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Judgment
Seshagiri Ayyar, J.—Mr. Subrahmanya Ayyar has taken the preliminary objection that the High Court cannot entertain a Review in appeals
preferred u/s 15 of the Letters Patent. The question is practically res integra as the decision in Hafiz Muhammad Moshin v. Sheo Prasad (1904) 1
A.L.J. 509 in which the point was directly raised, gives no reason for the conclusion arrived at.
After hearing the matter fully argued by the learned vakils on either side, we are of opinion that there is no force in the objection. Clause 44 of
the Letters Patent says that the provisions are subject to the legislative powers of the Governor-General in Council. As at present advised, we are
in agreement with Mr. Subrahmanya Ayyar that this provision would not enable Courts, by implication, to supplement the Letters Patent by
importing into it all acts ejusdem generis passed by the Governor-General in Council and that the provision is only intended to empower the
Governor-General in Council to legislate with a view to supplement omissions in the Letters Patent. Even in this view, we think that by Section 117
of the CPC (Act V of 1908), the Governor-General in Council did incorporate into the Letters Patent the provisions relating to Review. It was
then argued that the Review section, Section 114 of the Code (Act V of 1908), cannot apply as it provides only for the review of decrees or
orders passed under the Code of Civil Procedure. We are not impressed by this argument. In the first place, decrees are passed in appeals heard
under the Letters Patent only under the Code of Civil Procedure. In the second place, Clause (b) of Section 114 does not require that orders and
decrees should have been passed under the Code. Further the word decree or order includes a judgment: Krishen Doyal v. Irshad Ali (1915) 22
C.L.J. 525. Mr. Subrahmanya Ayyar relies on Sabhapathi Chetti v. Narayanasami Chetti ILR (1902) Mad. 555 for the proposition that Section
15 of the Letters Patent is not controlled by the Code of Civil Procedure. All that was decided in that case was that as Section 15 had given an
unlimited power of appeal against every judgment of a single Judge, the Governor-General in Council should not be understood to have taken
away by implication that power of the litigant by making Section 540 of the Code (Act XIV of 188)2 applicable to Chartered High Courts. This
does not contravene the principle that it is competent to the Governor-General in Council to supplement the remedy of appeal by giving an
additional remedy by way of review to the litigant.
The decisions in Babaji bin Patloji v. Babaji bin Mahadu ILR (1891) 15 Bom. 650, Lala Pryag Lal v. Jai Narayan Singh ILR (1895) Calc. 419
and Nana bin Aba v. Sheku bin Andu ILR (1908) 82 Bom. 337, only lay down that a self-contained Act should not be added to by the provisions
of the Code of Civil Procedure. This does not affect the present question.
Mr. Ramachandra Ayyar has referred us to two reported cases and to an unreported decision in which reviews under similar circumstances
were entertained. Apparently the practice of this High Court has been in favour of allowing reviews to be filed in appeals under the Letters Patent.
It was pointed out by the Judicial Committee in Ravi Veeraraghavulu v. Venkata Narasimha Naidu Bahadur ILR (1914) Mad. 443 that even
though a strict construction of the law may not permit of the entertainment of appeals, a longstanding practice of the Court should not be lightly
departed from in that respect. What relates to appeals, applies mutatis mutandis to reviews also. We must therefore overrule the preliminary
objections.
If we are to interfere in review in these cases, it can only be by upsetting conclusions of fact at which the learned Judges who heard the appeal
arrived. We are not prepared to adopt this procedure.
The petitions are dismissed with costs.