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Gopal Ghela Vs. Rajaram Amtha - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 809 of 1910
Judge
Reported in(1912)14BOMLR14; 13Ind.Cas.851
AppellantGopal Ghela
RespondentRajaram Amtha
DispositionAppeal allowed
Excerpt:
dekkhan agriculturist' relief act (xviii of 1879), section 10a-indian evidence act (i of 1872), section 92-written document-oral evidence to vary its terms-fraud-procedural enactment-restrospective effect-second appeal-suit-appeal-(continuation of suit-construction of statute.;the provisions of section 10a. relate to procedure and, being restrospective in effect, apply to pending proceedings, whether in a suit or in an appeal.;the high court has power to apply the provisions of the section to a pending second appeal. - .....power to admit evidence of the kind mentioned in it 'whenever it is alleged at any stage of any suit or proceeding to which an agriculturist is a party' that any transaction in issue is in reality other than what it is ostensibly. is an appeal or a second appeal a stage of a suit or proceeding within the meaning of the section 15. in chinto joshi v. krishnaji narayan ilr (1879) 3 bom. 214, followed by sargent c.j. and nanabhai haridas j. in rustomji burjorji v. kessowji naik ilr (1884) 8 bom. 287 west j. said :-when judicial inquiry has reached its intended close in an adjudication, requiring thenceforward in theory only a ministerial or coercive exercise of authority to give it practical effect, the party who strives by an appeal to unsettle again the legal relation, which in itself.....
Judgment:

Chandavarkar, J.

1. Both the lower Courts have misunderstood the decisions of this Court on the question whether and when oral evidence is admissible to prove that what purports to be a deed of sale represents, according to the true intention of the parties, a transaction of mortgage. The effect of those decisions is that, where Section 10A of the Dekkhan Agriculturists' Relief Act does not apply, such evidence is admissible, under proviso 1 to Section 92 of the Indian Evidence Act, only when the element of fraud or other similar element mentioned in the proviso exists to invalidate the deed. The Subordinate Judge, First Class, who decided this case on appeal, has relied in support of his view on some dicta in one of the judgments in Sangita v. RamappaILR (1909) 34 Bom. 59 without carefully noticing their context; and the result of the Subordinate Judge's decision is that he has treated the deed of sale as one of mortgage on the evidence of a contemporaneous agreement between the parties contradicting the terms of the deed. That is not the law laid down in Sangira v. Ramappa.

2. The decree, therefore, would have to be reversed and the suit for redemption brought by the respondent dismissed, unless ' we allow the contention of his pleader that he is at this stage entitled to rely on and invoke the aid of Section 10A of the Dekkhan Agriculturists' Relief Act. That section was not in force in the District, from which this case comes, either when the suit was filed or when the appeal to the District Court was heard and decided. It has been applied to the District since the disposal of the appeal; and we are asked to confirm the decree on the ground of the section.

3. The question is whether in second appeal we have jurisdiction to give effect to the section, which is now part of the law of the District but which was not the law when the case was pending in either of the Courts below.

4. The section provides that the Court shall have power to admit evidence of the kind mentioned in it 'whenever it is alleged at any stage of any suit or proceeding to which an agriculturist is a party' that any transaction in issue is in reality other than what it is ostensibly. Is an appeal or a second appeal a stage of a suit or proceeding within the meaning of the Section 1

5. In Chinto Joshi v. Krishnaji Narayan ILR (1879) 3 Bom. 214, followed by Sargent C.J. and Nanabhai Haridas J. in Rustomji Burjorji v. Kessowji Naik ILR (1884) 8 Bom. 287 West J. said :-

When judicial inquiry has reached its intended close in an adjudication, requiring thenceforward in theory only a ministerial or coercive exercise of authority to give it practical effect, the party who strives by an appeal to unsettle again the legal relation, which in itself has by the act of the Court become settled, may fairly be regarded as instituting a new proceeding. Such has been the view of some eminent authorities. But even on that point there have been opinions to the contrary, which are supported by the consideration that the legal pursuit of a remedy, salt, appeal, and second appeal, are really but steps in a series of proceedings connected by an intrinsic unity.

6. This latter view has the sanction of some of the latest decisions of the Courts in England. In Hood Barrs v. Heriot [1897] A.C. 177, explained by Ridley J. in Nunn & Co. v. Tyson [1901] 2 K.B. 487, the House of Lords held that ' an appeal was nothing but a step in an action or proceeding already instituted, and was not the institution of fresh proceedings.' And Davey L. J. in his judgment in the former case in the Court of Appeal explained that 'an appeal is in reality in the nature of a defence by the person against whom an order has been made.' See Hood Barrs v. Cathcart [1894] 3 Ch. 376.

7. Whichever view we adopt, whether an appeal or second appeal is regarded as a fresh proceeding, not a continuation of the suit, or whether we treat it as a step in or stage of the suit itself, the result is the same for the purposes of Section 10A of the Dekkhan Agriculturists' Relief Act. It is either a stage of a suit or it is a fresh proceeding; and if the section is in force when the appeal or second appeal is pending, the Court has power to act upon its terms in deciding the appeal. The law embodied in the section is one of procedure, and, being retrospective in effect, applies to pending proceedings.

8. On these grounds, accepting the finding of fact of the Court below that the transaction in dispute, ostensibly a sale, represented a mortgage according to the true intention of the parties, we must confirm the decree with costs.


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