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Gour Krishna Sircar And Anr. v. Nilmadhab Saha And Ors.
Factual and Procedural Background
This appeal was brought by tenants (the appellants) against a decree of the lower Appellate Court in a proceeding instituted by landlords (the respondents) under Section 105 of the Bengal Tenancy Act for settlement of fair and equitable rent. The lower Appellate Court originally pronounced judgment on 6 May 1918. On 18 July 1918 the tenants applied for a review of that judgment. Notice of the review application was ordered under Order XLVI, Rule (2)(a) of the Civil Procedure Code. While the review application was pending, the tenants lodged the present appeal in this Court on 14 November 1918, challenging the decree made pursuant to the 6 May 1918 judgment.
The lower Appellate Court heard the review application on 2 April 1919, reserved judgment and on 5 April 1919 granted the review in part, modifying the prior position. A new decree was drawn up and signed by the Judge on 29 April 1919. This Court heard the appeal under Order XLVII, Rule 11 of the Civil Procedure Code on 8 May 1919 after directing notices to the respondents. The respondents urged that the appeal had become infructuous because the decree assailed had been vacated when the review was granted, and relied on earlier decisions to support that position.
Legal Issues Presented
- Whether an appeal pending in this Court becomes infructuous when the lower Appellate Court grants a review of the judgment on which the decree under appeal was founded.
- Whether, upon the grant of a review, the original decree is vacated in its entirety (or in what circumstances only part of a decree may be reopened) and what effect that vacatur has on an appeal already lodged but not heard.
- Procedural question as to what formal steps should be taken by a court when it grants a review (i.e., recording of an order and notation in the register), and the proper description of relief (modification versus drawing a new decree) in such circumstances.
Arguments of the Parties
Respondents' Arguments
- The respondents contended that the appeal had become infructuous because the decree being appealed against was vacated when the lower Appellate Court granted the tenants' application for review (the review being granted on 5 April 1919, after judgment had been reserved on 2 April 1919).
- They relied on precedent, including Kanhaiya Lal v. Baldeo Prasad and Birjbasi Lai v. Salig Ram, for the proposition that once a review is granted the original decree ceases to exist and an appeal directed against it can no longer be prosecuted.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Vadilal v. Fulchand (30 B. 56 : 7 Bom. L.R. 664) | Analysis of successive stages of an application for review: (1) ex parte application, (2) grant or rejection of a Rule to show cause, (3) if Rule made absolute, re-hearing on merits leading to a fresh decree. | The Court adopted this analysis as fundamental to distinguish between mere rejection of a Rule (leaving the original decree in force) and a full re-hearing (resulting in a fresh decree). |
| Nanhe v. Mangat Rai (20 Ind. Cas. 647) | Adoption of the Vadilal analysis regarding stages of review. | Used as supportive authority for the procedural distinction between stages of review and its consequences for the status of the original decree. |
| Hari Charan Saha v. Baran Khan (2 Ind. Cas. 647) | Illustration of the limits on a single judge re-hearing an appeal (particularly where a two-judge bench heard the appeal originally). | Cited as an example where, on review admitted and re-heard by a single judge, the appeal was treated as revived and re-heard by an appropriate Division Bench. |
| Arayalpurath v. Cheekiladen Ahmad (2 Ind. Cas. 204) | Parallel authority regarding errors in handling review and re-hearing procedures. | Noted as a parallel instance of procedural error that informed the Court's understanding of the consequences of admitting a review. |
| Gour Sundar Bhoumik v. Rakhal Raj Bhoumik (34 Ind. Cas. 592 : 27 C.L.J. 326 : 20 C.W.N. 1165) | Both cited as a parallel for procedural error and as authority that the Court can determine whether, upon grant of review, the case should be re-opened in part or in whole. | Relied on to show that review need not always reopen the entire case, but that the Court has competence to decide the extent of re-opening; also cited among cases illustrating errors avoided or corrected. |
