This petition under section 115 of the Code of Civil Procedure seeks a revision of two orders passed by the learned Administrative Civil Judge, Bahawalpur on the 8th of November 1966 and the 9th of September 1967 respectively. By the first mentioned order the learned Judge dismissed a suit brought by the present petitioner Muhammad Khan for possession of agricultural land measuring 461 kanals and 4 mantis situate in Chak No, 59/DB, Sub Tehsil Yazman District Bahawalpur. By the second order, the learned Administrative Civil Judge refused to review his earlier judgment and decree.
2. The facts, giving rise to this litigation, are that on various dates between August 1951 and February 1954 the petitioner purchased serveral lots of state agricultural land totalling 461 kanals and 4 marlas in area. He did not pay the sale price according to the original conditions of auction and obtained some relaxation therein. It appears that he did not pay the instalments even according to the concession granted to him subsequent to the auction sales with the result that the lands were resumed by the Collector and re-auctioned on the 17th of November 1953 in favour of defendant-respondents Nos, 2 to 19. The Collector also directed by his order dated the 19th of November 1953 the forfeiture of the amounts deposited in this behalf by the petitioner. It was stated at the bar that these amounts come to about Rs, 10,000. The petitioner's case was that he had been put in possession of the land after the same had been sold in his favour and that he was physically evicted from the land having been resumed and re-auctioned but the respondents asserted that possession was never delivered to the petitioner under the auction sale.
3. The petitioner challenged the Collector's orders by filing a suit for declaration, which was dismissed by the trial Court for the reason that the petitioner should have sued for possession. The petitioner's revision petition (bearing No, 366 of 1962) was dismissed by the High Court on the 25th of October 1962.
4. The present suit for possession was instituted by the petitioner on the 30th of April 1963, and on the pleadings of the parties, large number of issues were framed as follows :-- (1)Whether the defendant No, 1 agreed to sell the suit land in favour of the plaintiff if so, on what terms ?
(2)Whether the plaintiff had become the owner of suit land.
(3)Whether the defendant No, 1 was not competent to rescind the contract of sale and assume the land ?
(4)Whether the defendant No, 1 was estopped to resell the suit land ?
(5)Whether the defendant No, 1 was not competent to resume the land without notice ?
(6)Whether the defendants had notice of the sales in favour of the plaintiff, if so, what is its effect ?
(7)Whether the plaintiff incurred heavy expenditure and Haq, labour, if so, what is its effect ?
(8)Whether the plaintiff is entitled to receive back his amount from defendant No, 1 ?
(9)Whether the plaintiff is estopped to institute the suit ?
5. The learned Administrative Civil Judge held that the plaintiff was bound, in terms of clauses (9) and (10) of the auction sale, to deposit the whole of the sale price within six weeks of the sale in his favour, and that it was known to him that if he failed to comply with any of the terms the price deposited by him could be forfeited and the land re-auctioned or re-sold. He, therefore, concluded that the collector was fully competent to resume the land and to dispose it of by re-auction. The learned trial Judge further expressed the view that the condition regarding forfeiture and re- auction having been embodied in the terms of the auction sale, there was no question of notice upon the plaintiff before resuming the land. As regards the plaintiffs claim for compensation owing to the improvements made by him on the land, the learned Administrative Civil Judge found that there was nothing in the terms and conditions of the sale entitling the plaintiff to such reimbursement. On these findings the learned Administrative Civil Judge dismissed the petitioner's suit.
6. Instead of filing an appeal against the judgment and decree of the trial Court, the petitioner preferred a review application under Order XLVII, rule 1 of the Code of Civil Procedure, urging the following five grounds in this behalf :--
(i) That there was an error apparent on the face of the record, namely, that although the Government of West Pakistan had not filed a written statement, yet it was erroneously assumed in the judgment of the trial Court that such a statement had been filed by the Provincial Government ; (ii)that the plaintiff had failed to deposit the instalments in time because he had not been informed by the Government that he had to deposit the same ; (iii)that the evidence produced by the plaintiff had not received due consideration in the judgment ; (iv)that the plaintiff had a preferential right as against defendants Nos, 2 to 19 to get the land in suit ; and (v)that under the terms of the sale the plaintiff could not be dispossessed by the Collector without permission from the higher authorities.
