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Ganeshaiah Vs. Subba Bhatta and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 435 of 1953
Judge
Reported inAIR1958Kant6; AIR1958Mys6
ActsDebt Law; Mysore Agriculturists' Relief Act, 1928 - Sections 3, 4 and 4(2); Mysore Small Cause Courts Act - Sections 10 and 11; Code of Criminal Procedure (CrPC) , 1898 - Sections 439; Code of Civil Procedure (CPC), 1908 - Sections 115
AppellantGaneshaiah
RespondentSubba Bhatta and ors.
Appellant AdvocateR.V. Sreenivasiah, Adv.
Respondent AdvocateM.P. Somasekhara Rao, Adv.
Excerpt:
.....of the decree or order. when it provided for interference with the order of the lower court by the high court, it stated that the high court may satisfy itself as to the legality or pro propriety of the said finding or the regularity of the proceedings but it took care not to say that the high court could interfere if it is not satisfied merely with the correctness of the order in spite of the fact that the word correctness is found in the earlier part of the section, where it is stated that the correctness of the order shall not be called in question. it provided, for interference by the high court if in its opinion the legality, or pro propriety of the lower court is open to question and has resulted in a failure of justice',as observed by doraswami lyer c. the high court possesses..........lays down what may be said to be an exception to the rule in regard to findings in the course of a suit. in a suit of the ordinary kind the court has a discretion to give a finding on any issue at any stage or only in the judgment and such finding can be challenged in the appeal from the decree. a finding in a pending suit, for this reason and also because of the strict requirements of section 115 of the code of civil procedure relating to revision, is rarely interfered with in revision, such interference being confined to cases of extraordinary circumstances. what is stated in section 4 of the act is the reverse of this, as the question of status, if disputed must be decided first, the decision on the question cannot be challenged in the appeal from the decree passed in the suit and the.....
Judgment:

Mallappa, J.

1. This is a revision petition under Section 4. Sub-section 1 of the Mysore Agriculturists Relief Act against the order of the learned Subordinate Judge. Shi-moga, in C. Section No. 23 of 52-53 holding that the first defendant in that suit is not an agriculturist under the Agriculturists Relief Act.

2. It was urged in this case as is usual to urge in cases of this Kind that the revisional powers of this Court under Section 4, Sub-section 2 of the Mysore Agriculturists Relief Act to examine the evidence and to interfere with the finding of the Courts below on the question of fact concerning status are greater than the revisiona1 powers usually exercised in small cause cases.

The case relied on is the decision of Sreenivasa Rao J., reported in In re. Krishna Murthy, 15 Mys LJ 334 (A). Before considering that decision it is useful to compare 3. 4, Sub-section 2of the Mysore Agriculturists Belief Act with Section 10 of the Courts of Small Causes Act. According to Sections 10 and 11 of the Courts of Small Causes Act:

'The High Court, for the purpose of satisfying itself as to the correctness, legality or pro propriety of a decree or order made in any case decided by a Court of Small Causes, may call for the case and pass such order With respect thereto as it thinks fit.'

Section 11. 'Save as provided by this Act, a decree or order made under the forgoing provisions of this Act by a Court of Small Causes shall be final.'

According to Section 4. Sub-section 2 of the Mysore Agriculturists Relief Act:

'Notwithstanding anything to the contrary contained in this Act or in the Code of Civil Procedure, the finding of the Court of first instance on the issue of status shall be final and its correctness shall not be called in question in any appeal from the decree in the suit: Provided that the High Court may, for the purpose of satisfying itself as to the legality or pro propriety of the said finding or the regularity of the proceedings, call for the records and pass such order with respect thereto as lit thinks fit.'

It will thus be seen that no appeal lies against 0 decision as regards status under the Agriculturists Relief Act or against a decree or order made by a Court of Small Causes. The High Court can in revision interfere with the order or decree of a Court of Small Causes when it is not satisfied with the correctness, legality or pro propriety of the decree or order.

Interference by the High Court in revision under Section 4, Sub-section 2 of the Mysore Agriculturists Relief Act can only be justified if in the opinion of the High Court, the order of the lower Court as regards status lacks in legality or pro propriety or when the proceedings are not regular. Considering that even the word 'correctness' found in Section 10 along with the words 'legality or propriety' is not found in the corresponding portion of Sub-section 2 of Section 4 of the Agriculturists Relief Act, the contention, that the powers of the High Court to interfere with the decisions of fact on a question of status by the lower Courts In cases under Agriculturists Relief Act are greater than its powers to interfere with decisions in Small Cause Cases has no substance.

