Hemanta Kumar Chaudhury vs Smt. Sumitra Devi

Bimal Chandra Basak, J.—This is an application for review of our judgment, dated 5th May, 1987, on the ground mentioned in the Memorandum of Review. The same are also stated in the petition.

We are setting out the facts of this case from our judgment, review of which is sought for. These facts are not disputed and not under challenge in this application. The petition for grant of Probate was filed by one Smt. Sumitra Devi claiming herself to be a residual beneficiary under the last Will of the one Gajanand Chaudhury (hereinafter referred to as the Testator). It was stated in the petition that the testator died on 9th October 1973 at No. 2/2A, Harrington Street, Calcutta within the jurisdiction of this Court. It was stated that the testator, during his life time, used to visit, from time to time and stay at his residential house at Sahabad Gate Hathras District Aligarh in the State of Uttar Pradesh where he had also considerable properties. Having regard to the importance of the averments made in paragraphs 4 and 6 of the said petition, we set out the same verbatim hereinbelow.

On the 4th day of March 1972 the deceased above named executed at Hathras outside the aforesaid jurisdiction the last Will and Testament in Hindi language Nagri Script and registered the same with the Sub-Registrar at Hathras on 13th Day of March 1972. The original Will of the deceased together with official translation thereto is annexed to the affidavit of Hathilal son of Sri Radhelal residing at Gali Malin, Hathras, District Aligarh one of the attesting witnesses to the said Will. The deceased did not appoint nor provided for any appointment of any Executor under the said Will of the deceased. (paragraph 4).

The signature of the testator of the said Will was duly attested by Sri Nathilal, Harprasad Singh, Babulal, Jawahar Lal and Sri Govind Ram and the execution of the said Will is proved by an affidavit of Nathilal annexed hereto and marked with the letter ''A'' and also be declaration at the foot herein. (paragraph 6).

By the said Will the testator gave, bequeathed and constituted the petitioner, who was the wife of Dharam Chand Chaudhury, the youngest son of the testator, as the sole beneficiary and legatee of all his assets. 1t was stated that the deceased left the persons referred to in paragraph 7 of the petition as his heirs and near relatives on whom .the estate would be devolved in case of intestacy according to Mitakshara School of Hindu Law. The relevant portion of the affidavit of Nathilal referred to in paragraph 6 of the petition are set out hereinbelow.

That on 4th day of March 1972 while the said Gajanand Chaudhury also known as Gajanand, possessed of good senses and full conscious executed at Chaudhury Bhawan, Sahabad Gate, Hathras, in the State of Utter Pradesh his last Will and Testament in Hindi language Nagri Script the original Will and official English translation that are hereto annexed and collectively marked with the letter ''X'' by putting his signature with the own writing in my presence as well as in the presence of Shri Govind Ram, Harprasad Singh, Babulal and Shri Jawhar Lal, Sub-Registrar, Hathras and immediately thereafter I myself and the said Shri Govindram at the request of the said Gajanand Chaudhury and in his presence as well as in the presence of each other signed our respective names at the foot of the said paper writing as attesting witness hereof. (paragraph 2)

Thereafter, the said Gajanand Chaudhury also known as Gajanand had the said Will registered with the Sub-Registrar Hathras, District Aligarh, U. P. on 13th March, 1972. (paragraph 3)

That the signature of the said Gajanand Chaudhury appearing at the foot, of the said Paper writing and the signature of myself and the said Sri Govind Ram appearing at the foot of the said paper writing are in their respective proper handwriting and the said Testator of the said Gajanand Chaudhury and of myself and the said Shri Govind Ram. (Paragraph 4).

The Will sought to be probated was annexed to the affidavit of Nathilal, Official translation of which is set out hereinbelow.

I am Seth Gajanand Chaudhury, son of Seth Muralidhar Chaudhury, by caste Vaishya, Churuwal, residing of 2/2A, Harrington Street, Calcutta-16 of native place Sahabad Gate Hathras, District Aligarh.

Be it known that I am 58,. old and I have been keeping ill health for several years. For that reason I am uncertain about my future life. I do not know, when my space of life may come to an end and I have movable and immovable properties. Often it is found that after death dispute arises and the property is ruined. Every individual is duty bound during his life time to make such proper arrangement of disposition of his movable and immovable properties so that the properties after his death may not come to be ruined and Shrimati Sumitra Devi, wife of Dharam Chand Chaudhury of 2/2A, Harrington Street, Calcutta-16, is my son''s wife and (she) is serving and obeying me in all manners. I am very much fond of her. It is my heart''s desire that I should put up a Will in respect of my movable and immovable properties. I am, therefore, making this Will in the manner mentioned below in possession of my sound senses and intellect.

No. 1. That I shall be the sole owner of my all movable and immovable properties during my life time. No one will be entitled to any kind of right and title in respect of my movable and immovable properties during my life time.

No. 2. That after my death the said Shrimati Sumitra Devi, my son''s wife, shall be sole owner in respect of all my movable and immovable properties. She shall be entitled to all kinds of rights and ownership in connection with my all movable and immovable properties. No body shall be entitled to any kind of right in respect of my movable and immovable properties.

No. 3. That if after my death, anybody being heir and representative on my behalf, raises any objection in respect of my movable and immovable properties with my said son''s wife then such objection shall be void before the Court and the arbitrators. Hence this Will is made so that this may remain a proof. Finis.

Written on 4th March, 1972 A. D. day Saturday by pen of Babulal. The Scribe, resident of Hathras.

(back sheet of first page)

Will Fees Commission Total Words

111 50/- 1/50 51/50 500

On the petition for Commission, dated 6.3.72 I the Sub-registrar, Hathras came to (illegible) today on 6. 3. 72 at the house situated at Sahabad Gate, Hathras where Shri Gajanand Chaudhury son of Sri Muralidhar residing at Sahabad Gate Hathras has submitted this document before me in the evening at about 5 to 6 p.m

The said executant Shri Gajanand Chaudhury admitted the execution of this document after carefully hearing and understanding the contents of this Will. Identified by Shri Govind Ram, soN of Shri Hazarilal, residing of Sedha Cali Hathras and Shri Nathilal, son of Shri Radhelal, residing of Gali Malin, Hathras.

A true translation of annexed Nagri Wil1 bearing Red. No. 686/73 as read and expld. by Pandit Haridas Harsha.

B. Das

Interpreter, High Court, Original Side Calcutta, dated the 5th day of December, 1973.

