Waman Ramchandra Bhayde vs Kanta Narayan Patel
2012 Latest Caselaw 179 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                        
                           APPELLATE CIVIL JURISDICTION
                         APPEAL FROM ORDER  NO.604 of 2010
     1. Waman Ramchandra Bhayde




                                                          
     2.  Deepak Waman Bhayde
     3. Ravindra Waman Bhayde 
         All adults residng at Sardar Patel Marg,
         Tal:Murud Janjira Dist.Raigad                      ..   Appellants 




                                                         
             Vs
     1.Kanta Narayan Patel  
     2.Chandrakant Narayan Patel
     Nos.1 & 2 both Adults residing at Sardar Patel




                                      
     Marg,Tal: Murud Janjira Dist.Raigad & also at
     Sunav Sona Tekdi,tal:Kheda Dist.Anand Gujrat
                      
     3.Raju Narayan Patel
     4. Kirti Narayan Patel 
     Both adults,residing at Sardar Patel
                     
     Marg,Tal: Murud Janjira Dist.Raigad                    .. Respondents
                                 .......

Ms.Gauri Godse for Appellants Mr.P. S.Dani for Respondent nos. 1 to 4 CORAM : B.P.DHARMADHIKARI, J

DATE: 12 th October,

.

ORAL JUDGMENT:

1. The Plaintiff/Landlord has filed this Appeal under Order 43

Rule 1 of CPC challenging the Order passed below Exhibit 49 in Civil Appeal No.113 of 1997 preferred by the Respondents-Tenants granting his Review Application and permitting him to amend his Written Statement subject to payment of costs of Rs.10,000/- before

the Appellate Court.

2. It appears that initially the challenge was presented as a Writ

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Petition under Article 227 of the Constitution of India. The same was

registered as Writ Petition No.6994 of 2003. This Court admitted it and granted interim relief on 14.11.2003 and later permitted the

same to be converted into Appeal against Order in view of the provisions of Order 43 Rule 1 (w) of C.P .C. vide its order dated

13.4.2010.

3. Learned Counsel for the Appellants/ Landlord points out that

R.C.S. No.20 of 1995 was filed by the Landlords pointing out that the

tenant had discontinued payment of rent form April 1990 and was a defaulter. The tenant filed his Written Statement and denied the said

contention as false and leveled motive. The trial Court by judgment dated 25.4.1997 decreed the Suit. This Decree has been questioned by the Respondent-Tenant in Appeal No.113 of 1997 and in that

Appellants/Tenants filed an Application at Exhibit 38 seeking leave

to produce some rent receipts under provisions of order 41 Rule 27 of C.P.C. The Appellate Court after hearing the respective parties

rejected that Application dated 10.7.2001 on 7.8.2001. The said rejection was questioned by the Respondent/Tenant in a Petition under Article 227 of the Constitution of India which was registered

as Writ Petition No.5276 of 2002 and it was dismissed on 2.6.2003.

4. Thereafter on 21.7.2003 the tenant filed an Application under Order VI Rule 17 to add para 5A to his Written Statement to plead

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that before filing of the Suit he had twice forwarded rent to the

landlord, the landlord did not accept it and therefore was received back by the Tenant. The Tenant on the basis of this fact wanted to

urge that he could not have been leveled as a defaulter. The Application was objected to by the Appellants/Landlord and by an

order dated 16.8.2003 the Additional District Judge rejected that Application.

5. After the said rejection, the tenant on 2.9.2003 filed an

Application at Exhibit 49 under section 114 read with section 47 of CPC and sought review of said Order dated 16.8.2003 contending

that in the light of provisions of section 16 sub section 2 of CPC (Amendment) Act 2002, the amended Order under Order VI Rule 17 C.P.C. could not have been applied to Civil Appeal No.113 of 1997.

This was also opposed by the Landlords.

6. By impugned order dated 16.9.2003 passed below Exhibit 49

the Appellate Court granted that Review and permitted the Tenant to amend his Written Statement subject to payment of costs of Rs.10,000/-.

7. Advocate for the Appellants submits that the Appellate Court in this situation has exceeded the jurisdiction available to it while considering the said Application. The amendment to Order VI Rule

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17 of CPC in 2002 was not the sole reason given by the Appellate

Court while rejecting the Application moved by the tenant vide Exhibit 46. Negligent conduct of the Appellant/Tenant and delaying

tactics was looked into and for these reasons, the Appellate Court did not permit him to amend his defence. These reasons are totally lost

sight of while allowing the Review Application. Learned counsel submitted that though the amended C.P.C. may not apply, other grounds recorded by the Appellate Court while rejecting Application

at Exhibit 46 were valid and the Appellate Court could not have

reviewed the same. As the impugned order overlooks all these aspects the same is liable to be set aside and the earlier order dated

16.8.2003 needs to be restored.

