IN THE HIGH COURT OF KERALA AT ERNAKULAM

Thottathil B. Radhakrishnan and P. Bhavadasan, JJ.

F.A.O. No. 72 of 2008

Decided On: 05.01.2011

Smt. Kamala Raphael

Vs.

Earnest

Head Note:-

Indian Evidence Act, 1872 - Section 41 - Limitation Act, 1963 - Article 137 - Probate Proceedings - Judgment in rem - Judgment, decree or order passed overlooking the provisions of the Limitation Act does not make the order ab initio void. It has as much force as a decree passed within the period of limitation. If any person is aggrieved by the decree, it is for him to challenge the same. Unless it is done, it is binding on all the parties in law. 

Held:- The above fact does not mean that the probate proceedings can be ignored. As per Section 41 of the Indian Evidence Act, it is the judgment in rem. Apart from the above aspect, the Appellant herein was a party to the probate proceedings and she had hotly contested the matter. The decree of the probate court was challenged before this Court by the Appellant herein and this Court confirmed the judgment of the probate court. That means, the probate proceedings had become final. There is no merit in the contention that the probate proceedings were barred by limitation and has to be ignored. As rightly pointed out by the learned Counsel for the Respondent in this appeal, it could not be said that in law, even assuming that the probate proceedings were barred by limitation, decree passed in the proceedings could be ignored and treated as non-est in law. Nor could it be treated as one with jurisdiction. It is well settled by now that the judgment, decree or order passed overlooking the provisions of the Limitation Act does not make the order ab initio void. It has as much force as a decree passed within the period of limitation. If any person is aggrieved by the decree, it is for him to challenge the same. Unless it is done, it is binding on all the parties in law. Therefore, there cannot be a collateral attack on these proceedings. 

Code of Civil Procedure, 1908 - Sections 35A, 91, 92, 95, 104 and 114 - Order 40, Rules 1 and 5 - Order 47, Rule 1 - Probate Proceedings - Review - Limitation -Section 114 of the Code, which confers substantive power of review does not prescribe any limitation on the power of the court except those provided in the provision itself. It is not as if apart from the grounds made mention of in Order 47 Rule 1, under no other circumstance a review can be considered. It is permissible for the court to take note of the subsequent events and modulate reliefs. 

Held:- It is not in dispute that the probate proceedings had terminated long after the preliminary decree had been passed. It was under such circumstances that the review Petitioner had taken part in the final decree proceedings also. In the decision referred to above, it has been noticed that Section 114 of the Code, which confers substantive power of review does not prescribe any limitation on the power of the court except those provided in the provision itself. The Apex Court had made it clear that it is not as if apart from the grounds made mention of in Order 47 Rule 1, under no other circumstance a review can be considered. It is permissible for the court to take note of the subsequent events and modulate reliefs. It cannot be disputed that in the case on hand the issuance of probate with copy of the Will, will have considerable impact on the preliminary decree already passed. It cannot be said that there was want of diligence on the part of the review Petitioner. The power of the court to mould the reliefs on the basis of the existing circumstances is well recognized. The lower court has noticed that even the Plaintiff in the suit was aware of the existence of the Will and that was concealed from the court. Of course, the Defendants could have pointed it out. But whatever that be, the court below found that there was some mischief played by the Plaintiff. The court below has exercised its jurisdiction after taking note of the various aspects involved in the case and it could not be said that there is any error of jurisdiction or that the order is perverse. 

Limitation Act, 1963 - Section 5 - Indian Succession Act, 1925 - Section 213 - Delay Condonation Petition - It is not necessary that the court should independently consider the delay condonation petition and thereafter consider the merits of the review petition. 

Held:- What is to be seen is whether the court has arrived at a conclusion that there was sufficient cause to condone the delay and in ascertaining that aspect the court is well within its powers to see whether there is any substance in the review petition at all. If the court is of the opinion that there is no substance in the review petition, then allowing the delay petition will be an idle exercise. In order to avoid such contingency, if the court below considered the merits of the review petition, it could not be found fault with. This contention too has to fail.

Chronological List of Cases Referred:

For Petitioner:

For Respondents:

1. R.D. Shenoy (Sr.)
2. S. Vinod Bhat
3. George Cherian
4. K.P. Aravindakshan
5. Rendeep Prem

J U D G M E N T

P. Bhavadasan, J.

1. A couple, namely, Varghese and Brjitha had four children. They are Kamala Raphel, Earnest, Vijayan and Thampi. Varghese died in 1977 and Brijitha on 3.9.1995.

2. It appears that the Appellant herein laid a suit as O.S. 286 of 1988 before the II Additional Sub Court, Ernakulam seeking partition of the estate left behind by Varghese. That was uncontested by the other sharers and an ex-parte decree was passed on 30.11.1990. Even though summons was served on the Defendants in the suit, they remained ex-parte. The Defendants seem to have filed I.A. 429 of 1991 to set aside the ex-part preliminary decree in the partition suit. That happened to be dismissed for default. An application thereafter to review and set aside the judgment was filed as I.A. 1367 of 1991 dated 25.2.1991 along with I.A.1366 of 1991, an application to condone the delay in filing I.A. 1367 of 1991. The trial court dismissed both the applications and that was confirmed in appeal.

3. The Plaintiff seems to have filed I.A. 6617 of 1993 for passing of the final decree on 8.11.1993. Notice was served on all the Respondents. The first Respondent herein had filed objections on 9.2.1996 to the final decree application and it is claimed by the Appellant herein that he had requested the court to pass a final decree in terms of the preliminary decree taking into consideration a few suggestions made by him. He also filed I.A. 544 of 1999 on 29.1.1999 to issue a direction to the Receiver to take possession of cents of land comprised in Sy. No. 289/1, which was included in the preliminary decree. It is pointed out that during the final decree proceedings, a receiver was also appointed. Proceedings for final decree are still going on and the final decree is yet to be passed.

4. Meanwhile, it appears that the first Respondent herein had moved the probate court seeking to have probate with copy of the Will annexed to the same. The Will is said to have been executed by Varghese, the father of the parties in the partition suit. Probate seems to have been granted and it is not in dispute that the Appellant was one of the parties to the proceedings. Order of the probate court was carried in appeal as A.S. 93 of 1995 before this Court and this Court confirmed the order of the probate court. It is stated that the third Respondent herein filed I.A.2191 of 2004 in the final decree proceedings to have the receiver discharged in the light of the probate granted in respect of the Will said to have been executed by late Varghese. According to him, the proceedings cannot go on and the preliminary decree became non-est in law. It is stated that I.A. 2191 of 2000 was allowed and the final decree proceedings were dropped and consequential orders were passed by the said court. The Appellant has filed I.A. 3834 of 2005 for reviewing the said order dated 12.7.2005 and the review petition was allowed.

5. While things stood thus, it appears that the first Respondent herein moved I.A. 5895 of 2005 dated 24.11.2005 for review of the ex-decree passed in the suit with a petition as I.A.5894 of 2005 filed under Section 5 of the Limitation Act to have the delay condoned in filing the review application of the preliminary decree. The review was sought on the basis that the review Petitioner had been wrongly advised regarding his participation in the partition suit. According to him, he was given to understand that unless the Will was probated, there was no point in him contesting the suit and he stayed away from court.

