Andhra HC (Pre-Telangana)
Kannegolla Naghabhushanam vs The Land Acquisition Officer on 4 December, 1992
Equivalent citations: AIR1993AP209, AIR 1993 ANDHRA PRADESH 209, (1993) 1 APLJ 193 (1993) 1 LS 205, (1993) 1 LS 205
ORDER
1. The claimant in O.P. No. 56/85 on the file of the Subordinate Judge's Court, Eluru is the petitioner in this revision. He filed this revision aggrieved by the order of the learned Subordinate Judge, Eluru in I.A. No. 226 of 1990 in O.P. No. 56 of 1985 dated 10-3-1992 holding that the review petition filed by the petitioner for review and modification of the judgment passed in O.P. No. 56 of 1985 dated 29-10-90, is not maintainable.
2. The facts in brief are as follows : The Government acquired Ac. 3.80 cents of land belonging to the petitioner in R.S. No. 779 in Block No. II of Eluru town for providing house sites for the weaker sections. A notification under Section 4(1) of the Land Acquisition Act was published on 6-12-1983. The Land Acquisition Officer (L.A.O.) passed the award No. 1/84-85 on 31-10-1984 fixing the market value of the land at Rs. 48,400/- per acre. On a reference made under Section 18 of the L. A. Act to the Civil Court, at the instance of the petitioner, the matter was numbered as O.P. No. 56/85 on the file of the Subordinate Judge's Court, Eluru. The learned Subordinate Judge relying upon the basic value certificate dated 1st September, 1990 fixed the market value of the land at Rs. 100/- per square yard by his judgment dated 29th October, 1990.
3. The petitioner came to know in the first week of December, 1990 that the basic value of the land in D. No. 8-1-7, which is at a distance of 250 yards from the acquired land, is Rs. 150/- per square yard. Since he discovered this important evidence after the disposal of O.P. No. 56 of 1985, he filed I. A. No. 2226/90 on 11-12-90 to review the judgment passed in O.P. No. 56 of 1985. Thereafter the Land Acquisition Officer filed appeal A.S. No. 697 of 1991 in the High Court and he also filed C.M.P. No. 4984 of 1991 for stay of all further proceedings including the execution of the decree in O.P. No. 56 of 1985. This Court by order dated 11-4-1991 granted interim stay on condition that the petitioner therein shall deposit 30% of the enhanced compensation and costs within eight weeks from the date of the order. This Court also directed the appeal to be posted for final disposal on 30th September, 1991.
4. As the records pertaining to O.P. No. 56 of 1985 were received by this Court for the purpose of A.S. No. 697 of 1991, the review petition filed by the revision petitioner in the Sub-Court at Eluru could not be taken up for enquiry. Therefore, the petitioner filed C.M.P. No. 11423 of 1991 for a direction to the Office to send the records received in A.S. No. 697 of 1991 to the Sub-Court, Eluru for the purpose of disposal of the review application. The same was allowed by this Court on 31-8-1991 with a direction to the Subordinate Judge, Eluru to dispose of LA. No. 2226 of 1990 within two months from the date of receipt of the said order.
5. The learned Subordinate Judge thereafter passed the impugned orders on 10-3-1992 dismissing I.A. No. 2226 of 1990, aggrieved by which, the petitioner has filed this revision.
6. In spite of service of notice through Court and also by the petitioner, the respondent has not chosen to appear before this Court.
7. The learned Subordinate Judge in his order framed the following five points for consideration :
"1. Whether the review application is within time?
2. Whether the Court-fee paid on the review application is correct?
3. Whether the petition is maintainable?
4. Whether the basic value in respect; of Panduranga Talkies was not within the knowledge of the petitioner at the time of enquiry in the main O.P.?
5. Whether the petitioner is entitled for the relief claimed?
8. On a consideration of the material on record, the learned Judge dismissed the application for review holding that the application is not maintainable. However, on the point of limitation, the learned Judge held that it is within time. On the ,point of court-fee, the learned Judge held that the court-fee paid is not adequate. Since the review application was held to be not maintainable, the learned Judge has not considered the other points viz., points 4 and 5.
9. According to the learned Judge, Order 47, Rule l(1)(a) of the Civil Procedure Code is not applicable and the review ought to have been filed under Order 47, Rule 1, sub-clause (2) of C.P.C. The main contention of the learned Counsel for the petitioner Sri Veerabhadrayya is that under Order 47, Rule 1, sub-clause (1)(a) of C.P.C. any person considering himself aggrieved by a decree or order from which an appeal is allowed, but from which no appeal has been preferred may apply for a review of the judgment to the Court which passed the decree or made the order. In the instant case, the petitioner has not filed any appeal. The application for review was filed on 11-12-1990. The Land Acquisition Officer filed the appeal only subsequent to the filing of the review application i.e., on 15-2-1991. Therefore, as on the date when the review application was filed, there was no appeal pending in the High Court and as such it is Order 47. Rule I, sub-clause (1)(a) of C.P.C. that is applicable to the case and not Order 47, Rule 1, sub-clause (2) of C.P.C. According to the learned Counsel for the petitioner, the relevant date for the purpose of determining whether Order 47, Rule 1, sub-clause (1)(a) or sub-clause (2) is applicable is, whether on the date of filing of the review application the appeal is pending. Order 47, Rule 1, sub-clause (2) of C.P.C. will apply only in cases where an appeal is pending and a review is sought to be filed against the original decree during the pendency of the appeal. Therefore, as on the relevant date since no appeal is pending, it is Order 47, Rule 1, sub-clause (1)(a) that is applicable to the present case. In support of his contention, the learned Counsel for the petitioner relied upon the judgment of the Supreme Court in M/s. Thungabhadra Industries Ltd. v. The Government of A. P., .