| Maksud Mahi v. Secretary of State (9 Ind. Cas. 532) | Example where the procedural error (improper re-hearing) was avoided. | Used to contrast with cases where the error occurred and to show that such errors can be avoided by correct procedure. |
| Bhubaneshwari Koer v. Ajodhya Singh (11 Ind. Cas. 102 : 15 C.L.J. 339) | Authority that the Court is competent to determine whether, when review is granted, the case should be re-opened in part or in its entirety. | Cited to support the proposition that the scope of re-opening on review is a matter for judicial determination. |
| Sadar-ud-din v. Ekram-ud-din (20 Ind. Cas. 670 : 19 C.L.J. 325 : 18 C.W.N. 22) | Same principle as Bhubaneshwari Koer concerning the extent of re-opening on review. | Invoked to show that courts may limit re-opening to parts of the case when granting review. |
| Janaki Nath v. Prabhasini Dasi (30 Ind. Cas. 898 : 19 C.W.N. 1077 : 22 C.L.J. 99 : 43 C. 178) | Authority on the competence of the Court to determine whether review re-opens the whole or part of the matter. | Referred to for the same purpose: courts have discretion to re-open in part or whole. |
| Kanhaiya Lal v. Baldeo Prasad (28 A. 240 : A.W.N. (1905) 265) | Proposition that when an application for review has been granted the original decree ceases to exist and an appeal against it cannot be prosecuted. | Relied upon by respondents and acknowledged by the Court as supporting the view that grant of review vacates the original decree and renders a pending appeal abortive. |
| Kuar Sen v. Ganga Ram (A.W.N. (1890) 144) | Similar view (as in Kanhaiya Lal) that granting review causes the original decree to cease to exist. | Noted by the Court as being identical in view to Kanhaiya Lal and supporting the proposition that a granted review vacates the original decree. |
| Birjbasi Lal v. Salig Ram (14 Ind. Cas. 472 : 34 A. 282 : 9 A.L.J. 183) | Approval of the view that grant of review vacates the prior decree and prevents prosecution of an appeal against it. | Identified as a subsequent approval of the principle that a granted review vacates the original decree. |
| Chenna Reddi v. Pedda Obi Reddi (2 Ind. Cas. 802 : 32 M. 416 : 6 M.L.T. 135 : 19 M.L.J. 388) | Also cited as approving the proposition that a granted review vacates the original decree. | Used as further authority supporting the respondents' position regarding vacatur of the original decree on grant of review. |
| Pyari Mohan Kundu v. Kalu Khan (41 Ind. Cas. 497 : 44 C. 1011) | Principle that if review is applied for in proper time and before an appeal has been preferred, the Judge may proceed with the review notwithstanding a subsequent presentation of an appeal, so long as the appeal is not heard; once the appeal is heard the decree on appeal is final and the review of the Court of first instance cannot be prosecuted. | Quoted to explain that a review may be pursued if the appeal has not been heard, and to clarify the mutual exclusivity once an appeal has been heard or review granted. |
| Bhurrut Chunder Mojoomiar v. Ram Gunga Sein (B.L.R. Sup. Vol. 362 : 5 W.R. 59) | Referenced in Pyari Mohan Kundu on the same point about competence to proceed with review before appeal is heard. | Referred to indirectly via Pyari Mohan Kundu as illustrating the principle regarding timing of review and appeal. |
Court's Reasoning and Analysis
The Court proceeded by (1) setting out the procedural history, (2) explaining the legal framework for review proceedings, and (3) applying the established principles to the facts of the present case.
First, the Court emphasised the distinction between the several stages of review proceedings as explained in Vadilal v. Fulchand and adopted in Nanhe v. Mangat Rai: an ex parte application; the grant or rejection of a Rule calling on the other side to show cause; and, if the Rule is made absolute, a re-hearing on the merits producing a fresh decree. The Court explained that these stages have materially different legal consequences: discharge of the Rule leaves the original decree intact, whereas a full re-hearing produces a new decree because the matter has been reopened.
Second, the Court noted authorities showing that when an application for review is granted the previously made decree is vacated (a principle authoritatively stated in Kanhaiya Lal v. Baldeo Prasad and supported by other decisions cited). The Court also relied on cases showing that the Court has the competence to determine whether the re-opening on review should be partial or complete (citing Bhubaneshwari Koer, Sadar-ud-din, Janaki Nath and Gour Sundar Bhoumik).
