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PETITIONER: SUSHIL KUMAR SEN

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT17/03/1975

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN RAY, A.N. (CJ) KRISHNAIYER, V.R.

CITATION:  1975 AIR 1185            1975 SCR  (3) 942  1975 SCC  (1) 774

ACT: Practice--Appellate  court  holding  order  on  review   not maintainable--Effect of.

HEADNOTE: The  appellant’s land was acquired and the Land  Acquisition Officer  awarded  compensation at the rate of Rs.  14/-  per katha.   The appellant applied for reference under s. 18  of the  Land  Acquisition Act and on 18-8-1961  the  Additional District Judge held that he was entitled to compensation  at Rs.  200/-  per  katha.  The respondent  State  applied  for review of the judgment under 0.47, r.1, C.P.C. On  26-9-1961 the  Additional District Judge allowed the  application  for review  and reduced the compensation to Rs. 75/- per  katha. The respondent filed an appeal to the High Court  purporting to be against both the decrees dated 18-8-1961 and 26-9-1961 but  in fact was only against the latter, and the  appellant filed a cross appeal challenging the maintainability of  the review  petition before the Additional District Judge.   The High Court held that the Addl.  District Judge was wrong  in entertaining  the  review,  but on  merits  the  High  Court dismissed the appeal of the respondent as well as the  cross appeal of the appellant thereby maintaining the compensation awarded at the rate of Rs. 75/- per katha. Allowing the appeal to this Court, HELD  :  It is well settled that the effect of  allowing  an application  for review of a decree is to vacate the  decree passed.   When  the respondent filed the appeal  before  the High  Court  it could not have filed an appeal  against  the decree  dated  18-8-1961, because, that decree  had  already been  superseded  by the decree dated  26-9-1961  passed  on review.   So the appeal filed by the respondent  before  the High Court could only be an appeal against the decree passed on  review.  When the High Court held that the  lower  court was wrong in allowing the review it should have allowed  the cross appeal.  Since the decree passed on 18-8-1961 awarding compensation  at  the  rate of Rs. 200 per  katha  had  been revived  and  ,come  into  life again,  and  no  appeal  was preferred by the respondent against that decree, that decree had become final. [943 0-944 A-C] Per Krishna Iver.  J :

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[While the appeal has to be allowed, Parliament may consider the  wisdom  of making the judge the  ultimate  guardian  of justice   by  a  comprehensive,  though  guardedly   worded, provision where the hindrance to rightful relief relates  to infirmities,  even serious, sounding in procedural law.   In the  present case; almost every step a  reasonable  litigant could  take  was  taken  by  the  State  to  challenge   the extraordinary  increase in the rate of compensation  awarded by  the civil court but the omission to attack the  increase awarded  in  the  High  Court  resulted  in  procedural  law dominating substantive rights and substantial justice.] [944 F-H]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1252  of 1970. From  the judgment and decree dated 16th February,  1968  of the Patna High Court in Appeal for Original Decree No. 81 of 1962. P. K. Chatterjee and Rathin Das, for the appellant. D. Goburdhan, for the respondent. The  Judgment  of A. N. Ray, C.J. and K. K. Mathew,  J.  was delivered  by  Mathew,  J. V. R. Krishna  Iyer,  J.  gave  a separate Opinion. MATHEW,  J.-The  appellant  was the  owner  of  3.30  acres- roughly .equal to 7 bighas, 17 kathas and 14 dhurs-of  land. The land was 943 acquired  under the provisions of the Land Acquisition  Act. The  Land Acquisition Officer by his award dated  12-10-1957 gave compensation at the rate of Rs. 14/- per katha for  the land.   The total compensation including the value of  trees and other improvements came to Rs. 6,775.22p. The  appellant was  dissatisfied with the award.  He filed  an  application before  the  Land Acquisition Collector  for  referring  the matter  to  the  District  Court under s.  18  of  the  Land Acquisition  Act claiming compensation for the lands at  the rate of Rs. 500/- per katha.  The case was referred and  the Additional  District  Judge, Purnea by  his  judgment  dated 18-8-1961  found  that the appellant was  entitled  to  com- pensation for the land acquired at the rate of Rs. 200/- per katha  and  also  made certain other  modifications  in  the amount of compensation under the other heads.  On 22-8-1961, the respondent, the State of Bihar, filed an application for review,  under  Order 47, Rule 1., of  the  Civil  Procedure Code,  of  the  judgment dated 18-8-1961  on  the  basis  of discovery  of  new  and important evidence  as  regards  the market  value of the land which was not available to  it  in spite  of  the  exercise  of  due  diligence.   The  learned Additional District Judge allowed the application for review and   passed  fresh  judgment  on  26-9-1961  reducing   the compensation for land from Rs. 200/- to Rs. 75/- per  katha. Thereafter the respondent filed Appeal No. 81 of 1962 in the High  Court of Patna.  The Memorandum of Appeal stated  that the appeal was being preferred against the decrees dated 18- 8-1961/26-9-1961,  but  the grounds taken in  Memorandum  of appeal  as  well as the court fee paid would show  that  the appeal was only against the decree dated 26-9-1961  awarding compensation  at  the  rate of Rs. 75/- per  katha  and  not against the decree dated 18-8-1961 awarding compensation  at the  rate  of Rs. 200/- per katha.  The  appellant  filed  a cross  appeal challenging the maintainability of the  review petition  filed  by  the respondent  before  the  Additional

