This case is a significant decision by the Delhi High Court that addresses the interplay between the right to file a review petition and an appeal under Order 47 Rule 1 of the Code of Civil Procedure, 1908 (CPC). The case clarifies the legal position regarding the maintainability of an appeal when a review petition has been filed and subsequently dismissed, emphasizing the conditions under which a court retains jurisdiction to hear a review petition. The Delhi High Court, relying on authoritative Supreme Court precedents, resolved the petitioner’s challenge to an appellate court’s jurisdiction to hear an appeal after the dismissal of a review petition. This case study provides a comprehensive analysis of the factual and procedural background, issues, submissions, judicial reasoning, cited judgments, and the law settled, offering insights into the procedural nuances of review and appellate jurisdiction under the CPC.

Detailed Factual Background:
The case arises from a dispute where the respondent challenged an order dated February 20, 2013, by filing a review petition on April 2, 2013. On the date of filing the review petition, no appeal had been preferred against the impugned order. Subsequently, the respondent filed an appeal, and the review petition was dismissed by the court that passed the original order. The petitioner, aggrieved by the appellate court’s decision to entertain the appeal, filed a petition (CM(M) 130/2017) before the Delhi High Court, contending that the filing of a review petition barred the respondent from maintaining an appeal against the same order.

The petitioner argued that Order 47 Rule 1 CPC prohibits an appeal once a review petition is filed, as the review petition constitutes an election of remedy. The respondent, however, maintained that the dismissal of the review petition restored their right to pursue an appeal, and no provision in the CPC explicitly barred such an appeal. The factual details of the underlying dispute (e.g., the nature of the original suit or the parties’ identities) are not specified in the judgment, as the case focuses solely on the procedural question of maintainability.

Detailed Procedural Background:
The procedural history begins with the impugned order dated February 20, 2013, passed by a lower court. The respondent, seeking to challenge this order, filed a review petition on April 2, 2013, under Order 47 Rule 1 CPC, alleging grounds such as an error apparent on the face of the record or new evidence. At the time of filing the review petition, no appeal had been preferred, satisfying the condition under Order 47 Rule 1(1)(a) CPC. Subsequently, the respondent filed an appeal against the same order, and the review petition was dismissed by the original court.

The appellate court, where the respondent’s appeal was pending, proceeded to hear the appeal, prompting the petitioner to file a petition (CM(M) 130/2017) before the Delhi High Court. The petitioner sought to quash the appellate proceedings, arguing that the filing of the review petition precluded the respondent from pursuing an appeal. The Delhi High Court heard arguments from both parties and delivered its judgment on February 1, 2017, addressing the legal question of whether the appellate court had jurisdiction to hear the appeal.

Issues Involved in the Case:
The primary issue was whether the filing of a review petition under Order 47 Rule 1 CPC bars a party from subsequently filing an appeal against the same decree or order after the review petition is dismissed. 

Subsidiary issues included:
The interpretation of Order 47 Rule 1(1)(a) CPC, which allows a review petition from a decree or order from which an appeal is allowed but no appeal has been preferred.The effect of filing an appeal after a review petition on the jurisdiction of the court hearing the review.The impact of the dismissal of a review petition on the maintainability of a subsequently filed appeal.Whether the appellate court’s decision to hear the appeal violated the principles governing review and appellate jurisdiction.

• Petitioner's submission:
  • The petitioner argued that Order 47 Rule 1 CPC imposes a restriction on filing an appeal once a review petition is preferred against a decree or order.
  • They contended that the respondent, having elected to file a review petition on April 2, 2013, was barred from subsequently filing an appeal, as this would constitute pursuing two inconsistent remedies.
  • The petitioner relied heavily on the Supreme Court’s decision in Rekha Mukherjee v. Ashish Kumar Das & Ors. [(2005) 3 SCC 427], arguing that an appeal filed during the pendency of a review petition is not maintainable.
  • They asserted that the respondent’s appeal was incompetent because the review petition, even though dismissed, exhausted the respondent’s right to challenge the order through an appeal.
  • The petitioner urged the court to set aside the appellate proceedings, claiming that the appellate court lacked jurisdiction to hear the appeal in light of the prior review petition.
• Respondent's submission:
  • The respondent countered that the dismissal of the review petition restored their right to file an appeal, as no provision in the CPC explicitly prohibits an appeal after a review petition is rejected.
  • They argued that Order 47 Rule 1(1)(a) only requires that no appeal be filed at the time the review petition is lodged, a condition they satisfied when filing the review on April 2, 2013.
  • The respondent relied on Supreme Court precedents, including Thungabhadra Industries Ltd. v. Govt. of Andhra Pradesh [AIR 1964 SC 1372] and Kunhayammed & Ors. v. State of Kerala & Anr. [(2000) 6 SCC 359], to assert that the court hearing a review petition retains jurisdiction to dispose of it on merits, even if an appeal is filed subsequently, provided the appeal is not disposed of first.
  • Since their review petition was dismissed and the appeal was still pending, the respondent contended that the appellate court had jurisdiction to hear the appeal.
  • They urged the court to dismiss the petitioner’s petition, arguing that the appellate proceedings were lawful.
     
