Sikandar Singh vs Chet Ram

H.S. Thakur, J.—By an Order dated 21-7-1976, Hon''ble the Chief Justice (R.S. Pathak, as he then was) has referred the following question to a Division Bench of this Court:

Whether the review petition is maintainable when an application for the grant of permission to file a Letters Patent Appeal has been filed?

The facts relevant to the case may be stated. A regular second appeal No. 27 of 1971 was allowed by a learned single Judge of this Court on 5-12-1974. Aggrieved by the said judgment, the Petitioner filed an application on 31-1-1975 under Clause 10 of the Letters Patent for leave to file a Letters Patent Appeal. It appears from the order dated 11-3-1975 that the learned Counsel for the Petitioner requested the Court that he may be allowed time to submit an application to seek the review of the judgment. Such petition was accordingly filed on 19-3-1975, which was admitted on 23-4-1976. The record of the review petition (No. 1 of 1975) and the application for leave to file a Letters Patent Appeal [C.M.P. (M) No. 9 of 1975] shows that both these matters were taken up for consideration together. The learned single Judge, after considering the matter, has referred the aforesaid question to a Division Bench. It may be pointed out that both the above petitions are pending for disposal.

It is contended by Mrs. P. Malhotra, who appears for the Respondent, that under Order 47, Rule 1(2) of the Code of Civil Procedure, a party who is not appealing from a decree or order may apply for review of a judgment. It is stressed by her that since the Petitioner already filed an application for leave to file a Letters Patent Appeal, a review petition is not competent. She has also referred to Clause 10 of the Letters Patent. It is convenient to reproduce the same for a ready reference:

And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, made on or after the first day of February, one thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council, as hereinafter provided.

The essence of the arguments of the learned Counsel for the Respondent is that once an application for seeking leave to file a Letters Patent Appeal is filed, it has to be inferred that the party is appealing from the decree or order, in terms of Order 47 Rulee 1(2) of the Code of Civil Procedure. This being the position, a review application is not competent. She has referred to the decisions in Inderjit Partap v. Amar Singh and Ors. (A.I.R. 1923 P.C. 128 ), Veluri Sitaramasastry and Others Vs. Isukapalli Sundaramma and Others, , Jwala Prasad Vs. Jwala Bank Ltd. (in liquidation), and Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh,

Before we consider the impact of the cases cited by the learned Counsel for the Respondent, it is proper to notice the counter arguments advanced by the learned Counsel for the Petitioner. It is contended by him that the mere fact that an application for leave to appeal had been filed, did not mean that the Petitioner is appealing in terms of Order 47 Rule 1(2) of the Code of Civil Procedure. According to him, the appeal can only be deemed to have been filed when the leave to file the same is granted by a single Judge in terms of Clause 10 of the Letters Patent and thereafter the appeal in fact is filed. In support of his contention Shri B.B. Vaid, the learned Counsel for the Petitioner, has placed reliance on a decision in Union of India (UOI) Vs. Sudhir Kumar Ray and Others,

It may be noticed that in Inderjit Partap Singh''s case (supra), their Lordships of the Privy Council observed that a party has a right to apply for review of judgment to the Court that has decided the case before an appeal has been preferred. It is further observed that where an appeal has been preferred a review is out of question. In Veluri Sitaramasastry''s case (supra), the learned single Judge of Andhra Pradesh High Court was dealing almost with a similar matter as in the case in hand. In that case an application under Order 45 Rule 2 of the CPC was filed for the grant of a certificate to file an appeal in the Supreme Court. The learned Judge observed that the presentation of the Supreme Court Miscellaneous petition itself amounted to the presentation of the appeal or prefer?, ring the appeal. In Jwala Parsad''s case (supra), the question as involved in the present case was not directly involved therein. As such, this judgment is not relevant to the decision of the per sent case. Now we advert to Thungabhadra Industries case (supra). The relevant observations of the Supreme Court in this case, as extracted in the decision of the aforesaid Orissa High Court, may be reproduced:

The crucial date for determining whether or not the terms of Order 47 Rule 1(2), CPC are satisfied is the date when the application for review is filed. If on that date no appeal has been filed, it is competent for 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.

In the aforesaid decision of the Orissa High Court reference has also been made to a decision in the case of Shiva Jute Baling Ltd. Vs. Hindley and Co. Ltd., . In this decision their Lordships of the Supreme Court have held that passing of an order granting special leave on an application presented under Article 136 of the Constitution of India itself operates as admission of the appeal as soon as the conditions of the order relating to furnishing of security or making of a deposit arc complied with.

We have considered the respective contentions of the learned Counsel for the parties. As pointed out earlier above, the application filed by the Petitioner for seeking leave to file a Letters Patent Appeal has not even been admitted, but only a show cause notice was issued to the opposite party. We have noticed the decision by a Division Bench of the Orissa High Court as also the decision of Andhra Pradesh High Court by a single Judge. We are, however, inclined to follow tl e view taken by Orissa High Court in which the above referred two decisions of the Supreme Court have also been considered. The record reveals that in the present petition for seeking leave to file a Letters Patent Appeal, only a notice to show cause 1 as been issued and no certificate is granted. As such, it cannot be said that the appeal has been preferred or the Petitioner is appealing. No other point was canvassed before us.

For the foregoing discussion, we are of the view that a review petition is maintainable even if an application for the grant of permission to file a Letters Patent Appeal has been filed. As such, we answer this question in the affirmative.