We made certain corrections in the paper book relating to signature in such official translation as shown in ink above to confirm the same as much as possible with the Original in Hindi.

A Caveat was filed by one Hemant Kumar Chaudhury son of Narayan Prosad Chaudhury, the eldest son of the testator. In support of the Caveat, an affidavit was affirmed on 24th July, 1974. We need not set out in details the said affidavit having regard to the narrow compass of this case as we shall specify later on. Apart from the documentary evidence; there were three witnesses on behalf of the propounder, namely, one Babulal whom evidence started on 4th December 1976 which was not completed on that day but continued on the next day; secondly, one Govind Ram whose evidence was taken on 9th April, 1976, and one Radhakissen Jhunjhunwalla whose evidence was taken on the very same day, i.e., on 9th April, 1976. The only controversy in this case was whether the Will was duly attested or not. The following issues were raised and settled: -

1(a) Did Gajanand Chaudhury execute the document to be his Will, dated 4th March, 1972?

(b) If so, was the said Will validly executed according to law?

Mainly two contentions were advanced on behalf of the propounder, namely: -

(a) Due attestation of the Will has been proved by Babulal one of the attesting witnesses to the said Will.

(ii) Alternatively, events that took place on the 6th March, 1976 (i.e., the day on which the Will was presented for registration) before the Sub-Registrar and Govind Ram and Nathilal (two identifiers) constitute sufficient attestation of the Will to satisfy the requirement of the Statute.

After consideration of various evidence, including the oral evidence, the learned Judge held that the Will was duly attested and validly executed. The learned Judge observed that neither the signature of the testator in the Will has been challenged nor any suspicion has been raised regarding preparation and execution of the Will. It was also observed that the Caveator had not chosen to call any witness in this case. Though the testator had left various heirs including caveator''s father (one of the testator''s sons) yet nobody except the caveator had challenged the Will. The Learned Judge held :-

It, therefore, appears to me that in all probabilities Babulal was present at the time of registration on the 6the March, 1972.

Ultimately the learned Judge held -

In any event, in view of the evidence on record, both oral and documentary, and considering the same as a whole and further in view of the facts and circumstances of the case and considering the nature of the contradictions pointed out on behalf of the caveator, in my view, they are not of such a nature for which Babulal''s evidence should not be relied upon. In my view, Babulal has proved due attestation of the Will. There is also another aspect of the matter. Babulal in his evidence in answer to question No. 204 (which has been relied upon by the caveator) has said that when Harprasad came to the testator''s place the testator said that he had made out a Will and he would have to put signature as witness. Therefore, even if the fact is as urged by the caveator that is the testator did not sign in presence of Harprasad still from the said answer it is quite clear that there was a personal acknowledgement of the testator''s signature before the attesting witness Haraprasad. For all the aforesaid reasons I hold that the Will was duly attested and validly executed.

On the second point the learned Judge, accepting the submission of the plaintiff held that the events that took place on 6the March, 1972 to constitute sufficient attestation in law and satisfy the requirements of Section 63(c) of the Indian Succession Act. This section is set out hereinbelow :-

63 (c) . The Will shall be attested by two or more witnesses each of whom has been the testator sign of affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Being aggrieved by the judgment and decree passed by the learned Trial Judge, the caveator preferred this appeal.

Mr. Pradip Kumar Ghose, appearing on behalf of the appellant, submitted in support of this appeal that the learned Judge should have come to the conclusion that the attestation was not proved and he elaborated his submission. Mr. Ghose then referred to the judgment of the learned Judge where the respondent was allowed to raise an alternative case on the basis of the Will having been executed on 6th March, 1972. He challenged the propriety of the same. On behalf of the respondent it was submitted that it was not necessary that each of the attesting witnesses to a Will should prove the execution at the same time. So far as 6th March is concerned, it was submitted that it was a mere formality regarding the registration and nothing to do with the execution or attestation of the Will. In any event, it was submitted that so far as 6th March is concerned, there was proper execution and attestation in accordance with the provisions of the Indian Succession Act. So far as the contradictions are concerned, it was submitted that they were immaterial in nature. However, it was frankly submitted before us that if the deposition of Babulal is not believed, then there was no other evidence to draw reasonable inference, so far as the case of the execution on 4th March is concerned.

By our judgment and order, dated 5th of May, 1987 we allowed the appeal and set aside the judgment and order of the learned Trial Judge. The petition for Letters of Administration was rejected. The Caveat was allowed and all interim orders were vacated. Prayer made for stay of the operation of the order was rejected. So far as the Certificate is concerned, we rejected the same on the ground that this case did not involve any substantial questions of law of general importance. There has been no question which, in our opinion, needed to be decided by the Supreme Court. Accordingly, such prayer for Certificate was rejected. We held that the learned Judge should have accepted the case sought to be made out by the Caveator. We were of the opinion that the propounder had not been able to prove proper execution or attestation of the Will on 4th March, 1972. We dealt with this matter in details. We also dealt with various decisions cited before us. So far as the alleged execution on 6th March, 1972 is concerned, we held that the petitioner was not entitled to agitate the same and the learned Judge was not in allowing the same to be urged before him and giving judgment in favour of the petitioner on a finding based on such contention.

Being aggrieved by the same, the applicant herein filed a SLP before the Supreme Court. Such SLP was admitted on 22nd May, 1987. This came up before the Vacation Judge on 1st June, 1987. Inasmuch as our judgment was not available, there was stay of the operation of our judgment and order dated 5th May, 1987. Ultimately the said application came up for hearing before the Supreme Court on 27th July, 1987 when the SLP was dismissed by a non-speaking order, as it is done generally in all such cases. This Review petition was affirmed on 7th August, 1987 and moved on that very date. We ought to point out in the petition it, was not mentioned that such SLP was made and rejected. We gave directions for filing of the affidavits but no formal Rule was issued in order to expedite the hearing of this matter and it was so done with the suggestion and consent of the parties.

At the time of the hearing of this petition a preliminary objection was raised by Mr. Roy opposing this application to the following effect. He has drawn our attention to Order XLVII Rule 1 of the CPC (hereinafter referred to as C.P.C.) which is set out hereinbelow : -

Order XLVII R.l. Application for review of judgment

(1) Any person considering himself aggrieved -

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

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

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter of 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 on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

He has submitted that this case would come either under clause (a) or not at all. Clause (a) is of no assistance to the applicant because they have preferred an appeal. He has submitted that the Special Petition filed before the Supreme Court was rejected by the Supreme Court and this amounts to preferring an appeal within the meaning of Clause (a). Next he has submitted that in any event this is not a case where such review jurisdiction can be exercised. It is not a case of discovery of new and important matter or evidence which after the exercise of due diligence was nest within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or order made or that which on account of some mistake or error apparent on the face of the record could not be produced. The only possible ground is "for any other sufficient reason." The circumstances of this case do not bring it within the scope of the expression "sufficient reason.