6. That application was resisted by the Appellant herein. She pointed out that the review petition is devoid of merits and it is highly belated. It was also pointed out by her that all along she has been recognised as an heir of the estate of her father and the Will was never put forward as a defence in any of the previous proceedings. It was also contended that even assuming that a probate is granted, it could not affect the title to the suit property, which was declared by virtue of the preliminary decree passed in the partition suit. Therefore, it was contended that there was no justification in filing the review petition.

7. In the review petition, it appears that the Petitioner was examined as P.W.1 and Exts.A1 and A2 were marked. The Respondent in the petition, who is the Appellant herein did not adduce any evidence. By order dated 21.1.2008 the trial court allowed both the applications and thus the preliminary decree passed by the court below stood reviewed and the suit was restored to file. It is the said order that is assailed in this appeal.

8. Sri. N. Subramanian, learned Counsel appearing for the Appellant raised three points for consideration. They are, (i) the probate proceedings were barred by limitation and an order passed in the said proceedings can have no legal effect, (ii) none of the grounds justifying review is available in the case on hand and the court below was wrong in allowing the review and (iii) the delay petition has not been independently considered and no sufficient grounds had infact been shown to condone the delay.

9. Elaborating on the above points, learned Counsel went on to point out that it is by now well settled that the probate proceedings are governed by Article 137 of the Limitation Act, which prescribes three years period for seeking probate or the letter of administration of the Will as the case may be. In the case on hand, the Will was executed in 1961 and the testator died in 1977. Nobody has a case that either Brijitha, wife of Varghese or his siblings were unaware of the Will. Probate of the Will was sought for only in 1991. According to learned Counsel, the period of three years begins to run either from the date of death of the testator concerned or from the date of knowledge of the Will. Going by any of the above criteria, the proceeding for probate was hopelessly barred by limitation. The probate court had no jurisdiction therefore to pass an order granting probate. It is therefore contended that the probate proceedings are not binding on the Appellant. In support, the learned Counsel relied on the decisions reported in Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur 2008 (2) KLT 296, Krishna Kumar Sharma Vs. Rajesh Kumar Sharma 2009 (2) KLT 149, Francis Vs. Cherupushpam, 2009 (3) KLT 479. Learned Counsel went on to point out that the law laid down by the Supreme Court will be deemed to have always been the law and the doctrine of prospective overruling is available only to the Apex Court. In support of the said contention, learned Counsel relied on the decisions reported in Dr. Suresh Chandra Verma Vs. The Chancellor, Nagpur University, (1990) 4 SCC 55, State Bank of India Vs. Kuttappan, 2000 (99) Comp Cas 309 and Kerala Agro-Industries Corporation Ltd. Vs. Amminikutty Amma 1997 (3) KLT 931.

10. Learned Counsel went on to point out that the grounds for review are provided in Section 104 of the Code of Civil Procedure read with Order 47 Rule 1 of CPC. None of the grounds mentioned therein were present in the facts of this case and the court below was not justified in reviewing its order of preliminary decree. It is not as if the propounders of the Will were unaware of the existence of the Will at the time of earlier proceedings and no justifiable reasons were given for not putting forward the Will. Having not done so, it comes too late in the day to say that since probate had been obtained, the earlier judgment is to be re-considered. Learned Counsel referred to Order 47 Rule 1 Code of Civil Procedure and contended that none of the grounds are available to the review Petitioner for seeking a review. In support of his contention, learned Counsel relied on the decisions reported in Raja Shatrunjit (Dead) by His Legal Representatives Vs. Mohammad Azmat Azim Khan, (1971) 2 SCC 200, Sunil Puri Vs. Modi Spinning and Weaving Mills Ltd., AIR 1995 Delhi 203, Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, (1995) 1 SCC 170, Md. Ashraf Ali Vs. Debraj Wadhera, 1995 Supp (2) SCC 654, Parison Devi Vs. Sumitri Devi, (1997) 8 SCC 715, Niranjan Sarkar Vs. Swapna Dam AIR 2001 Gauhati 92, Delhi Administration Vs. Gurdip Singh Uban, (2000) 7 SCC 296, Nandi Verdhan Jain Vs. Chander Kanta Jain, (2002) 9 SCC 471, Delta Foundations and Constructions Vs. Kerala State Construction Corporation Ltd., 2003 (1) KLT 626 and State of Nagaland Vs. Toulvi Kibami, (2003) 8 SCC 671.

11. It was also contended that the court below has not independently considered the delay condonation petition and therefore has erred in law. According to the learned Counsel, the court went on to consider the merits of the review petition and then decided to condone the delay. That, according to learned Counsel, is illegal and improper. The court below ought to have considered the delay petition first and should have ascertained whether the Petitioner therein had shown sufficient cause for condonation of delay. That has not been done and that has resulted in miscarriage of justice. On the basis of the above contention, it is pointed out that the order passed by the court below cannot be sustained.

12. Per contra, learned Counsel appearing for the Respondents, Sri. Vinod Bhat, contended that the order of the probate court is considered to be a judgment in rem and it cannot be ignored. Attention was drawn to the fact that the Appellant was a party to the proceedings and she had also filed an appeal against the order of the probate court. That appeal was dismissed and the order of the probate court with copy of the Will annexed has become final. If the Appellant was aggrieved by the appellate order, it was for her to carry the matter in appropriate proceedings before the Apex Court. There cannot be a collateral challenge to those probate proceedings. It was also contended that even assuming that the proceedings was barred by limitation, that does not make the order non-est or without jurisdiction. It is well settled, according to learned Counsel, that the order or judgment passed overlooking the limitation aspect is enforceable and the party aggrieved cannot ignore the same and say that it is void.

13. Learned Counsel then went on to point out that it is not correct to say that no grounds for review had been made out. In the petition to set aside the preliminary decree and seeking review, the Petitioner therein had elaborately stated the circumstances under which the delay occurred and as to why in the suit Will was not put forward. The court below found the reasons to be cogent and convincing enough and had accepted the same. The court below has clearly noticed that even the Plaintiff in the suit, who is the Appellant herein, was fully aware of the existence of the Will and it was concealing the said fact that the suit was laid. The court below was therefore of the opinion that she does not deserve any sympathetic consideration at all. The mere fact that the Defendant in the partition suit did not contest the matter does not mean that review cannot be sought. Learned Counsel fairly conceded that true, contentions to that effect could have been taken. But the advise received by there view Petitioner was that unless the Will is probated, there was no point in contesting the partition suit. It was under those circumstances the Will was not put forward in the partition suit and thus a preliminary decree happened to be passed. It is contended that justice demanded interference with preliminary decree. The court was entitled to set right the wrong committed and a review is fully justifiable in law. That is precisely what has been done in the instant case and there are no grounds to interfere with the order of the court below.

14. Learned Counsel then went on to point out that equally unacceptable is the plea with regard to the delay condonation petition. It was in order to ascertain whether there would be any purpose in condoning the delay that the court had gone into the merits of the case. The court has given cogent reasons for condoning the delay and was satisfied that sufficient cause had been shown. Merely because there are no separate orders and there is only one order on the review petition as well as in the delay petition, it does not mean that the court has not applied its mind to both the petitions. In support of his contention, learned Counsel relied on the decisions reported in State of Nagaland Vs. Lipok AO, JT 2005 (4) SC 10 and Board of Control for Cricket, India Vs. Netaji Cricket Club, AIR 2005 SC 592.

