlord and tenant, the plaintiffs (transferees) had a maintainable cause of action. Both Dawson Miller, C.J., and Mullick, J., concluded that the plaintiffs had not shown present loss or any direct infringement of their rights.
The Court set out the legal position of a transferee of a portion of a non-transferable occupancy holding: the transferee has a right to possession against the world, but the landlord is not bound to receive rent from him nor is the transferee a necessary party in an arrears or enhancement suit; the transferee cannot, since the latest Full Bench decision, deposit arrears under section 170 of the Bengal Tenancy Act to save the holding from sale; he may apply under Order XXI, rule 90 to set aside sale for irregularity, but cannot sue the landlord for a declaration that a decree against the recorded tenant is void, except upon showing actual damage caused by the landlord's act.
The Court rejected the contention that Section 42 of the Specific Relief Act furnished a remedy for the transferee in the absence of damage. The court reasoned that obtaining a collusive decree against a recorded tenant does not, by itself, manifestly deny the transferee's right or create a direct relationship between landlord and transferee; a mere pronouncement of an increased rent figure in a decree does not bind or alter the transferee's obligations.
The Court distinguished the present facts from Lala Brahmdeo Lal v. Sheo Prasad Lal, where the transferee had acquired a mortgage lien and had been in possession after depositing the decretal amount under section 170, thereby creating a direct relationship with the landlord; that factual posture justified a suit for declaration in that case but is absent here.

Holding and Implications

Final Ruling: The High Court affirmed the judgment of Adami, J., and dismissed the appeal with costs. The Court held that the order granting the review was irregular and could be set aside because the ground relied upon (a later Full Bench decision amounting to a wrong exposition of the law) is not a permissible ground of review under Order XLVII in light of the Privy Council's decision in Chhajju Ram v. Neki. Further, on the merits the plaintiffs (transferees) had no maintainable cause of action because they had not shown present damage; accordingly the decree of the Munsif issuing a permanent injunction against execution of the rent decree was wrong.

Consequences for the Parties:

The appeal was dismissed and the judgment of the lower judge (Adami, J.) was affirmed; the contesting defendant was awarded costs throughout.
The order granting the review (which had been based on the alleged discovery of a Full Bench decision or on a perceived wrong exposition of law) was held to be irregular and susceptible of being set aside on appeal from the final decree.
On the substantive point, the plaintiffs' suit seeking a declaration against the landlord was held premature and without merit insofar as no present damage or direct infringement of the transferees' rights had been shown.

Broader Implications: The opinion applies and follows the Privy Council authority in Chhajju Ram v. Neki, limiting the availability of review where the asserted ground is that the original judgment proceeded on an incorrect exposition of the law. The Court also clarified the limited circumstances in which a transferee of a non-transferable occupancy holding may sue a landlord for a decree obtained against a recorded tenant — namely, only where actual damage or a direct challenge to the transferee's possession and rights is demonstrated. The Court expressly noted, however, that its decision did not prejudice the plaintiffs' right to take steps in future to challenge the validity of the rent decree if and when their rights are infringed or their possession is assailed.

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Srimati Garabini Kamarin v. Suraja Narain Singh

Dawson Miller, C.J:— after stating the facts as set out above, proceeded as follows:—

