Skip to content


Radha Bai Vs. Banka Chinnayya and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 589 of 1962
Judge
Reported inAIR1968AP353
ActsTenancy Law; Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 - Sections 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 19(1), 32, 35, 37, 38(8), 38A, 89, 89(1), 89(2), 90, 91, 92, 98 and 99; Code of Civil Procedure (CPC), 1908 - Sections 9, 91, 107, 114, 115, 146 and 151 - Order 9, Rules 9 and 13 - Order 15, Rule 16 - Order 21, Rule 58 - Order 41, Rules 10, 21 and 23 - Order 47, Rule 1; Hyderabad Land Revenue Act, 1317F - Sections 149 and 150; Provincial Small Cause Courts Act, 1887 - Sections 25; Hyderabad Houses (Rent, Eviction and Lease) Control Act - Sections 19 and 20; Industrial Disputes (Appellate Tribunal) Act - Sections 9(1); Bombay Tenancy and Agricultural Lands Act - Sections 75 and 76; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control A
AppellantRadha Bai
RespondentBanka Chinnayya and ors.
Appellant AdvocateP. Balakrishnamurty, ;Y. Sivarama Sastry and ;A.V. Subbarayudu, Advs.
Respondent AdvocateV. Madhava Rao, Adv.
DispositionPetition dismissed
Excerpt:
tenancy - transfer of right - sections 89 (2) and 92 of andhra pradesh (telangana area) tenancy and agricultural lands act, 1950, section 146 of code of civil procedure, 1908 and sections 149 and 150 of hyderabad land revenue act - after death of tenant tenancy rights transferred to third person - appellant member of joint family of tenant prayed for permission to file appeal - collector exercising appellate jurisdiction had power to set aside order appealed against - held, appellant were entitled to file appeal as they were proper parties to be brought on record. - - 13. strong reliance has been placed by the learned counsel for the petitioner on the decision of satyanarayana raju, j. a dispute like the one before us is outside the purview of the act and cannot, therefore, be.....seshachalapati, j. 1. this revision petition originally was heard by our learned brother, venkatesam, j. the scope and effect of section 89 (2) of the andhra pradesh (telangana area) tenancy and agricultural lands act, 1950 (hereinafter referred to as 'the act') fell to be decided by him. in the arguments addressed before the learned judge, various decisions of this court were cited including two unreported bench decisions, viz., g. veera ready v. b. venkayya, c.m.p. no. 5309 of 1960 in c.r.p. no. 2089 of 1957 (a.p.) and t. shankaraiah v. laxmamma, c.r.p. no. 1911 of 1963 (a.p.). the first-decision was not brought to the notice of the bench that decided the second case and also certain earlier decisions were pot brought to the notice of the bench that decided the first case. the learned.....
Judgment:

Seshachalapati, J.

1. This revision petition originally was heard by our learned Brother, Venkatesam, J. The scope and effect of Section 89 (2) of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as 'the Act') fell to be decided by him. In the arguments addressed before the learned Judge, various decisions of this Court were cited including two unreported Bench decisions, viz., G. Veera Ready v. B. Venkayya, C.M.P. No. 5309 of 1960 in C.R.P. No. 2089 of 1957 (A.P.) and T. Shankaraiah v. Laxmamma, C.R.P. No. 1911 of 1963 (A.P.). The first-decision was not brought to the notice of the Bench that decided the second case and also certain earlier decisions were pot brought to the notice of the Bench that decided the first case. The learned Judge though) that there was a conflict between the two unreported Bench decisions relating, to a matter of procedure and referred the revision petition to a Full Bench for disposal.