15. The litigation between the parties started in the year 1988. Even after the lapse of 23 years, it still carries on with full vigour. A preliminary decree for partition was passed as early as on 30.11.1990. Final decree proceedings were initiated in 1993. It is indeed sad to note that it is still pending in the year 2010.

16. The Appellant may have a point in contending that if as a matter of fact the Defendants in the suit, that is, O.S. 286 of 1988, had a contention that a Will had been executed by Sri. Varghese, they ought to have set up that defence in the suit itself. It is difficult to accept the plea made by the review Petitioner before the court below that since he was advised that no purpose will be served by contesting the suit unless the Will is probated cannot be easily accepted. True, at that point of time it was mandatory that the probate of the Will has to be obtained as far as Indian Christians were concerned. But there was no prohibition in carrying on parallel proceedings and seeking some time to obtain probate of the Will and till that proceedings is disposed of, the suit could have been kept pending. That would have been the proper course. That has not been done in the case on hand.

17. The above fact does not mean that the probate proceedings can be ignored. As per Section 41 of the Indian Evidence Act, it is the judgment in rem. Apart from the above aspect, the Appellant herein was a party to the probate proceedings and she had hotly contested the matter. The decree of the probate court was challenged before this Court by the Appellant herein and this Court confirmed the judgment of the probate court. That means, the probate proceedings had become final.

18. There is no merit in the contention that the probate proceedings were barred by limitation and has to be ignored. As rightly pointed out by the learned Counsel for the Respondent in this appeal, it could not be said that in law, even assuming that the probate proceedings were barred by limitation, decree passed in the proceedings could be ignored and treated as non-est in law. Nor could it be treated as one with jurisdiction. It is well settled by now that the judgment, decree or order passed overlooking the provisions of the Limitation Act does not make the order ab initio void. It has as much force as a decree passed within the period of limitation. If any person is aggrieved by the decree, it is for him to challenge the same. Unless it is done, it is binding on all the parties in law. Therefore, there cannot be a collateral attack on these proceedings.

19. In the decisions referred to by the learned Counsel forth Appellant, it was held that the probate proceedings are governed by Article 137 of the Limitation Act. It is also true that going by the principle laid down in the said decisions, the probate proceedings, probably now taken aid of by the review Petitioner, may have been out of time. But as already noticed, no such ground was urged before the probate court or before the appellate court and order came to be passed in the probate court and confirmed by the appellate court. As already noticed, it could not be said that the order is one without jurisdiction. It is not a void order at all. In the light of this fact, it is unnecessary to refer to the decisions relied on by the Appellant in this regard. This contention has necessarily to fail.

20. There is no inherent right of review. The power of review is the creation of a statute. Section 104 of the Code of Civil Procedure provides for a right of review and Order 47 deals with the grounds and the procedures to be followed in considering the review petition. Section 104 reads as follows:

104. Orders from which appeal lies.- (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:

(ff) an order Section 35A;

(ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be,

(g) an order under Section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is expressly allowed by rules:

(Provided that no appeal shall lie against any order specified in Clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made)

(2) No appeal shall lie from any order passed in appeal under this Section.

Order 47 Rule 1 reads as follows:

1. Application for review of judgment.- (1) 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 ) by a decision on a reference from a Court (exercising small cause jurisdiction. 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 to 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. Explanation.-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.

21. It is by now well settled that review is not granted as a matter of course. Unless there are compelling circumstances, normally a court will not entertain a review application. At any rate, it has to satisfy among one of the grounds enumerted under Order 47 Rule 1. In the decision reported Raja Shatrunjit (Dead) by His Legal Representative's case (supra) the question as to the interpretation to be given to the words "any other sufficient reason" was considered. It was held as follows:

Under O.47 of the Code of Civil Procedure the principles of review are defined by the Code and the words "any other sufficient reason" in Order 47 of the Code and the words "any other sufficient reason" in Order 47 of the Code would mean a reason sufficient on grounds analogus to those specified immediately previously in that order. The grounds for review are the discovery of new matters 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 the review is asked for on account of some mistake or error apparent on the face of the record.

22. In the decision reported in Sunil Puri Vs. Modi Spinning and Weaving Mills Ltd. (supra), it was held as follows:

Strictly the way this point has been taken in the review application the objection is that the point has not been dealt with in the correct perspective. Firstly I do not agree that the point has not been dealt with in the correct perspective. Secondly, even if that were so this is no ground for review of the judgment so long as the point is dealt with and answered.

23. In the decision reported in Meera Bhanja's case (supra) it was held as follows:

It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, R.1 Code of Civil Procedure in connection with the limitation of the powers of the Court under Order 47, R.1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma, AIR 1979 SC 1047, speaking through Chinnappa Reddy, J., has made the following pertinent observations (para 3):

It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of Plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power or review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court,"

Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably the two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde Vs. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137 wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:

"An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ.

In the light of this settled legal position let us try to see whether in the present case the latter Division Bench while dealing with the review petition had overstepped the limits of jurisdiction under Order 47, R.1, and whether it had resorted to reappreciation of evidence by almost sitting in appeal over the decision reached by the earlier Division Bench.

24. In the decision reported in MD. Ashraf Ali's case (supra), it was held as follows:

In a suit for eviction on the basis of the tenant having created a sub-tenancy the trial court decided in favour of the landlord. The judgment and decree of the trial court was affirmed in first appeal and then in second appeal by a learned Single Judge of the Calcutta High Court on April 6, 1992 passed in Second Appeal No. 757 of 1990. Surprisingly, the learned Judge later reviewed his own order under Order 47, Rule 1 Code of Civil Procedure and overturned the judgment he had passed on merits. This was not permissible to the learned Judge at all in view of the strict terms of Order 47, Rule 1 CPC. Arena of facts was outside the sphere of a second appeal, what to say about a review proceeding arising from that order. We, thus, have no option but to allow the appeal and set aside the impugned order restoring in law the order dated April 6, 1992, leaving it open to the Respondent to challenge the said order, if so advised, by a special leave petition in this Court. It is thus so ordered. We make it clear though that we are not even remotely opining on the correctness of the order dated April 6, 1992.

25. In the decision reported in Parsion Devi's case (supra), it was held as follows:

It is well settled that review proceedings have to be strictly confined to the ambit and scope of O.47 R.1 CPC. In Thungabhadra Industries Ltd. Vs. Govt. of A.P., this Court opined:

What, however, we are not concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record.' The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.

Again, in Meera Bhanja Vs. Nirmala Kumari Choudhury, 1995 (1) SCC 170 while quoting with approval a passage from Aribam tuleshwar Sharma Vs. Aribam Pishak Sharma, 1979 (4) SCC 389 this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of O.47 R.1 CPC.

Under O.47 R.1 Code of Civil Procedure a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under O.47 R.1 CPC. In exercise of the jurisdiction under O.47 R.1 Code of Civil Procedure it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise."

Considered in the light of this settled position we find that Sharma, J. clearly overstepped the jurisdiction vested in the Court under O.47 R.1 CPC. The observations of Sharma, J. that "accordingly, the order in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunctions were provided" and as such the case was covered by Article 182 and not Article 181 cannot be said to fall within the scope of O.47 R.1 CPC. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. While passing the impugned order, Sharma, J. found the order in Civil Revision dated 25.4.1989 as an erroneous decision, though without saying so in so many words. Indeed, while passing the impugned order Sharma, J did record that there was a mistake or an error apparent on the face of the record which was not of such a nature, "which had to be detected by a long drawn process of reasons" and proceeded to set at naught the order of Gupta, J. However, mechanical use of statutorily sanctified phrases cannot detract from the real import of the order passed in exercise of the review jurisdiction. Recourse to review petition in the facts and circumstances of the case was not permissible. The aggrieved judgment debtors could have approached the higher forum through appropriate proceedings to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a "review" of the order of Gupta, J. on the grounds detailed in the review petition. In this view of the matter, we are of the opinion that the impugned order of Sharma, J. cannot be sustained and we accordingly accept this appeal and set aside the impugned order dated 6.3.1997.

