•.` -`i HIGH COURT 0F SIKKIM GANGTOK. DECREE IN APPEAL qunder Order 41 Rule 35 of C.P.C.) The Regular First Appeal No.08of2006 against the Judgment dated 16/10/2004 of the District Judge(Special Division 11) Sikkim at Gangtok in Title Suit(Evicition) No.11 of 2002 Rita Wangdi Wife of Tenzing Wangdi, C/o Rita's Beauty Parlour, Paljor Standiun Road, P.0.Gangtok,Sikkim. Versus Loden Tshering Bhutia, S/O. Late Jorden Bhutia, Paljor Stadium Road, P.O.Gangtok,Sikkim. I.... Appellant. ....Respondent. This appeal was not in the cause list, on mentioned by both Ld.counsel the same was placed before the Hon'ble Cout on 13th day of September,2006 before the Hon'ble Shri Justice B.K.Roy,Chief Justice and Hon'ble Shri Justice A.P.Subba,Judge of this Cout in presence of Shri Anmole Prasad, Ld.Counsel assisted by Shri Dorjee Sheapa,Ld.Counsel for the appellant alongwith RIta Wangdi, Appellant and Shri A.Moulik,Sr.Advocate assisted by Shri N.G.Shelpa, Ld.Counsel for the Respondent alongwith Loden Tshering Bhutia,Respondent. In term of Joint Compromise petition filed by the parties the Hon'ble High Cout has passed following orders:- "Heard Mr.Anmole Prasad, Leaned Counsel appearing on behalf of the Appellant and Mr. A.Moulik, Learned Senior Advocate appearing on behalf of the Respondent who highlight that this compromise is signed by parties, witnesses as well as their leaned Counsel, and it would be best interest ofjustice to accept the same. We do not find that the terms and conditions entered upon between the parties are violative of any statutory provision and/ or public policy and, accordingly9 accept the compromise and dispose of this Appeal. The compromise petition shall form part of the Decree of this Court". Given under my hand and seal of the Court this 13th day of September, 2006. UM-SR.READER ADDL.REGIST HIGH COURT OF SIKKIM GANGTOK. REGIST HIGH COURT OF SIKKIM GANGTOK. THE HIGH COURT 0F SIKKIM : GANGTOK R.F.A. No. 8 of 2006 and Civil Redsion Petition No. 05 of 2006 Rita Wangdi, Wife of Tenzing Wangdi, C/o Rita's Beauty Parlour, Paljor Stadium Road, Opposite Car Park, P.O. Gangtok, Sikkin -Versus- Loden Tshering Bhutia, Son of Late Jorden Bhutia, Paljor Stadium Road, Opposite Car Park, P.O. Gangtok, Sikkin, ... Defendant/Appellant & Opposite Party / Petitioner Defendant/ Respondent & Opposite Party/ Opposite Party For the Appellant/ : Mr. Anmole prasad, Advocate Petitioner. F`or the Respondent/ : Mr. A. Moulik, Senior Advocate Opposite party assisted by Mr. N.G. Sherpa, Advocate. Before: Hon'ble Mr..ustice Binod Kumar Roy, Chief .ustice Hon'ble Mr. Justice N.S. Singiv. Heard GB CAW on May 9, 2006 Date of Order : May 11, 2006 ORDER Binod Kr. Ro This common order disposes the question of maintainability of this F`irst Appeal as well as this Civil Revision. fry/ 2. The facts relevant for disposal of the question of maintainability are in an extremely nalTow compass. 2.1 The Eviction Suit in question was filed by the Respondent (Plaintiff/Landlord) for eviction of the Appellant (Defendant/Tenant). The Suit, after contest, was decreed by Judgment and Decree dated 16th October, 2004. 2.2 The Defendant/Tenant filed an application on 29th November, 2004 seeking review of the aforementioned Judgment along with an application seeking condonation of delay of 14 days. 'The application seeking condonation of delay, after contest on merit by the Appellant, was allowed vide Order dated loth August, 2005. However, the petition seeking review, after contest, was dismissed vide Order dated 05th October, 2005. 2.3 The First Appeal is against the Judgment and Decree aforementioned. Civil Revision has been filed against the Order rejecting the Review Application. 2.4 Since the First Appeal and Civil Revision both are baITed by limitation, applications seeking condonation of their delay have also been ffled. / i/ 2.5 Civil Revision was filed after a doubt cropped up about the malntainabmty of the Appeal on account of filing of Review. . v.. 3. Mr. A. Moulik, learned Senior Advocate of the landlord raised a prelininary objection regarding the maintainability of the Appeal on the ground that since the Tenant chose to file a review application after the Judgment and therefore, she has waived/abandoned her richt to appeal against the Judgment after rejection of her Review Petition on merit. Her Review is also not maintainable in view of the bar created by Order XLVII Rule 2 and this Civil Revision is also liable to be dismissed as not maintainable. To support his submissions he relied upon (i) Union of India Vs. Bharat Fire and General Insurance Ltd., New Delhi, AIR 1961 Punjab 157 (Paragraph 10); (ii) Sikhim Subba Associates Vs. State of Sikkim, (2001) 5 SCC 629 [Paragraph 16 (a)I and (iii) M/s Motilal Padampat Sugar Mins Co. Ltd. Vs. The State of Uttar Pradesh and others, AIR 1979 SC 621 (Paragraph 6). 