P L D 1957 (W (PLP)

KAIKAUS, J.

This application for revision arises in the following circumstances. The petitioner, Mst: Allah Rakhi, has filed a suit against the four respondents on the allegations that defendant No. l is not the legally wedded wife and defendants Nos. 2 to 4 are not the legitimate daughters of Bahadur deceased. She claims to be a legltimate daughter of Bahadur. In the suit, 23rd of February 1955 was fixed for evidence of the plaintiff. On that date, neither the plaintiff nor any of her witnesses was present. Counsel for the plaintiff prayed that an adjournment be granted for the purpose of producing a witness, namely the Reader to Faqir Siraj-ud-Din, S. D. M. This prayer was refused by the Court on the ground that the witness had not been summoned for the 23rd of February 1955. After rejecting this prayer for summoning the witness, the Court also passed an order closing the case for the plaintiff. The Court then adjourned the case to the 11th of May 1955 for recording the evidence of the defendants. In the meantime the presiding officer of the Court was transferred. On the 11th of May 1955, the plaintiff put in an application praying that she should be allowed to make her own statement as a witness. This application was opposed by the defendants. The learned Judge, after hearing the parties, came to the conclusion that there being already an order passed by his predecessor closing the case of the petitioner, he could allow the application of the plaintiff only if the conditions mentioned in Order XLVII, rule 1, Civil P. C., for review of the order of his predecessor existed. Under Order XLVII, rule 1, a successor of a judge can review an order only in case of discovery of new and important matter or a clerical or arithmetical mistake or an error apparent on the face of the decree. The learned judge found that no such ground existed and dismissed that application. The plaintiff has challenged this order in revision. Two points arise for decision: (1) Whether Order XLVII, rule 1; applies to an interlo cutory order relating to procedure ? and (2) Whether there is inherent power in the Court to review such order? These two questions have to be taken up together, for the discussion is bound to overlap. It is true, Order XLVII, rule 1, speaks of a decree or order which is not appeal able or against which no appeal has been preferred so that prima facie the words should cover all orders. But it will at once strike one that it will be very difficult to accept the application of the stringent provisions or Order XLVII, to orders relating to mere procedure. A Court passes an order directing that a witness who is to be examined on commission should be examined at a particular place. If it be intended to change the place of the examination, will the Court be powerless to do so unless the conditions as well as the procedure provided in Order XLVII is complied with ? Will the Court first consider whether an application for review is to be admitted and if it is of the opinion that it should be admitted then the application shall be registered in accordance with Order XLVII, rule 8 and, then heard on the merits ? One is inclined to assume with respect to procedural matters) that there exists in the Court inherent jurisdiction to review alter or amend orders relating to them. This conclusion is supported if we consider first the legal position as it was in 1859 when the first Civil Procedure Code (Act VIII of 1859) was enacted. The provision relating to review was contained at that time in section 376 of that Act which ran: "

376. Any person considering himself aggrieved by a decree of a Court of original jurisdiction, from which no appeal shall have been preferred to a superior Court-or by a decree of a District Court in appeal from which no special appeal shall have been admitted by the Sudder Court -or by a decree of the Sudder Court, from which either no appeal may have been preferred to Her Majesty in Council, or, an appeal having been preferred no proceedings in the suit, have been transmitted to Her Majesty in Council- and who, from the discovery of new matter or evidence which was not within his knowledge, or could not be adduced by him at the time when such decree was passed, or R, from any other good and sufficient reason, may be desirous of obtaining a review of the judgment passed against him