26. In the decision reported in Niranjan Sarkar's case (supra), it was held as follows:

In an application for review of a judgment passed in Second Appeal, the court can only consider the errors apparent on the face of the record in its judgment on the substantial questions of law already heard and decided by the court and cannot consider fresh substantial question of law which was not heard and decided by the court at the time of disposal of the second appeal.

27. In the decision reported in Delhi Administration's case (supra), it was held as follows:

It is first necessary to refer to the well known concept that a review is not a rehearing and point out that its scope is very narrow. Order 40 Rule 1 of the Supreme Court Rules provides as follows:

1. The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order 47, Rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.

In Thungabhadra Industries Ltd. Vs. Govt. of A.P., AIR 1964 SC 1372 this Court stated that there was a real distinction between a mere erroneous decision and a decision which could be characterized as vitiated by "error apparent" and that a "review" was by no means an "appeal" in disguise. This legal position was reiterated in subsequent judgments of this Court.

What we have said above equally applies to such applications filed after rejection of review applications particularly when a second review is not permissible under the Rules. Under Order 40 Rule 5 a second review is not permitted.

5. Where an application for review of any judgment and order has been made and disposed of, no further application for review shall be entertained in the same matter.

28. In the decision reported in Nandi Verdhan Jain's case (supra), it was held that when there was no patent error in the order sought to be reviewed, the review application deserved to be dismissed.

29. In the decision reported in Delta Foundations and Constructions (supra), it was held as follows:

Counsel appearing for the review Petitioner placed reliance on the decision of the Apex Court in Raja Shatrunjit Vs. Mohammed Azmat Azim Khan, AIR 1971 SC 1474 and contended that the grounds for review under O.47 of the Code of Civil Procedure includes mistakes or errors apparent on the face of the record. Error apparent on the face of the record must be an error which must strike on mere looking at the record and would not require long drawn process of reasoning on points on which there may conceivably be two opinions. An error which is not self evident and has to be detected by a process of reasoning can hardly said to be an error apparent on the face of the record justifying the court to exercise its powers under O.47 R.1 of the Code of Civil Procedure. As held by the Apex Court in Parsion Devi and Ors. Vs. Sumitri Devi and Ors., 1997 (8) SCC 715 if there is a clear distinction between an erroneous decision and an error apparent on the face of the record the first can be corrected by the higher forum while the latter can only be corrected by exercise of the review jurisdiction.

30. In the decision reported in State of Nagaland's case (supra) it was held as follows:

Having heard learned Counsel for the parties, we are of the view that in view of the subsequent events that had taken place consequent upon the judgment of the Division Bench, the review petition filed by Respondent No. 1 was not maintainable. In fact the judgment of Letters Patent Bench was acted upon and it stood exhausted and the review petition was futile. Under such circumstances, the review petition ought to have been entertained and decided on merits.

31. In Punjab National Bank Vs. V.P. Mehra, AIR 2004 Delhi 135 it was held as follows:

So far as the Review Petition is concerned, the Trial Court had rightly observed that the prayer does not satisfy the essential ingredients under Order 47, Rule 1 of the Code of Civil Procedure. It was not the case of the Defendant that new and important matters or evidence had been discovered; or that a mistake or error apparent on the face of the record was evident. Counsel for the Defendant has sought to contend before me that the phrase 'any sufficient reason' will take within its ambit any reason whatsoever but this argument is erroneous and misconceived. The phrase 'any sufficient reason' must be construed ejusdem generis with the words preceding it. the Order dated 3.1.2004 is therefore upheld as no jurisdictional error is contained therein.

32. The ground on which review is sought in the present case is that since probate had been granted with copy of the Will executed by late Varghese annexed to it, the preliminary decree passed in the partition suit cannot survive. In the petition for review and in the petition seeking condonation of delay in seeking review, the Petitioner therein had elaborately stated the reasons which dissuaded him from setting forth the Will in the partition suit. Going by the law as it then stood, it could not be said that it was a wrong impression. It is true that going by Section 213 of Indian Succession Act as it now stands, probate is not mandatory. But that was not the law then. A Christian Will, unless and until it was probated or letter of administration obtained with regard to the same, could confer no right on the legatees. As already noticed, they could have indicated the execution of the Will in the partition suit and sought for keeping in abeyance the said proceedings till orders are passed in the probate proceedings. Merely because that was not done, it does not mean that probate proceedings can be ignored. The order in probate or letters of administration proceedings is final and binding on the whole world. It is significant to notice that even the Appellant herein was fully aware of the existence of the Will and it was not as if it was being put forward for the first time in the probate proceedings. It is true that going by the Will she stands disinherited. But it was indicated by the learned Counsel appearing for the Respondents in this appeal that properties had been given to her by their late father. Whatever that be, the Will said to have been executed by late Varghese is found to be the last testamentary disposition by him. It cannot be disputed that the order in the probate proceedings will have considerable impact regarding the distribution of the property among the legal heirs. If the order in the probate proceedings is accepted, then, the partition suit may have to fail. True, in probate proceedings, the issue of title is not decided, while in the preliminary decree for partition it had to be held that the Plaintiff therein had title to the suit property. But it could not be said that the two judgments are inconsistent and contradictory. They are two independent proceedings having independent existence and consequence, though the probate proceedings may have an impact on the partition suit.

33. It is true that the review Petitioner had participated in the final decree proceedings and had sought for passing of the final decree on certain terms and conditions. Even at that point of time, he did not put forward the case based on the Will. But there can be no estoppel against him and there can be no waiver of his rights. At that time, it is an admitted fact that probate proceedings were pending and the Appellant was contesting the proceedings. As noticed earlier, unless probate proceedings terminated in favour of the propounder, there was no purpose in putting forward the Will in the partition suit as per the law as it then stood. Though there have been laches on the part of the review Petitioner, it could not be said that he could not depend upon the order in the probate proceedings as confirmed by this Court in appeal.

34. It will not be out of place to refer to the decision relied on by the learned Counsel for the Respondent in Board of Control for Cricket Vs. Netaji Cricket Club (supra), wherein it was held as follows:

We are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law. Section 114 of the Code empowers a Court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law dos not prescribe any limitation on the power of the Court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit.

Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.

Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in O.47, R.1 of the Code is wide enough to include a misconception of fact or law by a Court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gavabit.

It is true that in Moran Mar Baselios Catholicos and Anr. Vs. Most Rev. Mar Poulose Athanasius and Ors., (1955) 1 SCR 520 this Court made observations as regard limitations in the application of review of its order stating:

Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms of Order XLVII, Rule 1 of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record, and (iii) for any other sufficient reason. It has been held by the Judicial Committee that he words "any other sufficient reason" must mean a reason sufficient on grounds, at least analogous to those specified in the rule", but the said rule is not universal.

