P L D 1969 Azad J & K 30 (PLP)

CH. RAHIM DAD KHAN.‑

This is a petition for review of the judgment and decree of this Court in Appeal No. 4 of 1965 decided on 8‑2‑1966. The contention is that this Court had missed numerous points of importance and failed to pay as much attention to number of points in relation to the applicability of Order I, rule 8, C. P. C. and section 58 of the Evidence Act. The application in review is extensive consisting of many coils and convolutions and resembles an appeal. It may be observed that the question we are called upon to decide is not one concerned with an appeal to a Court of appeal but is concerned with a review by a Court that had already disposed of the case". The law applicable to the present case is contained in Order XLVII, rule (1) which reads :‑ "Any person considering himself aggrieved by a decree or order from which an appeal is allowed but from which no, appeal has been preferred, by a decree or order from which no appeal is allowed, or by a decision on reference from a Court of small causes, and who, from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for review of the judgment to the Court which passed the decree or made the order." The extent of the powers of the Court to review its own judgment has been subject of large number of judicial interpreta tion. There have been general statements by the Privy Council on the powers of the Court of last resort to review its own decision and as to the extent to which exercise of such powers should be limited. Both the houses of Lords and Privy Council took the view that only in exceptional circumstances they will exercise this inherent power. In A I R 1926 P C 136 Lord Atkinson remarked :‑ Legal judgments cannot be treated as mere counters in the game of litigation. They are serious pronouncement, for the most part by the judicial officer of the State, touching the rights or disputes of the subject, bringing home to those subjects what the law and justice require and are enforceable, if need be, by the forces of the State. Moreover, when once pronounc ed, they cannot be lightly set aside. In A I R 1941 F C 1, following the practice of the Privy Council it was held :‑ "It would in our opinion be intolerable and most prejudicial to the public interest if cases once decided by the Court could be re‑opened and re‑heard." Our own High Court in Ghulam Haider Gagroo v. State decided on 4‑6‑66 held :‑ "If for the sake of argument it may be conceded that the decision of the appeal by the Division Bench was wrong on merits or that it was erroneous on the ground of a mistake of law even then this Court would have no power to order a review unless decision was contrary to the provisions of a statute." It was further held in that case that :‑ "A review of judgment on the ground of mistake of law or wrong decision on the merits is not contemplated by Order XLVII, rule 1, C. P. C. and it is only an error which is apparent on the face of the record and by which the Court had been misled into making the order which is contrary to statute that can form a good ground for review." In P L D 1963 Lah. 596 it was held "In any case an order made in exercise of a judicial power carries with it the instance of finality so far as that form is concerned, whatever rights accrue under that order. Unless it is provided that an order once made may be reviewed it would not normally be capable of being reviewed," In P L D 1962 S C 335 a thorough examination of the scope and extent of the power of review was made and it was held : "After taking into consideration all the judicial interpretation on the point a decision of this Court should be re‑opened with very greatest hesitation and only in very exceptional circumstances." Mr. Justice Hamoodur Rahman held that : "This Court is competent, no doubt, to reconsider a question of law previously decided in a subsequent case but this Court had no jurisdiction to sit on appeal over its own judgment‑I for my part would be inclined to hold that a review is by its very nature not an appeal or re‑hearing merely on the ground that one party or another conceives himself to be dissatisfied with the decision of this Court, but that it should only be granted for some sufficient causes akin to those mentioned in Order XLVII, rule I of the Civil Procedure Code, the provisions whereof incorporate the principle upon which a review was usually granted by the Court of law in England. The indulgence by way of review may, no doubt, be granted to prevent irreme diable injustice being done by a Court of last resort, as where by some inadvertence an important statutory provision has escaped notice which if it had been noticed might materially have affected the judgment of the Court, but in no case should a re‑hearing be allowed upon merits." The learned counsel for the applicant has placed too far wide an interpretation on Order XLVII, rule 1 in thinking that he is entitled to urge various points arising in the case for reconsider ation. What he is now asking the Court to do is practic ally to review the whole evidence in the case and the conclusion arrived at by process of conscientious reasoning. That is not the function of the Court sitting in review. A review petition is neither an appeal nor a revision, as such the jurisdiction is limited and confined to Order XLVII, rule 1, C. P. C. The error to attract Order XLVII, rule I, must be blatant and obvious. It must be such an error which does not required any elaborate discussion for its establishment. The lengthy arguments addressed by the learned counsel for the petitioner in respect of matters which according to him needed our attention in relation to applicability of Order 1, rule 8, are based on supposition that, all the persons, whose property was acquired under Collector II's Award No. 108‑C 11/62 dated 4‑10‑62, and which award was challenged by the Government by a single reference had not that community of interest which is essential condition for application of Order 1, rule 8, and that the order of the District Judge, Mangla Dam Affairs, was to be regarded as consisting of large number of decrees, but the fact is that there was one award and one reference by the Government against all the inhabitants of the village which was disposed of by the District Judge by a single judgment and a single decree. The Government itself elected to proceed against them all by a single reference and rightly so as there existed a sufficient community of interest among the persons against whom the reference was instituted. It is quite clear from the award of the Collector that there was joint community of interest in several matters. It is stated in the award that there are nine mosques, 24 wells, 29 graveyards, one High School, one primary School, one Dispensary and a number of common paths which is the communal property of all the residents of the village. Out of 20,605 kanals 18 marlas land acquired under the award there was 6,324 kanals 11 marlas land which was village 'Shamilat'. All these things were communal property of all the people residing in the village. At page 6 of award it is stated that the compensation of the communal property was to be deposited with the Project Accountant so that similar necessities could be provided for the affected persons at a new place of their settlement. Thus it would appear that there was sufficient community of interest for application of Order 1, rule

