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Naganath and ors. Vs. Khandaba Balaba Misal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1108 of 1960
Judge
Reported inAIR1961Kant101; AIR1961Mys101
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 13, Rule 2
AppellantNaganath and ors.
RespondentKhandaba Balaba Misal
Advocates:M. Krishnaswami, Adv.
Excerpt:
.....under section 35(1) or under section 35(2) of the karnataka court fees & suits valuation act, 1958 held, merely because the trial court has held that plaintiff is not in possession and has been excluded from possession there will be no change in the court fee payable in the appeal filed by the plaintiff against the decree passed by the trial court . the court fee payable on appeal is the same as the court fee paid on the plaint in the court of first instance i.e., in terms of section 49 of the k.c.f. &s.v. act, 1958. office objection is unsustainable. -- karnataka court fees & suits valuation act, 1958.[k.a. no. 16/1958]. section 41: regular first appeal court fee in appeal - suit for partition and separate possession - payment of court fee of rs.200/-on the plaint under section 35(2) ..........former case a preliminary decree passed on a compromise had made no provision for payment of any mesne profits by one party to the other. subsequently the parlies applied for mesne profits and as they could not come to an agreement on the point, the court appointed a commissioner to determine the amount of mesne profits.the commissioner determined the amount. one of the objections raised by the defendant was that the compromise decree did not provide for payment or ascertainment of any mesne profits and that therefore the proceedings relating to mesne profits were ultra vires. this objection was upheld by the court which was presided over at that time by another judge.on appeal it was held by the oudh chief court that the order was without jurisdiction. the case reported in air 1939.....
Judgment:
ORDER

1. This is a revision petition against the order of the learned Civil Judge, Junior Division, Gadag, reconsidering a previous order and allowing the plaintiff to produce certain, documents on an application made by the plaintiff under Order 13 Rule 2 and Section 151, C. P. C. The defendant, who is a minor represented by his guardian-ad-litem, is the Petitioner and challenges the order as one made without jurisdiction on the ground that the learned Judge had no jurisdiction to review a previous order, particularly when it had been made By his predecessor-in-office.

2. The learned Advocate relies upon the decisions reported in Sri Krishen v. Jamna Narain, AIR 1938 Oudh 103 and Mir Haji Ghulam v. Khan-chand Gopaldas, AIR 1939 Sind 137. In the former case a preliminary decree passed on a compromise had made no provision for payment of any mesne profits by one party to the other. Subsequently the parlies applied for mesne profits and as they could not come to an agreement on the point, the Court appointed a Commissioner to determine the amount of mesne profits.

The Commissioner determined the amount. One of the objections raised by the defendant was that the compromise decree did not provide for payment or ascertainment of any mesne profits and that therefore the proceedings relating to mesne profits were ultra vires. This objection was upheld by the Court which was presided over at that time by another Judge.

On appeal it was held by the Oudh Chief Court that the order was without jurisdiction. The case reported in AIR 1939 Sind 137 related to a we where a Judge who was a successor-in-office set aside an order of his predecessor dismissing the suit against one of the defendants in the suit. It was held by the Sind Judicial Commissioner's Court that the order was without jurisdiction.

3. It will be noticed that both the cases re-late to final orders having the effect of decrees. On the other hand the court below has referred to a number of decisions in which it has been held that a Court is competent to reconsider and modify its own orders and that it is even open to a succession office to do so. The real test appears to me to be the nature of the order.

If it relates merely to the issue of process for summoning witnesses or for production of evidence not having the effect of a final decision, there can be no impediment for a Court to reconsider the order. Such an order is in the nature of a Chamber order such as is referred to in Yusuf I. A. Lalji v. Abdullahhoy Lalji (No. 1J, 32 Bom LR 665 : (AIR 1930 Bom 294) and the matter is within the discretion of the Court. The learned Judge has narrated the circumstances of the case and has given reasons for his allowing the production of the documents.

4. I see no reason to interfere with his discretion. This revision petition is accordingly dismissed.

5. Petition dismissed.


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