Neki and others vs Chhajju Ram and another

Facts -The present appellants institu ted a suit in the Court of Subordinate Judge, Hissar for pre-emption in respect of property sold by one Mrs. Forbes to the present respondents. The suit was dec reed but on appeal, which was heard by a Division Bench consisting of Scott Smith and Leslie Jones," JJ. the decision was re versed and the suit was dismissed. The plaintiff then applied for review, the appli cation for which was heard by another Di vision Bench consisting of Wilberforce and Scott-Smith, JJ. who allowed the applica tion and directed the appeal to go before the Bench for decision. In accordance with this direction the case was heard by a Division Bench consisting of Wilberforoe and Le Rossignol, JJ. they decided against the defendants and then followed the de cision of Wilberforce and Scott-Smith, JJ. and the second hearing by the Chief Court dismissing the Appeal. The case was then taken before the PC who by their decision dated 27th February, 1922, ordered. "The result is that the judg ments given by these two Division Ben ches ought to be set aside and that of the Bench of the Chief Court composed of Scott-Smith, J., and Leslie Jones, J. res tored so that the suit will stand dismis sed." Then there was an application to the Lahore High Court by the plaintiffs asking for leave to appeal to Privy Coun cil. The High Court on 1st June, 1923, granted the application holding that "the order of the PC merely dealt with the competency of the review appli cation and the legality of the orders pass ed." This appeal thus came for hearing before their Lordships of the PC and the following judgment was delivered.

Lord Shaw:-The view of their Lord ships has been sufficiently expressed in the course of the discussion.

This is an appeal in what to all intents and purposes is a non-existent suit. By a judgment of the Board dated the 27th February 1922, their Lordships agreed humbly to report to His Majesty that in "their humble opinion this appeal ought to be allowed that the decree of the Chief Court of the Punjab dated the 11th December 1918, ought to be set aside, the decree of the Chief Court dated the 3rd November, 1917, restored, and the suit dismissed with costs throughout." That was not merely the shape of the judgment of this Board; it was embodied as quoted in His Majesty''s Order in Council dated the 3rd March, 1922. It is quite impossi ble that any Court in this country or in India can consider such a suit as an exist ing suit in which any order whatsoever can be made. The suit has been finally dismissed with costs.

When the Court below in granting leave to appeal say that, "The order of the PC merely dealt with the competency of the review application and the legality of the orders passed," their Lordships are not liable to accede to that view, having before them the actual text of the order dismissing the suit with costs. It may be open to the appellants to make such an application as they may deem desirable to this Board to reconsider the judgment from which a citation has al ready been made. There may be conside rations applicable to it which the Board when such an application comes before it, will have to take into a view in considering what are the rights of a person not ap pearing as a party before the Board to ask for leave to rectify those proceedings by a subsequent application. No pro nouncement whatsoever is made upon that, but their Lordships, standing upon the existing order of the PC are constrained to hold that there is no exist ing suit in which this appeal in any shape or form can be held to be competent.

The appeal will therefore be disallowed with costs.