2. The facts leading up to the filing of the present revision petition may be stated briefly: The revision petitioner, Radha Bai, is the landholder and pattadar of S. Nos. 205, 208, 209, 222 and 223 of Choudur village measuring 48 acres and 5 gunthas. These survey numbers were being cultivated by one Banka Pochaiah in whose name a tenancy certificate was duly issued. After his demise, his son and his widow (respondents 3 and 4 in this revision petition) filed an application in the office of the Tahsildar, Shadnagar, on 27-9-1961, surrendering the tenancy rights in the survey numbers aforesaid on the ground that, after the death of Pochaiah, they were not able to cultivate the lands. By an order dated 30-10-1961, the Tahsildar allowed the application for relinquishment of tenancy rights in favour of the pattadar and an order dated 8-11-1961 was issued to the Girdavar, Choudur Range to put the landholder, Radha Bai, in possession of the said survey numbers. Thereupon, Banka Chinnayya and Banka Jangilayya (respondents 1 and 2 in this revision petition) filed an appeal in the Court of the Joint Collector, Mahboobnagar District, alleging that Banka Pochaiah in whose name the tenancy certificate was issued, and they constituted members of a joint family; that after the death of Pochaiah, they were cultivating the lands; that the surrender application given by Balamma and Manumaiah was not known to them; that, in any case, it was not binding on them; and that they may be permitted to file an appeal. The Joint Collector, Mahaboobnagar, by his order dated 22-3-1962 held that, from the report of the Revenue Inspector dated 2-1-1962, it was clear that the appellants before him, Banka Chinnaiah and Banka Jangilaiah, were the brothers of Banka Pochaiah and Joint tenants with him of the holding in question and that they should be given permission to file an appeal. Accordingly, he set aside the order of the Tahsildar directing the surrender of possession of the said survey numbers to the landholder and remanded the case to the Tahsildar for fresh enquiry and disposal according to law. It is this order of the Joint Collector that is put in challenge in the present revision petition.

3. The main contentions of the learned counsel for the petitioner, Mr. Balakrishnamurthy, before us are:

(1) that Section 89 (2) of the Act does not confer on the authorities under the Act all powers under the Civil Procedure Code;

(2) that respondents 1 and 2 cannot be regarded as claiming through respondents 3 and 4 within the meaning of Section 146 of the Code of Civil Procedure;

(3) that respondents 1 and 2, not being parties to the proceedings, cannot file an appeal; and

(4) that the order of remand made by the Collector is outside the scope of the jurisdiction of the authority under Section 92 of the Act.

4. On the contrary, Mr. Madhava Rao, the learned counsel for the respondents, has contended that respondents 1 and 2 could file an appeal before the Collector with the leave of the Court even though they were not eo nomine parties to the proceedings before the Tahsildar and that the order of remand of the case made by the Collector is valid and sustainable as the power to remand is inherent in any Court or tribunal exercising appellate jurisdiction. He also contended that there was no conflict between the two unreported decisions in C.M.P. No. 5309 of 1960 in C.R.P. No. 2089 of 1957 (A.P.) and C.R.P. No. 1911 of 1963 (A.P.) and that, even it there was such a conflict, the decision of Manohar Pershad and Chandrasekhara Sastry, JJ., in C.M.P. No. 5309 of 1960 in C.R.P. No. 2089 of 1957 (A.P.) is correct is being supported by the decisive authority of the Supreme Court.

5. Before dealing with the rival contentions urged by the learned counsel in the context of the decisions cited at the Bar, it may be useful to refer to some of the principal provisions of the Act. The prime internment of the Act, as disclosed in the preamble, is to regulate inter alia the relations of landholders and tenants of agricultural land and the alienation of such land. Section 2 (v) defines the tenant as meaning an asami shikmi who holds land on lease and includes a person who is deem ed to be a tenant tinder the provisions of the Act. Section 5 enumerates the categories of persons who shall be deemed to be tenants. Sections 6 to 18 deal with the leases, the payment of the rent, etc. Section 17 provides (or an application by the landholder or tenant for determining the reasonable rent. Section 19 deals with the termination of the tenancy. Chapter V of the Act deals with the protected tenants. Chapter IX deals with the procedure and powers of the authorities and appeals, etc. Section 89 deals with the procedure and powers of the authorities. Section 90 pro vides for appeals and revisions. Section 91 provides for a revision to the High Court from any final order passed on appeal by the Collector or Board of Revenue on grounds analogous to Section 115 of the Civil Procedure Code. Section 92 deals with the powers exercisable in revision. Section 99 enacts an express bar to Civil Courts exercising jurisdiction in matters which required under the Act to he settled by the Tahsildar, Tribunal, Collector, Boardof Revenue or Government whose orders cannot be questioned in any Civil or Criminal Court.

6. Mr. Balakrishnamurthy contends that the appeal would appear to have been entertained by the Collector under a this apprehension that the provisions of the Civil Procedure Code would apply. According to him, those provisions do not apply save and except in a limited sense. This part of the argument of the learned counsel turns upon the actual language of Section 89. Section 89 is in these terms:

'89 (1) The provisions of Sections 149 and 150 of the Land Revenue Act shall apply to the recording of evidence and of decisions at inquiries held under this Act.

(2) For the purposes of any such inquiry the Tahsildar, Tribunal and Collector may exercise all or any of the powers conferred on Civil Courts by the Code of Civil Procedure, 1908, including the powers to award costs.'