4. Mr. Anmole Prasad, leaned counsel for the Tenant, on the other hand contended that there is no merit in the preliminary objection as the Appeal has been prefeITed against the Judgment and Original Decree under Section 96 of the Code of Civil Procedure; Review Apphcation was also maintainable on 29th November, 2004 the date on which it was filed. Mr. Prasad rehied upon (i) Sha Mulchand and Co. Ltd. Vs. Jawahar Mills Ltd., Salcm, AIR 1953 SC 98 (observations made by Vivan Bose, J.); (ii) Humayun Properties Ltd. Vs. Ferrzzints (Private) Ltd„ AIR 1963 Calcutta 473 (Paragraph 9); (iii) M/s 'Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, AIR 1964 SC 1372 (Paragraph 8); (iv) Veluri Sitaramasastry and others Vs. Isukapalli Sundaranma and others, AIR 1966 AP 173 (Paragraphs 6, 8 and 10); and (v) Relcha Mukheljee Vs. Ashish Kumar Das and others, AIR 2005 SC 1944 (Paragraph 31). 5. In reply, Mr. Moulik, argued that Order XLVII Rule 2 contemplates filing of a review only by a party who is not appealing from a Decree or Order; the date of filing of review is not relevant; and that as in the decisions refied upon by Mr. Prasad his submission not having been considered which have got substance and thus be accepted. 6. We first refresh the statutory provisions. 7. Section 96 of the Code of Civil Procedure, under which the Appeal has been ffled, reads as under: - "96. Appeal from original decree. - (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeal from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parfe. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cogriizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees." /\` 7.1 Section 114 of the Code of Civil Procedure read as under: - "114. Review. -Subject as aforesaid, any person considering hinself aggrieved, - (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been prefeITed. by a decree or order from which no appeal is allowed by this Code, or by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit." 7.2 Section 115 of the Code of Civil FTocedure reads as under: - "115. Revision.-(I) The High Court may call for the record of any case which has been decided by any Court subordinate to such Hich Court and in which no appeal lies thereto, and if such subordinate Court appears - to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material iITegularity, the Hick Court may make such order in the case as it thcks fit: Provided that the Hich Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision. Would have finally disposed of the suit or other proceedings. (2) 'The Hich court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the Hich Court or to any Court subordinate thereto. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court. Exphanrfe7i- In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding." 7.3 Order XLVII of the Code of Civil Procedure, reads as under: - "1. Application for review ofjudgpent. - ( 1) Any person considering himself aggrieved - (dy by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, ro) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence wlrich, after the exercise of due diligence was not within his lmowledge or could not be produced by him at the tine whorl the decree was passed or order made, or on account of some mistake or elTor 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 hin, may apply for a review of ].udgment to the Court which passed the decree or made the order. (2) A Dartv who is not aDDcealinig from a decree or order mav al)Dlv for a review of iudrment notwithstanding the Dendcncv of an aDoeal bv some other 1)arty except where the ground of such appeal is common to the apphicant and the appellant, or when, being respondent, he can Dresent to the ADoellate Court the case on which he aDolies for the review. Exp!anafron. - The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment." ( Emphasis supplied) fty\/ 8. From the Punjab High Court Judgment in Union of India (Supra) we find that at Second Appellate stage when an objection was raised for the first tine it was held that the points raised are not so clear so that it can be allowed in second appeal. In Sikkin Subba Associates (Supra) it was laid down that waiver involves a conscious, voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, the party would have enjoyed. In M/s Motilal Padampat Sugar Mins Co. Ltd. (Supra) it was laid down that the true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, lmowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between them. 9. In Sha Mulchand (Supra) S.R. Das, J. (who defivered Judgment on his behalf and Mahajan, and Ghulam Hasan JJ) held that the plea of abandonment of richts is an aggravated form of waiver, acquiescence or laches and akin to estoppel cannot be sustained and mere waiver, acquiescence or laches not amounting to an abandonment of his richt or to an estoppel against a person cannot disentitle that person from claiming relief in equity in respect of his executed and not merely executory contract. Vivian Bose, J. while, agreeing with the conclusion, clarified his position about abandonment and waiver looking at first principles. In Humayun Properties Ltd. (Supra) the Calcutta High Court referred to the observations made by Vivian Bose, J. in Sha Mulchand and Co. (Supra). 