Yet again in Lily Thomas (supra), this Court has laid down the law in the following terms:

52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement." It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi thakershi Vs. Pradyumanshinghji Arjunsinghji, AIR 1970 SC 1273 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules of procedures or technicalities of law cannot stand in the way of administration of justice Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error....

It is also not correct to contend that the Court while exercising its review jurisdiction in any situation whatsoever cannot take into consideration a subsequent event. In a case of this nature when the Court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned Senior Counsel appearing on behalf of the Board and its correlation with as to what transpired in the AGM of the Board held on 29th September, 2004, the subsequent event may be taken into consideration by the Court for the purpose of rectifying its own mistake.

In Rajesh D. Darbar and Ors. Vs. Narasingrao Krishnaji Kulkarni and Ors., (2003) 7 SCC 219, this Court noticed:

4. The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or re-shaped in the light of updated facts. Patterson Vs. State of Alabama, (1934) 294 US 600, illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive or substantive rights enforceable in that very litigation except in a narrow category (late spelt out) but may influence the equitable jurisdiction to mould reliefs. conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Vs. Keshwar Lal, AIR 1941 FC 5, falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs-cannot deny rights-to make them justly relevant in the in the updated circumstances. Where the relief is discretionary, Courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening fats with fundamental impact. This Court's judgment in Pasupuleti Venkateswarlu Vs. Motor & General Traders, AIR 1975 SC 1409 read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made u the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other wise. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the Court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine - See V.P.R. v. Chockalingam Chetty Vs. Seethai Ache, AIR 1927 PC 252.

35. It is not in dispute that the probate proceedings had terminated long after the preliminary decree had been passed. It was under such circumstances that the review Petitioner had taken part in the final decree proceedings also. In the decision referred to above, it has been noticed that Section 114 of the Code, which confers substantive power of review does not prescribe any limitation on the power of the court except those provided in the provision itself. The Apex Court had made it clear that it is not as if apart from the grounds made mention of in Order 47 Rule 1, under no other circumstance a review can be considered. It is permissible for thecourt to take note of the subsequent events and modulate reliefs. It cannot be disputed that in the case on hand the issuance of probate with copy of the Will, will have considerable impact on the preliminary decree already passed. It cannot be said that there was want of diligence on the part of the review Petitioner. The power of the court to mould the reliefs on the basis of the existing circumstances is well recognized. The lower court has noticed that even the Plaintiff in the suit was aware of the existence of the Will and that was concealed from the court. Of course, the Defendants could have pointed it out. But whatever that be, the court below found that there was some mischief played by the Plaintiff. The court below has exercised its jurisdiction after taking note of the various aspects involved in the case and it could not be said that there is any error of jurisdiction or that the order is perverse.

36. Coming to the issue regarding the delay condonation petition, the contention, it must be said, is without any basis whatsoever. The court applied its mind to find out whether there is any substance in the review petition and whether the delay needs to be considered. The court has considered the reasons for the delay, though not by a separate order. The court below has adverted to this aspect and has observed that truth and justice should be upheld and therefore the matter needs to be reconsidered. Moreover, the review Petitioner has given an explanation and his reasons for the delay. It could not be said that there was deliberate laches or negligence on his part, and moreover, the court below has analyzed that if at all any injury is caused to the Respondents before the court below, that can be compensated by awarding costs.

37. Learned Counsel appearing for the Respondents relied on the decisions reported in State of Nagaland Vs. Lipok, JT 2005 (4) SC 10 with regard to the issue as to what constitute sufficient cause etc. It is seen observed as follows:

The expression "every day's delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pited against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides.

The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. the factors which are peculiar to an characteristic of the functioning of the governmental conditions would be cognizant to ad requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit.

There was sufficient cause for condoning the delay in the institution of the appeal.

It is also observed as follows:

“The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan Vs. M. Krishnamurthy it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplate that the Court has to go in the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause recorded in the peculiar circumstances of the case is sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels.

What constitutes sufficient cause cannot be laid down by hard and fast rules. In New India Insurance Co. Ltd. Vs. Shanti Misra this Court held that discretion given by Section 5 should not be defined crystallised so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In Brij Indar Singh Vs. Kanshi Ra, it was observed that true guide for a court to exercise the discretion under Section 5 is whether the Appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

In Concord of India Insurance Co. Ltd. Vs. Nirmala Devi which is a case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy, the default in delay was condoned. In Lala Matu Din Vs. A. Narayanan, this Court had held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive.

In the said decision it is also observed that in case it is found that the refusal to condone delay will result in gross miscarriage of justice, that would be a ground to condone the delay. Normally, when it is found that there is some substance in the matter, liberal approach is taken with regard to the condonation of delay.

38. It is not necessary that the court should independently consider the delay condonation petition and thereafter consider the merits of the review petition. What is to be seen is whether the court has arrived at a conclusion that there was sufficient cause to condone the delay and in ascertaining that aspect the court is well within its powers to see whether there is any substance in the review petition at all. If the court is of the opinion that there is no substance in the review petition, then allowing the delay petition will be an idle exercise. In order to avoid such contingency, if the court below considered the merits of the review petition, it could not be found fault with. This contention too has to fail.

39. However, as rightly noticed by the court below, any injury caused to the Plaintiff in the suit, who is the Appellant before this Court can be compensated by granting adequate compensation by way of costs. Taking into consideration the pendency of the proceedings for a long time and the various steps taken by the Appellant, it is felt that she should be awarded costs of Rs. 1,50,000/ payable by the review Petitioner before the court below.

In the result, while dismissing this appeal, it is ordered that the review Petitioner before the court below shall pay a sum of Rs. 1,50,000/- as costs to the Plaintiff in the suit within one month from the date of this order, failing which this appeal will stand allowed and the review petition and the delay condonation petition will stand dismissed.

• Mr. Amit Sibal
• Mr. Vedanta Varma
• Mr. Giriraj Subramanium
• Ms. Pragya Ohri
• Mr Vibhor Kush 

• Mr. Bahar U. Barqui
• Mr Pramod Kumar Sharma
• Mr. Jamal Akhatar, Advs. for R-1. 
• Mr. Gaurav Mitra 
• Mr. Mohit Chadha, Adv for R-2. 

 J U D G M E N T 

RAJIV SAHAI ENDLAW, J. 

1. The challenge in this appeal is to the judgment dated 23rd September, 2011 of the learned Single Judge allowing I.A. No. 10394/2011 of the respondent no.1 (defendant no.1 in the Suit) in CS(OS) No. 700/2008 filed by the appellant. Notice of the appeal was issued and the counsels have been heard.

2. CS(OS) No. 700/2008 is filed by the appellant for declaration, that he is the natural born son of the respondent no.1 and the respondent no.2 Dr. Ujjwala Sharma, and that the respondent no.1 is the father of the appellant and for perpetual injunction restraining respondent no.1 from denying in public or otherwise the fact that he is the father of the appellant. The said suit is pending consideration.

3. During the pendency of the suit, the appellant filed I.A. No. 4720/2008 under Order XXXIX Rules 1 & 2 of the Civil Procedure Code, 1908 (CPC) for direction to the respondent no.1 to submit himself for a DNA test and/or any other test required to determine the parentage of the appellant. The said application was contested by the respondent no.1. The learned Single Judge before whom the suit was then pending, vide order/judgment dated 23rd December, 2010 allowed the said application and directed the parties to appear before the Joint Registrar on 8th February, 2011; the Joint Registrar was directed to arrange for the DNA testing of the respondent no.1 by the Centre for Cellular & Molecular Biology (Constituent Laboratory of the Council of Scientific Industrial Research, Government of India); the respondent no.1 was directed to, on the date and time to be designated by the Joint Registrar, furnish the samples for such testing; the said Institute was directed to furnish the report to the Court within six weeks of receiving the samples. 

