Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2096 OF 2001
Kesho Ram (Dead) by LRs. ….Appellants
Versus
Hem Raj …Respondent
J U D G M E N T
HARJIT SINGH BEDI,J.
1. The facts of the appeal are as under:
2. Civil Revision No. 22 of 1975 arising out of a civil suit
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was allowed on 8 June, 1976 by the High Court. Review
Application No. 5 of 1976 was filed for re-calling the order
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dated 8 June, 1976. This application was allowed ex-parte
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on 8 September, 1987 as the counsel for the appellant,
Mr. K.D. Raina did not appear to defend the case. As a result
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of the order dated 8 September, 1987, the order dated
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8 June, 1976 was re-called, and the revision petition was
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dismissed thereby upholding the order of the trial court that
the suit had abated. The appellant herein thereafter filed CMP
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No.266 of 1987 for setting aside the ex-parte order dated 8
September, 1987. In these proceedings, it was pleaded that
Mr. K.D. Raina, Advocate had failed to appear in Court as he
was not in regular practice and his absence was not wilful. An
affidavit of Mr. Raina was also attached with the application.
The learned Judge did not accept the plea and affidavit of Mr.
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Raina and dismissed CMP No. 266 of 1987 on 11 November
1988 leading to this Letters Patent Appeal against the
aforementioned order. When this matter came up before the
Division Bench, a difference of opinion arose between the two
Judges, with one accepting Mr. Raina’s affidavit and the other
rejecting the same. It was in this situation that the matter
was referred to a third Judge on the following points:
1. “ Did the learned Single Bench
commit an error of law by disbelieving the
affidavit filed by late K.D. Raina,
Advocate, on the plea that presumption
of correctness of the court record was
belied by such affidavit?
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2. Is the order passed by the learned
Single Bench on 11.11.1988 appealable
under Clause 12 of Letters Patent Rules?
3. Is the appeal barred by Rule 7 of
Order 47 Code of Civil Procedure?”
3. The third Hon’ble Judge held that the non- appearance
of Mr. Raina was not wilful or intentional as he had virtually
given up regular practice on account of ill-health and as such
there was no justification in disbelieving his affidavit. With
respect to point nos. 2 and 3, however, the learned Judge held
that clause 12 of the Letters Patent of the High Court of
Judicature for Jammu & Kashmir did not envisage an appeal
to a Division Bench in matters arising out of revisional
proceedings and that the application under Order 47 Rule 7 of
the CPC for re-call was not maintainable. The questions
having been decided thus, the appeal was dismissed leading
to the present proceedings by way of special leave.
4. We have heard Mr. P.H. Parekh and Dr. A.M. Singhvi, the
learned counsel for the appellant and respondents
respectively. Mr. Parekh has reiterated the arguments that
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had been raised before the Division Bench while hearing the
Letters Patent Appeal and also before the third Hon’ble Judge
on the reference. He has submitted that an appeal was
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maintainable against the order dated 11 November, 1988 by
virtue of Order 47 Rule 7(2) of the C.P.C and that in any case
if the Letters Patent proceeding were to be treated as nonest,
the present Special Leave Petition could be entertained as a
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challenge to the order dated 8 June, 1976 on oral prayer.
Dr. Singhvi, on the other hand, has pointed out that an order
rejecting an application in review was not appealable and the
only remedy for having such an order for set aside was to file
an application for review under Order 47 Rule 7(2), but when
such an application had been dismissed, no further
application could be entertained by virtue of Order 47 rule 9
of C.P.C. He has also stressed that a perusal of clause 12 of
the Letters Patent also spelt out that an order in revision was
not appealable under the said clause and that in any case, it
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was open to the appellant to challenge the order dated 8
September 1987, in appeal.
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5. We have heard learned counsel for the parties very
carefully. We find substance in Mr. Singhvi’s argument based
on Order 47 Rule 7(2) but as of today, the prime issue before
us is with regard to the maintainability of the Letters Patent
Appeal. A bare perusal of clause 12 reveals that an appeal
against an order in revision is not maintainable. We are,
therefore, of the opinion that all the observations/findings
recorded by the Letters Patent Bench were nonest being
completely unauthorized in law. We have therefore no
hesitation in dismissing the present appeal as well. We,
however, give liberty to the appellant to challenge the order
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dated 8 September, 1987 in appropriate legal proceedings
with a further direction that it shall be open to the appellant,
should an appeal be filed, to move an application for
condonation of delay which would be considered with
sympathy. We, however, dismiss the appeal. No costs.
…………………………..J.
(Dalveer Bhandari)
…………………………..J.
(Harjit Singh Bedi )
New Delhi,
Dated: October 23, 2008