7. All the grounds were repelled by the learned Administrative Civil Judge. He observed that it was true that the Provincial Government had not filed a written statements, and, therefore, it was an error apparent on the face of the record to state that such a statement had been filed. However, the fact remained that the land having been sold to defendants Nos, 2 to 19 they were the persons who were contesting the suit, having stepped into the shoes of the Government ; and, therefore, the erroneous statement appearing in the original judgment had no bearing on the merits of the suit.
He further found that while deciding issue No, 1 he had referred to clauses (9) and (10) of the statement of conditions under which the sales were made in favour of the plaintiff, and these clauses contained a clear stipulation that the transferee shall deposit the sale price within six weeks of the auction and on his failure to do so the sale price deposited by him would be forfeited and the land re-auctioned or re-sold. It appeared to the learned Judge that in the presence of these express conditions the question of any fresh notice to the plaintiff did not arise. He ended up his order of the 19th of September 1967 by saying that the other grounds urged for review had been discussed at some length in his judgment dated the 8th of November 1966, and he do not find any sufficient cause for reviewing that order :-
8. The main grounds urged in support of the present revision petition are.
(a)That there was indeed an error apparent on the face of the record inasmuch as the Provincial Government had not filed any written statement, whereas the learned trial Judge laboured under the erroneous impression that such a statement had been filed. It is submitted that on account of the omission of the Provincial Government to file a written statement and to deny the various assertions of fact made by the petitioner in his plaint, all the issues of fact should have been decided in favour of the petitioner ; and (b)that the learned Administrative Civil Judge was clearly in error in thinking that no notice was necessary before the resumption and re-auction of the land, as the learned Judge overlooked the fact that in terms of sections 10 and 15 of the Colonization of Government Lands Act, the petitioner was to be deemed to be a tenant of State land as long as he had not paid the full price with the necessary consequence that a notice under section 24 of the same Act was obligatory before he could be dispossessed.
9. On behalf of the respondent a preliminary objection has been taken as to the competence and maintainability of this revision petition. The objection is two-fold :- (a)that no revision lies against the original judgment and decree of the trial Court dated the 8th of November 1966, as an appeal was competent either to the District Court direct or to the High Court ; and (b)That similarly no revision lies against an order refusing to review, for the reason that the original judgment and decree are subject to appeal, and, therefore, the proper remedy for the petitioner was to file an appeal after his review application had been dismissed.
10.The first part of the preliminary objection is not contested on behalf of the petitioner in view of a very recent judgment of the Supreme Court cited as Municipal Committee, Pak. Bahawalpur v. Sh.
Aziz Elahi . Their Lordships have laiddown that the trend of judicial opinion is now to the effect that if a decree or an order, which is in the nature of a decree under the Code of Civil Procedure, has been passed by the Court of first instance, and it is appealable under the Code, then, whether the appeal lies immediately to the High Court or only after another appeal has been taken before the District Judge, the revision would not be competent. This view is also sound on general principles, for, if the framers of section 115 of the Code of Civil Procedure had been of the opinion that a revision would be incompetent only where an immediate appeal lay to the High Court, they would have used the word "from" and not "in" before the words "which no appeal lies thereto". To hold otherwise would lead to anomalous situations, for, a person would thereby be entitled to circumvent the ordinary procedure laid down for preferring in appeal or appeals, as the case may be. He would also be in a position to take advantage of his own negligence by not filing an appeal within the prescribed time. There is no reason why the word "appeal" used in section 115 of the Code of Civil Procedure should be given the restricted meaning of a first appeal. The words "no appeal lies thereto" are words of general import and there is nothing in the section to confine their operation only to first appeals. If this is not done, and an "appeal" is held to include a second appeal, then no difficulty is created by the word "thereto".1 11.Their Lordships haste gone on further to observe that "even in cases where the order of a decision is sought to be challenged does not amount to a decree, the question will arise as to whether the High Court will, in the exercise of its discretion under section 115 of the Code of Civil Procedure, favour interference if another remedy, which was open to a party, has not been pursued by him Normally where the applicant has no other remedy left, the High Courts are inclined to take a liberal view, but where the case is one which does not clearly fall under the terms of section 115, no revision can be entertained in any event.