In answer to the same Mr. Bachawat appearing on behalf of the applicant has submitted as follows. He has submitted that the petitioner''s application for leave to appeal having been dismissed it cannot be said that any appeal was preferred. In this context he has drawn our attention to Order XVI Rules 1 and 11 of the Supreme Court Rules, 1966 (hereinafter referred to as the said Rules) which provides as follows:

Rule 1. Where leave to appeal to the Court was refused in a case by the High Court, a petition for special leave to appeal to the Court shall, subject to provisions of Sections 4, 5, 12 and 14 of the Limitation Act, 1968 (36 of 1963) be lodged in the Court within sixty days from the date of the order of refusal and in any other case within ninety days from the date of the judgment or order sought to be appealed from:

Provided that where an application for leave to appeal to the High Court from the Judgment of a single Judge of that Court has been made and refused, in computing the period of limitation in that case under this rule, the period from the making of that application and the rejection thereof shall also be excluded.

Rule 11. On the grant of special leave, the petition for special leave shall, subject to the payment of additional Court fee, if any, be treated as the petition of appeal and it shall be registered and numbered as such. The provisions contained in Order XV shall, with necessary modifications and adaptations, be applicable to appeals by special leave and further steps in the appeal shall be taken in accordance with the provisions therefor.

In this connection he has also drawn our attention to Order XV, Rules 1, 2 and 4 which are set out hereinafter : -

Rule 1. Where a certificate of the nature referred to in clause (1) of Article 132 of Clause (1) of Article 133 has been given under Article 134A of the Constitution or a certificate has been given under Article 135 of the Constitution or under any other provision of law, the party concerned shall file a petition of appeal in the Court.

Rule 2. Subject to the provisions of Sections 4, 5, and 12 of the Limitation Act, 1963 (36 of 1963) the petition of appeal shall be presented within sixty days from the date of the grant of the certificate of fitness :

Provided that in computing the said period, the time requisite for obtaining a copy of the certificate and the order granting the said certificate, shall also be excluded.

Rule. 4. The Registrar, after satisfying himself that the petition of appeal is in order, shall endorse the date of presentation on the petition and register the same as an appeal in the Court.

He has submitted that if and only when such leave is granted that the leave petition concerned is registered and numbered as petition of appeal. As it was not so granted in the present occasion, no petition of appeal came into existence and the question of preferring an appeal cannot and does not arise. So far as scope of an order granting leave or rejecting the same by the Supreme Court, he has submitted that it is merely a discretionary power and in this connection he has drawn our attention to the decisions of the Supreme Court in Workmen of Cochin Port Trust Vs. Board of Trustees of The Cochin Port Trust and Another, and Indian Oil Corporation vs. State of Bihar reported in AIR 1986 S.C. 1780 at page 1782.

On the question whether there is any "sufficient reason" shown within the meaning of Order XLVII Rule 1 to allow us to review though initially he referred to some paragraphs of the petition, ultimately he did not press the same and merely said that what he wants to argue on such review is that some arguments were not made in the appeal in support of the judgment and he prayed that leave be given to him to urge the same in support of the petition of review. Three arguments which, according to him, were not made before the Appeal Court, for which he so seeks such leave, are as follows: The Court has disbelieved the case of execution and attestation on the ground of variation between proof and pleadings. He has submitted that this was not material. Both the parties have tendered evidence and the Courts have gone into the same. Secondly, he has submitted that the question of presumption or regularity of a Will, when on the face of it is good, has not been rebutted and this point has not been argued in appeal in support of the judgment appealed from. The third submission which he Seeks to argue but which was not argued was that the appellant in the appeal had no locus standi to file the caveat and contest the probate proceedings. In this connection he has admitted that it was the fault of the lawyer concerned but has submitted that such an opportunity be given to them. In this connection he cited on Rekanti vs. Varadappa reported in AIR 1940 Mad 17. Accordingly, he made a prayer for filing supplementary affidavit, if necessary.

Mr. P. K. Roy, the learned Advocate opposing this application has strongly disputed the correctness of the contention of Mr. Bachawat on the question of allowing Mr. Bachawat to urge this fresh point in review of the appellate judgment. He has submitted that very conveniently the applicant has not mentioned in the petition or in the reply about such order of the Supreme Court dismissing the special leave petition. The applicant took some of these points in their grounds of appeal in the leave petition, but the same was dismissed. He has submitted that admittedly if any such ground is sought to be taken in any review petition filed today, then such review petition will be barred by limitation and accordingly he has submitted that no such leave be given. In this connection he has referred to a decision in the case of Haji Ebrahim Kassam Cochinwalla Vs. Northern Indian Oil Industries Ltd., . On the scope of the application for review he has relied on my decision while sitting singly in the case of Chandmall Chopra and Another Vs. State of West Bengal, . He has submitted that there is always a constructive res judicata in respect of points which could have been urged but not urged. There must be a finality of the judgment and such an indirect attempt to unsettle the same should not be allowed which would amount to dragging the matter and never allowing to put a seal of finality on the matter. In this connection he has relied on a very well known decision in the case of Chhajju Ram vs. Neki & others, reported in AIR 1922 P. C. 122. He has drawn our attention to this application wherein completely different grounds are taken than what was taken in this leave petition. The grounds sought to be urged in the appeal before the. Supreme Court and the petition herein are completely different and now it is sought to urge certain points which are not taken in the petition. In this context he has drawn our attention to paragraphs 25 and 27 of the SLP and grounds Nos. 3, 4, 5, 22, 23, 28 and 29 thereof. He has shown us that leave is now being sought for in respect of the grounds referred to in the Supreme Court Leave Petition which was rejected though no such ground has been taken in the review petition. So far as the maintainability of this review petition is concerned, he has submitted that the filing of SLP amounts to preferring of an appeal though it was ultimately rejected. Making such Special Leave Application amounts to institution of appeal proceedings. It is to be treated as initiation of appeal and part of the procedure of preferring an appeal and therefore making such application amount to preferring an appeal. He has submitted that the language is not "preferred and admitted" but only "preferred". There are three actions which are contemplated - preferring the petition of appeal, admission of the petition and disposal of the same The first one is to be done by the applicant and the last two by the Court. In this connection he has referred to the decision in Veluri Sitaramasastry and Others Vs. Isukapalli Sundaramma and Others, . He has dealt with the cases cited by Mr. Bachawat and submitted that they are not relevant in the facts of this case.

