Chatar Das Guru Raghunathdas vs Keshavdas Guru Bikaridas

Dixit, J.—This is a revision petition from an order of the Civil Judge, First Class, Shajapur, flowing an application for review and setting aside an ex-parte decree passed against the non-applicant. The decree was passed on 15-12-50. On 1-2-51, the Defendant applied for a review of the judgment and tile decree of the trial Court on the ground that he was ill between the period from 10-11-50 to 25-1-51 and that, therefore he could not appear in the Court on 15-12-50. The learned Judge found that the illness of the Defendant non-applicant was a sufficient cause for his non-appearance and set aside the ex parte decree on that ground. He also observed that as the Defendant-non-applicant was contesting the valuation put on the suit by the Plaintiff for the purposes of jurisdiction, it was desirable that the parties should be given an opportunity to "fight out" the issue of jurisdiction.

Mr. Mungre learned Counsel for the applicant, argued that under Order 47, Rule 1, a judgment or a decree can be reviewed only on the ground of discovery of new evidence, or a mistake or error apparent on the face of the record or for any other sufficient reasin and that as in the present case, none of these grounds for review existed, the learned Civil Judge had no jurisdiction to grant the review petition and set aside the ex-parte decree. Relying on the Privy Council decision in - Chhajju Ram v. Neki'' AIR 1922 PC 112 (A) and the decision reported in Siva Subramania Chettiar, minor by natural father and guardian, Veerappa Chettiar Vs. Adaikkalam Chettiar and Others, (B) and -''Bhagwaut Prasad v. Shyam Lal AIR 1935 Oudh 405 (C), counsel for the applicant argued that the non-applicant''s failure to appear on the date of hearing on account of illness was not of itself a sufficient reason within the meaning of Order 47, Rule 1 for a review of the decree. On behalf of the non-applicant, Mr. Sahasrabudhe contended that a review petition for setting aside an ex-parte decree on the ground of the Defendant''s failure to appear for sufficient reason was competent. In support of this contention Mr. Sahasrabudhe cited the decision of the Lahore High Court in - ''Patramdas v. Heera Singh'' AIR 1934 Lah 825 (D). Mr. Sahasrabudhe also took the objection that an order granting an application for review was appealable under Order 43, Rule 1, Clause (w) and that revision petition was not competent.

In my view, the order of the learned Civil Judge setting aside the ex parte decree in review proceedings on the ground of there being a sufficient reason for the Defendant''s non-appearance on the date of hearing is clearly wrong. Under Order 47, Rule 1 a person aggrieved by a decree or order or a decision can apply for a review on any of these grounds, namely, (1) discovery of new and important matter or evidence, which after the exercise of due diligence, was not within the knowledge of the party and it could not be produced by him at the time when the decree or order was passed, (2) mistake or error apparent on the face of the record, or (3) for any other sufficient reason. Here, there is no question of discovery of new and impontant matter or evidence. The illness alleged by the Defendant for his default in appearance is not an error or mistake apparent on the face of the record. Nor is it a sufficient reason for a review under Order 47, Rule 1, which as interpreted by the Privy Council in the case of ''Chhajju Ram, (A)'', means a. reason sufficient on grounds at least analogous to those specified immediately previously in Order 47, Rule 1, that is, excusable failure to bring to the notice of the Court new and important matter or error on the face of the record.

I am in respectful agreement with the decision of the Madras High Court in - ''AIR 1944 Mad 203 (B)'', in which it has been held that in view of the limited scope of Order 47, Rule 1, the absence of a Counsel or of a party is not a ground for a review. The decision of the Lahore High Court - ''AIR 1934 Lah 825 (D)'', cited by the learned Counsel for the non-applicant is distinguishable on the ground that in that case, the failure of the Court to issue a notice of the hearing to the Defendant was regarded as an error apparent on the face of the record. The case, therefore, was within the purview of Order 47, Rule 1. A party against whom an ex parte decree or order is passed is, no doubt, competent to apply for a review, if the circum- stances bring the case within Order 47, Rule 1. But when there is no mistake or error apparent on the face of the record, and no sufficient analogous reason, then clearly a petition for a review of the ex parte decree is not maintainable. The learned Civil Judge was also not justified in granting the review petition just in order to enable the parties to contest the valuation of the suit for purposes of Court''s juris- diction, when the suit as valued by the Plaintiff was on the face of it within the jurisdiction of the Court.

The objection of the learned Counsel for the non-applicant that the order of the trial Court was appealable under Order 43, Rule 1, Clause (w) is altogether untenable. Order 43, Rule 1, Clause (w) is controlled by sub-rule (i) of Rule 7 of Order 47, and an appeal from an order granting a review lies only on the grounds specified in Order 47, Rule 7. The applicant here is not objecting to the order on the lower Court granting the application for review on the ground that the application was in contravention of the provisions of Rule 2 or Rule 4 or that it was made after the expiration of the limitation period and without sufficient cause. The order of the lower Court is being challenged on the ground that the learned Civil Judge had no jurisdiciion to grant the review petition on the ground referred to above. That being so, this revision petition is clearly maintainable u/s 115, Code of Civil Procedure.

For the above reasons, this revision petition is accepted and the order dated 12-11-51 of the Civil Judge, First Chess, granting the review petition is set aside. The applicant shall get from the non-applicant his costs in this Court and of the Court below.