10. He next contended that the finding of the learned Judge that the court-fee paid is not sufficient is based on an erroneous appreciation of Article (5) of Schedule I of Andhra Pradesh Court-fees and Suits Valuation Act, 1956. According to him, Column (3) of Article (5) of Schedule-I determine the fee payable in respect of an application for review of the judgment. It dealt with this situations, namely, fee payable on an application for review of the judgment in the suit, and fee payable on an application for review of the judgment in appeal. In case where an application for review of judgment is filed in the original suit, the court-fee payable is one and half of the fee payable on the plaint. In the case of an application filed for review of the judgment in the appeal, the fee payable is one-half of the fee payable on the memorandum of appeal comprising the relief sought in the application for review. The finding of the learned Judge that since the appeal is pending the court-fee payable for review of the original judgment is one-half of the fee payable on the memorandum of appeal is not correct. He further pointed out that since the review petition is filed in the original O.P., for review of the judgment in the O.P., the question of paying one-half of the court-fee payable on the memorandum of appeal does not arise.
11. The point for consideration, in this revision is, whether the lerned Subordinate Judge is right in dismissing the review application holding that the review application is not maintainable and the court-fee paid is not correct.
12. Before going into the correctness or otherwise of the order of the learned Judge, it is necessary to extract Order 47, Rule 1 of the Civil Procedure Code which is as under :
"1, (1) Application for., review of Judgment :
Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) 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 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 a review of judgment of the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some-other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
xx xx xx"
13. On a reading of the above, it is clear that Order 47, Rule 1, sub-clause (1)(a) applies to a case where the application for review of judgment is sought in case where no appeal has been preferred. Admittedly, in the instant case, on the date on which the review application is filed i.e. on 11-12-1990, no appeal was filed by the I.A.O. and the appeal was filed only on 15-2-1991. Sub-clause (2) of Rule 1 of Order 47 says that a party who has not filed an appeal may apply for review of a judgment during the pendency of the appeal filed by some other party. This clause applies only in cases where an appeal already filed is pending and review of the judgment is sought for during the pendency of the appeal. Admittedly, on the facts of this case, on 11-12-1990 i.e. the date on which the review appli-. cation was filed, no appeal was pending in the High Court. Therefore, the learned Judge is not correct in holding that Order 47, Rule 1, sub-clause (2) is applicable to the case, as on the date when the review application was filed, no appeal was pending in the High Court. As such, it is Order 47, Rule 1, sub-clause (1)(a) which is relevant and applicable to the case of the petitioner. In this context, we may refer to the decision of the Supreme Court in Thungabadra Industries case, (supra), relied upon by the learned Counsel for the petitioner. Paragraph (8) of the judgment of the Supreme Court which is relevant for our purpose is extracted below:
"(8). Order XLVI1, 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 preferred". In the present case, it would be seen, on the date when the application for review was filed the appellant had not filed an appeal to this Court and therefore the terms of O. XLVII, R. 1(1) did not stand in the way of the petition for review being entertained. Learned 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 determining whether or not the terms of O. 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 application for review is finally decided the appeal itseif has been disposed of, the jurisdiction of the court hearing the review petition would come to an end."
14. Though the above decision of the Supreme Court was relied upon by the learned Subordinate Judge, he has not cor-
rectly appreciated the principle laid down by the Supreme Court in the said decision. The learned Judges of the Hon'ble Supreme Court held that the crucial date for determining whether or not the terms of Order 47, Rule 1 (1) are satisfied or not is the date when the application for review is filed. In the instant case, the review application was filed before the Sub-Court before the appeal was filed by the L.A.O. in the High Court. In this view of the matter, the order of the learned Subordinate Judge dismissing the review application as not maintainable cannot be sustained.
15. As regards the court-fee payable on the review application, it is necessary to quote Article 5 of Schedule-1 of A.P. Court-fees and Suits Valuation Act, 1956 as below :
Article Particulars Proper fee (1) (2) (3)
5.
Application for review of judg-ment.
One-half of the fee payable on the plaint or memo-randum of appeal comprising the relief sought in the application for review.
16. As pointed out by Sri Veerabhad-rayya, learned counsel for the petitioner, it speaks of two situations. Firstly, court-fee payable where a review petition is filed in the original suit seeking review of the judgment and secondly court-fee payable where a review is filed in the appeal seeking review of the judgment in the appeal. Admittedly, in the instant case, the petitioner is seeking a review of the judgment in the Original Petition and not a review of the judgment in the appeal. Therefore, the relevant part of the Article that is applicable is the first part of column (3) of Article 5 of Schedule-I viz., "One-half of the fee payable on the plaint....". I am, therefore, of the view that the finding of the learned Judge that the court-fee payable on the review application is one-half of the court-fee payable on the memorandum of appeal cannot be sustained and the order of the learnd Judge on this point also is liable to be set aside.
17. Since the learned Judge held that the review petition is not maintainable, he has not considered the points 4 and 5 framed in the order. Therefore, the matter has to be remitted to the Subordinate Judge, Eluru to consider the points 4 and 5 framed in the order.
18. For the reasons aforesaid, the order of the learned Subordinate Judge, Eluru dated 10-3-92 in I.A. No. 2226 of 1990 in O.P. No. 56 of 1985 is set aside and the matter is remitted to him to consider the points 4 and 5 framed in the said order on merits in ac-cordance with law after hearing both sides within three months from today.
19. The Civil Revision Petition is allowed accordingly. No costs, The record in A.S. 697/91 may be dispatched along with this order within one week.
20. Petition allowed.