12.Now, in the present case, it is not disputed that the judgment and decree of the trial Court dated the 8th of November 1966 were appealable directly before the High Court in view of the pencuniary value of the subject-matter. Such being the case, the revision petition is incompetent in so far as it seeks to challenge the judgment of the trial Court dated the 8th of November 1966.
13.Coming now to the second part of the objection raised by the respondents, it has to be noticed that in terms of sub-rule (1) of rule 7 of Order XLVII of the Code of Civil Procedure, an order of the Court rejecting an application for review is not appealable, although an order granting an application may be objected to on the grounds enumerated in clauses (a), (b) and (c) thereunder.
It is laid down that such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit. As the order passed by the learned Administrative Civil Judge on the 9th of September 1967 rejecting the petitioner's review application, is not at all appealable ordinarily it should be possible to entertain a revision against it in terms of section 115 of the Code, irrespective of the fact that the original judgment and decree were subject to appeal.
14.However, the learned counsel for the respondents referred me to at least two cases, namely, Peddibovima Viswa natham and others v. Sreemat Kilabi Sreenivasa Venkata Varddacharyulu Ayyavarlam Garu and Madan Mohanji Maharaj v. Sunder Lal in which it has been laid down that no revision petition is maintainable in a case of this kind. The first mentioned judgment is by a learned Single Judge who has held. Relying upon the decisions in Ramlal v. Patanlal and Lakshman Maruti v. Maruti Lakshman , that section 115 does not apply to an order refusing a review, as the petitioners could have appealed against the original judgment in the suit. He added that ordinarily this section is not invoked when a remedy is available by means of an appeal. In the second case, just mentioned, the point involved was considered from a slightly different angle, namely, that the exercise of revisional jurisdiction in the matter of a refusal by the original Court to review its own judgment would amount to exercising the power of review by the High Court, whereas in fact such a power vested only in the original Court. It was observed that "if the Court which has passed the order itself says that there was no apparent error on the face of the record, in the very nature of things, his finding must be held to be final. The very attribute of an error on the face of the record is, that it must be apparent to everyone including the Judge who has passed the order. If the Judge, even on being told that there was an error, holds that there was no error, then even if there was in fact an error, it was certainly not an error apparent on the face of the record. In this view, it would not be open to this Court to say that there was an apparent error in the decrees passed by the learned Civil Judge and to grant review or to remand the case to him to allow review."
15.It is, however, interesting to observe that in a subsequent case, namely, Arya Insurance Co. Ltd. v. Lal Channoolal , decided by the Allahabad High Court the strict view expressed in the case of Madan Mohanji Maharaj was not followed. In fact the previous case was not mentioned and it was held that the Code does not provide for an appeal against refusal of a review. An order rejecting the review may, however, be brought into question in revision ; but the scope of revision lies within a very narrow compass, for in such a case the applicant has got to justify his contention that in the exercise of its jurisdiction the Court of first instance in refusing review, acted illegally or with2 3 4 5 6 material irregularity.
"Where no such illegality or material irregularity has been found and the Court in rejecting the review was of the view that the ground set out by the applicant was not proper and not acceptable, it would not be open to a revisional Court to come to a contrary conclusion on that point."
16. It is not necessary for me to examine the question at any length for I am inclined to agree with the view taken by the Allahabad High Court in the latter case of Arya Insurance Co. Ltd. mentioned above, in terms of sub-rule (1) of rule 7 of Order XLVII of the Code, no appeal lies against an order refusing to review, and, therefore, there is no legal im-pediment in the way of a revision petition being entertained in such a case, provided of course that the requirements mentioned in section 115 of the Code, for the exercise of the revisional jurisdiction of the High Court, are found to be present. Accordingly, I now proceed to examine whether any grounds exist for my interference in the matter.
17.The first question which naturally arises in this behalf is regarding the scope of the power of review conferred by rule 1 of Order XLVII of the Code. On behalf of the petitioner it is submitted that the power of review is available when there is an error apparent on the face of the record, irrespective of the fact whether the error is one of fact or of law ; and that even otherwise the power can be exercised for any other sufficient reason. On behalf of the respondents it is contended that the power of review is of a definite and limited nature, that it has to be confined to the four corners of the relevant rule and the phrase or for any other sufficient reason" has to be interpreted as referring to a cause analogous to those spelt out in the preceding clauses of rule of Order XLVII of the Code. It is submitted that judging by these principles, the learned Administrative Civil Judge was right in refusing to review his previous judgment and decree as the grounds, sanctioned by law for review, were not present in the instant case.