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District  Judge  as  also the order passed  thereon  by  him allowing  the petition and vacating the decree  dated  18-8- 1961.   The appeal and the cross appeal were disposed of  by the  judgment of the High Court dated 16-2-1968.   The  High Court found that the Additional District Judge went wrong in entertaining the review and vacating (he judgment and decree dated 18-8-1961 but, nevertheless, it considered the  appeal filed  by the respondent on merits and dismissed the  appeal and  cross  appeal  thereby  maintaining  the   compensation awarded  for the land at the rate of Rs. 75/- per  katha  by the  judgment and decree dated 26-9-1961 of  the  Additional District   Judge.    This  ’appeal,  on  the  basis   of   a certificate,  is  directed against the decree  of  the  High Court, It   is  well  settled  that  the  effect  of  allowing   an application for review of a decree, is to vacate, the decree passed.   The decree that is subsequently passed on  review, whether  it  modifies,  reverses  or  confirms  the   decree originally passed, is a new decree superseding the  original one (see Nibaran Chandra Sikdar v. Abdul Hakim(1),  Kanhaiya Lal  v. Baldev Prasad(2), Brijbaso Lal v. Salig  Ram(3)  and Pyari Mohan Kundu v. Kalu khan(4)]. The respondent did not file any appeal from the decree dated 18-8-1961  awarding  compensation for the land  acquired  at the, rate of (1)  A.I.R. 1928 Calcutta 418. (3)  I.L.R. 34 Allahabad 282. (2)  I.L.R. 28 Allahabad 240. (4)  I.L.R. 44 Calcutta 1011. 944 Rs.  200/-  per katha.  On the other hand, it sought  for  a review  of that decree and succeeded in getting  the  decree vacated.   When it filed Appeal No. 81 of 1962,  before  the High  Court, it could not have filed an appeal  against  the decree  dated  18-8-1961 passed by the  Additional  District Judge  as  at  that  time  that  decree  had  already   been superseded  by  the  decree  dated  26-9-1961  passed  after review.   So the appeal filed by the respondent  before  the High Court could only be an appeal against the decree passed after  review.  When the High Court came to  the  conclusion that  the Additional District Judge went wrong  in  allowing the  review, it should have allowed the cross appeal,  Since no appeal was preferred by the respondent against the decree passed  on 18-8-1961 awarding compensation for the  land  at the  rate  of Rs. 200/per katha, that decree  became  final. The  respondent  made no attempt to file an  appeal  against that  decree when the High Court found that the  review  was wrongly  allowed  on the basis that the decree  revived  and came into life again. The  High  Court should have allowed the cross  appeal;  and dismissed  the appeal, which was, and could only be  against the  decree  passed  on  26-9-1961  after  the  review.   We therefore  set aside the judgment and decree passed  by  the High  Court  and  allow  the appeal.   The  effect  of  this judgment  would  be  to restore the  decree  passed  by  the Additional District Judge on 18-8-1961.  We make no order as to costs. KRISHNA  IYER,  J.-I  concur  regretfully  with  the  result reached  by  the infallible logic of the law set out  by  my learned  brother Mathew J. The mortality of justice  at  the hands  of  law troubles a Judge’s conscience and  points  an angry interrogation at the law reformer. The  processual  law so dominates in certain systems  as  to overpower  substantive rights and substantial justice.   The humanist rule that procedure should be the handmaid, not the

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mistress, of legal justice compels consideration of  vesting a residuary power in Judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable.  In the  present case, almost every step a  reasonable  litigant could  take  was  taken  by  the  State  to  challenge   the extraordinary  increase in the rate of compensation  awarded by  the civil court.  And, by hindsight, one finds that  the very success in the review application and at the  appellate stage has proved a disaster to the party.  Maybe, Government might  have  successfully attacked the increase  awarded  in appeal, producing the additional evidence there.  But maybes have  no  place  in  the  merciless  consequence  of   vital procedural  flaws.   Parliament, I hope, will  consider  the wisdom of making the Judge the ultimate guardian of  justice by a comprehensive, though guardedly worded, provision where the  hindrance  to rightful relief relates  to  infirmities, even  serious, sounding in procedural law.  Justice  is  the goal  of jurisprudence--processual. as much as  substantive. While  this  appeal has to be allowed, for reasons  set  out impeccably by my learned brother, I must sound a pessimistic note that it is too puritanical for a legal system to 945 sacrifice  the end product of equity and good conscience  at the,  altar of processual punctiliousness and it is not  too radical  to avert a breakdown of obvious justice by  bending sharply,  if need be, the prescriptions of  procedure.   The wages of procedural sin should never be the death of rights. V. P. S.           Appeal allowed. 946