Shri Rajiv Lochan vs Shri Narender Nath
2003 Latest Caselaw 931 Del

JUDGMENT

R.C. Jain, J.

1. This case raises an important question of law-- "Whether an order passed by an Additional District Judge ( referred to as Superior Court) during the pendency of the trial may be reviewed by a Civil Judge (referred to as Inferior Court) after the case/proceedings were transferred to his Court owning to the statutory change in the pecuniary jurisdiction of the courts?"

2. The facts are in a narrow compass. Rajiv Lochan-petitioner herein had filed a suit for possession of the premises and recovery of Rs. 2,85,573/- as arrears of rent in the Court of the District Judge Delhi. The suit was made over to the Additional District Judge, Delhi for trial and disposal in accordance with law. The suit was decreed pursuant to a compromise between the parties on 21.4.98. The plaintiff moved an application under Sections 151, 152, 153 CPC seeking certain clarifications in respect of the said compromise recorded by the Court. The said applications were disposed of by Ms. Sunita Gupta learned Additional District Judge, Delhi, vide an order dated 19.01.02 thereby directing the plaintiff to return a sum of Rs. 39,000/- as the excess amount received by him as per the terms of the compromise. Subsequently an application under Order XLVII read with Section 151 CPC and another application under Section 340 Cr. P. C. was moved on behalf of the plaintiff seeking review/recall of the Order dated 19.1.02 passed by Ms. Sunita Gupta, Additional District Judge, Delhi. The said applications though addressed to the Additional District Judge was made over to the Court of learned Civil Judge, Delhi for disposal. The learned Civil Judge disposed of and dismissed the said applications vide impugned order dated 24.1.03. Aggrieved by the said order the petitioner has filed the present petition.

3. I have heard Mr. Om Prakash, learned counsel for the plaintiff-petitioner and Mr. Rakesh Sawhney, Advocate appearing for the respondent and have given my thoughtful consideration to their respective submissions.

4. The main thrust of the submissions of the learned counsel for the petitioner is that the learned Civil Judge being a Court inferior to the Court of the Additional District Judge was not competent to entertain and dispose of the said applications under Order XLVII Rule 1 CPC and under Section 340 Cr.P.C. This submission is based on the provision of Order XLVII CPC which reads as under:-

" Application for review of judgment-(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 mater 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.

(Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.)"

5. Mr. Om Prakash, learned counsel for the petitioner has vehemently urged that the expression " to the Court which passed the decree or made the order" appearing in Clause (c) of the said rule means the same very Court which passed the decree or made the order. In other words his submission is that the Presiding Officer who presided over the Court which passed the decree or made the order alone can entertain and dispose of an application for review and if such a Presiding Officer is not presiding over the said Court which passed the decree or made the order owing to his transfer, retirement or alike reasons, at least a presiding officer of equivalent rank, jurisdiction and powers and not any officer of inferior rank and powers can entertain and dispose of the application for review. In support of his contention he has placed reliance upon a judgment of Madras High Court in the case of Haridas Girdhridas & Ors. Vs. M. Varadaraja Pillai & Anr. (1976) The Madras Journal Reports 193. He has invited the attention of the Court to the following observations made in paragraph 12 of the said judgment:

