1996 Supreme(MP) 1233

IN THE HIGH COURT OF MADHYA PRADESH
A.R. Tiwari, N.K. Jain, JJ.
Peera - Applicant
Vs.
Surajbai - Respondent
M.C.C. No. 166 of 1994 (I)
Decided On : 08-04-1996

Headnote:(1) Civil Procedure Code, 1908 – O.47 R.1 – second appeal allowed – case remanded to lower Court – parties interested neither noticed nor heard – mistake is apparent on the face of record.

       (2) Natural Justice – principles not followed in deciding the second appeal – judgment is liable to be set aside in review – it is a valuable right of a party.

        Short Note

       This application under Order XLVII Rule 1 of the Code of Civil Procedure is filed seeking review of the order passed on 27.2.87 passed by the learned Single Judge of this Court in Second Appeal No. 7/87 on the ground of violation of principles of natural justice.

       2. Briefly stated, the facts of the case are that the original plaintiffs Surajbai and Jagannath filed two separate suits for declaration and perpetual injunction in the Court of Civil Judge Class I, Depalpur. The suits were decreed. The applicants then filed First Appeals in the Court of the District Judge, Indore. The appeals were allowed. The original plaintiffs and the legal representatives of deceased Daulaji filed S.A. No. 7/87. On 27.2.87, the appeal was admitted on the under – noted substantial question of law with a direction to issue notice.

       Whether the judgment and decree of the First Appellate Court is vitiated in view of the amendment in the Code of Civil Procedure O.1, Rule 3 – B as the State of Madhya Pradesh is necessary party to the case, arising out of declaration of title to the agricultural land.?

       3. The record, however, reveals that the appeal was allowed on the same day without issuance of the notice and the judgment and decree passed by the Lower Appellate Court were set aside and the case was remitted back to it for disposal according to law after adding the Government of Madhya Pradesh as party in terms of Order 1 Rule 3 – B of the Code of Civil Procedure. Aggrieved by this judgment and decree, the applicants have filed this application for review.

       4. The aforesaid application is directed by Hon'ble the Chief Justice for placement and hearing by Regular Division Bench. This is how the case was listed before us.

       5. We have heard Shri Gokhale, learned counsel for the applicants. None appeared for the non – applicants, despite notice as is noted in the order sheet dated 8.2.96. The delay is condoned.

       6. Shri Gokhale submitted that the order dated 27.2.87, disposing of the appeal, is invalid as the same is passed without issuing notice and affording reasonable opportunity of hearing to the applicants. We notice that even the S.A. was decided without noticing State of M.P.

       7. The record does demonstrate that the order was passed to issue the notice. However, the appeal was disposed of without issuance of such notice. This point stares in the face and manifests clear case of error apparent on the face of record.

       8. In AIR 1964 SC 1372 (M/s. Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh), it is held that: –

       "We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out."

       x x x x x x x x x x

       9. In (1978) 2 SCR 272 (Mohinder Singh Gill v. Chief Election Commissioner, New Delhi) (AIR 1978 SC 851), it is held as under: –

       "Independently of natural justice, judicial review extends to an examination of the order as to its being perverse, irrational, bereft of application of the kind or without any evidentiary backing." (p. 317) (of SCR) : (at p.882 of AIR)

       x x x x x x x x x x x x

       10. Opportunity of hearing is a valuable right of a litigant. The judgments or orders passed in violation of this principle give rise to the errors apparent on the face of record. This infirmity cogently makes out a case for review.

       11. In the result, we allow this application and review and recall the aforesaid order dated 27.2.87 passed in Second Appeal No. 7/87 to the extent of disposal and retain it to the extent of framing of substantial question of law.

       12. The aforesaid Second Appeal shall accordingly stand revived under its original number. As the applicants have put in their appearance, fresh notices to them would not be necessary.

       13. The office is directed to list the aforesaid Second Appeal before the Regular Bench on 25.4.1996 after issuing notice to the appellants of the aforesaid appeal from the side of the Court. The applicants will make appearance before the Regular Bench on the aforesaid date. Counsel submitted that no progress is made after remand.

       14. This application thus, stands allowed in terms indicated above, but without any orders as to costs.