In reply, Mr. Bachawat, submitted that he is not seeking to challenge the finality, but certain points were not urged in the appeal and though the same is not taken in the review petition he is asking for leave to urge these points.

We shall now deal with the cases cited before us. At first we shall deal with the cases cited in connection with the question as to whether filing a SLP which is ultimately rejected, amounts to preferring an appeal within the meaning of Order XLVII Rule 1 of the Code of Civil Procedure.

In the case of Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, there were three appeals before the Supreme Court by virtue of Special Leave under Article 136 of the Constitution of India. The question involved was whether the common order passed by the Andhra Pradesh High Court rejecting the applications to review an earlier order of that Court was correct on the facts. In that case the applications for reviewing the order, dated 4th September, 1959 refusing the certificate, were filed on 23rd November, 1959. During the pendency of those review Applications on 80th November 1959, the appellant filed petitions seeking special leave of this Court under Article 136 of the Constitution of India but those petitions were filed beyond the period of limitation prescribed by the Rules. An application was, therefore, filed along with the SLP seeking condonation of delay in the filing of the petitions. The petitions and the applications for condonation of delay came up together for hearing and the Supreme Court refused to condone the delay so that the petitions for special leave never legally came on the file of the Supreme Court. In that case on the date when the application for review was filed, the appellant had not filed an appeal to the Supreme Court and, therefore, the bar of Order XLVII Rule 1(1) did not stand in the way of the petition for review being heard. If on that date no appeal has been filed, it is competent for the judgement in the Second Appeals amounted to preferring an appeal for the purpose of Or. 47, R. 1. Both the review petition and such application were filed simultaneously. It was held that when the certificate is obtained by a person from the High Court, in effect, an appeal has been admitted and he is an appellant who has presented an appeal and in a position to withdraw the appeal. In this context it was observed as follows: -

This also clearly indicates that even before lodging of a petition of appeal as contemplated in R. 2 of Or. 16 the person. concerned is in the position of an appellant and is in a position to withdraw the appeal. Thus, it is obvious that the appellant already exists on the record even before petition of appeal is lodged in the Supreme Court under Or. 16 R. 2 and that the order under Or. 45 Rule 8 C. P. C. amounts to admitting the appeal. It follows that the presentation of the Supreme Court Civil Miscellaneous Petition itself amounts to presentation of the appeal or preferring the appeal. The contention of Shri P. P. Surya Rao in this respect is tenable and I accept it.

The words ''has been filed'' referred to a contemplated action under Or. 47 R.l C.P.C. a petition for review would not lie only when an appeal has already been preferred as mentioned by me. In effect, on the wording of Or. 47 R. 1 C. P. C., a person aggrieved can file a review petition if no appeal has been preferred, that is, if no appeal has already been presented earlier than the time when in which it occurred, could not be any ground either of itself or taken along with others to reject the application for review.

In this context it was further observed as follows: -

A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would sauce for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.

In the case of Veluri Sitaramasastry and others v. Isukapalli Sundaramma and others, reported in AIR 1966 Andhra Pradesh 173 it was a judgment of a single Judge where it was held that in terms of Or. 47, R. 1 the presentation of the memorandum of appeal amounts to preferring an appeal. It was further held that the presentation consists of only the S.C.C.M.P. along with the grounds. Such presentation is in the High Court and after formalities are fulfilled as required by the rules, the appeal is declared as admitted by the High Court itself. There an objection was taken that the review application did not lie because at the time of its filing, the petitioner had preferred the appeal. It was contended that the presentation of S.C.C.M.P. with prayer for leave to appeal to the Supreme Court against 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. On the question regarding the effect of the refusal to grant such leave it has observed as follows: -

The next question is as regards the effect of the refusal of this Court to condone the delay in filing the petition for special leave. Here again, it was not contended that the refusal of this Court to entertain the petition for special leave on the grounds just now stated was a bar to the jurisdiction or powers of the Court hearing the review petition. This position was not contested by the learned Advocate for the respondent either. In these circumstances, we are unable to agree with the learned Judges of the High Court that the refusal by this Court to condone the delay in filing the petition for special leave was a circumstance which could either bar the jurisdiction of the High Court Co decide the petition for review or even could be a relevant matter to be taken into account in deciding it. If therefore their original order dated September 4, 1959 was vitiated by an error apparent on the face of the record, the failure of the SLP to be entertained in this Court in the circumstances review petition was presented, therefore, review petition can be validly presented so long as it is not filed after the presentation of an appeal petition. It is tenable when presented simultaneously with presentation of S.C.C.M.P.

In the case of Workmen of Cochin Port Trust Vs. Board of Trustees of The Cochin Port Trust and Another, it was an appeal by certificate from the judgement and order of Kerala High Court. In that case the Tribunal gave an award in favour of the workmen. The employers filed several SLP in Supreme Court challenging the award of the Tribunal but the same was dismissed after perusal of the papers and hearing of the counsel. No reason for dismissal was given in the order. The employers thereafter filed a writ application in the High Court on 28th March, 1970. This was allowed and the award was quashed. In support of the appeal before the Supreme Court it was contended that the High Court had erroneously over ruled the point of res judicata urged on behalf of the appellant. After referring to Section 11 of the Code and the scope of the principles of res judicata the Supreme Court observed as follows:

In the, instant case the award of the Tribunal, no doubt, was challenged in the SLP filed in this Court, on almost all grounds which were in the subsequent writ proceedings agitated in the High Court. There is no question, therefore, of applying the principles of constructive res judicata in this case. What is, however, to be seen is whether from the order dismissing the SLP in limine it can be inferred that all the matters agitated in the said petition were either explicitly or implicitly decided against the respondent. Indisputably nothing was expressly decided.

. . . . . . . . . . . . . . . . . . . . . . . .

But the technical rule of res judicata, although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guesswork.

. . . . . . . . . . . . . . . . . . . . . . . .

But he was not right in saying that dismissal of a SLP under Art. 180 Must necessarily bar the entertainment of a writ petition under Art. 226.