" Thirdly we do not see how this Court can be asked to review the judgment and decree of the Supreme Court. Section 9(3-A) only enables the Court which passed the decree or order to reopen or review the same. Article 137 of the Constitution provides that the Supreme Court shall have power to review any judgment pronounced or order made by it. This power is of course subject to the provisions of any law made by the Parliament or any rules made under Article 145. Article 145 empowers the Supreme Court to make rules, with the approval of the President for regulating its practice and procedure, including rules as to the conditions subject to which any judgment pronounced or order made by it may be reviewed and the procedure for such review including the term with in which applications for the purpose are to be entered. Accordingly Order 40 of the Supreme Court Rules provides for it. Article 142(1) says that any decree or order passed by the Supreme Court shall be enforceable throughout the territory of India in the manner prescribed by or under any law made by the Parliament and until such provision is made in such manner as the President may by order prescribe. None of these provisions which we have referred to enables this Court to review the judgment and decree of the Supreme Court. The power of review by this Court is under Section 114 read with Order XLVII, rule 1 of the Code of Civil Procedure. Both the section and the order give power to review to the Court which passed the decree or made the order. The expression the Court which passed the decree means under section 37 of the Code of Civil Procedure the Court of first instance, but this is only for purpose of execution of the decree or order. There is nothing in section 9 (3-A) of the Madras City Tenants Protection Act as amended to suggest that the expression "the Court which passed the decree" therein means the Court of first instance. As a matter of fact as we have seen earlier, Varadaraja Pillai himself applied to the Supreme Court for review of its judgment in the light of the Amending Acts, but he withdrew the petitions. It was suggested that in as much as section 9(3-A) speaks of the power to reopen not only a judgment and decree but also the proceedings relating to a decree or on order, this Court may well exercise this power. But the point is the Court which passed the decree or order is not this Court, but the Supreme Court and this Court cannot reopen or review that decree or order and that being so, it cannot also direct restitution."

6. There cannot any manner of doubt in the legal preposition that the Order passed by the Supreme Court cannot be reviewed or reopened by the High Court or any other courts. It is not merely a statutory restraint but the judicial discipline also does not permit a High Court to review an Order passed by the Supreme Court or reopen the same issue which has been considered and answered by the Supreme Court. Reliance is then placed on a Manipur judgment in the case of Konsam Chura Singh Vs. Hijam Ningol Chaobiyaima Devi and Ors. AIR 1968 Manipur (1) wherein it was held that the lower court was not entitled to entertain an application of the review of the Order passed by the judicial Commissioner.

7. On the other hand learned counsel for the respondent has urged that the impugned order cannot be challenged on the ground that the learned Civil Judge had no jurisdiction to entertain and dispose of the application under Section 151, 152 and 153 CPC because the law itself vested the said Court with the same power as were enjoyed by the District/Additional District Judge at the time of recording the order of compromise and disposing of the applications under Sections 151, 152, 153 CPC which was sought to be reviewed/clarified through these applications. The submission of the learned counsel for the respondent is that after the statutory change in the pecuniary jurisdiction of the Civil Judge/District/Additional District Judge, the Civil Judge assumed the same powers and jurisdiction as was earlier vested in the Court of District/Additional District Judge and was therefore competent to entertain and dispose of the review application. I am inclined to agree with the submissions of the learned counsel for the respondent rather than of the petitioner and it is for the reasons that the statutory change brought about in the pecuniary jurisdiction of the two category of courts viz. District/Additional District Judges and the Civil Judges has the effect of vesting the Civil Judge with the same power and jurisdiction as was vesting in the Court of District Judge/Additional District Judge earlier. In this connection it is pertinent to take note of two notifications Nos. 321/Gaz./F/Judl.1(a)Powers and 322/Gaz./F. Judl.1(a)Powers both dated 19.3.02 issued by this Court which are reproduced below for the facility of reference:-

" HIGH COURT OF DELHI AT NEW DELHI

No. 321/Gaz./F.Judl.1(a)Powers Dated : 19.3.2002

NOTIFICATION

POWERS

Hon'ble the Chief Justice and Hon'ble Judges of the High Court of Delhi, in exercise of the powers conferred by Section 25 read with Section 21(2) of the Punjab Courts Act, 1918 as amended, have been pleased to order that with effect from 1st April, 2002, cases of which the jurisdictional value exceeds Rs. 3,00,000/- but does not exceed Rs. 20,00,000/-, shall be presented to the District Judge, Delhi who may either himself dispose of them or transfer them to the Court of an Additional District Judge for disposal according to law.

Their Lordships are further pleased to order that out of the suits pending before the District/Additional District Judges immediately before 1st April, 2002 the suits of which the jurisdictional value exceeds Rs. 3,00,000/- shall be tried and disposed of by them according to law; and the other suits shall stand transferred from their courts to the Subordinate Courts for trial according to law.

This supersedes this Court's Notification No. 285/Gaz.F.Judl.1(a) Powers dated, the 18th December, 1992.