8. All affected persons had a common claim and a share of interest. They had an objective interest in the fate of the matter. The plaintiff‑respondent himself elected to proceed against all of them by making a single reference. All the affected persons were impleaded as defendants by the Government and as such the clause `may defend' of Order 1, rule 8, comes into operation. Mr. B. Z. Kaikaus, the learned counsel for the petitioner, in support of his contention that Order I, rule 8, has no applic ability to separate money claims or personal claims cited A I R 1938 Mad.

755. This authority was considered and overruled in A I R 1955 Mad. 281 as pointed out by Maulvi Siraj‑ul‑Haq, the learned counsel for the non‑petitioners. The Full Bench of Madras High Court has held that :‑ "The nature of the claim, whether it is a suit for declaration of a right or an injunction or an action for money on contract or on tort, is not very material in considering whether a suit could be filed under the simplified procedure under this Rule (Order I, rule 8). It is the existence of sufficient community of interest among the persons on whose behalf or against whom the suit is instituted that should be the governing factor in deciding as to whether the procedure provided to this rule could be properly adopted or not." 'The High Court of Madhya Bharat following the view taken by .the Full Bench of Madras High Court A I R 1955 Mad. 281 has also held that :‑ "Once the conditions prescribed by the rule are satisfied there can be no ground for refusing permission under this Rule whatever be the nature (1957 M B 173)." It was also urged by the learned counsel for the petitioner that while applying Order 1, rule 8, section 8 of the Court Fees Act alongwith Order 1, rule 8, and section 18 of the Land Acquisition Act was not considered. In view of the fact that a single reference was filed by the Government against all the inhabitants of the village and that only one award was made by the Collector about the whole village, the question of separate appeals by the affected persons did not arise. They were entitled to challenge the finding of the Court by a single appeal. Therefore, the question of consider ation of section 8 of Court Fees Act remains only of an academic interest. No objection in respect of the deficiency of the Court fee was ever taken during the pendency of the appeal and it cannot form the basis for the review of a judgment. A point upon which a previous order or judgment is silent, cannot be regarded as mistake much less a mistake apparent on the record. There is nothing in section 18 of the Land Acquisition Act which prohibits the application of Order I, rule 8, in cases where the Government has filed a single reference against large number of people. There was unity of title in the appellants and a community of interest and a common question of facts was involved. As such it would appear that there is no error in the judgment on account of the application of Order 1, rule 8, warranting the review of the judgment. There was no dispute between the affected persons with regard to their respective shares in the amount of compensation given to them on account of the acquisition of the land. At least there is nothing on the record to show that there was any clash of interest between the affected persons. Arguments advanced by Mr. B. Z. Kaikaus on the point of clash of interest are not based on the facts of the case but only on hypothetical proposition, therefore, they carry no weight. Application of Order XLI, rule 4, and Order XLI, rule 33, was also objected to by the learned counsel for the petitioner. Mr. B. Z. Kaikaus cited A I R 1946 F C