All that could be said is that there is not much difference between the revisional powers the High Court has in Small Cause Cases and its power in revision in cases under Section 4, Sub-section 2 of the Agriculturists Relief Act.

3. The Legislature evidently had its mind on the wording used in Sections 10 and 11 of the Court of Small Causes Act when it used the words 'correctness, legality, or propriety' in Section 4, Sub-section 2 of the Mysore Agriculturists Relief Act. The latter section has stated that an order of the Court of first instance on the issue of status, shall be final and its correctness shall not be called in question in any appeal.

When it provided for interference with the order of the lower Court by the High Court, it stated that the High Court may satisfy itself as to the legality or pro propriety of the said finding or the regularity of the proceedings but it took care not to say that the High Court could interfere if it is not satisfied merely with the correctness of the order in spite of the fact that the word correctness is found in the earlier part of the section, where it is stated that the correctness of the order shall not be called in question.

It is evident that the legislature intended that the words correctness and pro propriety do not convey the same meaning. In fact what is incorrect may not necessarily be what is improper. To interfere with the order, the High Court must find that the order is not merely not correct but that it lacks in pro propriety or legality or that there is something lacking in the regularity of the proceedings. The legislature evidently wants the question of status to be settled once for all by the order of the first Court unless there is something lacking in propriety, or legality or in the regularity of the proceedings.

If this has caused hardship It is for the legislature to remedy and it is not for the Courts to improve OH what the legislature enacts. If the legislature wanted the matter to be disposed of Quickly as if the entire matter was in appeal it could have easily provided for the filing of an appeal directly to the High Court on payment of a nominal Court-fee. It provided, for interference by the High Court

'If in its opinion the legality, or pro propriety of the lower Court is open to question and has resulted in a failure of justice',

as observed by Doraswami lyer C. J., in K. Dhasanappa v. Venkatappa, 38 Mys HCR 275 (B), and the scope for interference by the High Court is not to any extent greater than its scope to interfere with the judgments and decree in small cause cases.

4. The decision in 15 Mys LJ 334 (A), appears at first sight to support the contention put forward that the power of interference is greater under the Agriculturists Relief Act than the revisional powers in Small Cause Cases. But a careful reading will show that this decision of Sreenivasa Rao J., relies on a decision of Chart J., in Shivalingappa v. Holebasappa Gowda, 39 Mys HCR 853 (C), which in turn relies on the decision of Doraswami lyer C. J., in the case reported in 38 Mys HCR 275 (B).

Doraswami lyer C. J., Observes;

'The practice of this Court, in the exercise of its revisional powers under Section 10 of the Small Cause Courts Regulation or Section 439, Criminal Procedure Code, is not to interfere generally with findings of fact based purely on a consideration of the evidence; but those powers are wide enough to permit the High Court going into evidence where it considers that it is necessary to do so in the ends of justice.

The High Court possesses ample discretionary powers to examine the evidence, and pass such orders as it thinks fit, if, in its opinion the legality or the pro propriety of the finding of the lower Court is open to question and has resulted in a failure of Justice. I think that the proviso to Section 4 (2) of the Agriculturists' Relief Regulation should, receive the same liberal construction.'

It will thus be noticed that neither Doraswami lyer C. J., nor Sreenivasa Rao J., has gone to the length of holding that revisional powers under Section 4 (2) of the Agriculturists Relief Act are greater than the revisional powers this Court has in interfering with the decisions on questions of fact in Small Cause Cases.

5. In effect whether it is in Small CauseCases or whether it is in cases under Section 4 (2) ofthe Agriculturists' Relief Act, this Court will notInterfere with the decision of the lower Courtwhen it is possible to take two different views on the evidence on record and the view taken by the lower Court is one of them while the High Court might prefer to take the other view.

The High Court will interfere however even on the findings of fact given by the lower Courts, when the conclusion arrived at by them lacks in legality, when the finding is based on either inadmissible evidence or on misreading of evid. ence, when facts admitted are not taken note of in considering the point for decision when it is based on matters not in evidence and when the view taken by the lower Court lacks in pro propriety and could be said to be such as no reasonable man could have taken on the evidence available.

6. In this case the learned Subordinate Judge has unfortunately committed the mistake of basing his conclusion, first by misreading evidence, secondly on omitting to take note of admissions made on the side of the plaintiffs witnesses and thirdly by basing his decision on incorrect data. He begins by saying; that the yield from the land is 30 maunds of areca taking the extent of the garden as 38 guntas, while admittedly the land measures only 30 guntas. He states:

'For concluding that the defendant grows 30 maunds of areca, I rely upon the testimony of D. Ws. 1 to 3 who have stated that 32 to 50 maunds grow per acre.'

