Calcutta High Court
K.N. Mishra vs Union Of India (Uoi) And Ors. on 25 July, 2003
Equivalent citations: AIR2003CAL307, AIR 2003 CALCUTTA 307, 2004 A I H C 1, (2003) 10 ALLINDCAS 913 (CAL), 2003 (10) ALLINDCAS 913, (2004) 16 INDLD 439, (2003) 3 CAL HN 535, (2003) 2 CAL LJ 637
Bench: Altamas Kabir, Asok Kumar Ganguly, D.K. Seth
JUDGMENT Pravendu Narayan Sinha, J. (For himself and on behalf of Asok Kumar Ganguly, Aloke Chakrabarti and Pravendu Narayan Sinha, JJ.) 1. This reference originates from a writ petition filed before the Circuit Bench at Port Blair against an order passed by the Central Administrative Tribunal on 19th September, 2600. The said Writ application was dismissed by the Division Bench on 11th June, 2002, on the ground that an error of assessment cannot be corrected in writ jurisdiction. An application, being RVN No. 005 of 2002, was filed by the writ petitioner for review of the order of the Division Bench. The said application came up for consideration before another Bench then in Circuit which Issued a Rule on the application on 2nd July, 2002, making the same returnable on 9th July, 2002. On 9th July, 2002, directions were given for filing of affidavits and the matter was adjourned till 15th July, 2002. On the said date the second Division Bench, inter alia, recorded the following order : "The application therefore stands allowed. The order dated 11-6-2002 is hereby recalled. Now it will be not necessary to hear the writ petition afresh". 2. Thereafter, after making certain observations on the merits of the writ petition, the Court further recorded as follows :-- "Since we have already recorded hereinabove, that we are not disposing of the writ application today because of the reasons staled above, we are not recording our conclusion, on such fact. But it is now for the next Circuit Bench to decide finally whether because of the stand of the respondents whether the petitioners will be without any remedy or the entire selection should be set aside with a direction for holding fresh Departmental Promotion Committee". 3. Further to the aforesaid directions, the writ application came up for hearing on 20th January, 2003, before: the Division Bench in Circuit comprised of a third set of Judges and presided over by Bhaskar Bhattacharya J. When the writ application was taken up for hearing a question arose as to whether the said Bench could at; all take up the matter for hearing. 4. Having regard to the provisions of Order 47, Rule 5 of the Code of Civil Procedure and its applicability even to writ proceedings and the Full Bench decision of this Court in the case of Ratan Lal Nahata v. Nandita Bose, reported in AIR 1999 Calcutta 29 : (1999 AIHC 718) the Third Division Bench held that it could not legally take up the writ application. It was of the view that since the original writ application had al ready been disposed of by the First Division Bench and the Second Division Bench having found on the application for review that there was an error apparent on the face of, the record in the order of the First Division Bench justifying recall of the said order, it should not only have recalled the earlier order but should have also pronounced the final order on the writ application after removal of such error. 5. Consequent to the aforesaid view taken by it, the Third Division Bench concluded that so long as the final verdict stating what should be the just order was not given, in the eye of law, the application for review should be deemed to be pending. Following such finding to its logical conclusion, the Third Division Bench was also of the view that the order dated 15th July, 2002, passed by the Second Division Bench should be ignored and it should deal with the application for review afresh as if it was being moved for the first time. 6. At this Juncture the Third Division Bench was faced with the Full Bench decision of this Court in the ease of Ratan Lal Nahata v. Nandita Bose (supra) giving rise to the further question as to whether the review application could be heard by the Third Division Bench since both the learned Judges comprising the First Division Bench were available for the purpose of hearing the said application. The Third Division Bench was of the view that the review application should be heard by the learned Judges comprising the First Division Bench or the Hon'ble Chief Justice should assign the matter to a specific Circuit Bench. 7. The Third Division Bench also took note of Chapter XVIII of the Appellate Side Rules as it now stands after the amendment effected on 22nd November, 1991, when the notification of amendment was published in the Calcutta Gazette, The said chapter comprises the Rules for cases arising in the Andaman & Nicobar Islands. The Third Division Bench while taking particular note of Rule 3 of the said Rules took the view that Chapter XVIII of the Appellate Side Rules does not enable a Circuit Bench consisting of different Judges to hear an application for review of a judgment passed by an earlier Circuit Bench if the Judges of the earlier Bench were still functioning as Judges of the Calcutta High Court unless the matter was specifically assigned by the Hon'ble Chief Justice to the subsequent Circuit Bench. The Hon'ble Judges felt that although Chapter X of the Appellate Side Rules does not apply to wrif proceedings, the principles enunciated in Rules 5 and 6 of that Chapter supported their Lordships' view. 8. In the above circumstances, the Hon'ble Judges of the Third Division Bench referred the matter to the Hon'ble Chief Justice to constitute a larger Bench, inasmuch as, the points involved were considered to be important and had not been settled either by the Privy Council or by the Federal Court or Supreme Court of India or by any Full Bench of this Court. Their Lordships formulated the points to be decided by the larger Bench, namely. 