7. The learned counsel for the petitioner has contended before us that Sub-section (2) of Section 89 must be read in the context of Sub-section (1) and that, when so read, the powers exercisable by the Tahsildar, the Tribunal and the Collector are not the general powers conferred on the Courts by the Civil Procedure Code. This contention is based upon a misapprehension of the scope of Sections 149 and 150 of the Land Revenue Act (Act No. 8 of 1317 Fasli). Section 149 of the said Act provides that, in it formal inquiry, the officer making the inquiry shall, in his own hand, take down the evidence in full in Urdu or cause it to be recorded in his presence and personal superintendence and sign it. It is also provided that, in cases where the officer making the inquiry is not able to take down the evidence in his own hand, he shall, as the examination of the witness proceeds, in his own hand make a memorandum of the substance of what he deposes and after signing it cause it to be put on the file and where the officer is not able to make a memorandum as required, the reasons therefor shall be recorded. Section 150 of the said Act renders it obligatory for the officer authorised to make enquiries to write every decision in his own hand with a record of full statement of the grounds on which his decision is based. These two provisions are obviously designed only to invest the recording of evidence and the rendering of decision with a high degree of formality. The argument that Sub-section (2) of Section 89 of the Tenancy and Agricultural Lands Act should be read as referring to the enquiries under Sections 149 and 150 of the Land Revenue Act is manifestly untenable. All that Sub-section (1) of Section 89 provides for that the procedure prescribed in Sections 149 and 150 of the Land Revenue Act shall apply to the recording of evidence and decisions in enquiries held under the Act.

8. Sub-section (2) of Section 89 must be given its proper meaning and effect. The language of Sub-section (2) of Section 89 is wide hi its scope and there is no warrant for reading any words of limitation therein.

9. Mr. Balakrishnamurthy has drawn our attention to certain decisions of this Court which have taken a restricted view of the scope of Section 89 (2) of the Act. The first decision cited was of Bhimasankaram, J., in Saraswati Bai v. Ramaiah, 1960-1 Andh WR 454. In a revision petition filed under Section 91 of the Act, the learned Judge had to consider whether, in the absence of the appellant, the District Collector could decide the appeal on merits. The learned Judge held that he could do so unless the specific provisions of the Civil Procedure Code relating to the dismissal for default such as Order 9, Rule 9 and Order 41, Rule 10, C.P.C., are made applicable or similar provisions are made in the Act. In taking that view, the learned Judge observed that the powers conferred on the authorities under the Act are only powers necessary for the purpose of carrying on the enquiry successfully such as the power to issue summons, to direct discovery, to ask a person to produce a document, to impose penalties for non-compliance with such orders etc.

10. It may be observed that before the learned Judge, the two decisions of the Supreme Court in Martin Burn Ltd. v. R. N. Banerjee, : (1958)ILLJ247SC and Meenakshi Mills Ltd. v. Their Workmen, : (1958)ILLJ239SC , which have given to statutory provisions analogous to Section 89 (2) of this Act a much wider scope and meaning, had not been cited.

11. Our attention was also drawn to the decision of Syed Qamar Hasan, J., in Chinna Reddy v. Chinna Reddy, 1959-1 Andh WR 329. In that case, a revision petition filed under Section 91 of the Hyderabad Tenancy and Agricultural Lands Act was allowed ex parte. One of the respondents filed an application for setting aside the ex parte judgment and for rehearing of the revision petition. The learned Judge held that such an application cannot be entertained and that the powers conferred upon the Appellate Court under Order 41, Rule 21, C.P.C., have not mutatis mutandis been made applicable to the revisions filed under Section 91 of the Act, The learned Judge rejected the contention based upon Rule 41-B of the Appellate Side Rules. Andhra Pradesh, on the ground that those rules are referable only to revisions filed under Section 115, C.P.C., or Section 25 of the Provincial Small Cause Courts Act, 1887. Before the learned Judge also, the two decisions of the Supreme Court had not' been cited. Quite apart altogether from that circumstance, it seems to us that where the ordinary Courts arc seized of appeals or revisions arising under Special Act, it is the procedure applicable la those Courts that must govern. In Adaikappa v. Chandrasekhara, AIR 1948 PC 12, the Privy Council observed:

'The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.'

In such a view, it would be competent for the High Court to entertain an application for setting aside an ex parte order. With respect to the learned Judge, we are, therefore, not in agreement with his view.