9.1 In M/s Thungabhadra Industries Ltd. (Supra) it was held as follows in regard to pelmissibility for filing an application for review on the date on which no appeal was filed: - "Order XLVII R. 1(1) of the Civil Procedure Code permits an application for review being filed "from a decree or order from which an appeal is allowed but from which no appeal has been prefeITed". In the present case, it would be seen, on the date when the application for review was filed the appellant had not ffled an appeal to this Court and therefore the terms of 0. XLVII R.1(1) did not stand in the way of the petition for review being entertained. Leaned Counsel for the respondent did not contest this position. Nor could we read the judgment of the High Court as rejecting the petition for review on that ground. The crucial date for detemining whether or not the terms of 0. XLVII R. 1(1) are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the appeal itself has been disposed of, the jurisdiction of the court hearing the review petition would come to an end." / 9.2 The Calcutta Hich Court in Mrs. Rekha Mukheljee, AIR 2005 Calcutta 74, took a view that an appeal could be filed in anticipation and even if an appeal has been filed after the review is allowed by the same party, who succeeds in review, has to be stick to one or other option of electing either of the two as the review and appeal cannot go together. On Appeal the Supreme Court in Rekha Mukherjee, (Supra) did not approve this view by holding as follows: - "31. The doctrine of echipse has no application in a case of this nature. An appeal preferred in terms of Section 96 CPC must conform to the requirements contained in Order41 thereof. An appeal at the time of its filing would either bc maintainable or would not be. The High Court, with respect, was not coITect in holding that such an appeal could be ffled in anticipation. If such a procedure is contemplated in the law, the Respondents herein might not have filed the substantive appeal or would have prayed for withdrawal of the review apphication before the trial court itself. Having filed a review application on legal advice and having succeeded therein in part, it was not open to it to prefer an appeal against the entire decree dated 20-12-2001 whereby the suit in its entirety was dismissed. 'The Respondents could have only prefeITed appeal only from that part of the decree in respect whereof review was not granted. In a suit for specific performance of contract, a prayer in the alternative is ordinarily made to the effect that in the event the court declines to grant a decree for specific performance of contract, it may direct refund of the earnest money with interest. 32. 'The right of review is a statutory right. Such right can be invoked if the conditions therefore are fulfilled. So is a right of appeal. A right of review and right to appeal stand on different footings although some grounds may be overlapping. If a review is granted, the decree stands modified but such modification of a decree is not an ancillary or a supplemental proceeding so as to be revived upon setting aside the decree granting review. " /i 10 9.3 We find that a Division Bench of the Calcutta High Court in Gour Krishna Sarkar and another Vs. Nilmadhab Saha and others, AIR 1923 Calcutta 113, had held as follows: - "When an application for review is granted, the decree previously made is vacated, with the consequence that an appeal preferred against the decree can no longer be prosecuted. When a Judge decides to grant an application for review, he should record an order to that effect, and a note thereof should be made in the register under 0. 47, R. 8. The order should state clearly whether the decree is to be vacated in its entirety or not. A review proceeding commence ordinarily with an ex pcirfe application. The Court then may either reject the application at once or may grant a rule calling on the other side to show cause why the review should not be granted. In the second stage the rule may either be admitted or rejected and the hearing of this rule may involve to some extent an investigation into the merits. If the rule is discharged, then the case ends. If, on the other hand, the rule is made absolute, then the third stage is reached, the case is reheard on the merits and may result in a repetition of the formet decree or in some variation of it. Though in one aspect, the result is the same whether the rule is discharged or on the rehearing the original decree be repeated, in law there is a material difference, for in the latter case the whole matter having been re-opened, there is a fresh decree; in the former case the parties are relegated to an still rest on the old decree. Consequently an order appropriate to a discharge of the rule is the rejection of the application; an order so made terminates the second stage of the proceedings; and there is no third stage for the rehearing of the case." 9.4 We also find that a F\ill Bench of the Allahabad High Court in Behari Lal and another Vs. M.M. Gobardhan Lal and others, AIR 1948 AIlahabad 353, held as follows: - "The filing of an appeal subsequent to the filing of an application for review does not make the hearing of the review application incompetent." XX "When the law gives a Court jurisdiction to entertain an application for a review of judgment, such ].urisdiction "carmot be taken away or cut down except by express words or necessary implication." There are no express words in the Code which may oust such jurisdiction on an appeal having been preferred to a 1/ 11 higher Court; nor can any necessary implication be inferred from the terms of S. 114 or the rules contained in 0. 