Om Parkash vs Notan Dass

R.L. Anand, J.—Om Parkash has filed the present revision and it has been directed against the order dated 31.10.1998 passed by the Sub-Judge, Jr. Division, Sonepat, who dismissed the application of the defendant-petitioner for review of the order dated 11.10.1996.

Some facts can be noticed in the following manner for the disposal of this revision:-

"Notan Dass and others filed a civil suit against Om Parkash which was pending before the Court of Sub Judge, IInd Class, Sonepat as on 15.4.1994. On that date, the plaintiff was supposed to bring the evidence. He did not bring the evidence as a result of which, the following order was passed:-

"For today last opportunity was granted to the plaintiff to produce whole of his evidence. However, no witness is present today. Accordingly, evidence is closed by order. Now to come up on 26.5.1994 for evidence of defendant."

This order was not challenged by Notan Dass etc. in revision or appeal. In order to defeat the order dated 15.4.1994, the plaintiff made an application under Order 18 Rule 17, C.P.C. for leading additional evidence. It was rightly or wrongly allowed and the plaintiff was afforded an opportunity to bring evidence vide 11.10.1996. Now, it was the turn of the petitioner to submit an application for review of the order dated 11.10.1996 and the prayer made before the trial Court dated 15.4.1994. This application was dismissed vide impugned order dated 31.10.1998. The ground for review was that some amount of argument raised was not discussed while disposing of the application which was disposed of on 11.10.1996 and in these circumstances, the order may be recalled.

I have heard the counsel for the parties and am of the considered opinion that the present revision is not legally maintainable. The order dated 11.10.1996 could be challenged by way of revision and not by way of review application under Order 47, C.P.C. The Courts are competent to pass wrong or legal orders but so- long the same are within the domain of the Court, such orders can only be challenged by way of appeal/revision. This Court, of course, feels that the order dated 11.10.1996 could not and should not have been passed by the Civil Judge in view of the order dated 15.4.1994 because a relief which has been declined to the plaintiff in the order dated 15.4.1994 should not have been allowed in the order dated 11.10.1996. Even the order dated 15.4.1994 was subject to revision which has not been filed by the plaintiff. Be that as it may, the order dated 11.10.1996 was passed by a Court of competent jurisdiction though may not be according to law. Such order could only be disturbed by way of revision and not by review as the scope of review under Order 47 Rule 1 C.P.C. is limited, which lays down as follows:-

1 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 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 other sufficient reasons, 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.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be ground for the review of such judgment."

Faced with this difficulty, the learned counsel for the petitioner relied upon 1985 P.L.J. 289, Daman Singh v. State of Punjab, and submitted that it is the dictum of the Hon''ble Supreme Court to the litigant not to waste the time of the Superior Courts, rather he should approach to the same Court for recall of the order, if the order has been passed erroneously or on wrong assumptions. The precise dictum laid down by the Hon''ble Supreme Court is contained in para-13 of the judgment where it was held as follows:-

"No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the Court making the order to it by filing a proper application for review or clarification. The time of the superior Courts is not to be wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate Court was argued before that Court or not."

The above dictum laid down by the Hon''ble Supreme Court is totally in a different context. The order dated 11.10.1996 vide which the application for additional evidence of the plaintiff was allowed, rightly or wrongly, was subject to revision and it was always open to the defendant to raise all the pleas that such an order could not be passed either on law or on facts. Even the order dated 11.10.1996 could be challenged on the ground that certain case law was referred or was not discussed or that some amount of arguments were raised but those were also not discussed by the Court. If this licence is to be given to a litigant to agitate every time with a review application before the Court, there will be no end to the litigation.

In this view of the matter, I am of the opinion that this revision is not legally maintainable. Dismissed.