106. The point involved in that case was failure of the application of Order XLI, rule

33. In P L D 1964 Dacca 119 it was held : "The scope of Order XLI, rule 33, is very wide. The Court can vary or reverse decree or order even in favour of a party failing to prefer appeal or cross‑objections (pages 122‑123)." In P L D 1960 Pesh. 111 at page 126 it was held : In these appeals ..the Government of Pakistan is not a party. But if it is found in this appeal that appellant succeeded on a point which is common to the appellant and the opposite party, the Central Government, that decision will enure to the benefit of Central Government, as well as under Order XLI, rule 33, C. P. C .. In P L D 1962 Pesh. 199 Order XLI, rule 4, and rule 33 were; distinguished. It is held that: - "There is distinction between Order XLI, rule 4, C. P. C. and Order XLI, rule 33 C. P. C. Rule 33 applies to a case where the appeal is as to a part only of the decree while rule 4 applies to a case where the appeal is from the whole decree. Order XLI, rule 4, C. P. C. is based on two considerations, firstly to give the appellate Court full power to do justice to all parties whether, before it or not, and secondly to prevent contrary decision in the matter in the same suit. In order to apply rule 4 it is essential that the decree appealed from should have proceeded on a ground common to all the plaintiffs or defendants and the whole case is gone into by the appellate Court at the instance of the parties representing all the necessary contention in the case. In a pre‑emption suit all six vendees jointly purchased the land and the decree of the trial Court decreeing the suit had proceeded on a ground common to all the defendants and the whole case had gone to the appellate Court at the instance of the defendants representing all the necessary contention in the case. One of the six vendees was arrayed as respondent in the appeal and the remaining 5 vendees preferred the appeal claiming the dismissal of the suit with respect of the entire claim of the plaintiff . It was held that Order XLI, rule 4, C. P. C. was applicable to the circumstances of the case and the appellate Court was com petent to grant full relief, notwithstanding that one of the vendees had not been arrayed as the appellant." In P L D 1964 Kar. 569 it was held that :‑ "Appellate Court under Order XLI, rule 33, C. P. C. can in proper cases nary or reverse decree of the lower Court even in favour of the party failing to prefer appeal . . . . (claim for damages against the appellant as well as the party failing to appeal), rest entirely on same footing . . . . . decrees of lower Court, even against party not joined in filing the appeal, set aside." In P L D 1965 S C 15 it was laid down that :‑ "The terms of Rule 33, Order XLI, C. P. C. are of the widest amplitude to enable an appellate Court to pass decree according to the justice of the case. The language used is affirmative, and the rule is further strengthened by non‑absentee clauses, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the appellate‑Court considered should be allowed within the framework of the suit. The non‑absentee clauses are particularly significant. The fact that the appeal is as to part only of the decree will not, by itself, restrain the appellate Court's powers. Here the whole decree was before the appellate Court, but the other non‑abstantee clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection, therefore, the mere fact of the plaintiff not having filed an appeal against the failure of the trial Court to grant a decree against a defendant would not by itself be sufficient to justify refusal to exercise the power under the rule." It was remarked in the judgment under review that :‑ "The decree in the present case has proceeded on common ground. The common ground being the price allowed per kanal for different quality of land in the village and ultimately reducing the amount of compensation offered by Collector under award." 3t was further said that :‑ "Order XLI, rule 33 which is wider than Order XLI, rule 4 enables the Court to do justice between the parties to avoid contradictory and inconsistent decision on the same question in the same suit." In view of the facts of the case, that is, the decree of the Court rests entirely on the same footing against all the inhabitant in our opinion, therefore, there is no mistake or error in respect of the application of Order XLI, rule 33 or Order XLI, rule 4,I C. P. C. Therefore, the objections of the learned counsel for the petitioner are ruled out. In relation to the applicability of section 58 of the Evidence Act following contentions were urged :‑ (1) That sufficient opportunity was not provided to the counsel for the petitioner to make reply to the point why admission should not be used against him. (2) The admission on which reliance bad been placed was not before the Court as there was no appeal against the decision in the reference made by Noor Alam. (3) The objection filed in the reference made by Noor Alain was not a valid pleading at all as it was not verified. Section 58 cannot be made applicable to the proceedings under Land Acquisition Act and such less after framing of the issues in any other case. (4) The admission of the counsel was without an authority. It was contended that the provisions of Order XLI, rule 2, were not complied with as the question of the admission was not raised in the ground of appeal and the Court while deciding the case on admission is required under Order XLI, rule 2 to provide sufficient opportunity of the party concerned. The counsel for the petitioner has based his arguments on this point on an affidavit filed by Raja Lehrasap Khan to controvert the statement made by him during the course of proceedings. In the first place he cannot be allowed to controvert by affidavit or otherwise such a statement as has been held in Timmallapalli v. Gokal Chand Chunilal (A I R 1951 Mad. 796). Secondly, it is not correct, that section 58 of the Evidence Act was applied without providing an opportunity to the Government Advocate to contest the same. Raja Lehrasap Khan at that time stated that be supported the award as the Government did not intend to file a reference against the award ; so he was asked to support the award. He did not