BOARD OF MUSLIM WAKF RAJAS THAN Vs. MOHAMMAD AYUB
LAWS(RAJ)-1967-2-12
HIGH COURT OF RAJASTHAN
Decided on February 14,1967

BOARD OF MUSLIM WAKF RAJAS THAN Appellant
VERSUS
MOHAMMAD AYUB Respondents

JUDGEMENT

- (1.) THIS is a revision application by the defendants against an order of the District Judge, Jodhpur, refusing to review his appellate order dismissing their appeal against an order granting injunction under order 39 rules 1 and 2 C. P. C. The application has been contested on behalf of the plaintiff.
(2.) THE plaintiff filed a suit for permanent injunction against the defendants on 29th April 1963. At his instance a temporary injunction was granted against them under order 39 rules 1 and 2 by the trial court against which the defendants preferred an appeal. This appeal was heard by the learned District Judge who decided it by his order dated 8. 1. 65. He maintained the order of temporary injunction but modified the terms which had been imposed by the trial court in favour of the defendants. THE defendants filed a revision application before this Court against the appellate order of the District Judge. It was dismissed summarily on 29. 1. 65 by the following order: - Mr. Har Nath Kalla learned counsel for the petitioners heard. No interference can be made in revision. Rejected summarily. THEreafter the defendants filed a review application before the learned District Judge on 2. 2. 65 praying for the review of his order dated 8. 1. 65. This review application was dismissed on the ground that the order of the District Judge dated 8. 1. 65 having merged in the order of the High Court dated 29. 1. 65 dismissing the revision application which had been preferred against that order, the District Judge was no longer competent to review that order. In order to appreciate the contentions raised on behalf of the defendants in this revision application it is necessary to reproduce rule 1 of order 47 below: - "r. 1. (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 reason, 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. " It is contended that from the appellate order of the learned District Judge no appeal is allowed and therefore a review application is competent under order 47 rule 1 (1) (b ). It is argued that a person becomes disentitled from filing an application for review by preferring an appeal against decree or order. But it has not been laid down in this rule that a person becomes so disentitled by filing a revision application. It is also contended that the scope of a revision application under sec. 115 C. P. C. is very narrow and the dismissal of a revision application does not amount to the affirmance of the decree or order of the court below as is the case where an appeal against the decree or order is dismissed and there is no merger of the decree or order of the lower court in the order of the High Court dismissing a revision application. Reliance was placed on the decision of a learned single Judge of the Allahabad High Court in Ganeshi Lal vs. Seth Mool Chand (l ). In that case it was held that a decree of Small Cause Court is final and not appealable and although in certain circumstances it may be set aside or modified by a High Court in virtue of its revisional powers, it must remain a decree of the Court which originally passed it, when the High Court declines to interfere with it on the revision side and the lower court accordingly is competent to entertain an application for review of the judgment. With all respect I am unable to agree with the above decision. The scope of a second appeal is defined under sec. 100. Findings of fact arrived at by the first appellate court cannot be challenged in second appeal. Despite this all the High Courts are of the opinion that when a second appeal is dismissed summarily under order 41 rule 11 C. P. C. there is a merger of the decree of the lower court which ceases to exist and that court is no longer competent to review it. The same principle should apply where a revision application against a decree is dismissed summarily. For as was observed by their Lordships of the Privy Council in Nagendra Nath Dey vs. Suresh Chandra Dey (2) any application by a party to a superior court asking it to set aside or revise a decision of a subordinate court is an appeal within the ordinary acceptation of the term. Merely on the ground that the scope of a revision application is even narrower than the scope of appeal it cannot be held that there is no merger of the decree or order of the lower court in the order of the High Court dismissing a revision application summarily: Another argument which was put forward on behalf of the defendants was that the revision application filed by them was incompetent. Reliance was placed on the decision in Ram Baksh vs. Rajeshwar Kumar (3 ). It was held in that case that where an appeal is dismissed on the ground that it was incompetent as there was no provision in law for the appeal, the case falls within the purview of O. 47, r. 1 (1) (b) and a review application is maintainable. The principle laid down in the above case cannot be disputed. The appeal in that case was incompetent as there was no provision in law for filing such an appeal. In the present case a revision application under sec. 115 CPC cannot be said to be incompetent for no appeal lay against the appellate order of the District Judge dated 8. 1. 65. Only no prima facie case for interference in revision was made out. This Court could have interfered with the appellate order of the District Judge only on one of the grounds (a), (b) and (c) mentioned in sec. 115 CPC. I accordingly hold that the appellate order of the District Judge dated 8. 1. 65 merged in the order of the High Court dismissing the revision application and ceased to exist. It could not therefore be reviewed by the learned District Judge. The revision application is, therefore dismissed. In the circumstances of the case, I leave the parties to bear their own costs of this revision application. .;


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