Mst. Shamima vs Mst. Zaina and Others

Muzaffar Hussain Attar, Judge

Respondent no. 1 instituted civil original suit against the petitioner and respondents 2 to 6, which is pending on the files of Learned Sub Judge,

Budgam. Alongside the suit, an application seeking interim relief was also filed. The learned Trial Judge vide its order dated 7th May, 2010

dismissed the application seeking grant of interim injunction.

Respondent no. 1 filed review petition, praying therein that the order dated 7th May, 2010 passed by learned Trial Judge be reviewed. The

application seeking review of the order was not accompanied with certified copy of the order dated 7th May, 2010, though, an unattested copy

was annexed with the review application.

Notice was issued in the review application by the learned Trial Judge. Petitioner appeared before the learned Trial Judge and filed objection.

Preliminary objection was raised about the maintainability of the review application and it was prayed that the same be dismissed for the reason

that it was not accompanied by certified copy of the order sought to be reviewed. Confronted with this situation, the certified copy of the order

dated 7th May, 2010 was produced before the learned Trial Judge and an oral submission was made that same be taken on record. The learned

Trial Judge directed for taking on record, the certified copy of the aforementioned order which was, however, made subject to the objections of

the other side. The petitioner through her counsel filed objections, wherein it was pleaded that the review application is liable to be dismissed for

the reason that certified copy of the order sought to be reviewed was not filed along with review application, which was stated to be requirement

of law. It was also pleaded that as the period of limitation for filing of review application had expired, the certified copy could not be ordered to be

taken on record.

After hearing learned counsel for the parties, the learned Trial Judge vide its order dated 29th January, 2011, permitted the petitioner to place

on record, the certified copy of the order sought to be reviewed and consequently the objection raised by the petitioner was rejected. It is this

order which is called in question in this revision petition.

Learned counsel for the petitioner invited the attention of the court to Order 47 Rule 3 as also to Order 41 Rule 1 of the CPC (for short ""code"")

and submitted that an application for review has to comply with the requirement of Order 41 Rule 1. Learned counsel further submitted that as the

memorandum of review was not accompanied by the copy of the order sought to be reviewed, the review application was rendered incompetent

and liable to be dismissed. Learned counsel also submitted that the certified copy has been produced after the period of limitation fixed for filing of

the application, which in the submission of the learned counsel would also render the review application incompetent. The learned counsel in

support of his submission referred to and relied upon judgments reported in Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and Others, , AIR

1942 349 (Oudh) , and Abdul Karim Vs. Receiver, T.M. Muhammad Shaffee and Another, .

Learned counsel appearing for respondent no. 1 submitted that filing of the certified copy along with review application is mere procedural

requirement, which is not mandatory in nature, so in law it can not be said the review application was incompetent being not accompanied by

certified copy of the order sought to be reviewed. Learned counsel further submitted that the certified copy of the order sought to be reviewed

having already been produced before the learned Trial Judge, the objection raised would thus pale into insignificance. The learned counsel referred

to and relied upon the judgments reported in Smt. Dipo Vs. Wassan Singh and Others, , Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh

and Another, and Shakuntala Devi Jain Vs. Kuntal Kumari and Others, and prayed for dismissal of the revision petition.

In order to appreciate contentions raised at bar, it would be appropriate to notice Section 114, Order 41 Rule 1 Order 47 Rule 1 & 3 of the

code.

Review.

Subject as aforesaid, any person considering himself aggrieved:

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

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

(c) by a decision on a reference from a Court of Small causes, may apply for a review of judgment to the Court which passed the decree or made

the order, and the Court may make such order thereon as it thinks fit.

O41.

Form of appeal. What to accompany memorandum

(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such

officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate

Court dispenses therewith) of the judgment on which it is founded;

1(Provided that where two or more suits have been tired together and a common judgment has been delivered therefore and two or more appeals

are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the appellate Court may dispense

with the filing of more than one copy of the judgment.)

Contents of memorandum.-(2)

The memorandum shall set forth, concisely and under distinct heads the grounds of objection to the decree appealed from without any argument or

narrative; and 1 [(3) where the appeal is against decree for payment of money, the appellant shall, within such time as the Appellate Court may

allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.]

O47.

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 reference from a Court of Small Causes, and who, from the discovery of new and important matter or 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 order made against him, may apply for a review of

judgment to the Court which passed the decree or made the order.

Form of applications for review The provisions as to the form of preferring appeals shall apply, mutatis mutandis, to applications for review.

In the conduct of affairs of different kinds by the human beings, fallibility thereof is inherent. Human beings do commit mistakes. Though, efforts

are made to ensure that while deciding the lies pending in the court of law, no mistake is committed, but human beings being not perfect, it can not

be thus expected that a mistake may not be committed. It is for one such reason that the legislatures in their wisdom by legislated law has conferred

power upon the court to rectify the mistake which is shown to be apparent on the face of the record. The right to review an order does not inhere

in the court of law, as such the orders/judgments passed can not be reviewed and corrected, unless statute confers such power on such

court/authority. Section 114 read with Order 47 confers power of review on a court of law and permits for reviewing of the judgments/orders in

the circumstances mentioned in the said provisions of law. In absence of statutory provision, a civil court and other authority has no power to

review its own judgments/orders. The court/authority, however, has inherent power to recall its judgment/order, if it is shown that same has been

obtained by practicing fraud upon it. The courts/authorities have to render decisions in accordance with law and no law permits any party to secure

benefit by practicing fraud. Any judgment/order obtained by practicing fraud is nullity in law and court/authority on proof thereof has inherent

power to recall such a judgment/order. The Section 114 of the code read with Order 47 provides for review of the order/judgment and such

power of review is circumscribed by the statutory limitation enumerated in section 114 and Order 47 of the code.