1) If an application for review of an order disposing of a writ, application is made on the ground of error apparent on the face of the record, whether the Bench hearing such application, after recording its finding that there was such error, can dispose of such application by recalling the original order without arriving at the final verdict as to what should be the first order on the writ application after removing the alleged error entrusting such duty to a succeeding Bench after making some prima facie observation on merit of the writ application? 2) If the answer to point No. 1 above is given in affirmative, whether the review application should be deemed to be pending so long the succeeding Bench is not arriving at a conclusion altering the original order disposing of the writ application or affirming the original order? 3) If the answer to the point No. 1 is in affirmative but the answer to point No. 2 is in negative or if the answer to the point No. 1 above is given in negative, whether the succeeding Bench should be bound by the observations of the Bench made on merit while entrusting, the same to the succeeding Bench for final decision? 4) If the answer to point Nos. 1 and 2 are both given in affirmative, in such a case, whether in a Circuit Bench at Port Blair an application for review of an order passed by a Bench sitting in writ jurisdiction can be entertained by a succeeding Circuit Bench consisting of different Judges from those of the previous one in the absence of any special assignment of the Hon'ble Chief Justice when the Judges of the previous Bench are still functioning as the Judges of the Calcutta High Court? 9. On the matter being referred to the Hon'ble Chief Justice, this Bench has been constituted to consider the aforesaid questions posed by the Referring Bench. 10. Appearing for the writ petitioner, Mr. Tapan Kumar Mukherjee submitted that on enactment of the Calcutta High Court (Extension of Jurisdiction) Act, 1953, the jurisdiction of the Calcutta High Court was extended to Chandernagore and the Andaman and Nicobar Islands. Section 4 of the said Act empowered the High Court to make Rules to carry out the purpose of the Act and for the purpose of effectively exercising its jurisdiction in or in relation to Chandernagore and the Adaman and Nicobar Islands. Mr. Mukherjee submitted that in exercise of such powers Chapter XVIII of the High Court Appellate Side Rules was amended with effect from 22nd November, 1991. 11. Mr. Mukherjee laid emphasis on Rule 2 of the amended Rules in support of his contention that whenever the Hon'ble Chief Justice appointed one or more Judges of the High Court to visit the Islands by way of Circuit, the same amounted to assignment in general and no specific assignment was required to be made for the Circuit Bench to hear a particular matter. 12. Referring to Rule 3 of the aforesaid Rules, Mr. Mukherjee contended that all cases, including applications under Articles 226 and 227 of the Constitution, are required to be initiated in the Islands and are also required to be heard by the Circuit Bench, which did not necessarily mean the same Bench which had earlier heard a matter, having regard to the special circum stances prevailing in the Islands. 13. Mr. Mukherjee submitted that having regard to Rule 3 of the aforesaid Rules and in order to give a practical and pragmatic meaning thereto the provisions of Order 47 Rule 5 of the Code of Civil Procedure would have to give way and all matters could be considered by the Circuit Bench, which included all Circuit Benches subsequent to the original Bench which heard the matter. 14. Mr. Mukherjee submitted that although the referring Bench relied on the Full Bench decision of this Court in the case of Ratan Lal Nahata (supra), the Full Bench while interpreting the provisions of Order 47 Rule 8 of the Code of Civil Procedure and the powers of a Chartered High Court to make rules to regulate its own procedure in terms of Section 129 of the Code of Civil Procedure, did not have occasion to consider the special circumstances prevailing in the Andaman and Nicobar Islands for which a separate Chapter, namely Chapter XVIII, has been included in the Appellate Side Rules. Mr. Mukherjee submitted that the introduction of Rule 3 in the amended provisions of Chapter XVIII of the Appellate Side Rules completely altered the situation as far as the Andaman and Nicobar Islands were concerned and such circumstances not having been considered in Ratan Lal Nahata's case (supra), the said decision could not be applied to litigation initiated in the Islands. 