A.G.MADHAVA REDDY, J. - (1.) This review petition is by the appellants in Appeal Nos. 81 of 1979 and 82 of 1979, disposed of on 1st August, 1984 by a Division Bench of which one of us (Chief Justice) was a party. That was a judgment common to two appeals. The other Review Petition No. 7 of 1985 was filed on the limited ground. It was contended therein that the assumption made in the judgment under review that Shri Kalsekar continued to be an Advocate on record, was not correct and a request was made to expunge certain observations in that judgment. That review petition was dismissed by us on 23rd September, 1985. Although the present review petition describes all the appellants as review petitioners, it is stated by Shri Kalsekar, learned Counsel appearing for petitioners that it is filed only on behalf of petitioners Nos. 9, 10, 11, 15, 18 and 23 and that Vakalatnama was filed in this review petition only on their behalf and that all the appellants were shown as petitioners in this review petition only because Rule 871 of the High Court Original Side Rules requires it. In our opinion, that Rule does not require all the appellants whose appeal has been dismissed should necessarily be shown as review petitioners when only some of them wish to file review petition. That rule reads as follows : "871(1) An application for review shall be made by filing a memorandum or review, which shall, with any necessary modification, be in the form prescribed for the memorandum of appeal (Form No. 90). (2) Rule 42 as to plaints shall, so far as applicable and with any necessary modifications, apply to a memorandum of review." Sub-rule (1) of Rule 871 clearly mentions that review petition shall be filed with any necessary modifications. When only some of the several appellants whose appeal is dismissed, seek a review of the judgment, they cannot be compelled to join the persons who do not wish to seek review as petitioners. If such persons are necessary parties, they could only be impleaded as respondents in the review petition. The petition is, therefore, defective inasmuch as the persons who do not wish to seek review have been impleaded as petitioners. The original Vakalatnama, said to have been filed by the Counsel, does not contain signatures of all those who have been described as petitioners in the review petition. Be that as it may, even some of the appellants could undoubtedly file a review petition. A preliminary objection to the maintainability of this review petition was raised by the respondents that some of the appellants having already filed an application for grant of special leave to appeal before the Supreme Court, a review petition does not lie. We are unable to accept this contention, firstly for the reason that special leave petition does not amount to an appeal as such unless special leave petition is allowed, the appeal is not registered, it could as well be dismissed in limine. But a more formidable reason is that the present review petition was filed on 29th November, 1984 when none of the appellants had filed even the special leave petition. A few of the appellants filed special leave petition much latter on 27-1-1985. Order XLVII, Rule 1 C.P.C. permits any person considering himself aggrieved by a decree or order from which no appeal is allowed, to file review petition on the ground mentioned in sub-clause (c) of Order XLVII, Rule 1(1). Sub-rule (2) of Rule 1 of Order XLVII no doubt places an embargo on this right by stipulating that only a party who is not appealing from a decree or order may apply for a review of judgment. It is stated that the petitioners who have filed review petition have not filed special leave petition. We have no material before us to hold one way or the other on this aspect even if the petitioners were not parties to an appeal, if some have preferred an appeal, a review petition cannot be entertained on a ground common to both the review petition and the appeal. There is, however, no provision which directs that a review petition already filed should be dismissed and not considered on merits on the ground that some of the appellants have already preferred an application for grant of special leave to appeal. A Full Bench of Allahabad High Court in (Behari Lal v. M.M. Gobardhan Lal) A.I.R. 1948 Allahabad 353 laid down "The filing of an appeal subsequent to the filing of an application for review does not make the hearing of the review application incompetent." If that be the position, when an appeal is filed subsequent to the filing of the review petition, much more so a review petition would not become incompetent where none of the appellants have yet preferred an appeal. The Supreme Court in (Thungabhadra Industries Ltd. v. Govt. of A.P.) A.I.R. 1984 S.C. 1372 held : "The crucial date for determining whether or not the terms of Order XLVII, Rule 1(1) Civil P.C. 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." The preliminary objection to the maintainability of the review petition is rejected. We, therefore, proceed to consider the review petition on merits.