4. The respondent no.1 preferred an appeal being FAO(OS) No. 44/2011 against the aforesaid order/judgment dated 23rd December, 2010. The said FAO(OS) was dismissed by the Division Bench of this Court on 7th February, 2011. 

5. The respondent no.1 preferred a Special Leave Petition being SLP(Civil) No. 5756/2011 against the order dated 7th February, 2011 of the Division Bench. In the said SLP, the respondent no.1 sought ad interim ex parte stay of the operation of the orders of this Court. The Supreme Court, though on 18th March, 2011 issued notice of the SLP, but rejected the prayer for interim relief. The SLP is stated to be still pending.

6. The Joint Registrar of this Court, in accordance with the order dated 23rd December, 2010 (supra) of which there was no stay, directed the respondent no.1 to appear for collection of blood samples. The respondent no.1 however did not appear and on the contrary, filed I.A. No. 10394/2011 (supra) against order whereon the present appeal is preferred. The respondent no.1 in the said application sought a direction that he should not be pressurized, compelled or forced in any manner to involuntarily provide blood and/or other tissue sample(s) for DNA testing. The respondent no.1 on being asked to file an affidavit stating reasons for not furnishing the blood sample, in his affidavit dated 21st July, 2011 though admitted that there was no medical reason prohibiting him from giving sample for DNA testing but stated that he cannot be compelled to do so against his will. The learned Single Judge before whom the suit was now pending has vide order/judgment dated 23rd September, 2011 impugned in this appeal held the refusal of the respondent no.1 to submit the blood sample to be wilful, mala fide, unreasonable and unjustified. However after holding so, it has been held that the respondent no.1 cannot be physically compelled or be physically confined for submitting a blood sample for DNA profiling, in implementation of the order/judgment dated 23rd December, 2010. The learned Single Judge has further held that the weight to be attached to such refusal, shall be considered while evaluating the evidence produced by the parties. 

7. The appellant impugns the said order/judgment contending:-

8. In view of the aforesaid, it becomes relevant to discuss the earlier orders of the Single Judge and of the Division Bench of this Court and interim stay whereof, though sought was rejected.

9. The order dated 23rd December, 2010 of the learned Single Judge directing DNA test, observes/finds/holds:- 

10. The Division Bench of this Court vide order/judgment dated 7th February, 2011 dismissed the appeal against the order dated 23rd December, 2010 (supra), additionally observing /finding/holding:- 

11. The learned Single Judge, in the impugned judgment, has framed the following question:

12. The impugned judgment though running into 109 pages, but the ratio thereof is, that though a matrimonial Court and the Civil Court has the implicit and the inherent power to order a person to submit himself for medical examination and to issue a direction to hold a scientific, technical and expert investigation but if despite the order of the Court, the respondent refuses to submit himself to medical examination, the Court is entitled only to take the refusal on record to draw an adverse inference therefrom. Reliance in this regard is placed on Sharda (supra). It is also observed that physical confinement for forcible drawing of blood sample or sample of any other bodily substances is not envisaged in any statutory provision governing civil legislation under any tenet of justice. The learned Single Judge has observed that mandatory testing upon an unwilling person would entail an element of violence and intrusion of a person‟s physical person and may leave irreparable scars and is unwarranted and impermissible under Article 21 of the Constitution of India. It was thus concluded that the respondent no.1 could not be physically confined for the purpose of giving a blood sample and to ensure compliance of the order dated 23rd December, 2010.

13. The Apex Court undoubtedly in Sharda (supra) has held that “if despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference” within the meaning of Section 114 of the Evidence Act would be made out. However, what we are concerned with here is, whether the order of the Court directing such DNA testing is an un-enforceable and un-implementable order, the only consequence of voluntary non-compliance whereof is to enable the Court to draw adverse inference. We find the aspect of enforceability/implementability of the order for medical examination to have not been the subject matter of Sharda or the other judgments (supra), cited by the counsel for the respondent no. 1 before us also.

14. The Supreme Court in H.M. Kamaluddin Ansari & Co. v. Union of India (1983) 4 SCC 417 has held that orders of the Court are intended to be complied with and the Court would not pass an ineffective injunction order and the Court never passes an order for the fun of passing it and orders are passed only for the purpose of being carried out.

15. In our view, to say, that the exercise earlier undertaken by the Court, was an empty one and in futility − that though the Court could issue a direction for DNA testing but not implement or enforce the same, has the tendency of making the law and the Court, a laughing stock. The perception of “the law” as Mr. Bumble (in Oliver Twist) said "is a ass - a idiot" will be cemented, if the Courts themselves hold their own orders to be un-implementable and un-enforceable. It is the duty of every Court to prevent its machinery from being made a sham, thereby running down the Rule of Law and rendering itself an object of public ridicule. The House of Lords, in Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248 observed that public interest requires that we have a legal system and Courts which command public respect and if the Courts were to make orders manifestly incapable of achieving their avowed purpose, law would indeed be an ass. It was further held that the Court should not make orders which would be ineffective to achieve what they set out to do. 

16. The Supreme Court also, in K.A. Ansari v. Indian Airlines Ltd. (2009) 2 SCC 164 has held that difficulty in implementation of an order passed by the Court, howsoever, grave its effect may be, is no answer for its non- implementation. In Deep Chand v. Mohan Lal (2000) 6 SCC 259 it was held that the purpose of execution proceeding is to enable the decree-holder to obtain the fruits of his decree and even if there is any ambiguity, interpretation which assists the decree-holder should be accepted; the execution of decree should not be made futile on mere technicalities. It was further observed that keeping in view the prolonged factum of litigation resulting in the passing of a decree in favour of a litigant, a rational approach is necessitated and the policy of law is to give a fair and liberal, and not a technical construction, enabling the decree-holder to reap the fruits of his decree.

17. We may at this stage notice that under Section 36 of the CPC, the provisions relating to execution of decree, apply to the execution of orders also; if any precedent is needed, reference can be made to M.V.S. Manikayala Rao v. M. Narasimhaswami AIR 1966 SC 470. 

18. The Courts have always attempted against rendering the orders and decrees of the Court to be merely good on paper and otherwise ineffective to settle the rights of the parties. Attempts have always been made to take a view/interpretation which renders a decree of the Court to be executable rather than inexecutable. The Courts cannot hold a decree or order passed after long deliberations as in the present case also, to be merely paper decree/order incapable of deciding in fact what it was intended to decide or incapable of changing the position which it intended to change. The Court cannot take a role of a silent spectator and see its order being frustrated by a party. The power of enforcement of orders cannot be reduced into an empty one.

19. It cannot also be lost sight of that the order directing the respondent no.1 to undergo the DNA testing was an order in exercise of powers by the Court under Order XXXIX Rules 1 & 2 of the CPC and not in exercise of powers as under Order XII Rule 8 or under Order XI or Order XVI of the CPC, for non-compliance whereof adverse inference is permitted to be drawn. A Court of law cannot sit still with folded hands and countenance its injunction being treated with indifference or scant courtesy by the party against whom it is directed and who is bound to obey its terms. This is particularly so when such injunction has been confirmed in appeal and stay thereof been rejected by the Supreme Court.

