NON-REPORTABLE

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

J U D G M E N T

HARJIT SINGH BEDI,J.  

1.  The facts of the appeal are as under:

2. Civil 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

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?

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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?”

3. The 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 special leave.

4. We 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

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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.  

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5. We  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  nonest  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.

…………………………..J. (Dalveer Bhandari)

…………………………..J. (Harjit Singh Bedi )

New Delhi, Dated: October 23, 2008

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