P (PLP)

Regular First Appeal No. 137 of 1944 (Shrimati Roof Rani Devi vs. C. S. Lavis and others) was pending in this Court before the 15th of August 1947. It came up for hearing before a Division Bench of this Court on the 26th of May 1947. The petitioner‑appellant prayed for adjournment of the appeal on the plea that owing to abnormal conditions then prevailing in the country, she was unable to engage counsel. The case was adjourned to the 27th of May 1947. On that day, Mr. Ram Lal Kapur, an Advocate of this Court, appeared on behalf of the petitioner before the Division Bench and asked for further adjournment on the ground that he had been unable to prepare the case owing to the short time available between his engagement and the hearing. He pointed out that there was a bulky record in the case. This prayer was turned down and the Division. Bench recorded an order to the effect that the appeal was dismissed " in default ". The order in question is not yet before us as the file in the meantime had been transferred to the East Punjab High Court after the appointed day by virtue of section 13 of the High Courts (Punjab) Order, 1947, promulgated by the Governor‑General under section 9 of the Indian Indepen dence Act, 1947. We have, however, been shown a certified copy of that order. The present petition purporting to be one under Order 41, rule 21, Civil Procedure Code, has been presented by Shrimati Roop Rani Devi in which she has prayed that the order of the Division Bench dated the 27th of May 1947 be reviewed and proper order in the case passed, after going through the entire record. Mr. R. P. Khosla on behalf of the respondents has raised a preliminary objection that this Court had no jurisdiction to entertain such a petition in the circumstances of this case, it appears that the whole file of the case was sent to the East Punjab High Court on the 31st of August 1947. It seems further that the petitioner had moved the East Punjab High Court against the order of this Court dated 27th May 1947, for restoration of her appeal, but the learned judges of the East Punjab High Court dismissed the petition holding that the order impugned was not passed under rule 17 of Order 41, Civil Procedure Code, but that it must be deemed to have been passed on the merits. It was after this that the present petition was filed in this Court. The petition is not artistically worded. It is now conceded by learned counsel for the petitioner that the reference to Order 41, rule 21, Civil Procedure Code, in the heading of the petition is misconceived and what his client seeks is really a review of the order of this Court dated the 27th May 1947, under the provisions of Order 47 of the Civil Procedure Code. He says that his client would be prepared to pay the proper Court‑fee if this Court would entertain the petition as a review petition. From the body of the petition it seems to be clear that the objective aimed at by the petitioner was, in fact, a review of the impugned order. The question that falls for determination then is whether a review petition of this nature, (assuming that we would be prepared to allow time for the proper Court‑fee to be paid), is entertainable by this Court. This question has to be decided in the light of the provisions of section 13 of the High Courts (Punjab) Order 1947. The relevant portion of this section so far as it bears on the question under consideration is set out below : ‑‑-- "13 (1) Subject as hereinafter provided, the High Court at Lahore shall have no jurisdiction in respect of the territories for the time being included in the Province of East Punjab or in the Province of Delhi. (2) Notwithstanding anything contained in this order :‑ (a) any proceedings which, immediately before the appointed day, are pending in the High Court at Lahore on its original side, including any proceedings then pending in the said High Court as a Court of reference, shall be heard and determined by the Court; (b) the High Court at Lahore shall have the like jurisdiction to hear and determine any appeal from an order of a judge of the said Court on its original side as if this order had not been made, and the High Court of East Punjab shall have jurisdiction to hear or determine any such appeal ; and (c) the High Court at Lahore shall have the like jurisdiction to review any order made by any judge of the said High Court as it would have had if this order had not been made, and the High Court of East Punjab shall have no jurisdiction to review any such order. (3) Subject to the preceding provisions of this Article all proceedings pending on the appellate side of the High Court at Lahore immediately before the appointed day, shall, where the Court of origin is, as from that day, said in the Province of East Punjab or in the Province of Delhi, stand transferred by of this order to the High Court of East Punjab." It is clear on a perusal of the above provisions that, the fact that after the appointed day, this Court has no jurisdiction in respect of the territories for the time being included in the Provinces of East Punjab and Delhi, yet clause (2) of Article 13, has saved its jurisdiction i:: respect of a limited class of cases pertaining to those territories. In sub‑clause (c) of clause (2) it is expressly enacted that this Court would have the jurisdiction to review any order made by any judge of this Court before the Partition and that the High , Court of East Punjab would have no jurisdiction to review any such order. The reference in this sub‑clause to " any judge " of this Court includes a reference to " a judge or a Division Bench of this Court " as is clear from a perusal of clause (7) of this Article. Learned Counsel for the respondents tried to argue that this Court may have the jurisdic tion to entertain and grant a review petition under this enactment, but that as soon as the decision to review a previous order had been made, the Court should stay its hands and transfer the case for disposal to the East Punjab High Court. The conten tion of the learned counsel is that in such a contingency the appeal would be revived and such an appeal should be heard, by virtue of clause (3) of Article 13 of the Order, by the East Punjab High Court alone. I am unable to subscribe to this view. That clause merely lays down that all proceedings pending on the appellate side of the High Court at Lahore immediately before the appointed day, shall, where the Court of origin is, as from that day, situated in the Province of East Punjab or in the Province of Delhi, stand transferred by virtue of this order to the High Court of East Punjab. This provision is clearly subject to the preceding provisions of the Article, As has been observed above, the preceding provisions include the power of review vested in this Court. That power is unfettered by any words of limitation. To accede to the contention raised by the learned counsel would amount to reading into sub‑clause (c) of clause (2). words to the effect that this Court would have jurisdiction only to grant the prayer, for review, but not to review the impugned order itself. There is no warrant in law for such a course to be adopted, as it would be against the cardinal principles of interpretation of statutes. I have no hesitation, therefore, in holding that the argument raised is fallacious and that this Court has unfettered discretion to review an order made by it before the 15th of August 1947. It maybe pointed out that an order passed on review by this Court, in circumstances similar to those prevailing in this case, would have effect not only as an order of the High Court at Lahore, but also as an order made by the High Court of the East Punjab under subsection (4) 'of section 13 of the High Courts (Punjab) Order, 1947. I would, therefore, hold that a review petition would be within the jurisdiction of this Court to entertain and decide. As to whether such a petition in the present case would be barred by time or not, or whether it would succeed on the merits or not, can only be considered when the petition in question is stamped properly as a review petition. In order that this may be done, I would be inclined to grant time to the petitioner till the 15th of January 1951. The reference to Order 41, rule 21, Civil Procedure Code, in the heading of the petition should be regarded as at best a mis-description of the law under which the petition is entertainable, and consequently ignored. K .M: A /A. H. Petition accepted.