20. What also surprises us is that the order of injunction aforesaid, has been held by the learned Single Judge to be un-implementable and un-enforceable for the reason of implementation thereof being fraught with physical coercion and intrusion on the rights of the respondent no.1 under Article 21 of the Constitution and being not envisaged in any statutory provision governing civil litigation. However, the impugned order itself, as also the earlier order dated 23rd December, 2010 holds, a direction for such DNA testing to be not violative of Article 21. The Supreme Court in Selvi v. State of Karnataka (2010) 7 SCC 263 upheld the authority of Civil Court to order a medical examination in exercise of the inherent powers vested in it by Section 151 of the CPC, though held that the same reasoning cannot be applied in the criminal context (para 175). Rather (in para 203) it was held that compelled extraction of blood samples in the course of a medical examination does not amount to “conduct that shocks the conscience” and that “use of force as may be reasonably necessary is mandated by law and hence it meets the threshold of procedure established by law”. The learned Single Judge has in paras 74, 78, 79 and 80 of the impugned judgment also held that the right of privacy is subject to such action as may be lawfully taken for protection of rights of others; that the level of privacy protection depends on the context; that Human Rights law justifies carrying out of compulsory and mandatory medical examination which may be bodily invasive and that the right to privacy is not an absolute right and can be reasonably curtailed. The learned Single Judge having held so, we are unable to fathom as to how the same factors could be an impediment to the enforceability and implementability of the order. What is not an impediment to the making of the order, cannot become an impediment to the enforceability of the order and would tantamount to saying that the Court order is violative of the rights of the litigant. The Constitution Bench of Supreme Court in Triveniben v. State of Gujarat (1989) 1 SCC 678 and recently reiterated in Indian Council for Enviro-Legal Action v. Union of India (2011) 8 SCC 161 held that a judgment of Court can never be challenged under Article 14 or Article 21. It is thus not open to the respondent to urge that the earlier order in the suit directing DNA testing was violative of his rights.

21. As far as the aspect of there being no statutory provision(s) for implementability/enforceability of such an order is concerned, we had during the hearing also invited the attention of the counsels to Section 51 of the CPC dealing with “Powers of Court to enforce execution”. The same, after prescribing the various modes of execution, in Clause (e) provides for execution “in such other manner as the nature of the relief granted may require”. The Supreme Court in State of Haryana v. State of Punjab (2004) 12 SCC 673 has held that the residuary powers under Section 51(e) allow a Court to pass orders for enforcing a decree in a manner which would give effect to it. It cannot also be lost sight of that at the time the civil procedure was codified in the year 1908, the tests such as of DNA were not even comprehensible much less available. However now that such tests, which are an aid in adjudication are available, the Courts cannot allow such advancements to bypass the Courts. The Supreme Court in State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601 on the principle of interpretation of an ongoing statute (in that case Cr.P.C.) relied on the commentary titled “Statutory Interpretation”, 2nd Edition of Francis Bennion laying down:

22. Similarly in Suresh Jindal v. BSES Rajdhani Power Limited (2008) 1 SCC 341, it was held that creative interpretation of the provisions of the statute demands that with the advance in science and technology, the Court should read the provisions of a statute in such a manner so as to give effect thereto.

23. The House of Lords recently in Regina (Quintavalle) v. Secretary of State for Health [2003] 2 A.C. 687 held that the laws have to be construed in the light of contemporary scientific knowledge and in order to give effect to a plain parliamentary purpose, the statute may be held to cover a scientific development not known when the statute was passed. Notice may be taken of the amendment of the year 1976 to Section 75 of the CPC enabling the Court to issue commissions to hold a scientific, technical or expert investigation. The same is indicative of the legislative intent to keep pace with scientific advancements in the matter of judicial adjudication.

24. Even the Constitution of India, while laying down the Fundamental Duties, by Article 51-A (h) and (j) declares it to be the duty of every citizen of India to develop a scientific temper and the spirit of inquiry and reform and to strive towards excellence, to reach higher levels of achievement. What we wonder is that when modern tools of adjudication are at hand, must the Courts refuse to step out of their dogmas and insist upon the long route to be followed at the cost of misery to the litigants. The answer obviously has to be no. The Courts are for doing justice, by adjudicating rival claims and unearthing the truth and not for following age-old practices and procedures when new, better methods are available. 

25. We, in this context find the judgment of the Court of Appeal (Civil Division) in Re G (Parentage: Blood Sample) [1997] 1 F.L.R. 360 holding that the Court should find proven forensically what the person by his refusal had prevented from being established scientifically, to be apposite. It was further held therein: 

Thorpe LJ in his opinion, agreeing with Waite LJ that the appeal should be allowed, said: 

26. Though in the light of what we have held, it is not strictly relevant, but we are unable to restrain ourselves from recording what the Court of Appeal (Civil Division) observed in Re H and A (Children) (Paternity: Blood Tests) [2002] EWCA Civ 383:- 

It was further observed that paternity of any child is to be established by science and not by legal presumption or inference or by a long and acrimonious trial.

27. It is also not as if use of force and police for that purpose is unknown to Civil Jurisprudence. Such force, through the machinery of police is always used for execution of orders/decrees upon resistance by the judgment debtor/persons against whom such orders are made. Use of police for the purpose of enforcing interim orders (see Kailash Chander Sharma v. Nirmala Wati 92 (2001) DLT 103), for restoring status quo ante and even for execution of local commissions is common (see Indian Express Newspapers (Bombay) P. Ltd. v. T.M. Nagarajan MANU/DE/0382/1987). The jurisprudence has been evolving. Finding the interim orders in the cases of infringement of trademarks to be defeated, the Courts have relied on John Doe orders which are implementable against unknown persons also and where the Commissioners are authorized to visit places of unnamed defendants and wherefrom the infringing goods may be found. We are unable to appreciate as to why when in execution of a decree or an order of possession it is permissible for the police to physically lift and remove him from the property to which he wants to cling or to demolish the house of the judgment debtor (see Ram Awatar Agarwal v. Corpn. of Calcutta (1999) 6 SCC 532), it should be held to be impermissible to compel a person to undergo a medical test or to give a bodily sample for such test.

28. The Supreme Court in Zahurul Islam v. Abul Kalam (1995) Supp (1) SCC 464 held that decrees have to be executed, if necessary with the police help. A Division Bench of Madras High Court in Sri-la-Sri Sivasubramanyananda Swami v. Sri-la-Sri Arunachalasamy Chidambaram (1993) 1 MLJ 274 had the occasion to examine whether the Civil Courts can issue directions to the police officials for execution and implementation of the orders of the Civil Court. Relying on Jaipur Mineral Development Syndicate v. CIT (1977) 1 SCC 508, it was held that the Civil Courts in exercise of its inherent power and in the absence of any express or implied prohibition are entitled to pass orders as may be necessary to prevent abuse of the process of the Court and to avoid gross miscarriage of justice. It was accordingly held that a litigant who has secured an order from the Court is entitled to full benefit thereof and the Court is entitled to resort to law enforcement machinery to see that its orders are obeyed. It was further held that no technicality can prevent the Court from doing justice in exercise of its inherent powers. To the same effect is the judgment of the Karnataka High Court in Smt. Karisiddamma v. Smt. Sanna Kenchamma MANU/KA/0628/2009.