15. Mr.. Mukherjee submitted that, on the other hand, the questions which have been referred to this Bench for a decision had been considered by another Division Bench in Circuit in the Islands in RVW 21 of 2001 (Smt. Kakoli Das v. Dr. A. K. Das), 2001 AIHC 2203 : AIR 2001 NOC 67 (Cal). Mr. Mukherjee submitted that in the said case, the Division Bench also had occasion to consider the amended provisions of Chapter XVIII of the Appellate Side Rules in relation to Order 47 Rule 5 of the Code of Civil Procedure. Mr. Mukherjee submitted that while considering the provisions of Rule 3 read with Rule 1 (b), the said Division Bench was of the view that Rule 3 would prevail in case of conflict with Order 47 Rule 5 of the Code of Civil Procedure. Mr. Mukherjee urged that having regard to the special circumstances prevailing in the Islands, as a result whereof the same set of Judges were not immediately available in the subsequent sittings of the Circuit Bench, the provisions of Rule 3 of Chapter XVIII would have an overriding effect over the provisions of Order 47 Rule 5 of the Code of Civil Procedure even in matters involving the writ jurisdiction of the High Court. 16. Mr. Mukherjee submitted that consequently the answer to question 1, referred to by the referring Bench must be in the affirmative and, in any event, the review petition having been allowed, the writ application would have to be heard afresh. 17. Mr. Mukherjee submitted that the conclusion of the referring Bench that since no final verdict had been given on the review application the same should be deemed to be pending, was also untenable for the same reason and the reference should be answered accordingly. 18. Mr. B. K. Das, learned Advocate, who appeared for the respondents, was in agreement with the view expressed by the referring Bench that since no final verdict had been given on the review application by the Second Division Bench, the said application must be deemed to be pending. Mr. Das also agreed with the proposition that having regard to the provisions of Order 47 Rule 5 of the Code of Civil Procedure, the review application was required to be heard and disposed of by the same Bench which initially passed the Order, provided the learned Judges, who comprised the said Bench, were still available. 19. Mr. Das, however, concluded on the note that for the sake of convenience matters originating in the Islands should be heard and disposed of in the Islands as contemplated under Rule 3 of Chapter XVIII of the Appellate Side Rules, as amended. 20. We have carefully considered the submissions made by Mr. Mukherjee and Mr. Das, having particular regard to the decision of the Full Bench in the case of Ratan Lal Nahata (supra) and it appears to us that the questions referred to this Bench will have to be considered differently from Ratan Lal Nahata's case. As pointed out by Mr. Mukherjee, the special circumstances involving litigation in the Andaman and Nicobar Islands had not been considered by the Full Bench in Ratan Lal Nahata's case. In the said case what fell for consideration was the effect of Order 47 Rule 5 of the Code of Civil Procedure in relation to Chapter X of the Appellate Side Rules and Chapter XXXI of the Original Side Rules dealing with applications for review as framed by the High Court in exercise of its powers under the Letters Patent and it was the consistent view that while the Rules framed by the High Court under the letters Patent would have an overriding effect over the provisions of the Code of Civil Procedure, the principle contained in Order 47 Rule 5 of the Code of Civil Procedure should be followed as far as possible. 21. In the instant case we are faced with a situation which is different from the situation that had been considered by the Full Bench in Ratan Lal Nahata's case. In this reference we are called upon to consider the provisions of Order 47 Rule 5 of the Code of Civil Procedure not in relation to Chapter X of the Appellate Side Rules or Chapter XXXI of the Original Side Rules, but in relation to Chapter XVIII of the Appellate Side Rules, dealing with matters pertaining to the Andaman and Nicobar Islands. Rule 3 of Chapter XVIII of the Appellate Side Rules as amended on 22nd November, 1991, reads as follows :-- "3. All cases including applications under Articles 226 and 227 of the Constitution of India shall be initiated in the Islands and heard by the Circuit Bench". 22. Clearly the intention of the said Rule appears to be that all matters pertaining to the Islands should be initiated and disposed of in the Islands by the Circuit Bench visiting the Islands on being appointed by the Chief Justice from time to time. In our view, the expression "Circuit Bench" mentioned in Rule 3 would not necessarily mean the same set of Judges who initially hears a matter which is afterwards the subject matter of a review application. "Circuit Bench" has been defined in Rule 1 (b) to mean a Bench consisting of one or more Judges holding Court in the Islands. If the intention of Rule 3 is that all cases pertaining to the Islands should be initiated and heard in the Islands by the Circuit. Bench, it would become entirely impractical to apply the principles of Order 47 Rule 5 of the Code of Civil Procedure which would