Third, applying these principles to the present facts, the Court analysed the sequence: the tenants applied for review; notice was ordered; the review was heard and granted; the lower Appellate Court proceeded to re-consider the case on the merits; judgment stated grounds for granting review and reached conclusions favorable to the tenants; and a decree was drawn up in modification of the earlier decree. The Court found that:
- The Judge should have recorded a formal order granting review and made an entry in the register under Order XTWTI, Rule 8 (as indicated in the opinion), and should have stated whether the decree was vacated in whole or in part.
- Although the judgment specified particular grounds for granting review (relating to allowance for profits and cost of collection under Section 7 of the Bengal Tenancy Act, and the fairness of the enhancement), the lower Appellate Court in fact re-investigated an additional question (whether the rent was enhanceable at all under Section 50 of the Bengal Tenancy Act). That re-investigation could only have occurred if the original decision had been vacated in its entirety.
- The language used in the judgment — an order for "modification of the decrees as noted above" — was incorrect in form because there was no subsisting decree to modify once the review had been granted; the act of re-hearing produced a new decree.
On this analysis, the Court concluded that the decree based on the 6 May 1918 judgment was vacated when the review was granted (the Court identifies the grant as effectively occurring on 2–5 April 1919 as to timing), and the decree drawn on 29 April 1919 pursuant to the subsequent judgment was a new decree. Because the appeal before this Court had been directed against the earlier, vacated decree, the appeal had become infructuous.
Holding and Implications
HOLDING: The appeal is dismissed as infructuous. The Court held that the decree made by the lower Appellate Court on the basis of the judgment dated 6 May 1918 was vacated when the application for review was granted, and that the decree prepared on 29 April 1919 pursuant to the later judgment was a new decree; consequently the appeal against the vacated decree could no longer proceed.
Implications:
- Direct effect on the parties: The appeal before this Court is dismissed with costs. The hearing fee was assessed at one gold mohur.
- Procedural consequence emphasised: When a court grants a review it should record a clear order (and make the required register entry) stating whether the decree is vacated wholly or partially; where the review leads to a re-hearing and a different decision, the result is a new decree rather than a mere modification of an existing decree.
- Broader precedent: The opinion applies and follows existing authorities on review procedure and vacatur of decrees; it does not purport to depart from or create a new rule of law beyond the principles discussed. No additional broader precedent beyond those authorities cited is claimed to be established by this decision.
This summary is restricted to information explicitly contained in the provided opinion.
1. This is an appeal by the tenants-defendants in a proceeding instituted by the landlords-respondents under Section 105 of the Bengal Tenancy Act for the settlement of fair and equitable rent in respect of the lands in their possession.
2. An objection has been taken by the respondents on the ground that the appeal has become infructuous, as the decree which is assailed has been vacated by the lower Appellate Court as the result of an application for review of judgment presented by the tenants. It appeals that the judgment of the lower Appellate Court was pronounced on the 6th May 1918. On the 18th July 1918 the tenants made an application for review of judgment. The Court thereupon directed notice to be served on the landlords as required by Order XLVI, Rule (2)(a), Civil Procedure Code. On the 14th November 1918, during the pendency of the application for review of judgment, the tenants lodged in this Court the appeal now before us, which is directed against the decree of the lower Appellate Court made in pursuance of the judgment of the 6th May 1918. The application for review was heard by the lower Appellate Court, in the presence of the tenants and landlords, on the 2nd April 1919, and judgment was reserved. On the 5th April 1919, the review was granted in part and the decree originally made was modified. A new decree was then drawn up and was signed by the Judge on the 29th April 1919. The appeal lodged in this Court, which had been adjourned from time to time, was thereafter heard under Order XLVII, Rule 11 of the Civil Procedure Code on the 8th May 1919 and notices were directed to issue on the landlords-respondents. The appeal has now been placed before us for final disposal. The respondents urged that, in these circumstances, the decree made by the lower Appellate Court on the basis of the judgment of the 6th May 1918 must be deemed to have been vacated when the application for review was granted on the 5th April 1919 and that the appeal has consequently become abortive. In support of this position reliance lias been placed upon the decisions in Kanhaiya Lal v. Baldeo Prasad 28 A. 240 : A.W.N. (1905) 265 and Birjbasi Lai v. Salig Ram 14 Ind. Cas. 472 : 34 A. 282 : 9 A.L.J. 183.