47 of the Code. Hence from the general scheme of the Code of Civil Procedure and the specific provisions contained in S.114 and 0. 47, the preferring of an appeal subsequent to the filing of an application for review does not make the review application incompetent." [Para 33] XXX "The crucial date under 0. 47, R. 1(a) is the filing of the application for review. If on that date the appellate Court has no appeal pending before it, the review appfication is under the Code, as it stands, competent. The power to deal with the review in such a case remains in existence till such period as the appeal is not heard and disposed of. After the appeal has been heard and a decree passed by the appellate Court, it is not open to the Court before whom the application for review was presented to proceed with its hearing. But where an application for review of judgment is granted, the order for review supersedes the original decree and the decree under appeal ceases to exist and the appeal cannot be heard." [Para 41] X X X "The powers of an appellate Court are to be found enumerated in S. 107 read with 0.41, Civil P.C. The grounds which would justify a Court to entertain an application for review have, on the other hand, been lard down in S.114 read with 0. 47, R.1, Civil P.C. Order 47, R.1 is a reproduction of S. 623 of the Code of 1882 which is substantiauy the same as S. 376 of the Code of 1859. It will be noticed that it is open under these sections and orders to a person considering himself aggrieved by a decree or order specified in clause (a), (b) or (c) of S. 114 to apply for a review on one of the following grounds: (a) discovery of new or important matter of evidence, which notwithstanding the fact that the party aggrieved had exercised due dlfgcnce, was not within the lmowledge of the party or could not be produced by him at the time when the decree was passed or the order made, (b) some mistake or eITor apparent on the face of the record, or (c) for any other sufficient reason. When the Court grants a review it is open to it to either re-hear the whole case or confine the hearing only to the particular point on which the review was allowed. It will be noticed that one of the `............I. 12 conditions laid down for an application for review is that it must be filed before an appeal has been preferred. On the question as to what is meant by the words "an appeal has been prefeITed," I may refer to a case, 41 C.W.N. 129, in which a decree was passed by the High Court of Calcutta in its ordinary original civil jurisdiction on 4th March 1986. The memorandum of review was filed on 20th May 1936. Five days later, i.e. on 25th May 1936 a memorandum of appeal was filed against the decree of 4th March 1936. The question was whether the review application was filed at a time when no appeal had been preferred. The view of the Court was that the review application had been ffled before the appeal was preferred. Pan]ridge J. held that the review had been ffled before the appeal was preferred and that the Court could not be said to have been deprived of the jurisdiction to entertain the application for review on the ground that when the application came on to be dealt with an appeal was pending. The c"c{az date, therefore, is the filing of the apprication for review. If on that date the appellate Court has no appeal pending before it, the review apphication is under the Code, as it stands, competent. The power to entertain the review remains in existence till such period as the appeal is not heard and disposed of. After the appeal has been heard and a decree passed by the appellate Court, it is not open to the Court before whom the application for review was presented to proceed with its hearing. But where an application for review comes to be heard and decided before the appeal is heard and froally disposed of, the position is that it is incompetent for the appel]ate Court to hear the appeal for the new decree is, in that case, held to supersede the decree appealed from. That this is the law is clear from a long course of decisions to which attention has been drawn pointedly by my brother, Harish Chandra. I may say that my interpretation of those cases is that they lay down that where an appfication for review of judgment is granted, the order for review supersedes the