SUBBIAH Vs. MUTHUSWAMY

JUDGEMENT

(1.) In this Civil Revision Petition at the instance of the first defendant in 0. S. No. 27 of 1983, District Munsiff's Court, Tirunelveli, the question that aitses for consideration is, whether the Court below was right in the view it took that it had no jurisdiction to entertain an application for review filed before it by the petitioner. Originally, the first respondent in. situated. S. No. 217 of 1978 before the Sub Court, Tuticorin, against the Petitioner and the second respondent herein for the recovery of amounts due under a mortgage dated 295-1972. Subsequently, owing to the enlargement of the pecuniary jurisdiction of the District Munsiff's Court, the suit instituted by the first respondent herein before the Sub Court, Tuticorin, stood transferred to the file of the District Munsiff's Court, Tuticorin. Before that Court, the first 'respondent herein prayed in 1. A. No. 1293 of 1982 for an amendment of the plaint. Some objections were raised by the petitioner and after overruling those objections, on 15-101982, the learned District Munsiff allowed the application for an amendment of the plaint. On 20-12-1982, the suit which was pending before the District Munsiff's Court, Tuticorin, was transferred to the file of the District Munsiff, Tiruneveli. Before that Court, the petitioner filed an application for a review of the order passed in 1. A. No. 1293 of 1982 by the District Munsiff, Tuticorin, and also prayed for the condo nation of the delay in filing the Review application. While dealing with that application, the learned District Munsiff, Tirunelveli, took the view that as the order, a review of which was prayed for, was passed by the learned District Munsiff, Tuticorin, only that Court can exercise powers of review and that as the transferee Court, he had no jurisdiction to entertain the application. On this conclusion, the application was dismissed. Challenging the correctness of this order, the petitioner has preferred this Civil Revision Petition.

(2.) The learned counsel for the petitioner contended that having regard to the r4W of 0. 47, R. 2, Civil P. C., by Act 66 of 1956, it was not even necessary that the same Judge should bear the review application and that in the present case, the suit itself had been transferred from the District Munsiff's Court at Tuticorin -to that at Tirunelveli and, therefore, under. Sec. 150, Civil P. C., the transferee Court, namely~ the District Munsiff's Court at Tirtmelveh had all the powers and was also obliged to perform all the duties of the District Munsiff's Court at Tuticorin, from which the suit was transferred inclusive of reviewing its earlier orders. Strong reliance in this connection was placed by the learned counsel for the petitioner upon the decisions in Narasimha Raju v. Brundavanasabu (AIR 1943 Mad 617); Mehar 'Singh v. Kesturt Ram (AIR 1968 Punj 3"); Achuthan Y. Karthiyayani Amma (AIR- 1%2 Xec 105). Kahan Chand v. Faqir Chalid and Howrah Insurance -Co. v. S. M. Das Gupta . .On the other hand, the learned counsel for the first respondent would contend that under the provisions of.Order,47. Rule 1, Civil P. C., any person confident himself aliened by an order may for a review of that order to the Cove which passed the decree are made the order and in view of this specific provision, Section, 450, Civil P. C.. enabling the transferee Court to exercise jurisdiction in all matters in which the transferee Court should have so exercised jurisdiction, would not apply. Reliance in this connection was placed upon the use of the expression, "Save as otherwise provided" - occurring in S. 150, Civil P. C. The learned counsel further submitted that there was considerable delay. which was also unexplained, in the filing of the. application for review and the petitioner would. therefore, be not entitled to seek a review of the order passed in 1. A. No. 1293 of 1982

(3.) Before embarking upon a consideration of these rival submissions, it is necessary briefly to refer to 0. 47, R. 1, Civil P. C. That provides for filing of an application for review by any person considering himself aggrieved by a decree or order from which an appeal is allowed, but from which no appeal has been preferred. by a decree or order from which no appeal is allowed. or by a decision on a reference from a Court of Small Causes, and who. from the discovery of new and important atter 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. The aggrieved person desirous of obtaining a review of a decree or order passed against him has to apply to the Court which passed the decree or made the order. Order 47, R. 1 (2), Civil P. C. is not relevant for the present case. Order 47, R. 2. Civil P. C. as it then stood. provided that an application for review on a ground other than the dis covery of new and important matter or evidence, as is referred to in R. 1. or the existence of a clerical or arithmetical mistake or error apparent on the face of the decrde, shall be made only' to the Judge who passed the decree or made the oEder, a review of which was sought for. but that such an application may be dealt with and disposed of by the successor. if the Judge who passed the decree or made the order has ordered notice to issue under 0. 47.'R. 4 (2), Ovil P. C. The other provisions of 0. 47, Civil P. C., are not necessary for purposes of this case. By Act 66 of 1956, 0. 47. R. - 2, Civil P. C., was repealed and thereafter the position is that review applidations' would aH be governed by 0. 47, R. 1, Civil P. C., and in Ilial provi,ion. Mere i,, an Indication that a re%iew application should be made before arld deAt with by the Court which passed the order. It would, therefore, appear that even in it particular Court, a successor can review the order passed by his predeces or-in-office. Though such a successor to a Presiding Oflicer. who passed the order, can review the order so passed. the question still would afi,,,e whether such -it successor should be an officer in the very same Court which passed the decree or made the order. A literal interpretation of 0. 47, R. 1, Civil P. C.. that the power of review conferred thereunder is available to be exercised only y the successor in the very same Court, which passed the decree or made the order be set with difficulties. It may be that the Court at it given place published andth-, entire business of that Court is transferred to some other Court. In such a case. there is no question of it successor Presiding Officer exercising powers of review presiding over the ;ame Court which passed the decree or made the order. That will lead to the result that in such cases, there is to right of review at all available to be exercised by an aggrieved person, though such a right has been conferred under 0. 47, R. 1. Civil P. C. Take a case of even transfer of it suit. as in the present case. To say that in spite of the order of transfer of '(1he suit. the transferor Court alone should exercise the power Of review appears to be it little startling. In such a situation. there will be two Courts dealing with the same matter, one for purposes of exercising powers of review and the other for dealing with the suit and for other procedural matters J. That will lead to confusion and complications. Such a situation could not have been in the contempiation at all -of the provisions under the Civil P. C. to be put upon the words occurring in 0. 47. R. 1, Civil P. C.. viz., "to the Court which passed the decree or made the order" would be to include within its scope also the Court to which the proceedings stand transferred. Such an interpretation would make Available the, remedy conferred under 0. 47, R. 1, Civil P. C, to an person and the transferee Court will also be free to deal with such an application, when made before it. A contrary interpretation would not only prevent the remedy being availed of by an aggrieved person, but would also it, some cats"', as noticed earlier, result in utter confusion and may render nugatory, the remedy itself.