12. Reference also was made to the decision in Ghulam Ghouse v. Collector, Dist. Medak, 1958-1 Andh WR 507 = (AIR 1958 Andh Pra 442), rendered by Qamar Hasan and Kumarayya, JJ., where Sees. 19 and 20 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act fell to be considered. The question that fell to be decided by the learned Judges was whether or not an ex parte order could have been set aside by the Rent Controller. The learned Judges held that Order 9, Rule 13, C.P.C. had no application. This decision is of little bearing on the question we have to decide.

13. Strong reliance has been placed by the learned counsel for the petitioner on the decision of Satyanarayana Raju, J. (as he then was) and Kumarayya, J., in C.R.P. No. 1911 of 1963 (A.P.), where the learned Judges would appear to have approved of the decision of Bhimasankaram, J., in 1960-1 Andh WR 454 and the decision in 195S 1 Andh WR 507 = (AIR 1958 Andh Pra 442).

14. It is necessary to examine the facts involved in the decision of Satyanarayana Raju and Kumarayya, JJ., in C.R.P. No. 1911 of 1963 (A.P.), as it has been stated that this decision is in conflict with another Bench decision of this Court in C.M.P. No. 5309 of 1960 in C.R.P. No 2089 of 1957 (A.P.) decided by Manohar Pershad and Chandrasekhara Sastry JJ. The facts in C.R.P. No. 1911 of 1963 (A.P.) are briefly these: The petitioners in that revision petition filed an application before the Deputy Collector under Section 98 of the Act for recovery of possession of the land. That petition was allowed. In appeal, the order of the Deputy Collector was affirmed by the District Collector. Accordingly, the petitioners were given possession of the land. Subsequently, the first respondent in the revision petition filed a petition before the Deputy Collector for possession contending that she was the landholder and that the second respondent was her tenant. That application was purported to have been filed under Order 21, Rule 58, C.P.C.

The Deputy Collector rejected the petition on the ground that the dispute between the petitioners and the respondentswas outside the purview of the Act and that Order 21, Rule 58, C.P.C., could not be invoked. In appeal from the order of the Deputy Collector, the Collector allowed the appeal holding that the petitioners in the revision petition were not the pattadars of the land; that the first respondent was the inamdar and that the second respondent was in possession of that land as her protected tenant by virtue of a tenancy certificate issued under Sections 35 and 37 of the Act. Satyanarayana Raju, J., who spoke for the bench, held that the dispute out of which the revision petition arose was a dispute between the two landholders and that, for such a determination, there was no provision in the Tenancy Act. In fact, it would appear that the counsel for the respondents had conceded that, barring Section 38-A of the Act, there was no provision which expressly bars the jurisdiction of the Civil Courts with regard to a dispute between two persons each of whom claims to be a landholder. In that view, the learned Judges held that the matter could only be agitated in a Civil Court in an appropriate suit and that such a suit would not be either expressly or impliedly barred under Section 9 of the Civil Procedure Code. The learned Judges observed:

'As we have already indicated, there is no provision in the Act which provides for the decision of disputes between two rival landholders, save in the case provided by Section 38 (8) of the Act. If so much is conceded, as indeed it was, there can be no difficulty in holding that the dispute arising between the petitioners and the respondents is one which is outside the purview of the Act and it could, therefore, be taken cognizance by the ordinary Civil Court. A dispute like the one before us is outside the purview of the Act and cannot, therefore, be 'settled or decided' by the Tribunals created under the Act.'

It now remains to consider the decision of Manohar Pershad and Chandrasekhara Sastry, JJ., in C.M.P. No. 5309 of 1960 in C.R.P. No. 2089 of 1957 (A.P.). That case arose under the following circumstances: An application for review of the judgment of Srinivasachari, J., in C.R.P. No. 2089 of 1957 was made under Order 47, Rule 1, and Section 114, C.P.C. At the hearing of the petition, a preliminary objection was taken that, as the revision was filed under Section 91 of the Hyderabad Tenancy and Agricultural Lands Act, a petition for review would not lie. The matter having been referred to the Bench by the learned Judge, a decision was rendered by Manohar Pershad and Chandrasekhara Sastry. JJ. Chandrasekhara Sastry, J., who spoke for the Bench, held that, by reason of the terms of Section 89 (2), the Tahsildar, the Tribunal and Collector are invested with all the powers conferred on the Civil Courts by the Code of Civil Procedure and that the High Court, acting in revision under Section 91 and the appellate authority under Section 92 have all the powers of the original authority vested in the tatter by Sub-section (2) of Section 89. That being so, it was held that the power, to review its own judgment is exercisable by the High Court. In coming to that conclusion, the learned Judges relied upon two decisions of the Supreme Court: The first case is : (1958)ILLJ247SC . In that case, their Lordships had to consider the scope of Sub-section (1) of Section 9 of the industrial Disputes (Appellate Tribunal) Act, which provides that the Appellate Tribunal shall have the same powers as tire vested in a Civil Court, when hearing an appeal, under the Code of Civil Procedure, 1908. Bhagwati, J., who spoke for the Bench, in construing the Sub-section, held that:

'Whatever the jurisdiction the Labour Appellate Tribunal is exercising--whether original or appellate--it is vested with the powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, when latter is hearing an appeal.' In the other case decided by the Supreme Court in : (1958)ILLJ239SC , a question arose as to whether the Appellate Tribunal had power to review its own order. After citing with approval the decision in : (1958)ILLJ247SC , Gajendragadkar, J. (as he then was) observed:

'It is true that in this case there was no occasion to consider the applicability of the provisions of Order 47 of the Code but that does not make any difference. If the Code of Civil Procedure applies to the proceedings before the Labour Appellate Tribunal, it is clear that the provisions of Order 47 would apply to these proceedings as much as Section 151 of the Code or the provisions of Order 41. We must accordingly hold that the Appellate Tribunal erred in law in coming to me conclusion that it had no jurisdiction to review its own order under the provisions of Order 47 of the Code.'

Referring to these two decisions of the Supreme Court. Chandrasekhara Sastry, J., observed that they put the matter beyond controversy. We are in agreement with that view.

15. It now remains to consider whether there is any conflict between the decision of Satyanarayana Raju and Kumarayya, JJ., in C.R.P. No. 1911 of 1963 (A.P.) and the decision of Manohar Pershad and Chandrasekhara Sastry, JJ., in C.M.P. No. 5309 of 1960 in C.R.P. No. 2089 of 1957 (A.P.). From what has been stated above as to the nature of these two decisions and the facts upon which the decisions were rendered, there does not appear to be any conflict. It is a well-established principle of law that every decision is an authority for what it exactly decides. All that was decided in C.R.P. No. 1911 of 1963 (A.P.) was as conceded by the counsel, that there was no provision in the Act for the determination of the claims of two rival landholders and that it has no direct bearing upon the scope and effect of Sub-section (2) of Section 89of the Act. It is true that the decision of Manohar Pershad and Chandrasekhara Sastry, JJ., in C.M.P. No. 5309 of I960 in C.R.P. No. 2089 of 1957 (A.P.) was not (sited before the learned Judges who decided C.R.P. No. 1911 of 1963 (A.P.). But that circumstance may not be of any importance as the question that fell to be decided by them was different. There are however, some observations in the judgment, which may be construed as limiting the scope and effect of Section 89 (2). We find no warrant for such a limitation. We arc in agreement with the view taken by Manohar Pershad and Chandrasekara Sastry, JJ. in C.M.P. No. 5309 of 1960 in C.R.P. No. 2089 of 1957 (AF), that Section 89(2) confers on the Tahsildar, the Tribunal and the Collector all the powers conferred on the civil Courts by the Code of Civil Procedure.

16. The next contention of Mr. Balakrishna Murthy is that, even on the assumption that the terms of Section 89 (2) should be given a wide interpretation, the present appeal before the Collector is incompetent. It is argued that respondents 1 and 2 are not persons who are claiming under the parties to the proceedings before the Tahsildar within the meaning of Section 146 of the Code of Civil Procedure Reliance in this connection was placed upon the decision of Patanjali Sastry, J., (as he then was) in Ratnasabapathi v. Gopala Iyer, AIR 1940 Mad 876 It is true that respondents 1 and 2 are NOT claiming under Balamma and Hanumaiah. They claim to be members of a joint family along with Pochaiah and that they were jointly cultivating the lands with respect to which the certificate was held by Pochaiah. The principle of Section 146 Civil P. C. may not, therefore, apply.

17. But the further question is whether, even though respondents 1 and 2 were not parties to the proceedings before the Tahsildar, they could file the appeal before the Collector. It has been strenuously pressed before us that it is only persons who were eo nomine parties that can file an appeal against the decision or order made to passed in that proceeding. It is true that there is no inherent right of appeal vested in a party. In Rangoon Botatoung Company, Ltd. v. Collector, Rangoon, (1913) ILR 40 Cal 21 at p. 27, Lord Macnaghten cited with approval the observations of Lord Brain well in Sandback Charity Trustees v. The North Staffordshire Railway Company, (1877) 3 QBD 1:

'An appeal does not exist in the nature of things. A right of appeal from any decision of any tribunal must be given by express enactment'.