D. W. 1 says that the yield of the garden is 25 maunds, while D. W. 2 clearly states that in the suit garden the defendant grows only 22 or 27 maunds of areca of ordinary variety. D. W. 3 says that the defendant grows 18 to 20 maunds. It is no doubt true that they say in cross-examination what they grow in their own land gardens something more than what the defendant grows in his garden. The yield in different gardens depends upon the nature of the soil and other conditions and the learned Subordinate Judge was wrong not only in assuming that the yield in the defendants' land is the same as that obtained by the D. Ws. in their lands, but also in taking the extent of the defendants' land as 38 guntas though admittedly it is SO guntas.

As regards the value of areca the learned: Subordinate Judge says:

'For concluding that the areca is sold at Rs. 35/- per maund, I depend upon the testimony of D. W. 1, since this representation made by him is conclusively proved by Ex. A series the 'B' cheques produced by P W. 4 the areca merchant'.

In his cross-examination D. w. 1 has no doubt stated 'last year areca was sold at Rs. 50/- For sometime it was selling at Rs. 30/- or Rs. 35/-.' That is made clear in re-examination that only good quality used to be sold at the above rates. It is in the evidence of D. w. 2 that the areca grown by the defendants is of ordinary verity and according to the evidence of D. W. 1 what is raised by defendants sells at Rs. 22/- or Rs. 23/-per maund. Tt will thus be noticed that the evidence of D. W. 1 is misread as an admission, as regards the Quantity or price of areca raised by the defendants.

As regards the evidence of P. W. 4, it will be noticed that the suit was filed on 9-9-1952. What he calls as 'B' cheques do not refer to the sale of areca at any time even within six months before or after the date of the Institution of the suit. Moreover, the learned Subordinate Judge should not have failed, to notice that the plaintiff has claimed by way or mesne profits Rs. 900/- for the three years prior to suit.

Taking the evidence of the D. ws. into consideration the total yield could not have been more than Rs. 500/- in respect of areca per year, and the yield of other produces such as coffee, plantains lime, pepper etc-, could not have been more than Rs. 100/-. In fact the learned Subordinate Judge also committed a serious blunder in taking into consideration the yield of some other lands which were admitted, at the time of the arguments, to be not in the possession of the defendants. The evidence of P. W. 4 has already been considered.

The evidence of P. Ws. 1 to 3 discloses that they are interested. P. W. 1 says that the first defendant does not possess any land or garden other than the suit land. Their cross-examination shows that they have no personal knowledge of the yield from the defendant's land. The learned Subordinate Judge should not have omitted to take note of the fact that P. W. 2 a close relative of the plaintiff himself stated that the total income of the first defendant is Rs. 1000/- per year, and even according to this admission the first defendant cannot but be held to be an agriculturist under the Mysore Agriculturists' Relief Act.

7. The revision petition Js allowed and the order in revision is set aside. The First Defendant is held to be an agriculturist under the Mysore Agriculturists' Relief Act. The learned Subordinate Judge will proceed with the Suit in the light of the above finding.

Venkata Ramaiya, J.

8. This is an application for revision of the finding in a suit pending in the Court of the Sub Judge, Shimoga, that defendant is not an agriculturist as defined in the Agriculturists Relief Act, Misappreciation of evidence being the ground on which the finding is attacked, the learned Judge before whom the case was posted for hearing felt that the question as to how far this can serve as a justification for interference with the finding in revision needs elucidation and so the case was referred to a Division Bench for disposal.

9. According to the rule applicable generally to cases in which powers of revision are invoked findings of fact based on appreciation of evidence are not liable to be interfered with save in cases where such appreciation is deemed to be grossly erroneous Or perverse. The question is whether the rule is the same or different, when revision is sought for under Section 4 of the Mysore Agriculturists' Relief Act, which reads as follows :

'(1) When in any suit under Section 3 a question Is raised as to the-status of a party as an agriculturist, the Court shall try that question as a preliminary issue and record its finding thereon.

(1-A) Notwithstanding anything to the contrary contained in this Act, the question as to the status of a party as an agriculturist shall be raised at the earliest possible opportunity in suits filed after 30th April. 1937.

(2) Notwithstanding anything to the contrary contained in this Act or in the (Code of Civil Procedure, 1908), the finding of the Court of first instance on the issue of status shall be final and its correctness shall not be called in question in any appeal from the decree in the suit; Provided that the High Court may for the purpose of satisfying itself as to the legality or pro- propriety of the said finding or the regularity of the proceedings call for the records and pass such order with respect thereto as it thinks fit.'

