Case Note & Summary
The judgment of the Bombay High Court, Nagpur Bench, delivered by Justice R.K. Deshpande, disposes of a writ petition challenging the dismissal of a review application. The petitioner, as the original plaintiff, had filed a suit for declaration and injunction, which was dismissed on merits by the trial court. Subsequently, the petitioner's review application was also dismissed. Under normal circumstances, a first appeal under Section 96 of the Code of Civil Procedure, 1908, lies against the original decree, but no appeal is provided against the dismissal of a review application. Faced with this predicament, the petitioner invoked the writ jurisdiction of the High Court. The court noted that an inter-party decision in an earlier writ petition (No. 1793 of 2005) had allowed such a writ to be entertained. However, the court chose not to decide the matter on merits and instead granted the petitioner liberty to file a regular first appeal under Section 96 CPC. The court observed that the legal principle is that the dismissal of a review application does not result in the merger of the original decree. Consequently, if the petitioner were to succeed in the appeal and get the original decree set aside, the review order would not survive. The court deemed it inappropriate to foreclose the statutory remedy of appeal, which is more comprehensive, in favor of the restricted and discretionary writ jurisdiction. Addressing the potential issue of limitation, the court held that the period spent prosecuting the writ petition (from 11-02-2016 to the date of judgment) and the review petition could be excluded under Section 14 of the Limitation Act, 1963. The court directed that if the petitioner preferred an appeal within two weeks, the appellate court would treat it as filed within limitation and decide it on merits. All questions were left open to be agitated in the appeal. No costs were ordered. The petition was disposed of accordingly.
Headnote
A) Civil Procedure – Review and Appeal – Effect of Dismissal of Review on Decree – Code of Civil Procedure, 1908, Sections 96, 114; Limitation Act, 1963, Section 14 – The original suit for declaration and injunction was dismissed on merits; review application dismissed. The Court held that dismissal of review does not result in merger of the decree, preserving the right to file a first appeal under Section 96 CPC. The petitioner was permitted to file such appeal within two weeks, with the period spent in the writ petition and review proceedings excluded under Section 14 of the Limitation Act. (Paras 3-4)
Issue of Consideration
Whether a writ petition under Article 227 of the Constitution challenging dismissal of a review application is maintainable when a regular first appeal under Section 96 CPC is available; whether delay in filing such appeal can be condoned by excluding the period spent in the writ petition and review proceedings.
Final Decision
Writ petition disposed of with liberty to petitioner to file first appeal under Section 96 CPC within two weeks; such appeal shall be treated as filed within limitation by excluding the period spent in the writ petition and review application; no order as to costs.
Law Points
- Dismissal of review does not merge decree
- first appeal under Section 96 CPC maintainable
- period spent in writ and review excludable under Section 14 Limitation Act