may apply for a review of judgment by the Court which passed the decree". It will be observed that this section mentions only a decree. Does it mean that at that time interlocutory orders, an instance of which I have already quoted,. were not subject to review at all ? It would not seem reasonable that although a final decree was liable to be reviewed if certain grounds existed, an interlocutory order, which is only a step in the proceedings that are to lead to a decree, and the need for reviewing which order may frequently arise, was not liable to be reviewed at all. There is no reason, at the same time, to hold that in 1859 the position in India with respect to an amendment or alteration of any order relating to mere proce dure was different from what it was in England. In England, there was inherent jurisdiction in a Court to vary orders relating to mere procedure. I quote below extracts from Volumes 19 and 26 of Halsbury's Laws which relate to this subject: "Para 570, Volume 19.-In matters of practice and proce dure every appeal from a judge should be to the Court of Appeal, and an order made in a matter of practice and procedure cannot be discharged, either by the judge who made the order or by the Divisional Court, but in the case of matter of mere procedure, a Judge or master has power, where new facts are brought before him which show that the following out of the precise directions of that previous order will cause what he considers inconvenience or other injury to the parties, to give directions that, notwithstand ing a previous interlocutory order, a different mode shall be adopted of carrying into effect the substance of the previous order. But the Judge or master has no similar power in the case of an interlocutory order by which the rights of the parties have been decided. An order made ex parse may be set aside by a party affected by it on an application being made to the Judge who made the order". Note (n), page 84, Volume 26.-An interlocutory order may be set aside on the ground of fraud or mistake; or where counsel has exceeded his authority. But a final judg ment can only be set aside by judgment in a fresh action". Although the first passage quoted above has reference to the Judicature Act of 1925, the cases to which it refers are of a much earlier date and there can be no doubt that what is contained in the Judicature Act of 1925 only reproduces a principle which had already been accepted. In section 31 of the Judicature Act of 1925, it is provided that a Judge can review while sitting in Court such orders as have been passed in Chambers. I may state that all orders relating to procedure matters can be passed in Chambers. I would mention here that in England as well as in pre partition India it was regarded as an established rule that after passing an order a Court had no jurisdiction to review it in absence of a statutory provision to that effect. I refer in this connection to Anantharaju Shetty v. Appu Hegade (A I R 1919 Mad. 244), where English cases too are cited. But all the cases which say there is no jurisdiction to review in the absence of specific provision relate to orders passed on the merits and have no application to the setting aside of an interlocutory order relating to mere procedure, the legal position with respect to which was as appears from Halsbury. I have no doubt that at the time when the first Civil P. C. was enacted there was an inherent jurisdiction in the Courts to review such interlocutory orders or rather to -pass a different order in spite of a previous order. Now, could it be said that in 1877 when the Civil P. C. was amended and (new section was 623) the word order introduced, the intention was to take away the inherent jurisdiction which existed for a review of an interlocutory order relating to procedure and to confine it: within the strict limits of Order XLVII ? The reason for the incorporation in section 623 of the Civil P. C. of 1877, of "Order" was, it appears to me, the interpretation put by the Courts, in some cases, on section 376 of Act VIII of 1859, holding that in spite of the fact that the word "decree" only was mentioned in section 376 it did apply even to orders which were technically not decrees. In Deen Dayal Puramanick v. Ram Coomar Chowdhry and others (10 Suth. W R 345), the High Court reviewed its own order saying that though section 376 mentioned only decrees, it had always been held to authorise reviews of order which are, strictly speaking, not decrees The learned Judges reified for this proposition on a previous Full Bench case Haradhon Mookerjee v. Chudner Mohun Roy (Special No. Weekly Reporter 66) Similarly in Syed Lotf Ali Khan v. The Court of Wards on behalf of the Maharaja of Durbhanga (6 Suth. W R 127 (Mics).) following the same Full Bench, it was held that an order in execution was also covered by the provisions or section

