case decided on preliminary issue but but made observation in merit

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This topic contains 1 reply, has 2 voices, and was last updated by Dr. Ashok Dhamija Dr. Ashok Dhamija 4 months, 3 weeks ago.

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  • #3492

    a case has been decided on preliminary issue and rejected but observations on merit has been made, which is adverse, and affects the case in future, can be challenged in appeal or to file review?

  • #3527

    Please note that as per the provisions of Order 47 Rule 1 of the Civil Procedure Code, review of a judgment is possible only on certain limited grounds:

    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

    (c) by a decision on a reference from a Court of Small Causes,

    and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the Court which passed the decree or made the order.

    (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

    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.”

    Therefore, in addition to other conditions laid down as above, for filing review, you may have to show the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within your knowledge or could not be produced by you at the time when the decree was passed or order made. Or, else, you may have to show some mistake or error apparent on the face of the record, or any other sufficient reason.

    Secondly, whether the decision on the preliminary issue necessarily required observations on merits of the case? Or, these observations on merits were made unnecessarily even though the same were not required while deciding the preliminary issue. Usually, the practice is that (even in Supreme Court and High Courts) if any observations on merits are made while deciding the case on preliminary issues, it is specifically noted that such observations would not affect the rights of the parties and generally all issues of merits are kept open.

    You may also have to consider as to what is the remedy against the rejection of your case on the basis of the preliminary issue. Whether it is only by way of appeal or a review could also serve your purpose?

    Accordingly, in my considered opinion, you may please consider these issues in the light of facts of your case for taking a call in respect of a further action.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

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