Jaswant Singh vs Balbir Singh

Rajindra Nath Mittal, J.

1.This Execution Second Appeal has been filed by the decree holder against the judgment of the Additional District Judge, Ludhiana, dated February 21, 1974.

The facts of the case are that Balbir Singh took on rent a shop at the rate of Rs 45/- per mensem, on February 15, 1965. Subsequently, he executed a rent note in favour of Jaswant Singh on February 17, 1975. A suit was instituted by the landlord for ejectment of the tenant and for recovery of Rs. 90/- on account of rent due from September 15, 1966 to November 14, 1966 Balbir Singh tenant contested the suit on the ground that the premises had been constructed more than five years prior to the institution of the suit and consequently in view of the provisions of the East Punjab Urban Rent Restriction Act, the suit for ejectment was not maintainable. The trial Court dismissed the suit regarding eviction but granted decree for recovery of Rs. 90/-. The landlord went up in appeal before the District Judge, Ludhiana, who accepted the same vide judgment, dated August 8, 1968, and also decreed the suit for ejectment of the tenant. He also observed that the question as to whether the tenant was liable to eviction in execution of the decree, would be determined by the Executing Court. After obtaining the decree for ejectment, Jaswant Singh decree-holder, filed an application for execution Balbir Singh judgment-debtor filed objections u/s 47 of the CPC (hereinafter referred to as ''the Code'') inter alia stating that the decree for ejectment was not executable in view of the provisions of the East Punjab Urban Rent Restriction Act, which applied to the building in dispute. The Executing Court held that the material date for the applicability of the provisions of the aforesaid Act was when the tenant was sought to be ejected from the property in dispute According to him the period of five years had elapsed on that date. Therefore, the tenant was not liable to be ejected on the basis of the decree of the civil Court. Con quietly, he accepted the objections and dismissed the execution application as a whole, on August 23, 1969. The decree-holder went up in appeal against that judgment to the Additional District Judge, Ludhiana. He accepted the appeal on the ground that the Executing Court was not entitled to dismiss the execution application in respect of the decree for recovery of arrears of rent for Rs 90/-. He, therefore, accepted the appeal and remanded the case to the Executing Court for deciding the matter afresh. It may be mentioned that the Additional District Judge did not give any finding as to whether the decree for ejectment was executable or not. The matter was reconsidered by the Executing Court. It again reaffirmed its earlier view on November 15 1971, that the tenant was not liable to ejectment on the basis of the decree. The decree-holder filed an application for review of the judgment, dated November 15, 1971, on January 24 1972, on the ground that a contrary view had been taken taken by the High Court. The judgment-debtor opposed the application and Inter alia pleaded that the application was barred by limitation and that there were no sufficient reasons for allowing the review application. The application was allowed by the Executing Court vide its judgment, dated April 1, 1972. Consequently the Court ordered ejectment of the tenant. The tenant went up in appeal before the Additional District Judge, Ludhiana, who accepted the same and reversed the judgment of the Executing Court, dated April 1, 1972, on February 21, 1974. He held that there were no sufficient grounds for review. He, therefore, ordered that the execution application be dismissed. The decree-holder has come up in appeal against the judgment of the Additional District Judge, Ludhiana, to this Court.

The first question that has been canvassed by the Learned Counsel for the Appellant before me is that the learned Executing Court had reviewed its earlier judgment, dated November 15, 1971, correctly and that there were no grounds for the appellate Court to hold to the contrary.

I have heard the Learned Counsel for the parties at considerable length but am unable to persuade myself to accept the contention of the Learned Counsel for the Appellant. The Executing Court had held vide its judgment, dated November, 15, 1971 that the decree was inexecutable, as the provisions of the East Punjab Urban Rent Restriction Act had become applicable to the building in dispute. The aforesaid judgment was sought to be reviewed on the ground that contrary view had been taken by the High Court in Tek Chand Melamal Vs. Firm Amar Nath Basheshar Das, wherein it had been held that if the suit was instituted before the expiry of five years from the date of the completion of the building and the decree was passed after the period of exemption, even then the exemption from Section 13 of the East Punjab Urban Rent Restriction Act was available to the decree-holder and the decree was executable. As this stage, it may be stated that the judgment of the High Court had been passed on May 27, 1971, which was affirmed by the Supreme Court in Firm Amar Nath Basheshar Dass Vs. Tek Chand, on March 21, 1972. Thus on the date of passing the order by the Executing Court, whereby execution was declined, the judgment of the High Court was in existence but the judgment of the Supreme Court came into being after the passing of that order. The proposition of law that arises is as to whether a Court can review its earlier judgment on the ground that certain decision of the High Court was not brought to its notice. This matter has been settled by a learned Division Bench of this Court in Roop Kishore v. Firm Raghbir Singh, Baboo Ram 1966 P.L.R. Supp 268, wherein R.S. Narula (As My Lord, the Chief Justice then was) while speaking for the Bench, obrerved, that an error cannot be described as an error on the face of the record within the meaning of Order 47, Rule 7, of the Code of Civil Procedure, if the earlier order had been passed in oblivion of the law laid down by the High Court on the subject. I am respectfully in agreement with the above observations. No decision contrary to the aforesaid decision of this Court has been brought to my notice. The Learned Counsel for the Appellant has placed reliance on Thadikulangara Pylee''s son Pathrose Vs. Ayyazhiveettil Lakshmi Amma''s son Kuttan and Others, and Sirdari Lal Gupta v. D.H. Mehta (1971) 1 S.C.W.R. 315. In the former case, some observations are made by a learned Single Judge of Kerala High Court against the view taken by this Court. With respect to the learned Judge, I regret my inability to accept this view especially in view of the fact that the view I am taking has been taken by a Division Bench of this Court which is binding on me. In Sirdari Lal Gupta''s case (supra), the review was allowed on the ground that certain provision of law was not brought to the notice of the learned Judges. The observations in that case, are therefore, not applicable to the facts of the present case. The decision by the Supreme Court in Firm Amar Nath Bashesoar Das''s case (supra) was given subsequent to the passing of the order of dismissal of the execution application. It cannot also be a sufficient ground for review that the Supreme Court had taken a contrary view subsequent to the passing of an order by the Court. The Learned Counsel for the Appellant has also sought to challenge the order on the ground that if the order is passed without taking into consideration the judgment of a High Court, the error committed by the Court is a glaring error and liable to be set aside in review. In support of his contention, he has placed reliance on Kolipakam Penchelu Varadappa Rao Vs. Chitoor Mahadeviah and Another, . The facts of the aforesaid case are different from those of the present one. In that case, a revision had been filed in the High Court and the observations were made in that context. No benefit can be drived by the Learned Counsel for the Appellant from it.

