Padam Chand Jain vs Piyush Jain & Others
2011 Latest Caselaw 3338 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 14.07.2011

+CM (M) No. 1595/2010 & CM Nos.22382/2010,
12561-62/2011


PADAM CHAND JAIN                                 ...........Petitioner
                           Through:   Mr. Sanjay Jain, Sr. Advocate
                                      with Ms. Ruchi Jain, Advocate.

                      Versus

PIYUSH JAIN & OTHERS                             ..........Respondents
                   Through:           Mr. Parag Chawal, Advocate
                                      for respondents No. 1 & 2.
                                      Ms. Shobha Gupta, Advocate
                                      for respondent No. 3.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                  Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. The order impugned before this Court is the order dated

31.08.2010. Contention before this Court is that vide order dated

31.08.2010, the court of Additional District Judge had heard an

appeal under Order XLIII of the Code of Civil Procedure

(hereinafter referred to as the „Code‟) against the dismissal of a

review petition dated 19.02.2010; an appeal filed against an order

which has dismissed a review petition is not maintainable under

Order XLIII of the Code. Attention has been drawn to Order XLIII

Rule 1 (w) of the Code which reads as under:-

"Order XLIII.

1. Appeal from orders.- an appeal shall lie from the following orders under the provisions of section 104, namely

(w) an order under rule 4 of the Order XLVII granting an application for review."

2. Vehement contention is that only where an order granting a

review has been passed, an appeal is maintainable under Order

XLIII of the Code; however, if the order has dismissed a review

application, the appeal under Order XLIII of the Code is not

maintainable. Thus the order dated 19.08.2010 is non-est and

being void ab initio; it is liable to be set aside. It is contended that

the reliance by the concerned court while recording the impugned

order on the judgment of the Apex Court reported in AIR 1981 SC

1786 Shah Babulal Khimji Vs. Jayaben D. Kania and another was

misplaced; in this case the Apex Court was concerned only with

the right of the appellant under the Letter Patent jurisdiction. It is

submitted that Additional District Judge in his order dated

31.08.2010 has assumed a jurisdiction upon himself which was not

vested in him; the order suffers from an illegality and is liable to

be set aside under the supervisory jurisdiction of this Court.

3. Arguments have been rebutted. It is submitted that the

order dated 19.02.2010 was a review petition which had been

partly allowed and partly dismissed ; the very fact that there was

a partial allowance of the review petition makes it permissible for

an appeal to be maintained under Order XLIII Rule 1 (w) of the

Code. The second submission is that since the impugned order

dated 31.08.2010 has dismissed the suit of the plaintiff, the

remedy is not a petition under Article 227 of the Constitution. On

the applicability of the Judgment of Shah Babulal Khimji (Supra),

learned counsel for the respondents has fairly conceded that the

Additional District Judge in the impugned order dated 31.08.2010

has misapplied this judgment and the ratio of this judgment in fact

related to the Letter Patent Appeal alone.

4. It is in this background that the respective submissions of

learned counsel for the parties are to be considered.

5. The present suit is a suit for permanent injunction seeking a

restraint against the defendants from interfering in the possession

of the property i.e. municipal No. WZ-603 B Palam Village New

Delhi. Two preliminary issues were framed in the said suit. They

inter-alia read as follows:-

"1. Whether the plaint is liable to be rejected u/s 41 (h) of the Specific Relief Act or not?

2. Whether the suit is liable to be stayed u/s 10 of the CPC?"

6. Both these issues were decided in favour of the plaintiff.

Vide order dated 18.08.2009, it was held that the suit is

maintainable. The aggrieved party had gone in appeal. The High

Court on 18.09.2009 had recorded the submission of the

petitioner/defendant therein that he would seek a review of this

order before the concerned Court; the petition accordingly had

been dismissed as withdrawn with liberty to the party to move a

review application before the concerned trial Court. On

19.10.2009, the review petition had been disposed of. This was a

petition under Order 47 Rules 1 & 2 read with Sections 114 & 151

of the Code seeking a review of the order dated 18.08.2009. While

disposing of the review petition, the order passed by the trial

Judge on the preliminary issues was maintained but certain

clerical mistakes and corrections were allowed; to that extent the

review was partly allowed; Thus while upholding the order dated

18.08.2009 on the maintainability of the suit, the clerical mistakes

were reviewed. Para 8 of the said Order reads herein as under:-

"In the light of the above discussion the application for review filed by the defendants No. 1 & 2 is allowed to the extent that in the impugned order dated 18.08.2009 on page No. 9 it shall now be read as general power of attorney dated 30.04.1998 which was a registered document and which was not for any consideration as alleged by the plaintiff. However, no ground have been made by defendants No. 1 & 2 to review the findings arrived at by this Court on both the preliminary issues."

7. Vehement contention of the respondents is that since the

review had been allowed in part and as has been noted in para 8

(supra), an appeal was well maintainable under order XLIII of the

Code.

8. Learned counsel for the petitioner has vehemently

submitted that the language of Order XLIII Rule 1 (w) of the Code

clearly negatives this contention. It is reiterated out that an

appeal is maintainable only when an application for review is

allowed; contention being that the aggrieved party in appeal

would not be a person whose application for review has been

allowed; it would be in the converse; it would be the party whose

review application has been rejected which was the petitioner in

this case.

9 The appeal as postulated under Order XLIII Rule 1 (w) of the

Code can only be filed by a person where an application for review

has been allowed; such an aggrieved person admittedly is not the

respondent before this Court; such an aggrieved person could only

be the petitioner; the appeal has admittedly been filed Order XLIII

of the Code by the respondent for whom there was a clear bar

under Order XLIII Rule 1 (w) of the Code. The language of this

statutory provision is clear. It is expressly stated that only when

an application granting a review i.e. allowing a review is made can

an appeal be filed. The order dated 19.02.2010 has allowed the

review on the technical errors and corrections to be made;

however the order on merits has been maintained; the order dated

18.08.2009 of the Civil Judge holding the suit to be maintainable

was maintained and the review on this count had been dismissed.

It is also a fact that this appeal Order XLIII of the Code has been

preferred by the respondent. He has filed a review impugning that

portion of the order dated 19.02.2010 which has dismissed his

review application. An appeal against the rejection of the review

petition does not lie under Order XLIII Rule 1 (w) of the Code;

Clause (w) makes it clear that such an appeal lies only in those

cases where review petition had been granted; the appeal filed by

the respondent under Order XLIII of the Code was on his

grievance that the review petition had been dismissed; he has not

impugned that portion of the judgment which had granted/allowed

review.

10. What necessarily follows is that the Court of Additional

District Judge had assumed the appellate jurisdiction under Order

XLIII of the Code when it was clearly not vested with him. An

order passed by a Court who is not competent to pass it is an

order void ab initio; it has no sanctity. This is a patent illegality.

The Apex Court in AIR 1954 Supreme Court 215 Waryam Singh &

Anr. Vs. Amarnath and Another has held that general

superintendence of power vested in the High Court under Article

227 of the Constitution is a power which the High Court has over

all courts and tribunals; it is the duty of the High Court to ensure

that they do their duty as required and they do it in a legal

manner. Where the error of law is apparent on the face of record,

the Court is called upon to interfere.

11. Petition is allowed. The order dated 31.08.2010 is set aside.

Parties to bear their own costs.

INDERMEET KAUR, J.

JULY 14, 2011 a