Kesho Ram (Dead) By L.Rs vs Hem Raj

2. Civil Revision No. 22 of 1975 arising out of a civil suit

was allowed on 8th June, 1976 by the High Court. Review

Application No. 5 of 1976 was filed for re-calling the order

dated 8th June, 1976. This application was allowed ex-parte

on 8th September, 1987 as the counsel for the appellant,

Mr. K.D. Raina did not appear to defend the case. As a result

of the order dated 8th September, 1987, the order dated

8th June, 1976 was re-called, and the revision petition was 2

dismissed thereby upholding the order of the trial court that

the suit had abated. The appellant herein thereafter filed CMP

No.266 of 1987 for setting aside the ex-parte order dated 8th

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.

Raina and dismissed CMP No. 266 of 1987 on 11th 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?

3 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 4

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

maintainable against the order dated 11th 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

challenge to the order dated 8th 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

was open to the appellant to challenge the order dated 8th

September 1987, in appeal.

5

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

dated 8th 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