entail the review application being heard by the same. Judges who initially heard the matter which, in fact, could delay the hearing of the review application indefinitely, since according to normal practice Judges visit the Islands on Circuit by rotation and a set of Judges who sit on a Circuit Bench may not be available to sit on the Circuit within the same year. 23. The aforesaid situation necessarily implies that it may not always be possible for the Bench hearing a review application to pass a final verdict on the review application by stating what the order on the main application should be. The limited time available to a Circuit Bench in deciding a review application may require to review application to be heard by one Bench and the main matter to be heard by another Bench, notwithstanding the fact that the Judges comprising the First Bench may be available in Calcutta. What is relevant, is their unavailability in the Islands to give effect to the principles of Order 47 Rule 5 of the Code of Civil Procedure. 24. As pointed out by Mr. Mukherjee, the questions involved in this reference also fell for consideration before another Division Bench in Smt. Kakoli Das case (supra). Interpreting the effect of Rule 3 of Chapter XVIII of the Appellate Side Rules in relation to Order 47 Rule 5 of the Code of Civil Procedure, the said Division Bench came to the conclusion that in the special circumstances prevailing in the Islands, the provisions of Rule 3 of Chapter XVIII would prevail over the provisions of Order 47 Rule 5 of the Code of Civil Procedure. 25. In our view, the said Division Bench appears to have adopted the correct procedure in dealing with the question at hand. Chapter XVIII of the Appellate Side Rules as amended is the distinguishing feature as, between Ratan Lal Nahata's case and the instant case. 26. Shyamal Kumar Sen, J. (as His Lordship then was) in his concurring judgment, to which there was no note of dissent, concluded with the following observations "Paragraph 35. Considering the principles laid down in all the aforesaid decisions, it appears to me to be proper that in terms of our Rules read with Code of Civil Procedure, matters relating to review should be heard by the Judges if they are available and in the event one of the Judges does not remain attached to this Court, the matter may be heard for the purpose of issuing rule by one of the Judges who is available and the said Judge will hear the rule also and in the event he makes the rule absolute and is of the view that the matter should be re-heard, he will place the matter before the Hon'ble Chief Justice for constitution of a Bench. In other words, if the review is permissible, it should be beard and decided by the Judge who is available but the matter may thereafter be referred to the Chief Justice for constitution of a Division. Bench in the event the Judge concerned finds the order reviewable." 27. The said observation clearly indicates that while the review application may be allowed by one Judge, the main matter under review may be re-heard by another. 28. The question referred to this Bench appears to have been rendered academic to some extent on account of the fact that, the review application was allowed by the Second Division Bench by its order dated 15th July, 2002, with the observation that it would be necessary to hear the writ application afresh. Accordingly, notwithstanding the observations of the referring Bench that the review application must be deemed to be pending we are of the view, that such stand, if allowed to be taken, would create a bad judicial precedent as it would amount to one Division Bench ignoring a Judicial Order passed by another Division Bench of co-ordinate jurisdiction. 29. Consequently, the first question formulated by the referring Bench has to be answered in the affirmative. 30. In view of Rule 3 of Chapter XVIII of the Appellate Side Rules, which, in our view, will have an overriding effect over the provisions of Order 47 Rule 5 of the Code of Civil Procedure, the second question has to be answered in the negative. 31. As far as the third question is concerned it follows that the succeeding Bench will not be bound by the observations on the merits of the ease made by the Bench which allows the review application while entrusting the same to the succeeding Bench for final decision. 32. In the special circumstances prevailing in the Andaman and Nicobar Islands, an application for review of an order passed by a Bench sitting in writ jurisdiction can be heard and decided by a succeeding Circuit Bench consisting of a different set of Judges even without any special assignment of the Hon'ble Chief Justice, notwithstanding the fact that the Judges of the previous Bench are still functioning as Judges of the Calcutta High Court. 33. The question referred to this Bench are answered accordingly. 34. The records may now be sent back to the Registrar, Circuit Bench, Calcutta High Court at Port Blair, for fresh hearing and disposal of the writ application. 35. If an urgent xerox certified copy of this judgment is applied for, the same is to be supplied to the applicant expeditiously, subject to compliance with all the required formalities. Asok Kumar Ganguly, J.