3. The procedure adopted in the lower Appellate Court seems to indicate that the various stages through which an application for review may pass was, perhaps, not - clearly appreciated. The matter commences, ordinarily, as is clear from Order XTVH of the Civil Procedure Code, with an ex park, application. The Court then may either reject the application at once or may grant a Rule calling on the other, side-to show cause why the review should not be granted. In the second stage, the Rule may either be admitted or rejected, and it is obvious that the hearing of this Rule may involve to some extent an investigation into the merits. If the Rule is discharged, then the case ends. If, on the other hand, the Rule is made absolute, then the third stage is reached; the case is re-heard on the merits and may result in a repetition of the former decree or in some variation of it. Though, in one aspect, the result is the same, whether: the Rule be discharged or on the re-hearing the original decree be repeated, in law there is a material difference, for, in the latter case, the whole matter having been re-opened, there is a fresh decree; in the former case, the parties are relegated to and still rest on the old decree. Consequently, the order appropriate to a discharge of the Rule is the rejection of the application; an order so made terminates the second stage of the proceedings, and there is no third stage for the re-hearing of the case. This analysis of the successive stages of a proceeding for review of judgment, which, was given by Sir Lawrence Jenkins, C.J. in Vadilal v. Fulchand 30 B. 56 : 7 Bom. L.R. 664 and war; adopted by Sir Henry Richards, C.J., in Nanhe v. Mangat Rai 20 Ind. Cas. 647 is of fundamental importance. The failure to recognise the distinction between the second and third stages has, as appears from the cases in the books, led to the embarrasment of litigants in many instances. This has happened specially in the class of eases contemplated in Order XLVII, Rule 5, where an application for review is presented in respect of a decree made by two Judges; if one of them is absent from the Court, the remaining Judge may deal with the matter in the first two stages but not in the third. An illustration is afforded by the case of Hari Char an Saha v. Baran Khan 2 Ind. Cas. 647. There an appeal from appellate decree was heard in the first instance by Mitra and Carnduff, J.J. After the retirement of Mitra, J., the respondent who had been unsuccessful, applied for review of judgment. This application was heard by Carnduff, J., alone, who directed a Rule to issue. The Rule was heard and made absolute, and the review was admitted. Carnduff, J., then proceeded to re-hear the appeal and repeated the decision he had previously passed in concurrence with Mitra, J. The respondent preferred an appeal against the decision of Carnduff, J., and urged that he had no jurisdiction to re-hear the appeal, that as soon as the review was admitted, the original decree was in law vacated, and that thereupon the appeal stood revived, to be heard only by the Division Bench authorised to deal with that description of cases by the Chief Justice. This contention was upheld by Jenkins, C.J., and the restored appeal was re-heard by a Special Bench constituted for the purpose. The error thus rectified had its parallel in the cases of Arayalpurath v. Cheekiladen Ahmad 2 Ind. Cas. 204 and Gour Sundar Bhoumik v. Rakhal Raj Bhoumik 34 Ind. Cas. 592 : 27 C.L.J. 326 : 20 C.W.N. 1165, but was avoided in Maksud Mahi v. Secretary of State 9 Ind. Cas. 532. These decisions are authorities for the proposition that, when the application for review is granted, the decree previously made is vacated. We are not now concerned with the question whether when the application for review is granted the decree is vacated in its entirety or only in part. The decisions in Bhubaneshwari Koer v. Ajodhya Singh 11 Ind. Cas. 102 : 15 C.L.J. 339, Sadar-ud-din v. Ekram-ud-din 20 Ind. Cas. 670 : 19 C.L.J. 325 : 18 C.W.N. 22, Janaki Nath v. Prabhasini Dasi 30 Ind. Cas. 898 : 19 C.W.N. 1077 : 22 C.L.J. 99 : 43 C. 178 and Gour Sundar Bhoumik v. Rakhal Raj Bhoumik 34 Ind. Cas. 592 : 27 C.L.J. 326 : 20 C.W.N. 1165 indicate that the Court is competent to determine whether when a review is granted, the case should be re-opened in part or in its entirety, and that the view cannot be supported on principle that whenever an application for review is granted, the entire case must of necessity be re-opened and reconsidered. When, however, on the grant of an application for review, no reservation is made, it may fairly be assumed that the entire case is intended to be reopened.