18.The learned counsel appearing for the parties have been good enough to refer to a large number of authorities in support of their respective points of view. Broadly speaking, it can be said that the view canvassed on behalf of the respondents finds support from Chhajju Ram v. Neki and others , Garabini Kan arin and others v. Surji Narain Singh and others , Ramchandra Alahadeorec v. Govindrao and another , K. A. Muhammad Sultan Sahib v. Nagoji Rao , Mottai Goundan v. P. S. Ramaswa mi Ayyangar and others , Theo Lazarus v. E. M. De Souza & Co. , Bisheshwar Partap Sahi and another v. Parath Nath and another , Maung Pohla and another v. Ma Nagwe Sint and others , S. 0. Krishna Aiyar v. S. V. Naranyannan alias S. V. Dorsaiwami and others and Lachini Narain Balu v. Ghisa Bihari and another .
19.It is not necessary to quote extensively from these authorities, as reference to only a few selected cases would serve to illustrate the principle involved.
20.In the case of Bisheshwar Pratap Sahi and another their Lordships of the Judicial Committee reiterated the view, which they had earlier expressed in Chhajju Ram's case, that rule 1 of Order XLVII must be read as in itself definitive of the limits within which review is permitted, and that the words "any other sufficient reason" must be taken as meaning ''a reason sufficient on grounds at least analogous to those specified immediately previously. In Garabini Kaman and others' case it was made clear that an incorrect exposition of the law is not an error or mistake apparent on the face of the record and that sufficient reason must be ejusdem generic with the previous grounds. It was added that ignorance of a ruling published in authorised reports some months before the trial is not a sufficient cause within the meaning of the rule. In S. 0. Krishna Aiyar a learned Single Judge, in a brief passage, summed up the rule thus: "What the learned Judge has really done is to write a second judgment reversing his first because on fuller argument and further consideration he thought that the view he had first taken was wrong. This is clearly not a purpose for which Order XLVII(1) is intended...7 8 9 10 11 12 13 14 15 16 21.On behalf of the petitioner reference was made to Sharup Chand Mala v. Pat Dassee , Jatra Mohan San v. Aukhil Chmira Chowdhry , Ma Htavi v. Ma Pwa Hnit and Natesa Naicker v.
Sambanda Chettiar , in an effect to show that the power of review would be exercised in a suitable case if the Judge had gone wrong in interpreting the law and it could be shown that the view taken was erroneous.
22.Here again it is not necessary to cite from all these authorities and it would suffice if reference is made to one or two cases which bring out the ratio decidendi relied upon by the learned counsel for the petitioner.
23.In the first-mentioned case it was held that "a review of judgment may be granted (if it is necessary for the sake or justice that the judgment should be reviewed) where there is an error of law on the face of the judgment, or where the decision of the Court has proceeded upon a mistaken view of the law." In Natesa Naicker's case it was held that "when there is a legal position clearly established by a well known authority and by some unfortunate oversight the Judge has gone palpably wrong by the omission of those concerned to draw his attention to the authority, it may in a proper case be a ground coming within the category of an error apparent on the face of the record".
24. A close examination of the authorities cited at the bar by both sides makes it clear that there is in reality no substantial conflict between them. The essential principles brought out in these cases are that the power of review is a definitive power conferred by the statute, that it has to be confined within the four corners of rule 1 of Order XLVII of the Code, that the phrase "or for other sufficient reasons" has to be interpreted as being ejusdem generis with the reasons immediately preceding, and that the error or mistake apparent on the face of the record can be either of fact or of law. However, the power of review is not intended to enable a Court to reverse its previous judgment on the basis of a maturer appreciation of the arguments previously presented, or by reason of additional arguments which were previously omitted from being advanced by the party concerned, and such omission was not on account of any of the reasons mentioned in the rule.