36. I agree.
Aloke Chakrabarti, J.
37. I agree.
Pravendu Narayan Sinha, J.
38. I agree.
D.k. Seth, J.
39. I had privilege of going through the Judgment of brother Kabir, J. I fully agree with the same. However, I would like to add a few words of mine.
40. The decision in Ratari Lal Nahata v. Nandita Bose, AIR 1999 Cal 29 : 1999 AIHC 718, dealt with Chapter XXXI of the Original Side Rules (OS Rules) and Chapter X of the Appellate Side Rules (AS Rules) and had addressed to the relativity of the OS as well as AS Rules and the Code of Civil Procedure (CPC) in relation to Order 47 Rule 5 and had held that Order 47 Rule 5 CPC although ipso facto has no application in relation to a writ proceeding or a proceeding in the Original Side or the Appellate Side of this Court the principles laid down therein may be applied. We need not address ourselves with regard to these questions in relation to its application in the main land. We are concerned with the question as applicable in Andaman & Nicobar Islands (A&N Islands). Section 122 empowers the High Court to make rules to regulate its own procedure and by such rules, the High Court may annul, alter or add to all or any of the rules in the First Schedule. But by reason of Section 128, such rules shall not be inconsistent with the body of the Code.
41. The expression "body of the Code" is not defined in CPC. But we may notice that CPC has used both the expressions "Code" and "body of the Code", The word "code" is defined in Section 2(1) to include rules. Section 2(18) defines rules to mean rules and forms contained in the First Schedule or made under Section 122 or Section 125. Thus, it is clear that wherever the word "code" is used in 1908 Act, it includes not only the sections comprised in it, but also rules and forms contained in the First Schedule as well as the rules and forms made by the High Court under Section 122 or Section 125. Therefore, when reference to the "body of the Code" is made, it appears that the legislature had intended to mean something different that does not come within the definition of the "Code" or the "Rules". If it had intended to mean the code in that event, the use of the expression "body of qualifying "Code" would be redundant. Thus, the expression "body of the Code" refers to the main part of the Code, namely, the sections. This expression has been used to exclude the rules as defined in Section 2(18). We may find support of this view on a perusal of the provisions of Sections 7, 8. 96, 100, 104, 121 and 128 respectively. These sections are jurisdictional provisions and having regard to their subject, matter, the expression "body of the Code" refers to that section only and not, to the rules. This is more evident from Section 104 wherein Sub-section (1) appeal is allowed from the orders as expressly provided in the body of the Code or by any law for the time being in force and from no other. It enumerates the order in various clauses. Clause (i) includes order made under rules from which an appeal is expressly allowed by rules. Section 104 allows appeal in respect of the orders passed under various sections contained in the body of the Code and also refers to orders made under rules for which express provision is made in the rules. Then Order 43 of the First Schedule in Rule 1 enumerates the orders from which appeal would lie. Thus, in the same section, a distinction has been made to the body and the rule contained in the Code.