8. Advocate Dani for the Respondent-Tenant has raised

preliminary objections. According to him, correctness or otherwise of

the order granting Amended Application cannot be looked into by this Court in its present Jurisdiction. He invites attention of the Court

to the provisions of Order 47 Rule 7 of C.P.C. to show that an Order rejecting the Review Application is not appealable but it is only the Order which grants the Review has been permitted to be appealed

from. According to him, Order 47 Rule 8 of C.P.C. contemplates separate application of mind by the Court hearing the Review Application to the reasons on which Review is pressed and then to the merits of the matter. If that Review Application is granted, the

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said Court is satisfied that the ingredients or requirements of Order

47 Rule 1 are met with. Thereafter the Court can proceed to hear the issue on merits immediately or at latter date as per its convenience.

This latter Application on merits of the controversy cannot be subjected to an Appeal under Order 47 Rule 7 of C.P.C. He submits

that in the present matter Review has been granted because of the finding at Exhibit 46 was erroneously rejected on 16.8.2003 by applying the amended provisions of C.P.C. It is indeed this finding

which can be subjected to Appeal before this Court and can be

appreciated by it. Latter part cannot be looked into by this Court. He therefore prays for dismissal of the present Appeal. By way of

abundant caution and in the alternative he submits that at the most Application at Exhibit 46 can be directed to be reconsidered by the very Court in accordance with law.

9. Learned Counsel for the Appellants submits that the Order dated 16.8.2003 at Exhibit 46 is not only due to the amended C.P.C.

but conduct or negligence on the part of the Respondent/Tenant has also been relied upon as an independent reason warranting rejection of that Application. As in the impugned order, this rejection on

independent or distinct grounds is not found to be erroneous in any way, the Order granting Review on that account is itself erroneous and liable to be quashed and set aside. According to her, the Appellate Court hearing the Review after noting that amended C.P.C

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was erroneously applied on 16.8.2003 should have then looked into

these other grounds and attempted to find out whether ingredients of Order 47 Rule 1 of C.P.C. were satisfied qua those grounds. In the

absence of application of mind on these lines, Order granting Review itself is unsustainable and hence present Appeal needs to be

allowed.

10. Scope of the present Appeal needs to be found out within the

frame work of the provisions of law and facts of the matter at hand

are not determining for the said purpose. Order 47 Rule 1 C.P.C permits Application for Review of Judgment or Order to be filed, If

contingencies stipulated therein exist. Rule 7 specifically lays down that Order rejecting Review is not appealable but order granting such Application can be objected to at once by the Appeal from Order

granting the same or then in an Appeal from Decree or Order finally

passed or made in the Suit. Other relevant provision is Order 47 Rule 8. The said provision reads as under :

Order 47 Rule 8 C.P.C.

" Registry of application granted, and order for re-hearing: When an application for review is granted a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit. "

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11. Rule 8 therefore clearly shows that when an Application for review is "granted" its note is required to be taken in the Register.

These words "granted' need to be understood in the light of provisions of order 47 Rule 7 C.P.C. where it is clarified that Order

rejecting Application is not appealable and Order granting the same can be appealed from.

12. The latter part of Rule 8 provides that where an Application is

granted the Court granting it may "at once" rehear or make such an Order in regard to "re-hearing" a Suit as it thinks fit. Thus, in the

scheme of Rule grant of Review Application and consequential rehearing are expected to be two independent exercises. The Court is permitted and empowered to undertake this latter exercise of "re-

hearing" at once but merely because it is taken up at once, it cannot

and does not cease to be an independent or separate exercise.

13. The Appeal is permitted against Order granting Application for

Review under Rule 7. The latter part of Rule 7 shows that such an Order granting Review can also be questioned in a substantive Appeal from Decree or Order finally passed or made in the Suit. This

Decree or Order finally passed come into existence only when consequential re-hearing is completed by such Court either at once or at some other date. When Order 47 Rule 7 & 8 C.P.C. are read

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together, it is clear that Appeal permitted under Order 47 Rule 7 read

with Order 43 Rule 1 (w) of C.P.C is only against an Order granting Review. That is an order which shows satisfaction of Court about

fulfillment of the requirements of Order 47 Rule 1 of C.P.C and therefore, necessity of consequential re-hearing of the issue on

merits. Adjudication on merits which is after rehearing, cannot be subjected to the Appeal under Order 47 Rule 7 read with Order 43 Rule 1 (w) C.PC. Such challenge on merits after rehearing is

governed by Section 96 read with Order 41 C.P.C.

14. The present facts show that on 16.8.2003 when Exhibit 46

was decided the Additional District Judge has considered the rival arguments. Counsel for the tenant had submitted that the tenant had tried to adduce evidence to show tender of rent by Money order but

the trial Judge did not allow the tenant to lead it as there was no

sufficient pleading about it. The Tenant contended that thus he was deprived of a right to bring all the facts on record. It was also urged

that the amendments need to be liberally allowed and the judgment reported at 1994 BCJ 473 (M/s Tleclcon Pvt.Ltd vs Sokid Container Ltd) and Judgment of the Apex Court reported in AIR

1978 SUPREME COURT 484 (M/s Ganesh Trading Company vs Mojiram) were pressed into service. The argument that these citations were not relevant as they were prior to 2002 Amendment to CPC was advanced by the landlord. A perusal of para 10 of the said

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order dated 16.8.2003 shows that the Landlord also contended that

contentions being raised by the Tenant were false and there was total absence of "due diligence". Immediately after the trial Court

declined to record that evidence, Application for amendment was not moved. The reasons given by the said Court are contained in para 11

and 12 which read thus :

11. " In view of the above Submissions and in view of the

amended rule 17 of Order 6 of C.P.C. The amendment shall not be allowed, after the trial has commenced and for negligence

to amend the written statement, there and then the moment the applicant-defendant was not allowed to adduce evidence,regarding tender of rent by M.O. Certainly attributes

negligence which is in sharp contrast to the term "due diligence."