(2.) It is contended in this review petition that having regard to the fact that the appellants and their Counsel were both absent at the time when the appeals were taken up for hearing, the Court should not have proceeded to dispose of the appeals on merits, but should have, having regard to Rule 988 of the High Court Original Side Rules read with Order XLI, Rule 17, dismissed the appeals for default. We must point out at the outset the this contention ignore the amendments made by Amending Act, 1976 in section 141 C.P.C. in view of the amendment the provisions of the Code of Civil Procedure as such does not apply to proceedings under Article 226 of the Constitution; nor do they apply to an appeal arising out of any judgment made thereunder. Only because it is a civil proceeding, it could be argued on the strength of section 141 C.P.C. that C.P.C. applies. Any such argument is not tenable after the Amending Act of 1976 by which an explanation is added to section 141. After the amendment, section 141 reads as under : "141. The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. Explanation.---In this section, the expression proceedings includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution." When section 141 of the Code of Civil Procedure specifically lays down that proceedings under Article 226 of the Constitution are not covered by it, the explanation added to Rule 17(1) of Order XLI will not apply to proceedings under Article 226 of the Constitution or appeal arising therefrom. Rule 17(1) of Order XLI after the amendment reads as follows : "17(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. Explanation.---Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits." Only Order XLI, Rule, 17(1) prohibited disposal of an appeal on merits in default of appearance of a party or his Counsel. As a result of this amendment, the Court is not now precluded from disposing of the appeal on merits even on the absence of the parties and is not obliged necessarily dismissing it for default. Whether to dispose of the appeal on merits or dismiss on merits when the appellant remains absent is the discretion of the Court. The Court either can dismiss the appeal for default for non-appearance of party and his Counsel or dispose of the same on merits. Reliance is, however, placed on Rule 988 of the High Court Original Side Rules to contend that C.P.C. applies notwithstanding the amendment to section 141 C.P.C. Rule 988 of the High Original Side Rules reads as under : "988. In cases not provided for by the Code of Civil Procedure or by the Rules contained in Parts I, II and III, the present practice and procedure shall be followed, so far as they may be applicable and are not inconsistent with the said Code and the said Rules." It is necessary to note that Rule 988 applies only to the cases for which no provision is made by the Code of Civil Procedure. After 1977 amendment, the Code of Civil Procedure expressly laid down that the provision contained therein would not apply to petitions under Article 226 of the Constitution. Therefore, the existing practice will have to be followed. There is no existing practice of which we are aware which compels a Division Bench hearing an appeal against the order passed in a writ petition to be necessarily dismissed for default. In the circumstance in which these Appeals Nos. 81 and 82 of 1979 came up for final hearing, we do not think that they should have been necessarily dismissed for default and not disposed of on merits. Rule 988 only speaks of following the practice in vague in Court, but such a practice should not be inconsistent with what is said in the Code. Since C.P.C. has expressly excluded its application to proceedings under Article 226 of the Constitution by virtue of section 141 as it stands since 1976, any practice of disposing of appeal on merits cannot be said to be inconsistent with the provisions of Code of Civil Procedure. In fact it could not be the intention of the legislature to require the Court to necessarily dismiss the writ petitions and writ appeals in default by applying Order XLI, Rule 17. In specifically amending section 141 and expressly excluding all proceedings under Article 226 of the Constitution and the operation of the Code of Civil Procedure, to our mind the Legislature has specifically disclosed its intention to be otherwise. In any case that was a matter left to the discretion of the Court, to either dismiss it for default or dispose it off on merits. There is nothing in the Code of Civil Procedure or Rules governing writ petitions and writ appeals to enjoin the Court to necessarily dismiss them for default on failure of the party and Counsel in appearing in Court. The contention of the petitioners that the appeals should have been dismissed for default and should not have been disposed of on merits cannot be accepted.
(3.) We may at this stage refer to the fact that in the other Review Petition No. 7 of 1985 filed against the same judgment, a specific point was taken that Shri Kalsekar did not continue as an Advocate on record after Shri Bhore filed his appearance. We have rejected that contention and also that review petition. For the reasons stated there we hold that Shri Kalsekar, Advocate continued to be on record. Apart from the fact that Shri Kalsekar, Advocate continued to be on record, he sought two weeks adjournment on the ground that the other Advocate on record Shri Bhore was unable to be present to give him instructions. The matter was, therefore, adjourned to the following day i.e. 31st July, 1984 to enable Shri Kalsekar to be ready with matter. However, on 31st July, 1984 when the appeals were taken for bearing, appellant No. 6 who along with other appellants was fighting a public interest litigation, appeared before the Court and stated that Advocate Shri Kalsekar had returned the brief. He also tendered an affidavit. As stated in the judgment under review, "the Court gathered from appellant No. 6 who was present in Court for some time for tendering his affidavit that Shri Kalsekar though not busy elsewhere was not appearing in the matter." Though Shri Kalsekar now takes an exception to this statement in the judgment, in the affidavit filed contemporaneously all that was stated that he was busy in another Court. Appellant No. 6 who had filed the affidavit that day had neither stated so in his affidavit nor did he say so orally before the Court on that day that he had ceased to be on record in that case. As recorded in the judgment, he stated that Shri Kalsekar had returned the brief and not that he was busy. As laid down by the Supreme Court in (State of Maharashtra v. Ramdas Shrinivas Nayak) A.I.R. 1982 S.C. 1249, the correctness of the recital in the judgment cannot be disputed. The Court declared : "4.........Matters of judicial record are unquestionable. They are not open to doubt..............We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in Court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence............... 7. So the Judges record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else." We may add that so far as this case is concerned even in the affidavit filed contemporaneously, it was not asserted that Shri Kalsekar was on his legs before another Court. In fact what was stated was that he has returned the brief. In those circumstances, while one of the appellants was present in Court, the matter was taken up for hearing and disposed of on merits. In such a case even as laid down in (Emmanuel S. Peters v. Alice Peters) A.I.R. 1976 Delhi 148, on which reliance was placed by the learned Counsel for the petitioners, it cannot be held that there was default of appearance of party. The position where either the appellant or his Counsel appeared but has refused to make a submission or was unable to do so, would however, be different as was pointed out in the decision of the Delhi High Court in A.I.R. 1976 Delhi 148 and in the judgment of the Supreme Court reported in A.I.R. 1963 S.C. 146. The litigation is pursued by a group of persons purporting to represent the interest of public in general. Each one of them was purporting to be acting in a representative capacity. Appellant No. 6 was as much representing public interest as anybody else and being present in the Court should have represented that all he wished to. We have no doubt in our mind, from what transpired that day and the previous day that the appellants were merely bent upon prolonging the proceedings and that was stoutly opposed by the respondents. In these circumstances the Court did not deem it expedient to dismiss the appeal for default or adjourn the matter and thought it expedient to dispose of the appeal on merits after hearing the respondent who was present. In fact the Court was obliged to hear and dispose of the matter on merits. In our view, it is not the intention of any procedure or practice prescribed followed by this Court to give an undue advantage to a party who is trying to prolong the proceedings and wastes the Courts time and put the respondent and his Counsel to unnecessary inconvenience. It will be sheer abuse of the process of Court to require the Court to dismiss the appeal in the circumstances stated in the judgment and the circumstances in which the appeals were dismissed in this case. ;