25.In the instant case, the learned Administrative Civil Judge had given a considered judgment while dismissing the petitioner's suit. It is true that there was one error patent on the face of the record, namely, that he had mentioned that a written statement had been filed by the Provincial Government although in actual fact no such statement had been presented. While dismissing the petitioner's review application the learned trial Judge examined the effect of this apparent error and came to the conclusion that it had no bearing on the merits of the case, for the reasons that the land having been re-auctioned in favour of respondents Nos, 2 to 19, they were the true contesting parties and they had filed written statements opposing the claim put forward by the petitioner. I do not see how this view can be said to amount to an illegality or a material irregularity on the part of the learned trial Judge in the exercise of his jurisdiction. I can interfere with his order only if I come to such a finding, which It is not possible for me to do.
26.Although several other grounds were urged before the learned Administrative Civil Judge for reviewing his previous order, yet the main ground, which has been repeatedly pressed before me is that the learned Administrative Civil Judge was clearly in error in thinking that in the present case a notice as required by section 24 of the Colonization of Government Lands Act was not necessary I find that at the trial as well as in the review application specific mention of section 24 of the Act was not made, nor was attention drawn to the provisions contained in sections 10 and 15 of the Act for the purpose of showing that the petitioner was to be deemed to be a tenant as long as he had not paid the full price. In any case, in order to establish such a position it had also to be shown that the petitioner had been put in possession of the land with the permission of the Collector. All these contentions and arguments were not put forward before the learned Administrative Civil Judge in the manner in which they have been stated at the bar before me. However, the view taken by the17 18 19 20 learned Administrative Civil Judge in both the orders passed by him is that no notice was necessary. Assuming, for the sake of arguments that his view is not correct, the question is whether it justified review of the judgment delivered by the learned trial Judge on the 8th of November 1966 and whether it now justified further interference by this Court under section 115 of the Code ?
27.Interference by way of review would have been justified only if it had been shown that this was an error of law apparent on the face of the record. This is certainly not so. The question as it is now raised by the two learned counsel appearing for the petitioner is a complicated and mixed question of law and fact. In order to succeed, the petitioner must first establish that he was put in possession with the permission of the Collector, and that he was, therefore to be deemed to be a tenant in law in accordance with the provisions contained in sections 10 and 15 of the Act ; and that in that capacity he was entitled to the notice mentioned in section 24 of the Act even though clauses (9) and (10) of the statement of Conditions, under which he had purchased the land, contained a clear stipulation regarding the cancellation of the sale the resumption and re-auction of the land, and the forfeiture of the price already deposited by him in the event of his failure to comply with the conditions of the sale. These are all complicated questions of law and fact and could not be said to be an error apparent on the face of the record. The matter did not, therefore, fall within the ambit of rule 1 of Order XLVII of the Code.
28.For the foregoing reasons, it seems to me that the learned Administrative Civil Judge was justified in refusing to review his previous judgment dated the 8th of November 1966. As I have already held that the revision petition is not competent in respect of the correctness and legality of the original judgment and decree. I need not say anything more on this aspect of the case. The revision petition, therefore, fails and is hereby dismissed. In view of the complicated legal questions involved, the parties are left to bear their own costs.
29.It was submitted by the learned counsel for the petitioner that very valuable property rights were involved in this case, and a large amount of money, deposited by the petitioner, had been forfeited by the Collector, and I should, therefore, interfere in the interest of justice. The powers of review and revision being creations of statute, it is not possible for me to interfere simply "in the interest of justice" unless of course the case falls within the purview of these powers as contained in the relevant provisions of law. However, the original judgment and decree being appealable, it is still open to the petitioner to file an appeal, if so advised. It will be for him to satisfy the Court that there was sufficient cause for condonation of delay. PLD 1970 SC 506 AIR 1943 Mad. 377 AIR 1953 All. 554 I L R 26 All. 572 26 Bom. L R 284 AIR 1957 All. 400 AIR 1922 P C 112 AIR 1924 Pat. 250 AIR 1925 Nag. 266 AIR 1931 Mad. 828 AIR 1933 Mad. 290 AIR 1933 Rang. 85 AIR 1934 P C 213 AIR 1937 Rang. 56 AIR 1951 Mad. 660 AIR 1960 Pb. 431 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16