Skip to content


Kondiba Vithoba Shinde Vs. Dagdu Rama Khendke - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 590 of 1948
Judge
Reported inAIR1949Bom366; (1949)51BOMLR631
AppellantKondiba Vithoba Shinde
RespondentDagdu Rama Khendke
DispositionApplication dismissed
Excerpt:
.....was not open to the learned district judge to interfere with the finding of fact arrived at by the trial judge, and in coming to that conclusion mr. justice telang held that the revisional jurisdiction of the special judge under sections 53 and 54 was similar to the revisional jurisdiction possessed by the high court under the code of criminal procedure and the power of setting aside a decision of a lower court on facts should be exercised in very exceptional cases. justice telang came to the conclusion that where the special judge under the dekkhan agricultrists relief act entertains a clear opinion that the findings of the subordinate judge on the questions of fact are erroneous, and exercises his discretion in setting aside the decree, the high court will not in its extraordinary..........was not open to the learned district judge to interfere with the finding of fact arrived at by the trial judge, and in coming to that conclusion mr. justice dixit relied on a decision of sir john beaumont, chief justice, in babaji v. bala (1937) 40 bom. l.r. 104 that decision was on the terms of section 23(2) of the mamlatdars' courts act, and sir john beaumont took the view that under that section the jurisdiction of the collector did not extend to reversing the order of the mamlatdar on a question of fact. that decision, with respect, has no bearing on the question as to what is the limit of the jurisdiction of the district judge under section 53. we, have, however, three direct decisions of our own court which have construed section 53 of the dekkhan agriculturists' relief act. the.....
Judgment:

M.C. Chagla, C.J.

1. This is an application in revision against an order made by the District Judge, Ahmednagar, holding that the decision of the Extra Joint Sub-Judge, Ahmednagar, that a transaction dated May 8, 1919, was a sale and not a mortgage as contended by the plaintiff, was not correct. In passing this order the learned District Judge was exercising jurisdiction vested in him under Section 53 of the Dekkhan Agriculturists' Relief Act and that section confers upon him revisional powers of the nature stated in that section. It is competent to him to set aside an order made by the trial Court if he is satisfied that that order is erroneous either because it is illegal or it is improper, and the proviso to that section really indicates what is the foundation of the jurisdiction, conferred under that section, and that foundation is that no decree or order shall be reversed or altered for any error or defect or otherwise, unless a failure of justice appears to have taken place.

2. Now, Mr. Rele contends that it was not competent to the District Judge under Section 53 to differ from the trial Court on a question of fact. The learned District Judge considered the various tests that were applied by the trial Court in coming to the conclusion whether the transaction was a sale or a mortgage, and he attached the greatest importance to the fact that the price paid for the ostensible sale of this property was Rs. 99, and according to him, having considered various factors, that was a wholly and grossly inadequate consideration. Mr. Rele says that the trial Court having come to the contrary conclusion on this point, it was not open to the District Judge to reverse the finding of the trial Court which was essentially a finding of fact, and for this purpose Mr. Rele strongly relies on a decision of Mr. Justice Dixit recently delivered in Chagniram Ramchand v. Hari Shivram (1949) Civil Revision Application No. 743 of 1948, decided by Dixit J., on March 4, 1949 (Unrep). In that case the learned Judge took the view that unless there was an indication in the judgment itself that there was a failure of justice, it was not open to the learned District Judge to interfere with the finding of fact arrived at by the trial Judge, and in coming to that conclusion Mr. Justice Dixit relied on a decision of Sir John Beaumont, Chief Justice, in Babaji v. Bala (1937) 40 Bom. L.R. 104 That decision was on the terms of Section 23(2) of the Mamlatdars' Courts Act, and Sir John Beaumont took the view that under that section the jurisdiction of the Collector did not extend to reversing the order of the Mamlatdar on a question of fact. That decision, with respect, has no bearing on the question as to what is the limit of the jurisdiction of the District Judge under Section 53. We, have, however, three direct decisions of our own Court which have construed Section 53 of the Dekkhan Agriculturists' Relief Act. The first decision is Shidu v. Bali I.L.R. (1891) Bom. 180 In that case Mr. Justice Birdwood and Mr. Justice Telang held that the revisional jurisdiction of the Special Judge under Sections 53 and 54 was similar to the revisional jurisdiction possessed by the High Court under the Code of Criminal Procedure and the power of setting aside a decision of a lower Court on facts should be exercised in very exceptional cases. The next decision is Rayachand Mayachand v. Sultan Rahimbhai I.L.R. (1893) Bom. 347 There Sir Charles Sargent, Chief Justice, and Mr. Justice Telang came to the conclusion that where the Special Judge under the Dekkhan Agricultrists Relief Act entertains a clear opinion that the findings of the Subordinate Judge on the questions of fact are erroneous, and exercises his discretion in setting aside the decree, the High Court will not in its extraordinary jurisdiction interfere with the discretion, except under most exceptional circumstances. And finally there is a decision in Gurubasaya v. Chanmalappa I.L.R. (1894) Bom. 286 That is a decision of Sir Charles Sargent, Chief Justice, and Mr. Justice Fulton, and this bench held that under Section 53 the Special Judge had a revisionary power in all cases where a failure of justice appears to have taken place. It is for him to decide whether the finding on a question of fact by a Subordinate Judge is of that nature, and in doing so he is entirely within his jurisdiction. This Bench expressly dissented from the view taken in the earlier decision of Shidu v. Bali that the jurisdiction of the District Judge or Special Judge under Section 53 was comparable to the revisional jurisdiction of the High Court under the Criminal Procedure Code, and the Chief Justice in his judgment says that although Mr. Justice Telang was a party to the decision in Shidhu v. Bali, he on reconsideration took the view which was now expressed by the Chief Justice, in his judgment. Therefore it is clear from these decisions that it is undoubted and undisputed law that under Section 53 the District Judge has jurisdiction to interfere with the finding of fact of the trial Court. It cannot be said that the revisionary powers of the District Judge are confined so that he can only interfere with the order of the trial Court only on questions of law. It is true that when a District Judge interferes with the finding of the trial Court on a question of fact, he should only do so when he is satisfied that a failure of justice has resulted. But I do not agree, with respect, with Mr. Justice Dixit that the District Judge must in terms so state in his judgment before it could be said that he has exercised a proper jurisdiction. If a District Judge takes the view that a decision on facts is clearly wrong and that the transaction is a mortgace and not a sale, it is difficult to understand how it is possible to contend that there is not a failure of justice, in that a wrong decision has been given against the plaintiff.

3. In this case the District Judge is emphatically and clearly of the opinion that the consideration paid for the ostensible sale of the property was grossly inadequate. Having come to that conclusion, the only thing open to him was to reverse the decision of the trial Court. If he had not done so, he would have allowed the failure of justice to remain un rectified. It is true that the learned District Judge does not in terms say in his judgment that there is a failure of justice, but it is not very difficult to infer from his judgment that if lie had not set aside the order of the trial Court he would have allowed the defendant to succeed, when on the merits of the case the plaintiff was entitled to the declaration that lie sought. In ray opinion, therefore, this is not a ease where I would interfere under the extraordinary powers given to us under Section 115 of the Civil Procedure Code.

4. The result is that the application fails and is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //