Kesho Ram (Dead) by
L.R.S. Vs. Hem Raj  INSC 1824 (23 October 2008)
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
HARJIT SINGH BEDI,J.
facts of the appeal are as under:
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?"
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
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.
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 no nest 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.