Ashok Kumar vs Jhunu Babu

N.K. Mody, J.

Being aggrieved by the order dated 27.2.1998, passed in Civil Revision No. 898/1995, whereby a review application was filed by respondent No. 1 which is for consideration before this Court.

Learned counsel for the respondent No. 1 has raised a preliminary objection. The submission of respondent No. 1 is that the order dated 27.2.1998 was passed by Hon''ble Shri Justice N.P. Singh. Thereafter, in the present review petition, which was filed on 20.3.1998, the notices were also issued by Hon''ble Shri Justice N.P. Singh on 23.3.1998. At the time when the case is coming up for hearing, the petition is not maintainable in view of Section 114 and Order XLVII Rule 5 CPC which reads as under :-

Section 114 Review :- Subject as aforesaid, any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a Court of Small Causes, may apply for a review or judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

Learned counsel for the respondent No. 1 submits that since the Hon''ble Judge who passed the order under review on 27.2.1998 and also who issued the notices in the present petition on 23.3.1998 was in the Office for more than six months and was retired on September 1999, therefore, after his retirement, the petition has become infructuous and cannot be entertained. Reliance placed on 0. XLVII Rule 5 CPC which reads and under:

Order XLVII Rule 5 CPC: Application/or 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 any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same.

Learned counsel for the petitioner submits that since the Hon''ble Judge who has passed the order is retired, therefore, as per Rule 3 of Chapter 1 of M.P. High Court Rules & Orders, the matter should go before the Hon''ble Division Bench. Relevant part of Rule 3 of Chapter 1 is reproduced as under:

Rule 3 of Chapter 1 : "In cases not provided for by order XLVII, Rule 5 of the Code of Civil Procudure, an application for a review of a decree or order shall be heard-

(a) if the decree or order, review of which is applied for, is passed by a judge alone, by a Bench of two Judges:

(b) if the said decree or order was passed by a Bench of two or more Judges, by a Bench consisting of as many Judges as the Bench, of whose decree or order review is applied for.

Learned counsel for the respondent No. 1 submits that Rule 3 of Chapter 1 is applicable only in case which is not covered under Order XLVII Rule 5 CPC. Since the case is covered under Order XLVII Rule 5 CPC, therefore, this rule will not come in play.

Shri Alok Aradhe, Advocate for the petitioner further submits that the case could have been treated as covered for a period of six months but if the matter is not disposed of within six months, Rule 3 of Chapter 1 will come in play and the matter has to be placed be fore the Division Bench.

In the case of Narayanan Vs. Raman reported in AIR 1953 Travancore 306, wherein a full bench has observed that where one of the Judges constituting Full Bench which had decided the revision petition was not attached to the Court when the review application was filed and other two Judges who had ordered issue of notice also ceased to continue to be attached to the Court, a Full Bench consisting of other three Judges was quite competent to hear the review application. In the case of Bhera V. Board Revenue reported in AIR 1975 Rajasthan 55, wherein a division bench of the Rajasthan High Court has observed that the period of six months has been provided so that even at the expense of six 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 any length of time beyond six months. Such an interpretation would render the availability of the remedy dependant on circumstances over which applicant has no control.

In view of the aforesaid position of law, the objections raised by the respondent No. 1 is not tenable. Case be listed for final hearing.