In the case of Indian Oil Corporation Ltd. Vs. State of Bihar and others, , it was an appeal by special leave and the short question that arose for decision in that appeal was whether the dismissal in limine or a special petition by the Supreme Court by a party challenging the award of Labour Court would preclude the said party from subsequently approaching the High Court under Article 226 of the Constitution of India seeking to set aside the said award. In that case the Labour Court by an award dated 11th March, 1983 held that the respondent No. 3 was entitled to be paid salary for a particular period. Aggrieved by the said award, the appellant moved the Supreme Court under Article 136 of the Constitution of India by filing SLP and upon hearing the parties on 9th September, 1983 the Supreme Court dismissed the SLP by a non-speaking order, which was in the following terms :

The SLP is dismissed." Thereafter, the appellant approached the High Court by preferring a writ petition under Art. 226 of the Constitution of India seeking to quash the aforesaid award of the Labour Court dated March 11, 1983. The writ petition was admitted and the 3rd respondent came up to Supreme Court challenging the order of the High Court admitting the writ petition and granting interim stay of the award. The Supreme Court, after hearing both sides, dismissed the SLP filed by the 3rd respondent by the following order dated 17th August, 1984:

Special Leave Petition is dismissed. We hope that the High Court will dispose of the writ petition as expeditiously as possible preferably within four months from today. In the meantime the respondents will deposit in the High Court a further sum of Rs. 10,000 (apart from Rs. 5,000, which has already been deposited towards the cost of the petitioner) within two weeks from today, which amount the petitioner will be at liberty to withdraw in case the writ petition will not be disposed of within four months from today.

Subsequently, when the writ petition came up for final hearing before a Division Bench of the High Court, similar contention was urged by way of preliminary objection to the maintainability of the writ petition. Such contention was upheld by the Division Bench and against that the company came up in appeal. The Supreme Court held that the view taken by the High Court was not right and that the High Court should have gone into the merits of the writ petition without dismissing it on the preliminary ground. The Supreme Court referred to the decisions in Cochin Port. Trust v Board of Trustees of the Cochin Port Trust, reported in (1978) 3 SCR 119 (AIR 1978 SC 283) and Ahmedabad Manufacturing and Calico Printing Co. Ltd. Vs. Workmen and Another, .

In this context the Supreme Court observed as follows:

It is not the policy of this Court to entertain special leave petitions and grant leave under Article 136 of the Constitution save in those cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment. The dismissal of a SLP in limine by a non-speaking order does not therefore, justify any inference that by necessary implication the contentions raised in the SLP on the merits of the case have been rejected by this Court. It may also be observed that having regard to the very heavy backlog of work in this Court and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has very often been the practice of this Court to grant special leave in cases where the party cannot claim effective relief by approaching the concerned High Court under Art. 226 of the Constitution. In such cases also the special leave petitions are quite often dismissed only by passing a non-speaking order especially in view of the rulings already given by this Court in the two decisions afore-cited, that such dismissal of the SLP will not preclude the party from moving the High Court far seeking relief under Article 226 of the Constitution. In such eases it would work extreme hardship and injustice if the High Court were to close its doors to the petitioner and refuse him relief under Article 226 of the Constitution on the sole ground of dismissal of the special leave petition.

In this context the Supreme Court also referred to the House of Lords decision in the case of Wilson vs. Colchester Justices (1985) 2 All ER 97, where the question was whether the refusal of leave to appeal by the Appeal Committee of the House of Lords would constitute an implied approval of the decision which had been unsuccessfully sought to be impugned. The Supreme Court referred to the following observations of Lord Roskill which was described to be "apposite" in that context :

Seemingly the Divisional Court felt that this refusal indicated at least implied approval of the decision which it had been unsuccessfully sought to impugn. Counsel surprised your Lordships by saying that this impression was widespread in the profession. My Lords, if that were so, as my noble and learned friend Lord Diplock remarked during the argument, the sooner this erroneous impression is emphatically corrected by your Lordships the better. There are a multitude of reasons why, in a particular case, leave to appeal may be refused by an Appeal Committee. I shall not attempt to embark on an exhaustive list far it would be impossible to do so. One reason may be that the unparticular case raises no question of general principle but turns on its own facts. Another may be that the facts of the particular case are not suitable as a foundation for determining some question of general principle, Your Lordships'' House is only able, in any given year, to hear and determine a limited number of cases and it is important for the evolution of the law as a whole that those cases should be carefully chosen. Conversely the fact that leave to appeal is given is not of itself an indication that the judgments below are thought to be wrong. It may well be that leave is given in order that the relevant law may be authoritatively restated in clearer terms. It is not difficult to find in the books examples of cases where, after leave to appeal has been refused in one case, another case will later arise in which leave to appeal has been given as a result of which the decision against which leave to appeal was originally refused is shown to have been wrong. But that of itself does not mean that the initial refusal of leave was wrong.

We shall now deal with the cases cited in connection with the question as to whether the points sought to be urged can be allowed to be urged in the writ petition.

Chhajju Ram vs. Neki and Others reported in AIR 1922, P. C. 112 was a Privy Council decision consisting of seven Judges of the Judicial Committee. There the question involved was reviewed by the Court which had already disposed of the case. Their Lordships pointed out that it is only under strictly limited circumstances that an application for such a review can be entertained. In India, however, provision has for long past been made by legislation for review in addition to appeal. But as the right is the creation of Indian statute law, it was necessary to see what such statutory law really allows. It was pointed out that the order passed was full of various latches on the subject of review which has been in the operation for a long time past. In this context, the Supreme Court observed if it was felt that the Judicial Committee was at liberty to construe the language of Order XLVII of the Code of Civil Procedure, 1908 without reference to its history and to the decisions upon it, their task would not be a difficult one because it was obvious that the Code contemplates procedure by way of review by the Court which has already given judgment as being different from that by way of appeal to a Court of Appeal. The three cases in which alone mere review is permitted are those of new material overlooked by excusable misfortune, mistake or error apparent on the face of the record, or "any other sufficient reason". The question was what was sufficient reason. After going into the history of such provision it was observed that the power given by the Indian Code was different from the very restricted power which exists in England. In this context it was observed as follows. Rule I of Order XLVII must be read as in itself definite of the limits within which review is today unpermitted, and that reference to practice under former and different statutes is misleading. So construing it they interpret the words "any other sufficient reason" as meaning a reason sufficient on grounds at least analogous to those specified immediately previously. Such an interpretation excludes from the power of review conferred the course taken by the second and third Division Benches.