18. It remains to consider whether, in this case, the respondents 1 and 2 are entitled to file an appeal against the order of the Tahsildar. Section 90 provides for an appeal against the decision of the Tahsildar and it is as follows:

90. (1) From every order other than au interim order passed by the Tahsildar or the Deputy Collector or the Tribunal under this Act, an appeal shall lie to the Collector and the orders of the Collector on such appeal shall be final.

(2) From every original order other than an interim order passed by the Collector, an appeal shall lie to the Board of Revenue and the order of the Board of Revenue on such appeal shall be final.

(3) There shall be no appeal from any interim order passed by the Tahsildar to Deputy Collector or Tribunal or Collector in any case but an application for revision on the grounds mentioned in Section 91 shall lie from an interim order passed by the Tahsildar or Deputy Collector or the Collector'.

It will be seen that, like Section 96 of the Civil P. C., the above section merely enacts that there shall be an appeal and does not prescribe as to who are entitled to file an appeal. In his order, the Joint Collector placed reliance on a decision of the Bench of the Bombay High Court in Province of Bombay v. W.I. Automobile Association. AIR 1949 Bom 141. In that ease, the Province of Bombay, which was not a party to the suit, filed a regular appeal against the decision without, however, applying for leave to appeal. On a preliminary objection as to the maintainability of such an appeal, Chagla, Chief Justice, observed as follows :

'The Civil Procedure Code does no I in terms lay down as to who can be a party to an appeal. But it is clear and this fact arises from the very basis of appeals, that only a party against whom a decision is given has a right to prefer an appeal. Even in England the position is the same. But it is recognised that a person who is not a party to the suit may prefer an appeal if he is affected by the order of the trial Court, provided he obtains leave from the Court of appeal; therefore whereas in the case of a party to a suit he has a right of appeal, in the case of a person not a party to the suit who is affected by the order he has no right but the Court of appeal may in its discretion allow him to prefer an appeal'.

Bhagwati, J., observed at page 149 of the report thus :

'It was further pointed out that in the commentary of Sir Dinshah Mulla on the Civil Procedure Code and also in a judgment of Madhavan Nair, J., in Indian Bank, Ltd. v. Bansiram Jeshamal Firm, 66 Mad LI 532 = AIR 1934 Mad 360 - ILR 57 Mad 670, it was stated that no person who is not a party to the suit or proceeding has a right of appeal. This is no doubt the position so far as the right of appeal is concerned. A person who is not a party to the suit or proceedings has no right to appeal against the decision and this is the position where a person who is not such party is aggrieved by the decision and wants to appeal against it. He can only ask for leave to appeal fromthe appellate Court before he can be allowed Io file an appeal. There is no right ofappeal vested in him by any of provisions of the Civil Procedure Code or by any other provision of law. The only remedy open to him, it his interests are adversely affected or if he is aggrieved by a decision of the Court, is to approach the appellate Court and ask for leave to appeal which the appellate Court would grant in proper cases'.

In support of his view, the learned Judge relied upon a passage in the judgment of Lindley, L. J. in Securities Insurance Co., Ltd. In re, (1894) 2 Ch 410 CA, which is as follows :

'Now what was the practice of the Court of Chancery before 1862, and what has it been since? I understand the practice to lie well settled that a person who is a party can appeal (of course within the proper time) without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave. It does not require much to obtain leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave, he will get it; but without leave he is not entitled to appeal'.

The position is stated in the Annual Practice for 1965 at page 1658 thus:

'Any party to the action may appeal (for example, one alone of several plaintiffs, Beckett v. Attwood, (1881) 18 Ch D 54 at pp. 56, 57), and also any person served with notice of the judgment or order under Order 15, Rule 16. But in addition, in accordance with old Chancery practice, any person may appeal by leave (obtained on ex parte motion to the Court of Appeal) if he could by possibility have been made a party to the action by service (per Jessel, M. R., in Crawcour v. Salter, (1882) 30 WR 329; Re, Youngs; Doggett v. Revett, (1885) 30 Ch D 421; The Millwall; (1905) P 155 (168); Re Hambrought's Estate; Hambrough v. Hambrough, (1909) 2 Ch 620 at pp. 625, 626: Re B (an infant), (1958) 1 QB 12 CA, It does not require much to obtain leave: A person making out a prima facie case that he is a person interested, aggrieved or prejudicially affected by the judgment or order and should be given leave, will obtain it; but he cannot appeal without it ((1894) 2 Ch 410 CA. See also Re. Markham, (1880). 16 Ch D 1 CA; A. G. v. Ailesbury, (1885) 16 QBD 408 (412) Re. Ferdinand; Ex-Tsar of Bulgaria, (1921-1 Ch 107 CA at p. 110)'.