By order            

Sd/-        

(Bharat Bhushan)

Registrar General

" HIGH COURT OF DELHI AT NEW DELHI

No.322/Gaz./F.Judl.1(a)Powers Dated : 19.3.2002

NOTIFICATION

POWERS

In supersession of Notification No.284/Gaz./F/Judl.1(a)Powers dated 18th December, 1992, Hon'ble the Chief Justice and Hon'ble Judges of the High Court of Delhi are, in exercise of the powers conferred by Section 26 of the Punjab Courts Act, 1918, as amended, pleased to order that with effect from 1st April, 2002, all the Civil Judges shall try Original Civil Suits the jurisdiction value of which does not exceed Rs. 3,00,000/-

By order            

Sd/-        

(Bharat Bhushan)

Registrar General

8. The above notifications issued by this Court in exercise of its power conferred by section 25 and 26 of the Punjab Courts Act, 1918 would leave no doubt and would clearly show that up till 31.3.02 it was the court of District/Additional District Judge which was competent to entertain and dispose of the cases of which the jurisdictional value exceeded to Rs. 1,00,000/- ( Rupees one lacks) but did not exceed Rs. 5,00,000/- (Rupees five lacks) and similarly the courts of Civil Judge were entitled to entertain and dispose of the cases the jurisdictional value of which did not exceed to Rs. 1,00,000/- (Rupees one lacks). However, the aforesaid two notifications brought about a change in the jurisdiction of the courts of the District/Additional District Judge and that of the Civil Judge with effect from 1st April, 2002 the pecuniary jurisdictional limit of the two courts was enhanced e.g. the Civil Judge was vested with the jurisdiction to entertain and dispose of the cases of the value up to Rs. 3 lacks and the court of District/Additional District Judges were vested with the pecuniary jurisdiction to try the cases of which the jurisdictional value exceeded Rs.3 lacks but not to Rs. 20 lacs. Not only that, this change in the pecuniary jurisdiction of the Court to entertain and try the cases was made applicable to the new cases to be instituted on or after 1st April, 2002 but vide notification No. 321/Gaz.F.Judl.1(a)Powers, out of the cases pending before the District/Additional District Judges immediately before 1st April, 2002 of which jurisdictional value did not exceed to Rs. 3 lacs, stood transferred from the board of the District/Additional District Judge to the Board of subordinate Court meaning thereby Civil Judges for their trial and disposal in accordance with law. Therefore, there can be little doubt that after this change in the pecuniary jurisdiction of the two category of courts the court of Civil Judge was vested with powers and jurisdiction to entertain and dispose of the applications moved by the petitioner under Section 151, 152 and 153 CPC and under Section 340 Cr. P. C.

9. It is true that the general principle, for very good reason, is that a review must always be heard by same Judge or by the same Court but there are situations in which this is not possible particularly where the same judicial officer is not available and in these situations it is very settled law that any other Court of competent jurisdiction can hear the case. Ideally the application for review should be answered by the Court which passes the decree or order and it is for the reasons that he is considered to be the best judge/person to appreciate, consider and answer the said application, he having himself passed the order or decree sought to be reviewed. However, once such judge/presiding officer is not available owing to various reasons, viz transfer, superannuation, death and alike reasons the other competent court is authorised and empowered to deal with the review application and the application cannot be dismissed merely on the ground that the said judge is no longer in position. Therefore, the question as to who is the competent court which can entertain and answer the application for review of the decree or order passed by another Judge. "The competence, jurisdiction, powers" are terms which have their own meanings but if we construe the same in their common parlance, it would mean a Court of parallel jurisdiction to the Court which passed the order or decree sought to be reversed. Once the Court of Civil Judge is vested with the jurisdiction to entertain the suits of the value up till Rs. 3 lacks, which was earlier vested in the Court of District/Additional Judge, the former court becomes a competent successor court to the predecessor court. This is more so because of the statutory change brought in by the aforesaid Delhi High Court notifications.

10. Having regard to the entirety of the facts and circumstances of the case and the aforegoing discussion, this Court has no hesitation in holding that the impugned order cannot be faultered on the ground of lack of jurisdiction in the Court of Civil Judge to review the order passed by the Court of Additional District Judge. No other ground was pressed before this Court. In the result this petition fails and is hereby dismissed.