42. Body of the Code consists the provisions, which are fundamental and less easily amenable to amendment than rules contained in the First Schedule. The sections enjoy a certain status and a related degree of permanency denied to the rules contained in the First Schedule, which can be annulled, altered or added to by rules made by the High Courts under Section 122. Our High Court in Mani Mohan Mandal v. Ramtaran Mandal AIR 1917 Cal 657, has held the body of the Code as unalterable except by the legislature. The rules made concerned with the details and machinery and can he more readily alterable. The body of the Code is jurisdictional. The rules indicate the mode in which it is to be exercised. We may also refer to the decision in Abdul Karim Abu Ahmad Khan Ghaznavi v. Allahabad Bank Limited AIR 1917 Cal 44 (FB).
43. Section 128 provides that the rules made by the High Court shall not be inconsistent with the provisions of the body of the Code. The rules contained in the First Schedule and the rules framed by the High Court are outside the body of the Code. The rules framed under Section 122 or 128 must be consistent with the body of the Code. But there is no bar of such rules being inconsistent with the First Schedule. If there is a conflict between the rules contained in the First Schedule and the rules framed by the High Court either in the Appellate Side or in the Original Side, the rules framed by the High Court shall prevail so far it is not inconsistent with the body of the Code. Section 114 in the body of the Code is the jurisdictional provision providing for review. The procedure is provided in Order 47. In case of inconsistency between Order 47 Rule 5 and the rules framed by the High Court, the former would yield to the rules framed by the High Court.
44. In Chandra Bhushan Misra v. Smt. Jayatri Devi, the Allahabad High Court had taken the same view. A learned single Judge of the Rajasthan High Court in The Mahalaxmi Tent Factory, Jodhpur v. Kamala Devi, had taken similar view following the decision in Chandra Bhushan Misra (supra).
45. The Calcutta High Court (Extension of Jurisdiction) Act. 1953 in Section 4 empowered the High Court, to make rules to carry out the purpose of the Act for effectively exercising its jurisdiction in relation to the A&N Islands. In exercise of such power. Chapter XVIII had been incorporated in the AS Rules. These rules have been framed having regard to the peculiar situation existing in the Islands. The power to annul, modify or add to or alter the rules contained in the First Schedule has been conferred upon the High Court for the purpose of answering local needs and adapting the First Schedule to effectively serve the purpose. Therefore, the First Schedule to CPC shall be subject to Chapter XVIII of the AS Rules in its application to the Islands. This proposition was not under consideration in Ratan Lal Nahata (supra). Therefore, by reason of the situation, Chapter XVIII will prevail upon (Order 47 Rule 5 to the extent as discussed by my learned brother Kabir, J. approving the ratio decided in the single Judge decision in Kakoli Pas v. Dr. A. K. Das 2001 AIHC 2203 ; AIR 2001 NOC 67 (Cal)..
46. Under Rule 53 of the Rules under Article 226 of the Constitution framed by the High Court the procedure provided in CPC in relation to suit shall be followed as far as it can be made applicable in all proceedings for issue of a writ, save and except as provided in writ rules and subject thereto. Therefore, even in respect of matters arising out of writ proceedings, the application of CPC cannot be ruled out unless the provisions of CPC are inconsistent with the writ rules. There is nothing in the writ rules inconsistent with Order 47 Rule 5, therefore, the same is very much applicable in the present case. But the same is subject to Chapter XVIII of the AS Rules in its application to A&N Islands.
47. Judges holding Circuit in A&N Islands are appointed under Rule 2 Chapter XVIII in respect of cases in the Islands. Therefore, all cases arising in A&N Islands by fiction deemed to have been assigned to the Judges in Circuit. Therefore, no special assignment in respect of matters covered under Order 47 Rule 5 CPC would be necessary.