The rule above indicated is expressed in Halsbury's Laws of. England, Vol. 26, p. 115, as follows :--

'A person who is not a party and who has not been served with such notice (notice of the judgment or order) cannot appeal without leave, but a person who might properly have been a party may obtain leave to appeal'.

In Ponnalagu Ammani v. State of Madras, : AIR1953Mad485 , a question arose whether one of the widows of the late Zamindar of Marungapuri, who was not a party to a writ petition before Subba Rao, J., (as he then was), could file an appeal under Clause 15 of the Letters Patent. On a review of the authorities Indian and English, a Bench of the Madras High Court consisting of Rajamannar, Chief Justice and Venkatarama Aiyar, J., held that a person, who is not a party to the suit may prefer an appeal if he is affected by the judgment, decree or order of the trial Court with the leave of the Court of appeal. In coining to that view, the learned Judges declined to follow the observations of Madhavan Nair, J., in AIR 1934 Mad 360 and followed the principle of the decision of the Bombay High Court in AIR 1949 Bom 141.

19. Adverting to the test to be applied in the matter of granting such a leave. Rajamannar, Chief Justice, observed as follows:--

'Now what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. We think that ordinarily leave to appeal should be granted to persons who, though not parties to the proceeding, would be bound by the decree or judgment in that proceedings and who would be precluded from attacking its correctness in other proceedings'.

So far as the High Court of Andhra Pradesh is concerned, there is a decision of the Full Bench which directly deals with this point. In Pullayya v. Nagabhushanam, 1961 Andh LT 736 = (AIR 1962 Andh Pra 140), the learned Chief Justice, speaking for the Court after a full and detailed examination of the question in the context of decided cases, agreed with the statement of the law contained in : AIR1953Mad485 , that a person, who was not an eo nomine party to a suit or proceeding, may file an appeal, if he is aggrieved, with the leave of the Court. In regard to the test to be applied in granting such a leave, the learned Chief Justice followed almost the same test propounded by Rajamannar, Chief Justice in : AIR1953Mad485 viz., that the leave should be granted to a person to file an appeal even though he was not an eo nomine party to the suit or proceeding, if he is bound by the decree or judgment in the proceeding in question. We are in respectful agreement with the view taken by Chandra Reddy, Chief Justice, in 1961 Andh LT 736 = (AIR 1962 Andh Pra HO). We may refer in this connection to a decision of the Mysore High Court in Shivaraya v. Siddamma, AIR 1963 Mys 127. That was a case arising out of the Hyderabad Tenancy and Agricultural Lands Act.

A person claiming to be a protected tenant of certain lands filed an application under Section 32 of the Hyderabad Tenancy and Agricultural Lands Act praying for pos session impleading a person as the alleged landholder. After the order was made by the Tahsildar, respondent No. 1, who was the brother's wife of respondent Mo. 2, in that civil revision petition filed an appeal before the Deputy Commissioner stating that the applicant be tore the Tahsildar was not a protected tenant and that she was the real landholder. The Deputy Commissioner before whom the appeal was filed granted leave for the filing of tile appeal and eventually set aside the order of the Tahsildar and remanded the case for fresh disposal. In a civil revision petition filed against the order of the Deputy Commissioner, the High Court of Mysore held that the grant of leave was justified in the circumstances.

20. In this case, it should be home in mind that the respondents 1 and 2 claim to be joint tenants with Pochaiah. They further claimed that they have been cultivating the lands in question both during the life-time of Pochaiah and after his death as members of an undivided family. The tenancy certificate was issued in the name of Pochaiah. The expression 'tenant' as defined in the Act means an asami shikmi who holds land on lease. The expression 'asami shikmi' will take in not only the person in whose name the tenancy certificate is issued, but also others having interest in the tenancy. The second proviso to Section 19 (1) (a) would also indicate that where the land is cultivated jointly by joint tenants to members of an undivided Hindu family, the surrender must be made by all such persons. That being so, could it be said that the respondents 1 and 2 are not entitled to file the appeal? They are certainly persons who are adversely affected by the order of the Tahsildar. They would have certainly been proper parties to be in ought on record during the pendency of the application before the Tahsildar. In these circumstances we hold that the order of the Collector granting leave to the respondents 1 and 2 to file the appeal is correct.