In 38 Mys HCR 275 (B) dealing with similar application for revision under this section, Doraswamy lyer C. J. observed that the words employed therein are analogous to those in Section 10 of the Mysore Small Cause Courts Act and Section 439 of the Criminal Procedure Code and that these should receive the same liberal construction as is given to those and that the words are wide enough to permit the High Court going into-evidence where it considers that it is necessary to do so in the ends of justice.

After discussion of the evidence adduced by the defendant, the finding of the lower Court was upheld in that case This case has been referred to in 39 Mys HCR 853 (C) by Chari J. and in 15 Mys LJ 334 (A) by Srinivasa Rao J. but the scope of the powers under the Section is not examined. A comparison of Section 4 of the Agriculturists' Relief Act with Section 10 of the Small Cause Courts Act no doubt shows that substantially if not wholly the two are the same for the purpose of the present question. Instead of the word 'correctness' with 'legality or pro propriety as in Section 10 of Small Cause Courts Act there are the-words 'regularity of the proceedings' in Section 4 of the Agriculturists' Relief Act and 'propriety' of a finding involves or implies consideration of its correctness. Similar interpretation is possible if the two statutes are in pari materia.

As expressed by Lord Esher M. R. in Hodgson v. Bell, (1890) 24 QBD 525 (D) at P. 528

'It is a rule of construction that where you find a construction has been put upon words in a former Act which is in pari materia with the one under consideration and when you find that the same words are used in the later Act as in the former, you must apply the same construction to the later Act'.

Even otherwise the same words may receive a different construction in different statutes as stated bv Best C. J. in Wynne v Griffith, (1825) 3 Bing 179 at p. 196 (E). The important factors to be borne in mind while in interpreting the section are, as enunciated by Lord Blackburn in Edinburgh Street Tramways Co. v. Torbian, (1877) 3 AC 58 at p. 68 (F).

'We are to see what is the intention which the legislature has expressed by the words; but then the words again are to be understood by looking at the subject matter they are speaking of and the object of the Legislature, and the words used with reference to that may convey an intention quite different from what the selfsame act of words used in reference to another set of circumstances and another object would or might have produced'.

The Small Cause Courts Act cannot be said to be in pari materia with the Agriculturists' Relief Act. The former provides a simple and summary procedure for suits of a simple and specified class and the decisions therein are not subject to appeal. The Agriculturists' Relief Act on the other hand provides a special procedure for investigation of claims by or against an agriculturist, directs every suit in which an agriculturist is a party even though it is cognizable in the Small Cause Court to be tried as an original suit so that the decree passed therein is appealable, allows relaxation of the rules of evidence and prescribes the grant of facilities or concessions for discharge of liability where by virtue of the Act, the application of the Small Cause Courts Act to an agriculturist is excluded, Section 10 of Small Cause Courts Act can be of no guidance for interpretation of Section 4 of the A. B. Act.

10. Apart from the language of the Section, it lays down what may be said to be an exception to the rule in regard to findings in the course of a suit. In a suit of the ordinary kind the Court has a discretion to give a finding on any issue at any stage or only in the judgment and such finding can be challenged in the appeal from the decree.

A finding in a pending suit, for this reason and also because of the strict requirements of Section 115 of the Code of Civil Procedure relating to revision, is rarely interfered with in revision, such interference being confined to cases of extraordinary circumstances. What is stated in Section 4 of the Act is the reverse of this, as the question of status, if disputed must be decided first, the decision on the question cannot be challenged in the appeal from the decree passed in the suit and the only remedy for the person aggrieved is revision by this Court of the finding.

11. The question whether or not a person is an agriculturist is essentially and often one of fact to be determined on a consideration of the evidence and as such if the High Court is restricted, as in other cases of revision, in looking into the evidence and cannot pass such order as Is justified or necessary in its view of the evidence the remedy would be almost illusory.

I do not think that on the important question of status which affects the character of the suit the period of limitation, evidence which may be let in, and the reliefs to be granted, the finding of the trial Court is meant to be immune from full scrutiny by this Court though it is based only on appreciation of evidence. A doubt may arise as to why, if such was the intention, the finding of the trial Court is not declared to be appealable.

As 'already pointed out Section 4 is an exceptional provision and having regard to the object of the Act, it has to be construed as affording an ex-peditious and economical method of settlement of the status of a party to the suit. In my opinion the powers of this Court for revision of the finding on the question of status of a party as an agriculturist in any suit are more extensive than in cases where revision of judgment in a small cause suit is sought and the Court of revision is entitled to examine the evidence, to set aside the finding if it is considered to be not warranted by the evidence and give such finding as it deems proper.

12. On the merits of the care I agree to theorder proposed to be passed by my learned bro-ther.

13. Revision allowed.


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