It was contended in the first place that Order XLVII, rule 7, of the Civil Procedure Code, which limits the grounds upon which an order granting an application for review may be objected to in appeal, precluded the respondents from questioning the propriety of the order in this case, and, secondly, that the decisions of the Munsif and of the Subordinate Judge on appeal accurately interpreted the law as laid down in Asarfi Singh v. Ram Khelawan Singh and applied it to the facts of this case. Under Order XLVII, rule 7, apart from any question of limitation, the only grounds upon which it is permissible to object to such an order are that the application is in contravention either of the provisions of rule 2 or of the provisions of rule 4 of the Order. Rule 2 does not apply. By rule 4, proviso (b), it is provided that no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation. Before considering the effect of this rule it is necessary to bear in mind that rule 1 of the Order lays down the grounds upon which a review of judgment may be applied for by a person aggrieved by the decree or order. These are (a) the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or (b) on account of some mistake or error apparent on the fare of the record, or (c) for any other sufficient reason. It was contended that rule 4 did not apply as the ground of the application in this case was a mistake or error apparent on the face of the record and not the discovery of new and important matter or evidence. It is necessary to consider, therefore, whether where the judgment sought to be reviewed is based upon a wrong application of the law this constitutes a mistake or error apparent on the face of the record. There are undoubtedly decisions of the Courts in India which support the view that a wrong application of the law constitutes an error on the face of the judgment [see Sharup Chand Mala v. Pat Passee]. There are also cases which lay down that the production of a binding authority which was not placed before the trial Court amounts to the discovery of new and important matter or evidence but those decisions are by no means uniform. It is not necessary to consider them in detail as the whole question has, my opinion, been finally settled by the decision of the Judicial Committee of the Privy Council in 1922 in the case of Chhajju Ram v. Neki. In that case their Lordships examined the case law on the subject in India which they found to be conflicting and they held that the first two grounds upon which a review is permissible under Order XLVII, rule 1, namely, the discovery of new and important matter or evidence which could not after due diligence have been produced at the trial or some mistake or error apparent on the in face of the record did not apply to a case where the ground of review is that the judgment has proceeded upon an incorrect exposition of the law: They further held that the third ground, namely, any other sufficient reason, must be a reason sufficient on grounds analogous to those previously specified. In the present case the review was granted upon the ground that the case law relied upon by the Munsif had been modified by a subsequent decision, which in my opinion, amounts to the same thing as a wrong exposition of the law. In view of the recent decision of their Lordships of the Privy Council it is no longer open to the appellants to argue that the ground of review was an error on the face of the record. In fact the ground upon which the application for review was based was that the petitioners were not aware of the Full Bench ruling of this Court and could not place it before the Munsif at the first trial. Even assuming that this were a legitimate ground of review which the Privy Council has decided is not so, it could only be justified on the ground of the discovery of new matter or evidence and an order granting a review on such grounds is clearly appealable under Order XLVII, rule 7, coupled with rule 4 of the same order. That rule provides that the application shall not be granted on such grounds without strict proof either that the new matter is not within the knowledge of the applicant or could not be produced by him when the decree or order was passed or made. In the present case no such proof was given. Indeed it would be impossible to prove that a Full Bench decision of the High Court to which the trial Court was subordinate, published in the authorised law reports some four months before the trial, could not have been adduced at the trial. If in fact, the decision was not within the knowledge of the petitioner or his pleader, ignorance of this nature ought not, in my opinion, in view of rule 1 of Order XLVII, to be allowed to be pleaded in support of an application such as the present. It follows, therefore, that the order granting the review upon the ground assigned was altogether irregular and ought never to have been made and in appeal it can be set aside.

Moreover, although it is not perhaps necessary in view of the above finding to decide the point, I am of opinion that in the present case, even on the assumption that the decree was obtained by collusion between the landlords and the tenants, the plaintiffs having at present suffered no loss, the action was not maintainable and the facts of this case are not governed by the decision of the Full Bench in Asarfi Singh v. Ram Khelawan Singh a decision which was based upon the finding that the plaintiff in that suit had suffered loss by the wrongful and collusive act of the defendants. In my view the judgment of the learned Judge of this Court was right and should be affirmed. I would dismiss this appeal with costs.

I would add, however, that our present decision must not be taken as in any way prejudicing the plaintiffs' right to take such steps as may be open to them to challenge the validity of the decree in the rent suit, if and when their rights should be infringed, or their possession assailed. At present it is not known whether the landlord-defendants will or will not attempt to deprive the plaintiffs of possession.

Mullick, J.:— after stating the facts, proceeded as follows: Now the first question is whether it was open to the learned Judge of this Court to examine the sufficiency of the grounds upon which the permanent Munsif of Raghunathpur granted the review. It is contended that when a Court grants a review his order can be objected to only for the reasons enumerated in rule 7 of Order XLVII of the Civil Procedure Code, either by an appeal against the order or by an appeal against the final decree. Here it is contended that as the review was not granted on any of the grounds (a), (b) and (c) enumerated in the first clause of rule 7 but because there had been an error apparent on the face of the record or for some other sufficient reason, the order was final and could not be attacked in appeal.

It is clear that as the application for review was presented to the Additional Munsif in the first instance and was heard by the permanent Munsif after the Court of the Additional Munsif was merged in the Court of the permanent Munsif, there cannot have been any breach of rule 2 of Order XLVII.

If the review was granted on the ground of discovery of new and important matter and if strict proof was not given of the fact that the matter was not within the knowledge of the applicant when the order was passed, then there was a breach of rule 4 and it was open to the Court which heard the appeal from the final decree to determine whether or not strict proof had been given. The learned Judge of this Court has held that the discovery of the decision in Asarfi Singh's case was not new matter within the meaning of rule 1 and in this view I agree. The decision of their Lordships of the Privy Council in Chhajju Ram v. Neki seems to me to conclude the point.

It is next necessary to examine the contention that if the decision in question was not new matter then the Munsif must have granted the review on the ground that there was an error apparent on the face of the record or for other sufficient reason.

Now Chhajju Raw's case makes it clear that the sufficient reason must be a reason sufficient on grounds analogous to those previously specified in rule 1 and therefore the appellant is compelled to argue that an order granting review on the ground of an error apparent on the face of the record cannot be attacked in the appeal against the final decree. If he succeeds on this point we are precluded at the outset from examining the propriety of the order.