12. Thus, it appears that the case law relied on by the

applicant-defendant may not assist him because it is one prior

to the amendment of 2002. The above point is therefore answered in the negative and following order :

ORDER

Application stands dismissed with costs."

15. These reasons show that in the light of the submissions the Additional District Judge found that the amended Order 6 Rule 17 CPC did not permit pleadings to be amended after trial commences.

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It is in this background that it has later observed that the tenant

ought to have sought amendment the moment his evidence was not permitted to come on record and his belated approach disclosed for

want of due deligence. The two precedents pressed into service were found not relevant as the same considered the law prevailing prior to

2002 amendment under CPC. These words "due diligence" have been added to provisions of Order 17 by virtue of 2002 Amendment only.

16. It is therefore, apparent that the Court of Additional District Judge was swayed by the amended C.P.C. and therefore found want

of due diligence in Tenant and rejected his Application for amendment. Review was sought by relying upon section 16 of Civil Procedure (Amendment) Act 2002 which deals with repeal and

savings. The said Court while hearing the Review application found

that as per law the amended provisions of Order 6 Rule 17 were not applicable to pleadings filed up to 1.7.2002. This conclusion is

reached by it in para 10. It is in the said para it reproduced old provisions of Order 6 Rule 17 and then proceeded to grant Application at Exhibit 46.

17. This Order dated 16.8.2003 is passed by the trial Court at Exhibit 49 and while passing that order it has allowed the application at Exhibit 46. It has not passed two separate orders i.e.

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one granting Review and latter granting Application at Exhibit 46.

This Order also does not show that the present Appellant got opportunity to point out that Application at Exhibit 46 was rejected

not only on the ground of bar in amended C.P.C. but also on other grounds. The impugned Order dated 16.8.2003 therefore, does not

meet the requirements of Order 47 Rule 8 of CPC.

18. The said Court after holding that a case for grant of Review

was made out ought to have heard the parties on merits on

Application at Exhibit 46 and then passed Order independently on it. That has not been done and the impugned order is common or

consolidated Order on Exhibit 49 only. It is apparent that if this Order is presumed as in Order on Exhibit 46 the said Order cannot be questioned in Appeal before this Court. However, Exhibit 46 has

been allowed while hearing Review Application itself and not after

completion of hearing of Review Application and during re-hearing of Exhibit 46. Hence, this common order needs to be accepted and

tried as a order passed below Exhibit 49 only.

19. In view of this finding, it is not necessary for this Court to

consider other contentions raised by the learned counsel for the Appellant whereby she wanted this Court to note the specific pleadings of the Landlord in the Plaint and evasive denial in the Written Statement, effort made by the Tenant during evidence before

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the trial Court and the objections raised thereto all with a view to

point out the deliberate delaying tactics adopted by the tenant. The contention was that the Respondent tenant ought to have and could

have moved necessary Application when the Suit was pending before the trial Court itself. That was deliberately not done and an adverse

decree was permitted to be passed. That adverse Decree was questioned in an Appeal in 1997. In that Appeal after four years Application at Exhibit 38 under Order 41 Rule 27 of CPC was filed

and matter was brought to this Court. In 2003, after failure therein,

steps which needed to be taken before the trial Court were then resorted to and Application under Order 6 Rule 17 was filed. All

these contentions and replies given by the Respondent-Tenant thereto need to be looked into by the Additional District Judge. Hence, all these aspects are kept open for consideration by that

Court.

20. This Court has already found that Exhibit 46 was rejected on

16.8.2003, only because of erroneous assumption that amended Order 6 Rule 17 C.P.C. was applicable. The grant of Review and allowing Application at Exhibit 49 therefore cannot be levelled as

erroneous or perverse. However, the later Order particularly para of the said Order dated 16.8.2003 passed below Exhibit 49 is unsustainable as it falls outside or beyond the scope of Jurisdiction then available for consideration to the Additional District Judge.

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That part by which the said Court has proceeded to allow Application

at Exhibit 46 is therefore quashed and set aside.

21. Application at Exhibit 46 is accordingly restored back to the file of Additional District Judge, Raigad. The said Court shall re-hear

that Application expeditiously and in any case within a period of one month and pass suitable Orders upon it within further period of two weeks after communication of this order.

22. Considering the fact that the Appellant before this Court is a Senior Citizen and the Suit filed by him is of the year 1995, the Court

is directed to decide the Appeal thereafter on merits within a further period of two months.

23. A.O. is accordingly partly allowed and is disposed of. However,

in the circumstances of the case, there shall be no order as to costs.

(B. P. Dharmadhikari, J)