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Ganesh Balkrishna Bhide Vs. Vithal Trimbak Bhide - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case NumberCivil Application No. 582 of 1920
Judge
Reported in(1921)23BOMLR745
AppellantGanesh Balkrishna Bhide
RespondentVithal Trimbak Bhide
Excerpt:
.....to plaint-decision of appeal court-review petition, on the ground of absence of the certified copy-certified copy put in-review not competent-civil procedure code (act v of 1008), order xlvii, rule 1.;where, in a suit relating to land, the extract from the record of rights required by a 135h of the bombay land revenue code 1879 is not produced in the trial court, and in the court of appeal the point about absence of the extract is not pressed in arguments, it is not proper to reject the suit only on that ground; but the court can well exercise its discretion in allowing the extract to be put in in appeal.;when the extract from the record of rights is once so put in, no application for review of judgment based on the ground of the absence of the extract can be entertained. - - 2...........no record of it, apparently it was dropped as certain facts with regard to the production of the revenue records before the trial court were pointed out by the pleader for the plaintiff. we did not refer to this point in the judgment probably because it was abandoned. whatever the reason for the point not having been pressed at the hearing of the appeal may be, and whether in fact it was abandoned or not, what we have now to consider is whether the review based on this ground should be allowed.2. after a careful consideration of the provisions of section 135h of the bombay land revenue code and the history of the litigation, i am clearly of opinion that it is not necessary in the interests of justice to grant this application, and that there is really no sufficient reason for reviewing.....
Judgment:

Shah, J.

1. This is an application for a review of our judgment delivered on the 9th January 1920 in First Appeal No. 57 of 1918. The application is based on the ground that a certified copy of the relevant extract from the record of rights was not produced with the plaint in the case as required by Section 135 H of the Bombay Land Revenue Code, that, therefore, the plaint should have been rejected, and that all the subsequent proceedings taken in the absence of such certified copy must be treated as having been taken without jurisdiction. It may be mentioned that in the trial Court apparently this omission was not noted until the arguments were heard. At that stage, time was allowed to the plaintiff to put in the necessary certified copy. It is not clear as to what happened after that; but for one reason or other no copy was put in, and the trial Court proceeded to decide the case. In the memorandum of appeal here no point with reference to the omission to file the certified copy was taken; but at the hearing of the appeal, in the course of the arguments, it was mentioned, but ultimately abandoned. Though there is no record of it, apparently it was dropped as certain facts with regard to the production of the revenue records before the trial Court were pointed out by the pleader for the plaintiff. We did not refer to this point in the judgment probably because it was abandoned. Whatever the reason for the point not having been pressed at the hearing of the appeal may be, and whether in fact it was abandoned or not, what we have now to consider is whether the review based on this ground should be allowed.

2. After a careful consideration of the provisions of Section 135H of the Bombay Land Revenue Code and the history of the litigation, I am clearly of opinion that it is not necessary in the interests of justice to grant this application, and that there is really no sufficient reason for reviewing our decision. Whatever the merits of the point may be, it could have been and should have been taken at the trial. It was not effectively taken at the trial or at the hearing of the appeal. Though I fully recognize that the consequence of the omission on the part of the plaintiff to put in the necessary certified copy is as laid down in Sub-section 2 of Section 135H, I do not think that the consequence must necessarily be given effect to at any stage of the litigation. Having regard to the stage of the litigation which is now reached, I do not think that it is obligatory upon this Court to allow a review of the decree on the ground of non-compliance with the provisions of Section 135H. Even assuming that it is necessary to see that the omission is made good, when our attention is drawn to it, we can allow Mr. Shingne to cure the defect by letting him put in a certified copy of the extract. Mr. Shingne is ready to do so; and as the production of the certified copy is insisted upon by defendant No. 2, we allow the plaintiff to do so. I quite admit that if the omission is brought to the notice of the Court at the proper time, the plaint ought to be rejected unless the Court sees reason to give the plaintiff time to produce it. But I am unable to accept the contention now urged on behalf of the applicant that because this copy was not put in at the proper time, the necessary consequence of it must be that the plaint should be rejected and that the litigation should start afresh. That is a contention, which, unless it is expressly or by necessary implication demanded by the provisions of the section, I am wholly unwilling to allow. The whole object of this section is to see that the trial shall not proceed in the absence of the necessary extract from the record of rights, so that the Courts may be in a position to know what the entry in the record of rights is and to see how far its correctness can be successfully impugned by the party concerned. But there is no reason to hold that the proceedings taken in the absence of this extract are null and void. The very fact that the omission was not minded by any party shows that under the circumstances of the case, the omission was more formal than substantial. Whatever the true view about the consequence of the non-compliance with the requirements of a 135H, Sub-section 1, may be, it is clear on the facts of this case, that there is no substance or merit whatever in the application, and that it is merely an attempt based on a technical ground to get rid of the result of the litigation, which has practically ended against the present applicant.

3. I would discharge the rule with costs. Two sets of costs are allowed.

Crump, J.

4. It is, I think, unfortunate that the present application for review is made by a pleader other than the pleader who argued the appeal; for we are left in some doubt as to what took place when the appeal was heard. My own impression is that the absence of the extract from the record of rights was brought to our notice at the hearing and that the point for some reason which is now obscure was not pressed before us, and it was for this reason that there was no reference to it in our judgment. However that may be, the absence of the extract in question would, I think, have been a ground apparent on the face of the record sufficient to support the application for review were it not for the fact that the extract in question has now been produced As. I read Section 135 H, para 2, of the Bombay Land Revenue Code, it appears to me that this Court has the power, which the original Court possessed, to allow a reasonable time for the production of the extract, if it has not been produced, and what is or is not a reasonable time is a matter entirely within our discretion. Under the circumstances of the present case, having regard to the fact that the point has hitherto not been pressed, I am of opinion that the defect, if any, is cured by the production of the necessary extract at the present stage. For my own part, I am unable to distinguish the present case from those cases where a certificate required by Section 4 of the Pensions Act (XXIII of 1871) has not been produced. The Legislature has laid down that no Civil Court shall entertain any suit where such a certificate is necessary, without the production of that certificate. The language is not widely different from that used in the Bombay Land Revenue Code except that the Pensions Act is more general in its terms while the Bombay Land Revenue Code prescribes the result of the non-production of the certificate. As regards the Pensions Act it has been held by this Court in Antaji v. Vinayak (1914) 17 Bom. L.R. 153 that time may be given for the production of the requisite certificate even in second appeal. I see no reason why the same interpretation should not be placed upon the language used in Section 135 H, para 2, of the Bombay Land Revenue Code. To allow time is not inconsistent with the object of the Legislature in enacting this section, that is to say, the maintenance of the record of rights and its correction where any correction becomes necessary by virtue of the decree of the Court. Therefore, in my opinion, the technical objection fails and the application should be dismissed with costs. Two separate sets of costs.


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