In the case of Kumar Gopika Raman Ray Vs. Mahar Ali and Others, an attempt was made to distinguish the case of Chhajju Ram vs. Neki, A. I. R. 1922 P. C. 112. The Court specifically held that it is not necessary to discuss whether any analogy can be discovered between the two grounds specified, namely, the discovery of new and important matter of evidence and some mistake or error apparent on the face of the record. It was observed that the discretion of the Court in saying that is ''sufficient reason'' within the meaning of Or. 47, R. 1 is not as rigidly circumscribed as the opposite party contended. In that case when the appeal was called on for hearing on behalf of the respondents, an objection was taken that the appeal was incompetent and could not be proceeded against them on the ground that some of the respondents had died and no steps had been taken to bring their legal representatives on the record. Accordingly, on behalf of the appellant it was stated that he would proceed only against the defendant No. 161 (proprietor). Accordingly, the appeal was dismissed as against the tenant - defendants Nos. 1-160. Thereafter the appeal proceeded for hearing on 4th July, 1922. On behalf of the respondents it was stated that the appeal would not continue against the remaining respondents in view of the fact that the appeal was dismissed in respect of the other respondents. Upon such statement being made a prayer was made and subsequently an application for recalling the Order dated 4th July, 1922, was made on the ground that it was on the basis of misapprehension that the appellant will be allowed to proceed only with the appeal as against one of. the respondent.

The case of Rekanti Chinna Govinda Chettiyar and Others vs. S. Varadappa Chettiyar and Others, reported in AIR 1940, Madras 17 was a review petition before a learned Single Judge of that High Court. In that case there was a suit brought by the appellants for a declaration of their title to the wall existing between their house and the house belonging to the respondents and for an injunction restraining the respondents from letting the water from the terrace of their house into the appellants'' property. The Trial Court dismissed the suit and an appeal the parties filed a joint memo agreeing to a certain arrangement regarding the disposal of the water falling from the terrace of the respondents'' house and this arrangement was directed to be incorporated in the decree. As regards the wall in dispute, the learned Subordinate Judge found that it belonged to the appellants and accordingly decreed that part of the appellants'' claim. After the judgment was signed and the decree also was issued in accordance with the judgment, the respondents filed a petition praying for a rehearing of the appeal. The ground of the prayer was that though the Trial Court had found that the wall belonged to the respondents, their advocate represented to the Court that they would have no objection to the wall being to be a common wall and that under the impression that the Court would, in consequence of this concession, give a finding accordingly, he did not meet the points mentioned by the appellants'' advocate though he had arguments to urge in support of the finding of the trial Court. The respondents having denied the allegations in the appellants'' affidavit in support of the prayer for rehearing, the lower Appellate Court apparently called for a statement from the counsel on both sides as to what exactly happened at the previous hearing and a joint statement was filed and this was supplemented by a further explanatory statement by the respondent'' counsel. Thereupon the Court below passed an order :

In view of the joint statement filed by the learned advocates that appeared for the parties and of the explanatory statement filed by the learned Advocate for the applicant, I think it fair and just that he should be given an opportunity to argue his case fully. The appeal will therefore be posted for rehearing.

The appeal was thus re-heard and a decree was passed against which an appeal was preferred. It was contended on behalf of the appellants that the lower Appellate Court had no jurisdiction, after it delivered and signed the judgment, to alter it in any manner. In this context, the Appeal Court observed as follows:

But the misapprehension owing to which the learned counsel for the respondents says he did not urge all his arguments in support of the finding recorded in favour of his clients by the first Court, and the consequent erroneous impression on the part of. the learned Subordinate Judge for which, of course, he was not at all to blame but the counsel was alone responsible - that the later had no arguments to urge to meet the points raised by the appellants'' counsel seem, to my mind, to be analogous enough to an error apparent on the face of the record to be sufficient reason for review under Or. 47, R. 1, Civil P.C.

In the case of Haji Ebrahim Kassam Cochinwalla Vs. Northern Indian Oil Industries Ltd., it was an application for setting aside an award. During the course of argument one point was sought to be urged in support of the application. That was a ground which was not taken at all in the petition and it was an attempt to add a new ground. Objection was raised to such a ground being taken. As the ground was not taken in the petition an affidavit was filed which was affirmed on 21.12.49, during the course of the hearing of the application before the learned Trial Judge and on the basis of such new affidavit prayer was made for setting aside the award on the new ground taken therein. In this context P. B. Mukharji, J. held as follows:

Article 158, Limitation Act, provides that an application to set aside the Award must be made within 30 days from the date of notice of the filing of the award. On 21.12.1949, when the affidavit is affirmed stating this new ground in an application made thereon that must be treated as a new application which was clearly barred by time and I hold accordingly.

In the case of Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, various review petitions were filed before the Supreme Court directed against the judgment of the said Court dated 7th September, 1978. Such application was made on behalf of the respondent. It was contended that the judgment of the Supreme Court was amenable to review because it proceeded on the erroneous assumption. It was opposed by the learned Counsel on behalf of the appellant who has urged that no ground for review has been made out and that, in any event, the judgment of this Court does not suffer from any error. The question before the Supreme Court was whether in the facts of this case a review was justified. The main judgment in the Supreme Court was delivered by Pathak J. (as he then was) wherein it was observed as follows:

It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a re-hearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Sajjan Singh Vs. State of Rajasthan, at P. 948. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will revise its judgment. Girdhari Lal Gupta Vs. D.H. Mehta and Another, at P. 760. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. O.N. Mohindroo Vs. The District Judge, Delhi and Another, at p. 27. Power to review its judgments has been conferred on the Supreme Court by Art. 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Art. 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in O. XLVII, Rule 1 of the CPC and in a criminal proceeding on the ground of an error apparent on the face of the record. (Order XL, R. 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except ''where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility''. Sow Chandra Kante and Another Vs. Sheikh Habib, .

Such an error exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on th6 flee of the record.

Krishna Iyer, J. in a separate judgment while agrees with Pathak J. observed as follows:

My learned brother has clarified and confined the ratio to the contours set out. He has also pointed out that counsel, at the earlier hearing, did not contest this factual matrix. A review in counsel''s mentation cannot repair the verdict once given. So the law laid down must rest in peace.