4. The principle recognised in these cases justifies the view adopted by Sir John Stanley, C.J., in Kanhaiya Lal v. Baldeo Prasad 28 A. 240 : A.W.N. (1905) 265, that when an application for review has been granted, the original decree ceases to exist, with the consequence that an appeal preferred against that decree can no longer be prosecuted. This view is identical with that adopted by Sir John Edge, C.J. In Kuar Sen v. Ganga Ram A.W.N. (1890) 144 and was sub-sequently approved in Birjrbasi Lal v. Salig Ram 14 Ind. Cas. 472 : 34 A. 282 : 9 A.L.J. 183 and Chenna Reddi v. Pedda Obi Reddi 2 Ind. Cas. 802 : 32 M. 416 : 6 M.L.T. 135 : 19 M.L.J. 388. It was pointed out in Pyari Mohan Kundu v. Kalu Khan 41 Ind. Cas. 497 : 44 C. 1011, where reference is made to the decision of the Full Bench in Bhurrut Chunder Mojoomiar v. Ram Gunga Sein B.L.R. Sup. Vol. 362 : 5 W.R. 59, that if a review be applied for in proper time and before an appeal has been preferred, the Judge is not prevented from proceeding upon the application for review by the subsequent presentation of an appeal. That power exists so long as the appeal is not heard, because once the appeal is heard the decree on appeal is the final decree in the case, and the application for review, of judgment of the Court of first instance can no longer be prosecuted. On the other hand, if the application for review is successful and the judgment is vacated the appeal directed against that judgment can no longer proceed. When a final decree is made after the review has been admitted, that decree is, however, liable to be challenged in accordance with law.
5. What then is the position of the parties tested in the light of these principles? An application for review was presented to the Judge. The application was not summarily rejected, but notice was ordered to issue upon the opposite party. The application was then heard and the re view granted, though no separate order appears to have been recorded at this stage. The Court forthwith proceeded to re-consider the case on the merits and reserved judgment. The judgment subsequently delivered states at the outset that the review had been granted on the ground (1) that in calculating the rent payable by the tenure-holder, no allowance had been made for profits and cost of collection as required by Section 7 of the Bengal Tenancy Act, and (2) that the enhancement, which had worked out to about seven times the original rental was not fair and equitable. The Judge next proceeds to discuss these points which are decided in favour of the tenants. He then deals with the contention that the rent was not enhanceable at all, as by virtue of the presumption embodied in Section 50 of the Bengal Tenancy Act, the tenure must be deemed to have existed from before the time of the permanent Settlement. He overrules this contention and then makes an order for "modification of the decrees as noted above." A decree was in pursuance of this order drawn up in modification of the decree previously made.
6. Three points now require to be emphasized. In the first place, when the Judge decided to grant the application for review, he should have recorded an order to that effect, and a note thereof should have been made in the register under Order XTWTI, Rule 8.; the order should have stated clearly whether the decree was vacated in its entirety or not. In the second place, the decree in the present case must have been set aside in its entirety, though the judgment states that the review was granted on two specified grounds. There were two points in controversy, namely, first, whether the rent of the tenure was enhanceable and secondly, if enhanceable, how should fair and equitable rent be assessed. Though the ground for granting the review as specified in the judgment, relates only to the second of these points, it is clear that the first question also was re-investigated. Such re-consideration would be permissible only if the original decision had been vacated in its entirety. In the third place, the judgment concludes with an order for modification of the decree, and this language is reproduced in the decree subsequently drawn up. But, plainly there was no decree to modify. The origina1 decree had ceased to exist as the result of the decision of the Judge to grant the application for review. The appeal was, in fact, restored and re-opened, and if the Judge arrived at a conclusion different from what he had reached at the original hearing, the decree made was a new decree. Indeed, as pointed out by Sir Lawrence Jenkins, C.J., in Vadilal v. Fulchand 30 B. 56 : 7 Bom. L.R. 664, even if the Judge had adhered to his former opinion, the final decree after review would have been a new decree. We are consequently of opinion that the decree made by the lower Appellate Court on the basis of the judgment dated the 6th May 1918 was vacated when the application for review was granted on the 2nd April 1919, and that the decree prepared on the 29th April 1919 pursuant to the judgment delivered on the 5th April 1919 was a new decree. The appeal now before us has thus become infructuous and must be dismissed with costs on that ground. The hearing fee will be assessed at one gold mohur.
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