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Andhra Pradesh High Court
Judges : JAGMOHAN REDDY, M.SESHACHALAPATI, P.CHANDRA REDDY
M.Agaiah - Appellant
Versus
Mohd.Abdul Kereem - Respondent
Decided On : 08-05-60
CIVIL PROCEDURE CODE - ORDER 47, RULE 7 - APPEAL AGAINST ORDER GRANTING REVIEW - GROUNDS - WHETHER AN APPEAL LIES AGAINST AN ORDER GRANTING REVIEW ON GROUNDS OTHER THAN THOSE MENTIONED IN THE TWO PROVISOS TO RULE 4 (2) OF ORDER 47.
Fact of the Case:
The plaintiff brought a suit for a declaration that he was entitled to the exclusive user of his trade mark, which he had registered under the Trade Marks Act. The trial court dismissed the suit for default. The plaintiff filed a petition for reviewing this order alleging that the District Judge was wrong in dismissing the case for default, that he should have given a decision on the merits and that the error committed by him amounted to a failure to exercise the jurisdiction vested in him by law. The trial Judge allowed the review petition. The defendant carried the matter in appeal to the High Court. The High Court dismissed the appeal in the view that the case was covered by Rule 3 of Order 17 and not Rule 2, and that as the trial court has committed an error in dismissing the suit for default, instead of deciding it on merits, the review petition was competent and therefore the judgment of the trial Court could not be successfully questioned.
Finding of the Court:
The High Court held that the view of the learned Judge that it is Rule 3 that applies and not Rule 2 is unsustainable. The High Court further held that the granting of a review for reasons other than those set out in Rule 1 would constitute a violation of Rule 4 and, as such, an appeal could be entertained against every order granting review. However, the High Court also held that the Legislature effected a material change in regard to Rule 4 (2) in the present Code. The omission of the last sentence of Section 626 of the old Code in the present rule is very significant. This makes the object of the Legislature clearer that it should be left to the discretion of the Court to correct defects or errors committed by it and the grounds which induced the Court to review its order should not be subject to scrutiny in an appeal provided the procedural safeguards are observed by the Court in the process of hearing the application for review. Only two restrictions are imposed on the powers of the Court to review its own judgment. One is contained in the first proviso which gives effect to the doctrine of audi alteram partem. The second limitation relating to the necessity of strict proof bearing on the discovery of new material, etc., is imposed. The reason for the second limitation seems to be that it is an indulgence given to a party to get the previous decision altered on the basis of discovery of important evidence which was not within his knowledge at the time of original hearing. So in the fitness of things, a person, who relies on such circumstances to obtain a review, should affirmatively establish them. The High Court further held that Order 43, Rule 1 (w) does not give an unqualified and unlimited right of appeal. It should be read as subject to Rule 7. The High Court also held that the contravention contemplated by Clause (b) bears on the breach of the two conditions set out in R, 4 (2 ).
Issues: Whether an appeal lies against an order granting review on grounds other than those mentioned in the two provisos to Rule 4 (2) of Order 47.
Ratio Decidendi: The High Court held that an appeal against an order granting review is confined to the grounds mentioned in Rule 7 and that the contravention contemplated by Clause (b) bears on the breach of the two conditions set out in R, 4 (2 ). The High Court further held that Order 43, Rule 1 (w) does not give an unqualified and unlimited right of appeal. It should be read as subject to Rule 7.
Final Decision: The High Court dismissed the appeal.
( 1 ) THE question to be answered by the Full Bench is whether an appeal lies against an order granting review on grounds other than these mentioned in the two provisos to Rule 4 (2) of Order 47.
( 2 ) THE facts culminating in this litigation may be shortly stated. The respondent brought a suit in the Court of the District Judge, Warangal (O. S. No. 9/1/54) for a declaration that he was entitled to the exclusive user of his trade mark, which he had registered under the Trade Marks Act, representing and describing a particular brand of beedies manufactured by him. The basis of the action was that the defendant (appellant) was closely copying this trade mark and using it as his own with slight changes and thereby causing considerable loss of trade to the plaintiffs beedi business.
( 3 ) THE trial of the suit commenced in the beginning of 1956 and after two witnesses were examined for the plaintiff, including, the plaintiff and some documents were marked on his behalf, it was adjourned to 14-4-1956 for further evidence. On the adjourned date, as plaintiffs witnesses were not present, the case was adjourned to 22-6-1956 at the request of the Counsel for the plaintiff. What happened on 22-6-1956 could be seen from the following note:"parties present by Advocates. Plaintiffs advocate reports that his client has not been taking any interest in prosecuting the case. No witnesses are present to day. Mr. Khaja Moinuddin pleader reports no instructions. Plaintiff called and is absent. Hence suit dismissed with costs for default. "
( 4 ) NEARLY three months thereafter, the plaintiff filed a petition for reviewing this order alleging that the District Judge was wrong in dismissing the case for default, that he should have given a decision on the merits and that the error committed by him amounted to a failure to exercise the jurisdiction vested; in him by law. The trial Judge allowed the review petition in the view that, in dismissing the suit for default, he did not exercise his discretion judicially and that he ought to have disposed of the case on merits.
( 5 ) THE defendant who was dissatisfied with his decision carried the matter in appeal to this Court. Sanjeeva Row Nayudu, J. who heard the appeal dismissed the appeal in the view that the case was covered by Rule 3 of Order 17 and not Rule 2, and that as the trial court has committed an error in dismissing the suit for default, instead of deciding it on merits, the review petition was competent and therefore the judgment of the trial Court could not be successfully questioned. This appeal under Clause 15 of the Letters Patent is preferred against that decision.
( 6 ) THERE can be little doubt that the view of the learned Judge that it is Rule 3 that applies and not Rule 2 is unsustainable.
( 7 ) AT this stage it is convenient to refer to Rules 2 and 3 of Order 17. " (2) Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. (3) Where any party to a suit to whom lime has been granted fails to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith. "
( 8 ) IT is profitable to reproduce Order 9 Rule 3 as Order 17 Rule 2 requires the Court to dispose of the suit in accordance with Order IX if the parties or any of them fail to appear. "where neither party appears when the suit is called on for hearing the Court may make an order that the suit be dismissed.
( 9 ) THE point, that calls for determination is whether Rule 3 governs a case where the party who is granted time to perform some act not only fails to do it but is also absent or whether it falls within the ambit of Rule 2. In our op
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