• Detailed Discussion on Judgments and Citations:
  • Rekha Mukherjee v. Ashish Kumar Das & Ors., (2005) 3 SCC 427:
    • The petitioner heavily relied on this case, where the Supreme Court held that an appeal filed during the pendency of a review petition is not maintainable under Order 47 Rule 1 CPC.
    • The Court clarified that if a review is granted, the original decree is modified or ceases to exist, rendering an appeal against it infructuous.
    • However, if the review is rejected, the original decree remains intact, and an appeal may be filed, subject to the appeal’s merits.
    • The Delhi High Court distinguished this case, noting that in the present matter, the review petition had been dismissed before the appellate court heard the appeal, thus removing any bar to the appeal’s maintainability.
       
  • Thungabhadra Industries Ltd. v. Govt. of Andhra Pradesh, AIR 1964 SC 1372:
    • Cited by the respondent and extensively discussed by the Court, this three-judge bench decision clarified that the crucial date for determining compliance with Order 47 Rule 1(1) is the date the review petition is filed.
    • If no appeal has been filed on that date, the review petition is maintainable, and the court can dispose of it on merits, even if an appeal is filed later.
    • The Delhi High Court applied this principle, noting that the respondent’s review petition was filed when no appeal existed, and its dismissal before the appeal’s disposal preserved the appellate court’s jurisdiction.
       
  • Kunhayammed & Ors. v. State of Kerala & Anr., (2000) 6 SCC 359:
    • Also cited by the respondent, this three-judge bench decision reaffirmed Thungabhadra’s holding.
    • In Kunhayammed, the Supreme Court addressed a review petition filed before a High Court, followed by a special leave petition (SLP) under Article 136 of the Constitution.
    • The Court held that the review petition’s maintainability depends on the absence of an appeal at the time of filing, and the review court can proceed unless the appeal is disposed of first.
    • The Delhi High Court found this precedent directly applicable, as the respondent’s review petition was dismissed, leaving the original order intact for the appeal.
       
• Detailed Reasoning and Analysis of Judge:
  • Interpretation of Order 47 Rule 1(1)(a): The Court emphasized that Order 47 Rule 1(1)(a) allows a review petition from a decree or order from which an appeal is allowed but no appeal has been preferred at the time of filing. The respondent satisfied this condition, as no appeal was filed on April 2, 2013, when the review petition was lodged.
  • Jurisdiction of the Review Court: Relying on Thungabhadra and Kunhayammed, the Court held that a review court retains jurisdiction to dispose of a review petition on merits, even if an appeal is filed later, provided the appeal is not disposed of first.
  • Effect of Review Dismissal: The Court clarified that the dismissal of a review petition leaves the original decree or order intact, allowing the party to pursue an appeal. Unlike a granted review, which modifies or replaces the original decree, a rejected review does not alter the decree’s status, making an appeal legally permissible.
  • No Statutory Bar to Appeal: The Court found no provision in the CPC that bars an appeal after a review petition is filed and dismissed. The petitioner’s argument that the review petition constituted an election of remedy was rejected.
  • Application to Facts: The Court applied these principles to the facts, noting that the respondent filed the review petition on April 2, 2013, when no appeal existed. The review’s dismissal and the subsequent appeal’s pendency did not violate Order 47 Rule 1.
• Final Decision: The Delhi High Court dismissed the petitioner’s petition (CM(M) 130/2017), find
  ing no infirmity in the appellate court’s decision to hear the respondent’s appeal. The Court held that the filing of a review petition does not bar a subsequent appeal, especially after the review is dismissed, and the appellate court had jurisdiction to proceed. All pending applications were also dismissed, and no costs were awarded.
   
• Law Settled in the Case:
  • Maintainability of Review Petitions: A review petition is maintainable if no appeal has been filed at the time of its filing, as per Order 47 Rule 1(1)(a). The subsequent filing of an appeal does not invalidate the review petition.
  • Jurisdiction of Review Court: A court hearing a review petition retains jurisdiction to dispose of it on merits, even if an appeal is filed later, unless the appeal is disposed of first.
  • Effect of Review Dismissal: The dismissal of a review petition leaves the original decree or order intact, allowing the party to file an appeal without any statutory bar.
  • No Election of Remedy: Filing a review petition does not preclude a party from pursuing an appeal after the review’s dismissal, as Order 47 Rule 1 does not impose such a restriction.
  • Crucial Date for Compliance: The date of filing the review petition is determinative for assessing compliance with Order 47 Rule 1(1)(a), ensuring clarity in procedural rights.
     
• Case Title: Parshottam Kumar Vs Hafiz Mohd Sami
  Date of Order: February 1, 2017
  Case No.: CM(M) 130/2017
  Neutral Citation: 2017:DHC:627
  Name of Court: High Court of Delhi
  Name of Hon'ble Judge: Jayant Nath, J.

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Written By: Advocate Ajay Amitabh Suman, IP Adjutor - Patent and Trademark Attorney
Email: ajayamitabhsuman@gmail.com, Ph no: 9990389539