376. I am of the opinion that the amendment was intended to give effect to these judgments and not to take away the inherent power of Court with respect to procedural matters. The conclusion that there is inherent power in a Court to vary, alter or amend orders relating to mere procedure finds further support from Order XVI1I, rule 2, (Lahore amendment) which empowers the Court to summon a witness even though the parties have closed their cases and it may be asked why instead of determining the applicability o` Order XLVII I do not base my decision in the present case oil this rule. My answer is that I would not place this case on the footing, that but for the Lahore amendment to Order XVIII, rule 2, there will be no power in the Court to alter an order relating to the appearance of a witness. The Lahore amendment to Order XVIII (2) only recognises the inherent power which already exists in the Court and is not intended to confer a new power. The amendment is in the following words "At the end of rule 2, insert the following Explanations". "Explanation I.-Nothing in this rule shall affect the juris diction of the Court, of its own accord or on the application of any party for reasons to be recorded in writing, to direct any party to examine any Witness at any stage". "Explanation II.-The expression "witness" in Explana tion I shall include any party as his own witness". This amendment, it will be observed, is in the form of an explanation. It is by itself, at the same time, a strong argu ment against the interpretation that Order XLVII rule 1, applies even to orders relating to mere procedure. It will not be out of place in this connection to refer to in the matter of Abdool Sobhan (I L R 8 Cal. 63) where the learned Chief Justice of the Calcutta High Court held that interlocutory orders in criminal matters can always be varied by the Court. The case is relevant because in the law relating to procedure in criminal cases there was no provision relating to review. Yet it was held that interlocutory orders could be reviewed. There is no reason why the principle of this decision should not be applied to civil cases. I would also refer to cases where it has been held that when a Court passes an order admitting or refusing to admit certain evidence, it can subsequently vary such order. They are, Robert Cameron Chamarette v. Mrs. Phyllis Ethel Chama rette (A I R 1937 Lah. 176) and Bal Bajaram Padval v. Maneklal Mansukhbhai and others (A I R 1932 Bom. 136). It may be objected that whatever the intention of the Legislature, it would be difficult to justify a limited construc tion of the word "Order" in Order XLVII, rule 1 and it will be difficult also to specify the extent of the limitation. The reply is that although the word "Order" was incorporated in this provision by the Act of 1877 the words "review of judgment" which occurred in section 376 of the Act of 1859 were retained, and they are also to be found in ` the present Civil P. C. Order XLVII, rule 1, provides that any person aggrieved by a decree or order may apply for "review of judgment" So the rule will only apply to cases Where it can be said that in asking the Court to vary an order the peti tioner is applying for 'review of judgment'. The word "judg ment" is no doubt defined iii section 2 (6) of the Civil P. C, as meaning "the grounds of a decree or order", but it should be clear that in Order XLVII, rule 1, this word is not used in that sense. The applicant for review is not asking simply for a review of the grounds of an order. In the phrase "review of judgment", the word "judgment" has the same meaning as it has when we say that the Court has `pronounced judgment' or the Court has given judgment". It should be remembered that the word judgment" is not used in the Civil P. C. invari ably in the sense of grounds for a decree or an order. For instance, in section 13 it is not so used, as was held in a number of cases, vide Brijlal Ramjidas and another v. Govindram Gor dhandas Seksaria and others (A I R 1943 Bom, 201) and Baijnath Karnani v. vallabhadas Damani (A I R 1932 Mad. 661). Similarly, we find the words "pro nounce judgment" occurring in Order VIII, rule 10, Order X, rule 4 and Order XX, rule 1, and the words "give judgment" in Order XII, rule

6. In all these provisions the word "judg ment" has the same meaning as it has in the English Law or in the Letters Patent. The question as to the exact connota tion of "judgment" in English Law or in the Letters Patent is by no means easy to decide but that question need not be decided in the present case. On any definition of "judgment" an order of the kind with which I have to deal will not be all) judgment. It is not an order which determines rights of parties nor an order that finally decides a proceeding. In support of the conclusion that Order XLVII does not apply to order relating to procedure I would also refer to Order XLVII, rule 3, and Order XLVIL rule

8. Rule provides that the provisions relating to appeals would apply mutatis mutandis to applications for review. Rule 8 provides that when an application for review is granted it shall be entered in the register. The formalities with which these applications are treated would suggest that the provision is not applicable to ancillary or incidental orders. One might also consider what would be the result if we do not have regard to the words "review of judgment" and consider Order XLVII, rule 1, applicable to every order. The result would be that every little order relating to the payment of process-fee, the deposit of expenses of witnesses, the summoning of a defendant or a witness would be varied by a Court only after the compliance with the stringent provisions of Order XLVII. I would, therefore, hold that the order with which I am concerned is not within the purview of Order XLVII, rule 1, and that the Court has inherent power either to review it or to pass such other or further order as it thinks fit. As for the grounds on which this inherent jurisdiction has to be exercised they have to be similar to those in Order XLVII, g rule 1, only the technicalities of Order XLVII will be excluded. Coming to the merits of the revision petition before me, I find that the learned Civil judge misconceived his jurisdiction. He rejected the application of the petitioner, because he considered he could only grant it if the case fell within Order XLV, rule

1. He acted on the assumption that he had no inherent jurisdiction to review such an order. HE, at the same time, made no reference to Order XVIII, rule 2, which gives a specific power to the Court to allow the examination B of witnesses in spite of the fact that evidence has been closed. This revision petition is accepted. The learned Civil judge will now consider and decide whether he would exercise the inherent jurisdiction or his power under Order XVIII, rule 2, to make an order in favour of the petitioner. There is no order as to costs. A.H. Petition accepted