contest its applicability then but strangely enough he has come now with an affidavit that the admission was made without being briefed. He seems to be a person ever‑ready to play fast and loose to satisfy his masters. As regards the objection No. 2 on the point of applicability of section 58 it is necessary to state certain facts. Both the references, i.e. one filed by Noor Alam and the other filed by the Government were consolidated with the consent of the party. Noor Alam was also arrayed as defendant in the reference filed by ban the Government. He was one of the appellants in view of the permission granted to the defendant to file a representative appeal. The record containing the admission of the learned Advocate for the Government was before the Court at the time the judgment under review was given. Therefore, it cannot be said that that admission was not before the Court. The reference filed by Noor Alain and the one filed by the Government were consolidated by the consent of the parties as remarked above. Mr. B. Z. Kaikaus learned counsel for the petitioner in P L D 1966 S C 708 at pp. 715‑716 himself as a Judge of the Supreme Court laid down the law on the point of consolidation in these words :‑ The civil law does not debar suits with respect to the same property or the same right between different persons. When the parties to the separate proceedings are not the same the civil law does not feel concerned in the matter at all. But if the parties are the same in the pending proceedings difficulty would be created if the two proceedings are separately decided. There may be a suit for restitution of conjugal rights by the husband. The wife may have filed a suit for declaration of nullity of marriage or for its cancellation. Conflicting decisions with respect to the same matter cannot be allowed to be given in separate suits, yet every proceeding has to be decided on its own record and unless some step is taken to avoid this result there may be conflicting decisions. The Civil Court have in order to meet this difficulty adopted the device of consolidation of proceedings. There is no provision in the Civil Procedure Code for consolidation of proceedings yet it is settled law now that proceedings can be consolidated by virtue of the inherent powers of the Court. In respect of the power of the Court as to procedure the principle which has always been accepted is that Court has powers for the ends of justice to resort to all pro cedures which are not prohibited by enactment and which regulates its procedure. This principle is contained in section 151 of the C. P. C. Had these two suits not been consolidated in view of the contrary stand taken by the Government in the two proceedings there were chances of conflicting decisions in respect of the same subject‑matter but on account of the consolidation the admission made by the Government in reference filed by Noor Alam can be read in the cross‑reference filed by the Government. If the statement made by the parties or their counsel in a suit cutting at the root of the subject‑matter are not taken into consideration in the cross‑suits or cross‑reference even after their consolidation the object of consolidation‑namely to avoid conflicting decisions, in the end of justice, about the same subject matter, would be completely frustrated. In the judgment of this Court, admission made by the Government Advocate in the cross‑objection as well as in his statement before the Court in reference filed by Noor Alam has been taken as pleadings. This admission was about the same award and valuation which award was subsequently challenged by the Government asking the Court for reduction of valuation. Both these references were consolidated by the consent of the parties and the admission was held binding on the Government. There is a provision contained in section 22 (a) giving statutory right to the Government to lodge cross‑objections to the objections made by any person interested and Court may reduce the amount awarded by the Collector if it considered it just and proper. The basis of the valuation in the award made by the Collector was one and same. He awarded to the inhabi tants of this village the same rates which were awarded by the Collector I for the land acquired in the adjoining village of Kakara. Noor Alam in his reference had claimed a higher value than awarded by the Collector. "Though there is no provision in the C. P. C. for making a counter claim, a Court has got the power to treat the counter claim as plaint in a cross‑suit and hear the two together". In a reference‑case filed by affected persons the Government by virtue of section 22 (a) of the Land Acquisition Act has been provided a statutory right to put counter‑claim for reduction of value. Prior to the amendment of Land Acquisition Act of 1954 the Government had no such right, it could only support the award but after the amendment the Government could ask for reduction of the valuation. In spite of being armed with this statutory right the Government in cross‑objections supported the award is stating that it is correct and the valuation is adequate. Since the basis of the valuation for this land as well as all other lands acquired in this village was one and the same, therefore, it shall be taken that this admission related to the entire valuation. Under section 18, according to the amendment of 1954, the Government had been given a right of reference if it has not accepted the award. This statement of the Government Advocate that the valuation is adequate and the award is correct amount to the admission and the objection raised by the learned counsel for the petitioner with regard to the cross‑objection filed in the case of Noor Alam to the effect that they do not amount to a pleading since they were not verified, is too late in the day. The objections to the want of verification if not taken at earliest possible opportunity are deemed to have been waived. Moreover, the want of verification does not render the written statement as void, it merely amounts to an irregularity and does not affect the merits of the case. Moreover, the statement of the Government Advocate was recorded in the reference filed by Noor Alam before framing of issues, so that is to be deemed a part of the pleading as held in P L D 1960 Panj.