48. Order 47 provides three stages for dealing with review. A review commences as is clear from Order 47 CPC with an ex parte application. The Court, then may either reject the application at once or may issue a rule calling on the other side to show-cause why the review should not be granted. This is the first stage. The second stage begins with the admission of the review application. This is followed by hearing the cause shown by the other side and the application. This hearing necessitates to some extent an investigation into the merits. If the rule is discharged, the case ends. The Chapter for review is closed at the second stage. If the rule is made absolute.'then the procedure reaches the third stage. This is done under Rule 4. Then the case is re-heard on merits under Rule 8. Upon such hearing on merit, it may result in a repetition of the former decree or order or in some variation of it. Though, the result may be same whether the rule is discharged or on rehearing, the original decree is repeated, but in law, there is a material difference. In the latter case, the matter having been reopened, there is a fresh decree. In the former case, the parties are relegated to and still rest on the old decree. This distinction is of fundamental importance as was held in Vadilal v. Fulchand, 1905 ILR 30 Bom 56 and Nanhe v. Mangat Rai (1913) 20 IC 647. The failure to recognize this distinction between the second and third stage led to the embarrassment of litigants in many instances, specially in the class of eases contemplated in Order 47 Rule 5. The distinction is apparent and simple. From the scheme of Order 47, it appears that after the first stage, if the review travels to the second stage, the review part is complete on the termination of the second stage. Inasmuch as either the review is rejected or granted. Once it is granted, the earlier order stands recalled and the suit or the appeal revives and the matter is re-heard in the third stage. This re-hearing is of the suit or appeal so revived and is something distinct from review. Order granting review under Rule 4 is appealable under Order 43 Rule 1(w) but rejection thereunder is not. The order passed upon re-hearing under Rule 8 is distinct and different from those under Rule 4. An order under Rule 3 is a decree or order passed in the original suit or appeal. It is subject to appeal under Section 96 or 100 or 104 CPC or under the Letters Patent or such other law as the case may be. It is not an order on the application for review. It assumes a complexion altogether different from an order of review. Once the order under review is recalled and the matter is directed to be re-heard, it is no more a review subject, to Order 47 Rule 5. Inasmuch as at the re-hearing, the case is reopened either wholly or in part and it is re-heard afresh. Even if after the third stage, the old decree or order is repeated, even then it would be a fresh order or decree passed in the suit or appeal after re-hearing. When the application for review is granted, the original decree or order is law stands vacated and the suit or the appeal stands revived. Once the suit or appeal stands revived, it cannot come within the scope of Order 47 Rule 5. This is more so from the scheme of the procedure laid down in Order 47.
49. In support of the above proposition, reliance may be placed upon the observation made by Sir Ashutosh Mukherjee, J. in Gour Krishna Sarkar v. Nilmadhab Sana, (1922) 36 CLJ 484 : AIR 1923 Calcutta 113. In Golab Chand v. Janki Koer, (1913) ILR 41 Cal 286 : 18 C1J 151, such a view was taken. Parallel view was taken in Arayalurath v. Checkiladen, (1909) 2 IC 204 and Gour v. Rakhal, (1G16) 27 CLJ 326.
50. An examination of Order 47 Rule 8 will make the position clear. Order 47 Rule 8 provides that when an application for review is granted, a note thereof is to be made in the register and the Court may at once re-hear the case or make such order in regard to re-hearing as it thinks fit. Thus, it, is not necessary that the Court has to re-hear the case immediately on granting the application for review. Rule 8 saves the power of the Court to make such, order with regard to the re-hearing as it may think fit. Therefore, there is no bar in fixing the matter for re-hearing after the review is granted. Order 47 Rule 5 contemplates hearing of the review application. Once the review is granted, the application of Order 47 Rule 5 is exhausted. The re-hearing is not necessary to be done by the same Judge. The application of Order 47 Rule 5 is confined only to the application for review, which is exhausted on the rejection or grant thereof. There is nothing in the CPC to indicate that after the review is granted, if the re-hearing is not done at once, the same has to be re-heard by the same Bench if it is adjourned. The power to 'make such order with regard to re-hearing as it, thinks fit' includes the power to direct re-hearing by the regular Bench. The re-hearing of the ease is not the review. It is a fresh hearing after the review is granted. Order 47 Rule 5 is confined to application for review. Once this application for review is granted, it is disposed of. The Court has liberty to re-hear the case at once or may postpone the hearing, which may not invite the procedure prescribed in Rule 5.
51. In the present case, the review was granted and the matter is directed to be re heard. This re-hearing is outside the scope of Order 47 Rule 5 and can be heard by any other Bench without here being any nomination by the C.J. However, the Court re hearing matter is not bound by any observation made by the Court granting the re view.