29. We are also of the view that the plea of non-implementability and non-enforceability of such a direction ought to have been taken, when the appellant had sought the injunction and if not taken then, was barred by the principles of constructive res judicata. It is a settled principle of law that the principles of res judicata and constructive res judicata apply to the successive stages of the same proceedings also. The Supreme Court, as far back as in Satyadhyan Ghosal v. Deorajin Debi AIR 1960 SC 941 observed that the principle of res judicata applies also as between the two stages in the same litigation to the extent that the Court having at an earlier stage decided the matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. Again in Arjun Singh v. Mohindra Kumar AIR 1964 SC 993, while reiterating the same principle, distinction was carved out between different kinds of interlocutory orders. It was observed that while interlocutory orders of injunction or receiver, which are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the delay in the proceedings, are capable of being altered or varied by subsequent applications for the same relief though normally only on proof of new facts or new situations which subsequently emerge as they do not impinge upon the legal rights of the parties, other interlocutory orders designed to ensure the just, smooth, orderly and expeditious disposal of the suit even though not deciding any matter in issue viz. on applications under Order IX, Rule 7 attract the principle of res judicata or principle analogous thereto; repeated applications seeking the same relief are not permitted. 

30. The Supreme Court Y.B. Patil v. Y.L. Patil (1976) 4 SCC 66 opined that once an order made in course of a proceeding becomes final, it would be binding at subsequent stage of that proceeding. In Bhanu Kumar Jain v. Archana Kumar (2005) 1 SCC 787 it was clarified that the principles of constructive res judicata also apply with full force at subsequent stage of the same proceedings. The Supreme Court in Ajay Mohan v. H.N. Rai (2008) 2 SCC 507 held that a mere amendment of the plaint does not entitle the plaintiff to injunction under Order XXXIX, Rules 1 & 2 of the CPC which had been denied on an earlier occasion.

31. Seen in the aforesaid light it will be found that the opposition by the respondent no.1 to DNA testing was considered and decided when the application of the appellant for the said relief was considered. The application (I.A. No. 10394/2011) moved by the respondent no.1 and which has been allowed was thus by way of re-agitating the same issues and ought not to have been entertained much less allowed. We may further observe that the injunction directing DNA testing falls in the category of an order in aid of disposal of the suit and decided the rights of the parties to the suit i.e. the right asserted by the appellant to have such DNA testing done and the right asserted by the respondent no.1 to not submit thereto. Once such rights had been adjudicated by the Suit Court and the appeal thereagainst had been dismissed and the application for stay having been rejected by the Apex Court, it was not open to the Suit Court to again entertain the said question. If such practices were to be permitted, it will have dangerous consequences. It is rarely that entire suit is decided by the same Judge. If it were to be permissible for each successive Judge presiding over a Court to take a different view, it will not only lead to the litigants and the counsels urging the same issues repeatedly each time on change of Roster but also be contrary to Rule of Law. A Division Bench of this Court in Swaran Singh v. Surinder Kumar 179 (2011) DLT 136 observed that even if the principles of res judicata were to be not attracted, the principle of issue estoppel precludes the Court from entertaining a second application (in that case under Order VII, Rule 11 of the CPC) based on the same factual matrix and no orders negating and nullifying the previous order can be made on change of Roster. The Supreme Court in Gajraj v. Sudha (1999) 3 SCC 109 held repeated applications under Order I, Rule 10 of the CPC to be not maintainable. 

32. Yet another principle may be noted. The Supreme Court recently in Shimnit Utsch India Pvt. Ltd. v. West Bengal Transport Infrastructure Development Corporation Ltd. (2010) 6 SCC 303 reiterated that law on the binding effect of an order passed by a Court of law is well settled; if an order has been passed by a Court which had jurisdiction to pass it, then the error or mistake in the order can be got corrected from a higher Court and not by ignoring the order or disobeying it expressly or impliedly. Halsbury's Laws of England opining that the fact that an order ought not to have been made is not sufficient excuse for disobeying it and disobedience to it constitutes a contempt was cited with approval. 

33. We also find the action of the respondent no.1 of filing I.A. 10394/2011 to be contumacious. For this reason also, we are of the opinion that police force against him is justified.

34. We may highlight that as per the dicta of the Supreme Court noticed by the learned Single Judge also, a direction for DNA testing can be issued only after the test of eminent need is satisfied. The order dated 23rd December, 2010 directed DNA testing of the respondent no.1 only after holding the said test to be satisfied in the facts of the present case. The impugned judgment though also holding that the test of eminent need is satisfied has declined to enforce the order. It is thus not as if the order for DNA testing is made or has been made in the present case on the asking or in a routine manner for the consequence only of adverse inference to flow from non-compliance thereof. We find inherent contradiction in the Court on the one hand holding eminent need for such a test and in the same breath allowing the need to remain unsatiated. We also find the drawing of adverse inference from refusal to comply with the direction for medical examination to be not sufficient to satiate the need found by the Court. A legal fiction under Section 114 of the Evidence Act, as adverse inference is, is not reality but which the said provision requires the Court to accept as reality. The Court is not bound to or obliged to draw such adverse inferences (see Emperor v. Sibnath Banerjee AIR 1943 FC 75, Dhanvantrai Balwantrai Desai v. State of Maharashtra AIR 1964 SC 575 and Fakir Mohd. (Dead) by LRs v. Sita Ram AIR 2002 SC 433). A presumption is not in itself evidence but only makes a prima facie case for parties in whose favour it exists (see Sodhi Transport Co. v. State of U.P. (1986) 2 SCC 486). As far back as in Damisetti Ramchendrudu v. Damisetti Janakiramanna AIR 1920 PC 84 it was held that presumption cannot displace adequate evidence. The Supreme Court also in Mohanlal Shamji Soni v. Union of India 1991 Supp (1) SCC 271 held that it is the rule of law in evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue and the Court ought to take an active role in the proceedings in finding the truth and administering justice. Recently in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (Dead) 2012 (3) SCALE 550 it was reiterated that the truth is the guiding star and the quest in the judicial process and the voyage of trial. The trend world over of full disclosure by the parties and deployment of powers to ensure that the scope of factual controversy is minimized was noticed. We are therefore of the opinion that adverse inference from non-compliance cannot be a substitute to the enforceability of a direction for DNA testing. The valuable right of the appellant under the said direction, to prove his paternity through such DNA testing cannot be taken away by asking the appellant to be satisfied with the comparatively weak „adverse inference‟. 

35. The impugned judgment refers extensively to the law in this regard in other countries. We are however of the opinion that once the Supreme Court in the judgments supra has held the Civil Court entitled to issue such a direction, the law in other jurisdictions pales into insignificance.

36. We therefore allow this appeal and set aside the order dated 23rd September, 2011. We further clarify that the observations/findings therein on any of the aspects which we find to be unnecessary and for which reason we have not gone into the challenge thereto shall not be binding at a subsequent stage of the proceedings. We further deem it necessary to now clarify the procedure to be followed for compliance of the direction contained in the order dated 23rd December, 2010. Upon the respondent no.1 continuing to defy the order, the Single Judge shall be entitled to take police assistance and use of reasonable force for compliance thereof. The respondent no.1 to also pay costs of this appeal quantified at Rs. 25,000/- to the appellant. 

RAJIV SAHAI ENDLAW, J ACTING CHIEF JUSTICE APRIL 27, 2012 „pp ‟