BHAGO Vs. LAXMI CHAND

JUDGEMENT

(1.) THIS is an application for the review of an order of a Division Bench of the Board dated 30. 7. 1960. A preliminary objection has been taken by Shri S. N. Pareekh, the counsel for the non-applicant, that this application cannot be heard by me sitting singly. He builds up his argument in this way. The jurisdiction of the Board can be exercised under Sec. 10 of the Rajasthan Land Revenue Act and the rules made thereunder. The rules made under Sec. 10 of the Rajasthan Land Revenue Act are contained in the Rajasthan Revenue Courts Manual. Rule 18 of this Manual enumerates the class of cases which may be heard and disposed of by a member of the Board sitting singly. THIS rule 8 is as follows: - "8 - Class of cases heard by a Member sitting singly - The following class of cases may be heard and disposed of by a Member sitting singly: - (i) Miscellaneous applications; (ii) applications for setting aside an order of dismissal for default by the Board or an ex-parte decision given by the Board; (iii) applications for review of the orders and judgments passed by a single member of the Board; (iv) references. (v) applications for transfer of cases. " Shri Pareekh's argument is that item No. (iii) empowers a member sitting singly to hear and dispose of an application for the review of an order passed by a Member sitting singly and not that of an order passed by a Division Bench. Shri Gopilal Yadava's reply to this contention was that the case is before me under the provisions of Rule 5 of Order 47 C. P. C. Shri Kanwar Bahadur one of the Members constituting the Bench has since gone on retirement and has ceased to be attached to the court and it is for me and me alone to hear this application as one of the Members of the Bench continuing to be a attached to the Court. Having given my careful consideration to "the point raised, I find that Shri Pareekh's proposition is untenable and not well founded. No doubt Rule 8 of the Manual does not empower a Member of the Board sitting singly, to hear and dispose of a review application against an order passed by a Division Bench; but there is no other rule of the Board which empowers either kind of bench single or larger to dispose of this kind of application. Rule 9 contains a list of classes of cases which may be heard and determined by a Division Bench and they are as under : - "9 - Class of cases heard by a Division Bench: - The following class of cases shall be heard and disposed of by a Division Bench : - (i) all decrees or orders coming under the consideration of the Board of appeal) (ii) revisions when the lower courts decree or order-is to be modified or reversed; (iii) if in any case heard by a single Member, any question of law or custom having the force of law or of the construction of any document is referred to a Bench for decision. When a case is heard by a Bench of the Board, the decision of such case shall be in accordance with opinion of the majority of the members. " (¦ There is no mention in the above items of an application for the review of an order of a Division Bench and the logic of Shri Pareekh's argument would be that neither a single Member nor a Division Bench can hear or dispose of an application for the review of an order passed by a Division Bench. To say the least this resultant position would be most extraordinary. However I am inclined to think that there is no such difficulty legal or otherwise so far as the present case is concerned. THIS case clearly commenced under the Rajasthan Tenancy Act and this review application has also been clearly filed under Sec. 229 of the Rajasthan Tenancy Act. Sec. 229 reads as under : "229 Power of review by Board and other revenue courts: - Subject to the provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908) (1) the Board of its own motion or on the application of a party to a suit or proceeding may review and may rescind alter or confirm any decree or order made by itself or by any of its members; and (2) every revenue court, other than the Board, shall be competent to review any decree, order or judgment passed by such court. " Thus there is no manner of doubt that this review application has to be heard and determined subject to the provisions of the C. P. C. and Rule 5 of Order 47 C. P. C. would apply in this case. Shri Kanwar Bahadur having retired, I am the only duly authorised person left to hear this petition and I accordingly overrule Shri Pareekh's objection and proceed to consider the merits of the application. On merits I find that our order sought to be reviewed suffers from several patent defects, each one of them clearly constituting an error apparent on the face of the record. For instance before final determination of the revision the case was remitted to the Board to the trial court after framing of an issue for recording the evidence of the parties on that issue. Some evidence was recorded by the trial court. The remaining evidence was recorded by in the Board by Bench consisting of Members Shri R. N. Hawa and Shri J. N. Kunzru. Our order makes no mention of the issue that was referred to nor does it say what was our decision on that issue. THIS is a clear error apparent on the face of the record. Then it would have been more appropriate if the decision on the issues was given by a Bench of which at least one Member was Shri R. N. Hawa, for it was he who had recorded the evidence of the Board stage. In my opinion these reasons are sufficient to accept this application and it is not necessary to point out further errors in our judgment to justify a review of the order being made. I, therefore, allow this application, rescind our order dated 30. 7. 1960 accepting the revision and direct that the record be placed before a Division Bench of which Shri R. N. Hawa is at least one of the Members of the fresh decision of the case. .