P L D 2002 Supreme Court 277 (PLP)

MUNIR A. SHEIKH, J.

This appeal by leave of the Court is directed against the judgment dated 3-7-1997 of Peshawar High Court, Abbottabad Bench, through which the appeal filed by the appellants against the order dated 27-10-1996 passed in review application filed by the respondents through which the original judgment and decree was amended to the extent that the direction for payment of simple interest at the rate of 6 per cent. from the date of taking over of the possession of the land by the appellants after acquisition till payment of the compensation was granted by the Court. The judgment under review was originally passed on 6-12-1995 which was silent as regards payment of interest. The appellants in appeal before the High Court challenged the order passed in review dated 27-10-1996 and also the quantum of compensation determined under the original judgment dated 6-12-1995 by the said Court about which no modification in review was made.

2. The High Court took the view that as regards appeal against the original judgment dated 6-12-1995, qua the decision on the question of' quantum of compensation of the acquired land, the same was barred by time, therefore, was not maintainable. Since the appellants did not challenge the correctness and legality of the order passed in review for the grant of simple interest at the rate of 6 per cent. and compulsory acquisition charges at the rate of 15 per cent, therefore, it was dismissed through the impugned judgment dated 3-7-1997 against which this appeal, by leave of the Court, is directed. The respondents have been proceeded ex parte as no one had appeared on their behalf.

3. Learned counsel for the appellants relying upon the judgments to the cases reported as Govinda v. Rangammal (AIR 1929 Madras 2.61) and Bhawani Prasad v. Laxmibai (AIR 1919 Nagpur 78) submitted that once an application for review is granted and the original judgment and decree is modified, the said original judgment ceases to have any independent existence and fresh judgment and decree would come into existence on the passing of the order of review, therefore, period of limitation in filing the appeal before the High Court was to start from 27-10-1996 when on the basis of order in review modified judgment was passed and not from 6-12-1995 when original judgment was passed. We have examined the principle, laid down in these two judgments and find that argument is not sustainable for it is not based on correct understanding of the rule laid down in these judgments. In Madras case, supra, a decree was granted in a partition suit which was between family members on the basis of Razinama. Defendant No.6 in the suit, who was also shareholder, made an application for review of the judgment and decree for making additions in the said decree as regards rights reserved for her for use of specified properties which were not incorporated in the original judgment though she was given understanding while obtaining her signatures on the Razinama that she would be granted those rights. The Court came to the conclusion that her signatures on the Razinama were obtained by giving an understanding that she would be given those alleged rights in the property, therefore, the application of review was granted and original judgment as decree was amended and thus amendments which were mentioned in the review application, were added in the said judgment and decree. An appeal was filed against this order and an objection was raised that the same was not maintainable for an appeal against `the order granting review could be maintained only on the grounds mentioned in Rule 7, Order 47, C.P.C This argument was met by the opposite side by arguing that since the order granting review had amended the decree itself, therefore, appeal would be competent and maintainable against impugned decree and it was unnecessary to go into the fact whether the order granting review was sustainable on the touchstone of rule 7, Order 47, C.P.C. The Court held that the order granting review may be a composite document for if an order for granting review simpliciter is passed first and thereafter through another order, amendment was allowed, the former could be challenged in appeal only on the grounds mentioned in rule 7, Order 47 C.P.C. but in case where after grant of review simultaneously the judgment and decree under review is modified or amended, it would make the decree in itself to that extent appealable, therefore, the appeal was held to be maintainable only to the extent of rights of defendant No.6 determined after review, therefore it was held that appeal against modified part of the judgment and decree on merits was maintainable and not against any findings in the original decree regarding which no amendment was made.

4. In Nagpur case, supra, the matter was a bit different. After grant of review, the Court thereafter separately proceeded to re-consider the case as a whole and fresh judgment was re-written in its entirety though findings on merits were again maintained. 'It was held that it was a case of passing fresh judgment which could be challenged in appeal on merits as the original judgment ceased to exist.

5. From the examination of principles laid down in the above twos judgments, we have come to the conclusion that preponderance of opinion is that in case after grant of review the Court re-considers the entire case afresh separately and passes fresh judgment, it would be a case of extinction of the original judgment and bringing into existence a new one which could be appealed against on merits irrespective whether the order granting review is challenged or not. In the present case, the quantum of compensation determined in the original judgment dated 6-12-1995 was not challenged by the appellants, therefore, the same became final. The order of grant of review was only limited to the grant of interest at the rate of 6 per cent. to which extent the said original judgment and decree were modified. Keeping in view the principle laid down in Madras case, supra, the appeal against original decree was maintainable only against modified part of the judgment and not the other.

6. Learned counsel for the appellants has frankly conceded that as a matter of principle, the defendant did not challenge the order granting interest and compulsory charges for it was the requirement of Land Acquisition Act, 1894, that land owners should be granted the same, therefore, the amended part of decree did not suffer from any illegality.

7. For the foregoing reasons, this appeal has no merit, which is, accordingly, dismissed with no order as to costs. S.A.K./C-46/S Appeal dismissed.