The court which passes judgment/order, of which review is sought by any party, is the court of the first instance. It is the court, which has the

entire record of the case before it. A person has to indicate the grounds in the review application, on which he seeks review of the judgment/order.

The entire record including the order sought to be reviewed being before the court before whom review application is filed thus would not require

the party in all circumstances, to file certified copy of the order sought to be reviewed. This observation do find support from Order 47 Rule 3 of

the code. Rule 3 of the Order 47 provides for ""Form of applications for review"". It provides that the provisions as to the form of preferring appeals

shall apply, mutatis mutandis, to applications for review. Thus what is provided in Rule 3 of Order 47 is that the provisions to the form of preferring

appeal alone shall apply, mutatis mutandis, to the applications for review. The Legislatures in their wisdom have not said any thing more than what

was required to be stated in Rule 3 of Order 47 of the code. Order 41 Rule 1 has two components viz. ""Form of appeal"" and ""What to

accompany memorandum"" The ""form of appeal"" and ""what to accompany memorandum"" thereof have been brought on statute book as two

different and distinct expressions. The form of appeal refers to the proforma in which the appeals are to be filed. The Order 41 Rule 1 provides

that every appeal shall be preferred in the form of memorandum signed by the appellant or his pleader and presented to the court or to such officer

as it appoints in this behalf. Order 47 Rule 3 as already stated provides that the form of preferring appeal shall apply mutatis mutandis, to

applications, thus what is to apply to applications for review is form of appeal provided under Order 41 Rule 1 which already stated requires that

the appeal shall be in the form of memorandum signed by the appellant or his pleader. The statutory requirement for filing of review petition thus

has to be in the form of memorandum and has to be signed by party concerned or his pleader and is to be presented before the court or to such

officer as it appoints in this behalf. Thus the requirement of the statute in filing the applications for review in terms of Order 47 rule 3 is mandatory

to this extent only. The legislatures in their wisdom have not stated any thing more in Order 47 rule 3 of the code, excepting providing for form of

applications. The other part of Order 41 rule 1 being a distinct and separate part which requires that memorandum shall be accompanied by a

copy of the decree appealed from and (unless the appellant court dispenses therewith) of the judgment on which it is founded is not the

requirement of Order 47 Rule 3. The requirement for filing of copy of order/judgment has been thus dispensed with in filing the review applications.

On the plain interpretation of these provisions of code, it emerges, that when a review application, if filed, it has to be in the form of memorandum

signed by appellant or his pleader and presented to the court or to such officer as it appoints in this behalf. Nothing more is required by the statute

to be done. Even no provision of law or rule is brought to the notice of the court to indicate that filing of copy of the judgment/order sought to be

reviewed is sine-qua-non for filing of application for review. This being the legal position, there is no requirement for filing of the copy of the

judgment/order sought to be reviewed along with review application. The objection raised by the petitioner about the maintainability of the

application for review being not accompanied by the copy of the order sought to be reviewed is rendered inconsequential and would merit outright

rejection.

Assuming that there was requirement in law for filing of copy of the judgment/order sought to be reviewed along with application for review,

same being a procedural requirement, the application for review can not be rejected on failure to produce copy thereof. The interests of justice

would require affording of opportunity to the concerned party to produce and file the copy of the order sought to be reviewed. The judgments

cited at bar by learned counsel for the petitioner reported in AIR 1942 349 (Oudh) holding that memorandum of appeal without filing the copy of

the order is not maintainable with great respects does not lay, the correct law and is thus not to be followed. The judgments in case reported in

AIR 1972 KER 1995 proceeds on its own facts. The finding recorded therein is that under Order 41 Rule 1 and order 43 Rule 2, court has no

power to dispense with the production of the order, otherwise called decretal order. It is not in dispute that non-filing of the copy of the decree

renders the appeal incompetent. The judgment reported in Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and Others, refers to a situation where

a decree is not drawn up by the trial court in time, then what is to be done in such circumstances is provided thereof. These judgments are thus of

no help to the cause projected by the petitioner. On the contrary, the law laid down by the Hon'ble Supreme Court in case titled Smt. Dipo Vs.

Wassan Singh and Others, provides that even though the copy of the order was filed after the expiry of limitation period, the appeal could not be

dismissed for this reason.

The courts are constituted to administer justice in accordance with law and to render decisions strictly by following not only the letter but sprit

of the law. In order to reach to just and lawful conclusion, the legislature has provided a procedure for the courts. The purpose underlying the

procedural laws is to enable the law courts to administer justice in proper, reasonable and fair manner. The procedural laws in no circumstances

can be allowed to act as bobby traps in the path of administration of justice. The procedural laws have to serve the interests of justice and can not

be pressed into the service to defeat the same. The requirement of filing of copy of the order sought to be reviewed along with application for

review, if it would have been a statutory requirement, still it was only procedural requirement in as much as the court before whom, the application

was filed has with it entire record including the copy of the judgment/order sought to be reviewed. The review application could not be thrown out

on this technical objection which was raised by the petitioner.

Section 74 of the Evidence Act Svt. 1977 (for short ""Act"") deals with public document which includes the documents forming the acts or

records of the acts `of the judicial authority. The judgment of the court is a public document in terms of Section 74 of the Act. In terms of Section

77 of the Act, certified copy thereof can be produced in proof of the contents of the public document. Where law provides for production of the

copy of the judgment/order of the court, then in terms of Section 74 of Act it is to be the only certified copy, which copy is to be issued by the

competent authority in terms of Section 76 of the Act. It is only the certified copy and not production of the mere copy of the order which would

satisfy the requirement of law.

For the above stated reasons, this petition being meritless is accordingly dismissed in limini.