209. The Government Advocate in his statement reiterated the stand taken by him in the written statement or (objection) that the award is correct and the valuation is adequate. After such a statement by the counsel for the party, the defect in pleading, on account of want of verification becomes immaterial. On the point of the applicability of section 58, Evidence Act it was also contended that the counsel had no authority to bind his client and the admission was made without being properly briefed. Generally speaking a counsel has the authority to make admission on behalf of the Government, Kawara Swami, J. in A I R 1927 Mad. 552 held that :‑ "A counsel has authority to make admission on behalf of his client on matters of facts relevant to the issues in the cases in which he is engaged." In both the references‑the one filed by Noor Alam and the other by the Government the question involved was substantially a question of valuation. The admission on pure question of facts made by counsel in the conduct of a case is binding on the Government (A I R 1943 Pat. 327 and A I R 1928 Mad. 900). "As a general rule" a man shall not be allowed to make evidence for himself but on the other hand universal experience testified that as men consult their own interest and seek their own advantage, whatever they say or admit against their interest or advantage may with tolerable safety be taken to be true as against them, at least until the contrary appears, even if such admissions, are not made for the purpose of dispensing with the proof". An admission by a counsel even if that is not made for the purpose of dispensing with the proof at trial is otherwise prima facie evidence against their client. In the reference filed by the Government for reduction of compensation the onus was on the Government to prove that the valuation fixed by the Collector is excessive. Substantial reasons in support of his award were given by the Collector. The Government in its reference for reduction of valuations failed, as discussed in the judgment under review, to show that the price was excessive. The basis of the judgment of the trial Court was found wrong. Consequently the award was to stand even if section 58 was not made applicable. It was the duty of the Government to place on record all the available evidence and if they failed to do so, fresh opportunity by way of review cannot be granted and it cannot be held to be a ground for review. The Government could produce the produce‑in dex or copy of the record‑of‑right. This evidence was available but was not produced. Now the Government wants fresh opportunity by means of review which cannot be granted. It wits also contended by the learned Advocate for the Government that the award made by the Collector was invalid, "Every reference pre‑supposes a valid and legal award by the Collector. In the absence of a valid award the Civil Court has no jurisdiction to take any proceedings on a reference made to it. The Government itself made a reference against this award before the Civil Court and now it cannot take the plea of invalidity of award. The award is final and conclusive evidence between the Collector and the persons interested as to true value of the land. It is, therefore, evidence in a reference made to a District Court under section

18. We are not prepared to say that that view was erroneous and we are quite clear on the other hand in view of the discussion above that even if it was, the result, which had been brought about by application of section 58, Evidence Act is one which would have otherwise followed in view of the failure on the part of the Government to prove in its reference that the valuations fixed by the Collector is excessive. Accordingly we see no ground for interference in review with that part of the judgment. "Where S the judgment is based on two or more grounds, each is a sufficient to sustain independently, there can be no review even if one ground is not correct." (A I R 1959 Mad. 2). There is further difficulty in entertaining this application for review. The question of law that has been raised in this case is not patent, and in such circumstances it cannot be said that this is an error apparent on the face of the record. At the most ii R cannot be said that the question is not absolutely clear and it such circumstances the petitioner cannot invoke the provision, of Order XLVII, rule 1 is held in P L D 1961 Dacca

490. The findings in the judgment under review about the market value as well as on other points were given by process of conscious reasoning. The matter has been discussed and after S discussion the Court has arrived at a decision after applying it mind and after considering pros and cons of the case. As such there can be no review on the ground of apparent mistake. Arguments of deduction about the market value should be made at the time of original order and not at the time of review. It was found in the judgment under review that the basis for valuation relied upon by the District Judge, Mangla Dam, were wrong. In the judgment under review the calculation was made by different methods and it was found that whatever method was adhered to the valuation would be higher than the one fixed by the Collector. Therefore, the award of the Collector was restored. The net result of the above discussion is that none of the grounds pressed by the learned counsel for the petitioner would justify an interference, by way of review. Hence the application is rejected with costs. Application rejected.