Hari Singh vs Santosh Seth

R.C. Lahoti, J.

(1) This order shall govern the disposal of RA-9/87, I.A.674/88 and I.A. 9308/91.

(2) A brief resume of facts in the background, leading to the filing and hearing of these applications is necessary. The plaintiff (who has moved these two applications) is the owner of house No. C-32, Green Park, New Delhi. He filed a suit for ejectment of the defendant/non-petitioner which was dismissed by the Addl Rent Controller ,but was decreed by the Rent Control Tribunal in appeal. The order of eviction was made on 30.7.81. The plaintiff got vacant possession on 27.8.1991. The plaintiff then filed suit No-1676/82 seeking assessment of mesne profits for alleged unauthorised use and occupation of the premises by the defendant for the period10.11.1974 to 27.8.81 with interest and special costs. The Court framed a preliminary issue on the maintainability of the suit. Placing reliance on the decision of the Supreme Court in Smt Chander Kali v. Jagdish Singh Thakur, 1977 Sc 2262, this Court by its judgment dated 8.1.1987 held the suit for recovery of mesne profits to be not maintainable and directed the same to be dismissed. On 6.2.1987, the plaintiff filed Ra 9/87 seeking review of the judgment dated 8.1.1987. The application was defective and on being returned by the Registry, was re-filed on10.2.1987. It is an admitted fact that as against the judgment dated 8.1.87 an appeal was preferred by the plaintiff before a Division Bench of this Court, which appeal was dismissed in liming, though on merits of the case.

(3) It appears that this Court entertained some doubt about the maintainability of the application for review. Having become aware of the same, the plaintiff moved I.A. 9308/91 referring to Rule 2 Chapter Ii of Delhi High Court Rules(Original Side) and Section 151 CPC requiring the following questions to be referred to Hon''ble the Chief Justice for favor of Constituting a Division Bench to decide the same:

(A)whether decree of the appellate order dated 18.8.87 is required to be prepared? (b). In case this question is answered in the affirmative the objection of the learned Assistant Registrar is erroneous and decree for the appellate order dated 18.8.87 will have to be prepared.(c) In case the question in sub-para (a) is answered in the negative, the Hon''ble Trial Court will be free to review its own order and decree dated 17.1.1987 dismissing the main suit as per the case law reported in Mohamed Oomer, Mohamed Noorullah Vs. S.M. Noorudin, Note (c) and Air 1986 Sc 1780.

Here itself it may be noted that cause title part of is 9308/91 makes a reference tol. A. 674/88. This application-also was filed by the plaintiff on 16.1.1988, wherein he had sought for the restoration of Ra 9/87, which was dismissed in default of appearance at one point of time, as also reference of the above said questions for decision by a Division Bench. The review petition Ra 9/87 has been restored for hearing and thus in substance I.A. 674/88 (remaining part thereof) and I.A.9308/91 seek an identical relief.

(4) I.A. 9308/91 was placed before Hon''ble the Chief Justice. His Lordship has vide order dated 10.12.1991 directed the application to be listed for hearing before the Judge hearing the review application.

(5) Undoubtedly, the review is being sought for under Clause (a) of sub ruled)of Rule 1 of Order 47 Cpc, which contemplates a review application being preferred by an aggrieved person against a decree or order from which an appeal is allowed but from which no appeal has been preferred. The judgment dated8.1.1987 was an appealable one and, as already stated, it is an admitted fact that an appeal was preferred against this judgment which has been dismissed summarily as the appeal was not found worth being admitted for hearing after notice to the other side. The petitioner submits that the review application was filed before the filing of the appeal and as such review was competent on the date on which it was preferred .He further submits that summary dismissal of the appeal does not amount to a decree and as decree was also not drawn up in fact, merely because an appeal has been dismissed hearing of the review application on merits is not barred .The contention merits an instantaneous dismissal in view of the law laid down by the Supreme Court in Thungabhadra Industries Ltd. v. Govt. of Andhra Pradesh ,1964 S.C. 1372. Vide para 8, their Lordships have observed :

"THE crucial date for determining whether or not the terms of Order XLVII Rule 1(1) are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of ,the jurisdiction of the Court hearing the review petition would come to an end "

(6) The review application was competent when it was filed as having been filed before the filing of the appeal. The review application could have been heard and disposed of on merits without regard to the pendency of the appeal so long as the appeal was not decided, but once the appeal has been decided leading to the confirmation of the impugned judgment by the Court of appeal, the jurisdiction to hear the review application is lost. It would not make any difference if the decision in appeal was summary, provided that it was on merits. It is also immaterial whether a decree has been drawn up or not by the Appellate Court. Shivappa Passa Savade Vs. Ramchandra Narsisnh Deshpande, , Sheo Balak Singh Vs. Mahabir Singh and Another, and Chander Kanta v. Lakshman, Air 1917 Cal 417 also support the proposition that dismissal of the appeal under Order 41 Rule 11 CPC excludes the jurisdiction of the original Court to hear the review application against the judgment forming subject matter of appeal. Ra 9/87cannot, Therefore be heard and disposed of on merits.

(7) The position of law being clear and well settled the questions of law suggested by the petitioner in his applications I. A. 674/88 and 9308/91 do not raise any question which may be complicated or be of such importance or frequent recurrence as may call for adjudication by a Division Bench. It is not necessary to refer the questions for decision by a Division Bench.

(8) For the forgoing reasons Ra 9/87, is 674/88 and is 9308/91 are all rejected.