In the case of Chandmall Chopra and Another Vs. State of West Bengal, , it was a case where previously a writ petition directed against Koran was dismissed by me summarily sitting singly. Thereafter, two papers were moved before me. One was an application for condonation of delay in the submission of the review application and another was stated to be an application for review of my judgment but which was actually a memorandum of review. The same were rejected by me. On the question of the scope of the power of review conferred by Order 47 R. 1(1) of the C.P.C, I referred to the decisions of the Supreme Court in Babboo alias Kalyandas and Others Vs. State of Madhya Pradesh, and Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, . In this context I observed as follows:

Such power may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Trial Court. Reference may be made in this connection to the decision in the case of Babboo alias Kalyandas and Others Vs. State of Madhya Pradesh, .

In the case of Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, it was pointed out that there was a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by error apparent. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.

It has to be pointed out that in the present case in the memorandum of review altogether eight grounds have been taken. Out of that ground Nos. 1 to 5 and ground Nos. 7 and 8 are the grounds challenging the correctness of my decision. This may or may not be grounds for appeal but not a ground for review. So far as the ground No. 6 is concerned, there is no merit in the same. There is no question of error apparent involved. Further whatever point was raised on behalf of the petitioner was recorded by me and dealt with by me.

In my opinion no case has been made out by the petitioner for exercise of such power. There is no mistake apparent from the judgment for the purpose of review. It is stated that it is also being filed due to the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by the applicant at the time when the matter was heard. As I have stated, no application for review has been made stating the alleged new and important matter and alleged exercise of due diligence. As I have already stated there is no other application excepting one application for condonation and another being a memorandum of review though described as an application for review."

The first question to be decided is whether this application is maintainable. The question is whether in view of the fact that the SLP filed by the appellant herein in Supreme Court against the Appeal Court decision, which petition was dismissed, it can be said that the applicant herein had "preferred" an appeal within the meaning of Order XLVII Rule l of C.P.C. and that, therefore, this application is barred. In our opinion, filing of a Special Leave Petition, which is dismissed with a non-speaking order, cannot be said to amount to preferring an appeal within the meaning of Order XLVII, Rule 1. As usual in such cases, the Supreme Court does not give any reason. The only order passed in the SLP in the present case was that the SLP was dismissed. Nothing else was stated. Accordingly, we cannot assume that the Supreme Court had gone into the merits of the appeal and has upheld the correctness of the judgment appealed from. Special Leave Petitions are disposed of on various grounds as it is entirely a matter of discretion exercised by the Supreme Court. From a non-speaking order dismissing such a petition, it cannot be inferred that all the matters agitated in the petition were either explicitly or implicitly decided against the applicant. Reference may be made in this connection to Workmen of Cochin Port Trust vs. Board of Trustees (ibid) and Indian Oil Corporation vs. State of Bihar (ibid).

It would be clear from the provisions of Article 136 of the Constitution of India that it is a discretionary power of the Supreme Court whether to grant such Special Leave or not. There is no limitation specified in the Article itself but Supreme Court itself has imposed upon itself certain limitations and/or restrictions on such exercise of discretion. Supreme Court exercises this power sparingly only in those cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment. Reference may be made in this connection to Indian Oil Corporation vs. State of Bihar and the observations of Lord Roskill of the Judicial Committee of the Privy Council in the case of Wilson vs. Colchester Justices (ibid) which was quoted by Supreme Court with approval.

Accordingly only when the SLP is granted and such leave is given, it can be said that an appeal has been preferred. But when no such leave is given, it cannot be said that an appeal has been preferred merely because such SLP had been filed though the same had been dismissed. It is an application for leave to appeal. Unless the leave is given there is no appeal.

We are unable to accept the contention raised by Mr. Roy that filing of a SLP is itself an initiation of an appeal and that it is a continuous reprocess and accordingly whether such leave is granted or not, filing of such petition amounts to preferring of an appeal. As we have already stated, only when leave is granted, then it can be said that an appeal has been preferred. If there is refusal to give such leave, it cannot be said that in spite of the same, having preferred the Special Leave Petition, the party concerned must be deemed to have preferred an appeal. In the case of Tungabhadra Industries vs. The Government of Andhra Pradesh (ibid) refusal by the Supreme Court to condone the delay in filing the SLP was held not to be a bar to the hearing of a review petition.

This aspect of the matter is also clear from the Rules made by the Supreme Court in exercise of the powers conferred by Article 145 of the Constitution of India. The relevant Rules have been quoted above. From the said Rules it is clear that only upon the grant of Special Leave, that the petition for Special Leave can be treated as the petition of appeal and only then it is registered and numbered as such. Under Rule 11 of Chapter XVI until and unless there is at least a petition of appeal, it cannot be said that any appeal was preferred. Only when such leave is granted, then the petition for Special Leave is treated as the petition of appeal and only then it can be said that the appeal has been preferred. When there is refusal to grant such Special Leave, such petition for grant of Special Leave cannot be treated as petition of appeal and, accordingly, it cannot be said that any appeal has been preferred. The facts of the case in Veluri Sitaramashastry & Ors. vs. Inukapalli Sundaramma and Ors. (ibid) cited by Mr. Roy were completely different. There certificate for leave to app al had already been obtained from the High Court and that was held to amount preferring of an appeal. However, we do not agree that presentation of Supreme Court Civil Miscellaneous Petition by itself amounts to presentation of appeal even if such petition is ultimately rejected. In the present case the SLP was dismissed by a non-speaking order.

42(a). Accordingly we hold that filing of the SLP in the present case which was ultimately rejected does not amount to preferring an appeal within the meaning of Order XLVII, Rule 1. Accordingly we hold that this application for review is not barred for such reason and that it is maintainable.

The next question is whether we shall allow the prayers made by Mr. Bachawat for leave to urge some new grounds for review of our judgment which grounds have not been taken in the review petition itself. As already stated, he does not rely on the grounds specified in the review petition in support of the said petition but he has submitted that he may be allowed to urge these points either by way of filing a supplementary affidavit or otherwise. There are various aspects of this matter. The scope of review and the appeal are different. On the pretext of a review, a Court cannot and must not go into the merits of its earlier judgment. A review is not a re-hearing for a fresh decision. In this connection reference may be made to M/s. Northern India Caterers (India) Ltd. vs. Government of Andhra Pradesh and Chandmull Chopra & Anr. vs. State of West Bengal (ibid). The admitted position is that this application for review can be allowed only if it comes within the scope of the third part of clause (1) of Order XLVII, Rule 1, that is, "or any other sufficient reason". The explanation "or any other sufficient'' reason" has been explained in Chhajju Ram v. Neki & Ors (ibid) by the Judicial Committee consisting of 7 Judges as meaning a reason sufficient on grounds at least analogous to those specified immediately previously. Various attempts might have been made by some Courts subsequently and from time to time to examine and, if possible, to enlarge the scope of such expression, but the law laid down by the Judicial Committee is still the law prevailing, in view of Article 372 of the Constitution, and it will remain so, until the Supreme Court thinks it fit to interprete it otherwise as Supreme Court alone is competent and entitled to do. There is nothing to the contrary specifically in the case of Kumar Gopika Raman Roy vs. Mahar Ali (ibid) but if there is anything to the contrary therein impliedly, we would respectfully prefer to follow the Judicial Committee.