The second question which has been raised by the Learned Counsel for the Appellant is that it was not arugued before the Executing Court that the application for review was beyond limitation. According to the Learned Counsel, this matter could not be raised by the tenant for the first time in appeal. He also argues that the plea regarding limitation had been taken in the written reply to the review application and, therefore, if it was not dealt with in the judgment, it would be deemed that the delay had been condoned by the Court. I have given a thoughtful consideration to the matter. Section 3 of the Limitation Act says that every application made, after the prescribed period, shall be dismissed although limitation has not been set up as a defence. The phraselogy of the section shows that it is mandatory and therefore, the application which is filed beyond limitation is liable to be dismissed. An objection regarding limitation can be taken at any stage of the proceedings provided there is no dispute regarding the facts. In the Limitation Act, the period for making an application for review is 30 days. In the present case, admittedly, the application for review was filed after the expiry of 30 days. In the aforesaid circumstances, in my view, the objection can be taken even at the appellate stage. In this view, I get support from Rajender Singh and Others Vs. Santa Singh and Others, , wherein it was observed that it is the duty of the Court in view of Section 3 of the Limitation Act to apply the bar of limitation where on patent facts it is applicable even though not specifically pleaded. A similar view was taken by a learned Division Bench of this Court in Shadi Ram v. Ruldu 1971 Cur.L.J. 281. The second part of the argument that in the circumstances of this case, it will be deemed that the delay has been condoned has also no force. Unless a Court applies its mind for condonation of delay, it cannot be held that the Court condoned it. In the aforesaid view, I get support from a Full Bench judgment of this Court in Bikram Dass v. The Financial Commissioner, Revenue, Punjab, Chandigarh AIR 1973 P.&H. 1, wherein it is held that whether the case requiring condonation of delay is under Rule 4 Chapter A (a) of the Punjab and Haryana High Court Rules and Orders, Volume V, or u/s 5 of the Limitation Act, the Bench condoning the delay has to record that the delay was due to a sufficient and good cause. The pointed attention of the learned Bench must be drawn to the fact that the appeal as filed was barred by time and condonation of delay was desired or required. It is further held that the Bench will then apply its mind to the causes pleaded for condoning the delay and if it comes to the conclusion that the delay was due to a sufficient and and good cause, the delay may be condoned ; but the mere admission of the appeal without the attention of the Bench being invited to the fact that it was barred by time, will not have the effect of condoning the delay. It has also been laid down that it will be open to the Respondent or Respondents to raise the plea of limitation and the Bench hearing the appeal will record its decision on that application. In the present case, even no application for condonation of the delay had been filed. In this situation, I am unable to agree with the submission of the Learned Counsel for the Appellant. The Court had no right to review its order after the expiry of the limitation.

The third question that has been raised before me is that the appeal was incompetent against the order of the Executive Court before the Additional District Judge, Ludhiana, and he erroneously held that it was competent. I have considered the argument but do not find any substance in it. In order to decide this question, it will be appropriate to read Order 47, Rules 4 and 7, which are as follows:-

4(1) Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application.

(2) * * *

* * *

7(1) An order of the Court rejecting the application shall not be appealable ; but an order granting an application may be objected to on the ground that the application was-

(a) * * *

(b) in contravention of the provisions of Rule 4, or

(c) after the expiration of the period of limitation prescribed therefore and without sufficient cause. Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit.

A reading of the aforesaid rules shows that only in certain cases, the appeal against an order of review is maintainable. The present case is fully covered by Rule 7(1) (c). It is stated therein that an order of review passed after the expiration of period of limitation prescribed therefore and without sufficient cause is appealable. In

The fourth contention of the Learned Counsel for the Appellant is that if the order of review passed by the Court is just, then in an appeal, the appellate Court should not interfere with the same. This argument was not raised before the appellate Court and he cannot be allowed to raise it here. Even otherwise, I have examined it but an unable to agree with this contention of the Learned Counsel. In the present case, the order has been passed in contravention of the provisions of Limitation Act and on the ground on which order could not be revi wed. In this situation, in my view, the appellate Court rightly upset the judgment passed on review by the Executing Court. Mr. Roop Chand has placed reliance on AIR 1943 136 (Oudh) . In that case, the order was passed on a ground which was not a ground in law for review. It was held that the appellate Court will not interfere if that order was a proper order. In the aforementioned case, the application for review was within time where as in the present case, it was made after the expiry of the period of limitation. Thus the present case is on different facts. The above observations have, therefore, no applicability to it.

For the reasons recorded above, this appeal fails and the same is dismissed with no order as to costs.