Now in section 376 of the Civil Procedure Code of 1859 (Act VIII of 1859) it was enacted that an order refusing or granting a review shall be final. That, however, did not preclude the party affected from objecting to the review in his appeal against the decree Jugal Kishore Singh v. Ugri]. Next the Civil Procedure Code of 1882 while enacting that an objection against an order granting a review on the ground of a contravention of section 624 which now corresponds to rule 2 of Order XLVII or of section 626 which corresponds to rule 4 could be taken either by an appeal against the order or in an appeal against the final decree, did not take away the right of the appellant to object to the order on the ground that the Court had acted without jurisdiction; nor has the present Civil Procedure Code made any alteration in the law in this respect.

If, therefore, the Munsif granted the review on the ground that there was an error apparent on the face of the record it was open to the Court which heard the appeal against the final decree to consider the correctness of his decision in this matter.

It was open, therefore, to Adami, J., to consider the propriety of the order.

In my opinion it cannot he said that the Additional Munsif committed an error apparent on the face of the record by following the decision of a Division Bench in Gananath Satpathy's case. Even if it were assumed that the Full Bench decision in Asarfi's case directly overruled the decision of the Division Bench still that would not be a sufficient fround for review and the proper remedy of the aggrieved party was to appeal against the decree. The decision of their Lordships of the Privy Council in Chhajju Ram's case(3) concludes this point. As a matter of fact the Full Bench did not overrule the Division Bench in any way. I agree therefore with Adami, J., that the order granting the review was improperly made.

On the merits also the decision is correct, for on my opinion the plaintiffs have no cause of action.

The position of a transferee of a portion of a non-transferable occupancy holding is a peculiar one. He has a right to possession as against the whole world but the landlord is not bound to receive rent from him nor to recognize his existence in any litigation between himself and his recorded tenant. He is not a necessary party in a suit for arrears of rent or for enhancement of rent and he cannot since the latest Full Bench decision upon this point in this Court deposit the arrears under section 170 of the Bengal Tenancy Act so as to save the holding from sale. He may, according to the Full Bench ruling in Dayamaype's case(4), apply under Order XXI, rule 90, to have the sale set aside on the ground of irregularity but he cannot sue the landlord for a declaration that a decree obtained by him against the recorded tenant is void except upon showing that he has actually suffering damage by the landlord's act. I can find nothing in the Full Bench decision in Asarfi Singh v. Ram Khelawan Singh which justifies the view that a suit would lie against the landlord if his decree against the tenant had failed to cause damage to the transferee.

It is contended that even if he cannot prove damage the transferee's suit will lie under section 42 of the Specific Relief Act. Now it is undoubtedly true that the transferee has a legal right in immovable property that is to say a right to remain in possession. It may be also admitted that he has a right to such possession upon payment of a certain rent to the recorded tenant; but what has the landlord do he which can be construed as a challenge to the transferee's right. It is said that by obtaining a decree for Rs. 31 instead of Rs. 14 the landlord has proclaimed to the world that the true rental is Rs. 31 and that he has thereby cast a cloud upon the title of the transferee. The answer is that the landlord has no concern with the transferee and that the fact that he has obtained a collusive decree against the recorded tenant at Rs. 31 per annum is no declaration that the transferee is liable to pay to the recorded tenant an enhanced sum. It cannot be said that the landlord has denied the right or is interested in denying the right of a person of whose existence he is not even aware and no case has been shown to us in which a declaration has been given to a transferee simply on the ground that the landlord has obtained a collusive decree against a recorded tenant. In my opinion the suit of the plaintiffs is premature for the recorded tenant may satisfy the decree before sale. Reliance was placed by the respondent upon a decision of this Court in Lala Brahmdeo Lal v. Sheo Prasad Lal. In that case the transferee had been allowed to deposit the decretal amount under section 170 of the Bengal Tenancy Act and under the provisions of section 171 he had acquired a mortgage lien upon the holding and had taken possession of the same. The landlord was bound to receive rent from the transferee till his mortgage lien was discharged and he was brought into direct relationship with him. The landlord thereafter brought a collusive suit at an enhanced rental against the original tenant and it was held that the transferee was competent to bring a suit for a declaration that the decree was collusive and not binding upon him.

In that case the transferee's right to keep possession of the holding upon payment of the existing rent was directly challenged by the landlord's collusive decree and the case fell strictly within the provisions of section 42 of the Specific Relief Act. In the present case the transferee has no such mortgage lien and I cannot see that the landlord has in any way denied his right or that he is interested in denying it.

I think, therefore, that the decree of the Munsif issuing a permanent injunction upon the landlord prohibiting him from executing his rent decree is wrong and the decree of the Additional Munsif in the first instance was right.

The result, therefore, is that the judgment of Adami, J., must be affirmed and the appeal dismissed with costs. The contesting defendant will get his costs throughout.

Appeal dismissed.

Srimati Garabini Kamarin v. Suraja Narain Singh

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Srimati Garabini Kamarin v. Suraja Narain Singh

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