In the present case, the new arguments sought to be urged is nowhere in the review petition. Mr. Roy is correct in his contention that different attitude and stand has been taken by the applicant at different times and at different stages. The appeal before us was heard on certain grounds raised by the parties. The respondent to the appeal, made a SLP after the appeal was allowed and decided against the applicant. Various points were taken in the subsequent SLP including those referred to above. These points, which are now sought to be urged us and which do not find any place in the present review petition, were taken in the Special Leave Petition. In this context reference may be made to paragraphs 25 of the SLP and grounds Nos. 3, 4, 6, 12, 23, 28 and 29 of the grounds in paragraph 27 of the Special Leave Petition. This they wee entitled to do in such Leave Petition and this they were entitled to urge in the Appeal if such Leave Petition was allowed. The said SLP had been rejected. There is no whisper in the Review petition filed later so far as these grounds are concerned. Now leave is sought to urge these points. Under these circumstances it would not be proper on our part to give such leave to the applicant to urge these grounds now. There must be a finality of a litigation. In the review, in our opinion, such points cannot be allowed to be urged not merely because it is not in the original review petition but because those cannot be the ground for a review. They are not "sufficient reason" within the meaning of Order XLVII, Rule 1. A point not urged before the Lower Court may be urged before the Appeal Court. If it is a point of law the Appeal Court may allow the same to be urged but merely for that reason such point of law cannot be a ground for review as a matter of course.

The cases cited by Mr. Bachawat in this context, in our opinion, have no application. The Madras High Court case proceeds on a different basis, Similarly the Calcutta High Court case. The facts were different. It may be pointed out that both in the Madras and Calcutta case, the Courts were parties to the misapprehension of the lawyers. because of the misapprehension of, the lawyers the Courts were also misled and that is why power to review was exercised. However these, decisions are not authority for the proposition that merely because an Advocate did not argue a point before a Court, that by itself is a ground for review. There is nothing before us to show: that there was any mistake or misapprehension on the part of the lawyer concerned. Merely because the lawyer failed to urge some points before a Court, that is not a ground for review. If that is taken to be a "sufficient reason" within the meaning of Order XLVII, Rule 1, then there will be no finality and there will be multiplicity of proceedings. The flood gate will be opened and there will be a deluge. After all a judgment is supposed to be final subject to appeal or revision, if any, particularly when a SLP against the Appeal Court judgment of a High Court has been dismissed by Supreme Court. This question of finality has to be kept in mind while considering the question whether a rehearing of the appeal should be allowed in the guise of a review. Otherwise this will lead to all kinds of mischiefs. Take a particular case where an appeal is decided on two points raised before the Appeal Court. The subsequent attempt to prefer an appeal against the same fails. If such contention is accepted, a review of petition will be allowed on the ground that the lawyer forgot to urge in the appeal. two other points of law. If that is sufficient ground for review, then even if these two other points are ultimately rejected on such "review", again another application for review of the earlier "review petition" can be made on the ground that by misapprehension some other grounds were not urged in the appeal and, the first "review". Therefore, it will go on ad infinitum and there will be no end to any proceedings though there is no further right to appeal. It would be open to a party to drag a proceeding indefinitely merely on the excuse that his lawyer forgot to urge some "points of law" in the main proceeding. Certainly that was not the intention of the law makers. We cannot allow the same and we cannot be a party in upholding such contention. Order XLVII is to be strictly interpreted. If we give an interpretation which is sought to be urged in support of this application, then we shall he creating a situation which will allow a disgruntled litigant or lawyer to create a situation which will cause untold misery to a successful litigant.

There is another aspect of the matter. There is no reason why we shall not apply the same principle as applied by P. B. Mukharji, J. (as he then was) in the case of Haji Ibrahim v. North Indian Oil Industries (ibid) though the subject matter of the same was an application for setting aside an award. Admittedly, when the leave is sought for urging these new grounds as a ground for review of our earlier judgment, on that date, if a review petition was made on such grounds, it would have been barred by limitation. Therefore, there is no reason why for this reason also we shall not refuse to grant such leave to urge such additional grounds as sought for.

Before we conclude we should point out one thing. We have seen paragraph 17 of the SLP filed before the Supreme Court by the applicant herein. The same contains various wrong averments. Further that is verified as true to the knowledge of the deponent, that is, the applicant herein. During the hearing of the review petition before us, it is frankly admitted on behalf of the applicant herein that the applicant was never present in Court on that occasion and that could not be true to the knowledge of the deponent. We deeply regret that it was thought fit by the persons concerned to take such course of action.

Accordingly, this application is dismissed with costs.

One party must win and another party must lose. However, we should put on record that both Mr. Bachawat and Mr. Roy, the learned Advocates appearing in this matter made their submissions in this case ably, fairly and frankly in the true tradition of the Bar. We record our appreciation of the Bar.

Mr. Roy who is opposing the review application has brought to our attention an order passed by us in the contempt application wherein we have directed the sum of Rs. 63,400 to be kept by Receiver in the Savings Account and that this will be kept in the account of main appeal until further order of this Court. Parties are agreed that as the main appeal has been disposed of, this order meant that money would be kept subject to the result of this review petition. In view of paragraph 7 of the probate application, there is no dispute that this sum represents 1/5th share of the sale proceeds to which Narayan Prosad Choudhury or his branch will be entitled. Accordingly, we direct that the Receiver shall hand over this money to Narayan Prosad Choudhury or the appellant, if he is so authorised by Narayan Prosad Choudhury, his father. We make it clear that this money will belong to Narayan Prosad Choudhury and such person or persons who are entitled to the same and this money will be received on behalf of and for the benefit of all of them.

All parties concerned including the Receiver to act on a signed copy of the operative portion of the judgment on usual undertaking.

Satyabrata Mitra, J.

I agree.