The trial Court held that the gift deed executed in the favour of the son of Fatima Beevi is invalid and the sale deed executed in the favour of her grandson is valid and, therefore, the grandson is entitled to one-sixth share in the Suit property.
The grandson filed a review application claiming that the Suit ought to have been decreed in its entirety and not for a mere one-sixth share. This review application was rejected on merits by the trial Court. Thereafter, he filed a Civil Revision before the High Court challenging the order of dismissal of his review application. The High Court set aside the order of the trial court rejecting the review application and modified the decree to extend it to the whole of the Suit property instead of on one-sixth share only.
The question before the Supreme Court
Whether a revision maintainable against an order of the subordinate Court rejecting on merits an application for review of an appealable decree passed in a civil suit?
Relevant laws involved in the case
An application seeking a review of a judgment and decree passed in a civil suit is maintainable - (O47R1)
Where it appears to the Court that there are no sufficient grounds for a review, it shall reject the application - (O47R4)
Where the Court is of the opinion that the application for review should be granted, it shall grant the same - (O47R4(2))
An order of the Court rejecting the application shall not be appealable, however, an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit - (O47R7)
An appeal would lie against an order under (O47R4(2)) granting an application for review - (O43R1(w))
No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained - (O47R9)
A bare perusal of the above-mentioned provisions of Order 47 of the CPC indicates that an order rejecting a review application is not appealable.
Section 115 of the CPC
Section 115 of the CPC consists of two following parts:-
1. The first prescribes the conditions in which the jurisdiction of the High Court arises. The conditions are -
a. There must be a case decided in an original suit by a subordinate Court; and
b. No appeal lies
2. The second sets out the circumstances in which the jurisdiction may be exercised.
The power of the High Court is exercisable in respect of “any case which has been decided”. However, the expression “case” is not defined in the Code, nor in the General Clauses Act.
The Hon’ble Supreme Court in the case of Major S.S. Khanna v. Brig. F.J. Dillon reported as AIR 1964 SC 497 has held that “10. The expression “case” is a word of comprehensive import; it Includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a civil court. To interpret the expression “case” as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice.”
Further, “the expression “case” includes a suit, but in ascertaining the limits of the jurisdiction of the High Court, there would be no warrant for equating it with a suit alone.”
And further, “12. That is not to say that the High Court is obliged to exercise its jurisdiction when a case is decided by a subordinate Court and the conditions in clauses (a), (b), or (c) are satisfied. Exercise of the jurisdiction is discretionary: the High Court is not bound to interfere merely because the conditions are satisfied. The interlocutory character of the order, the existence of another remedy to an aggrieved party by way of an appeal, from the ultimate order or decree in the proceeding or by a suit, and the general equities of the case being served by the order made are all matters to be taken into account in considering whether the High Court, even in cases where the conditions which attract the jurisdiction exist, should exercise its jurisdiction.”
The Hon’ble Supreme Court in DSR Steel Pvt. Ltd. v. State of Rajasthan reported as (2012) 6 SCC 782, has examined the different situations that may arise in relation to orders passed in a review petition and observed as follows:
First Situation
Where the review application is allowed, the decree or order passed by the court or tribunal is vacated and the appeal/proceedings in which the same is made are reheard and a fresh decree or order passed in the same.
The Court has observed that in such a situation the subsequent decree alone is appealable not because it is an order in review but because it is a decree that is passed in a proceeding after the earlier decree passed in the very same proceedings has been vacated by the court hearing the review petition.
Second Situation
Where a review petition is allowed and the decree/order under review is reversed or modified.
The Court has observed that such an order shall then be a composite order whereby the Court not only vacates the earlier decree or order but simultaneous with such vacation of the earlier decree or order, passes another decree or order or modifies the one made earlier. The decree so vacated reversed or modified is then the decree that is effective for the purposes of a further appeal, if any, maintainable under law.
Third Situation
Where the review petition is dismissed.
The Court has observed that in such a case suffers neither any reversal nor an alteration or modification. It is an order by which the review petition is dismissed thereby affirming the decree or order. In such a contingency there is no question of any merger and anyone aggrieved by the decree or order of the Tribunal or court shall have to challenge within the time stipulated by law, the original decree and not the order dismissing the review petition.
Conclusion
After considering the law on the subject, the Hon’ble Supreme Court has observed that in the instant case, the trial court dismissed the review application on merits. If it had granted the review, the aggrieved party would have had a right to file an appeal under O43R1(w) read with O47R7. If it had allowed the review and simultaneously altered/modified/reversed the decree, the aggrieved party would have had a right to file an appeal against the said decree.
But, if the revisional court does the same, an anomalous situation would arise. The decree passed by the trial court would stand modified by the High Court. Therefore, if the Defendant(s) against whom the decree is passed were to challenge the same, they would be at a disadvantage on account of the merger.
Whereas, from the standpoint of the Plaintiff/Respondent, even if we assume that the trial court’s decree is inconsistent with its finding on the validity of the gift in favour of the son of Fatima Beevi, she can challenge the same in an appeal against the decree even after the rejection of the review application. In the event of such an appeal by the Plaintiff, the Defendant(s), even if they had themselves not filed an appeal against the trial court’s decree, would have a right to take objection to the adverse finding(s) under O41R22. However, if the revisional court’s order is allowed to stand, owing to modification of the decree by the revisional court, to which in normal course an appeal would lie, the right of an appeal to the aggrieved party would get seriously prejudiced.
While allowing the appeal, the Hon’ble Supreme Court has held that “28. For all the reasons above, we are of the considered view that where an appealable decree has been passed in a suit, no revision should be entertained under Section 115 of the CPC against an order rejecting on merits a review of that decree. The proper remedy for the party whose application for review of an appealable decree has been rejected on merits is to file an appeal against that decree and if, in the meantime, the appeal is rendered barred by time, the time spent in diligently pursuing the review application can be condoned by the Court to which an appeal is filed”.
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