21. The last contention strenuously pressed upon us by Mr. Balakrishna Murray is that the Collector had no power to remand the case for fresh disposal by the Tahsildar. This argument turns upon the language of Section 92, which is in the following terms :

'An authority exercising appellate or revisional jurisdiction under this Act shall pass such order consistent with this Act, whether by way of confirmation, recession or modification, of the order nuclei appeal to revision, as appears to it to be just, and shall have the powers conferred on the original authority by Sub-section (2) of Section 89'. At the outset, we may refer to a controversy as to the exact connotation of the word f recession used in the above section. It is brought to our notice that this section is in pari materia with Section 78 of the Bombay Tenancy and Agricultural Lands Act, which is as follows :

'78. (1) The Collector in appeal and the Bombay Revenue Tribunal in appeal under Section 75 and in revision under Section 76 may confirm, modify or rescind the order in appeal or revision or its execution or may pass such other order as may seem legal and just in accordance with the provisions of this Act.

(2) The orders of the Collector in appeal or of the Bombay Revenue Tribunal in appeal or revision shall be executed in the manner provided for the execution of the orders of the Mamlatdar and Tribunal under Section 73'.

22. In the Hyederabad Tenancy and Agricultural Lands Bill of 1949 as published in the Hyderabad Gazette, Clause 107 (1) corresponding to Section 92 of the Act is as follows :

'The Taluqdar and the Board of Revenue in appeal and the High Court in revision or appeal under the provisions of this Act may confirm, modify or rescind the order in appeal or revision or its execution or may pass such other order as may seem legal and just in accordance with the provisions of this Act'.

It was, therefore, conceded and in our opinion correctly by Mr. Balakrishna Murthy that the expression 'recession' occurring in Section 92 of the Act should be understood as meaning the noun form of the verb 'to rescind' and that, when so read, the expression 'recession' means abrogation, annulling or setting aside. The learned counsel, however, has contended that the specific powers to be exercised by the appellate authority are confined only to confirmation, setting aside or modification of the order under appeal and that those powers do not include the power to remand. The learned counsel contended that the power to remand is to be strictly construed and that it should be exercised only in circumstances referred to in Section 107 and Order 41, Rule 28, Civil P. C. In other words, the argument is that, apart from any specific provision conferring the power to remand, there is no general inherent power to remand vested in the appellate Court. In support of this contention reliance was placed on the decision of Munikanniah, J., in Mahboob Bi v. Alvala Lachmiar, : AIR1964AP314 . It was held by the learned Judge that, under Section 20 (3) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, the appellate authority is not competent to remand a case to the Bent Controller and direct a fresh trial of the case. Reliance also was placed on the decision in Brijmohanlal v. Rajalingam, 1959 Andh LT 206, where Mohammed Ahmed Ansari, 1., had to construe the scope of Section 25 (b) of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, which is in pari materia with Section 20 of the AndhraPradesh Buildings (Lease, Rent and Eviction) Control Act Mohammed Ahmed Ansari, J. held that the appellate authority has jurisdiction only to make such further enquiry as it thinks fit either personally or through the Controller, and decide the appeal, but has no power to remand. It may be observed that both these decisions turn upon the precise language employed in the relevant sections. In our opinion, these decisions have no bearing on the question we have to consider viz., whether the appellate powers conferred upon the Collector under Section 92 of the Tenancy Act include the power to remand, So far as the eases governed by the Code of Civil Procedure are concerned, the Courts in India have consistently taken the view that, quite apart from Section 107 and Order 41, Rule 23, Civil P. C., the appellate Court has inherent power to remand which it could exercise in the interests of justice. In Abdul Karim Abu Ahmad Khan v. Allahabad Bank, Ltd., ILR 44 Cal 929 = (AIR 1917 Cal 44) (FB), a Full Bench of five Judges of the Calcutta High Court held that the powers of the Appellate Court as regards remand are not restricted to the cases specified in Order 41, Rule 23, Civil P. C., but that the Court, by reason of its inherent jurisdiction, recognised and preserved in the Code, may order a remand in cases other than the case specified in Order 41, Rule 23, if it be necessary for the ends of justice. The following passage from the judgment of Mookerjee, J., may be usefully extracted :

'I do not read Order 41, Rule 23 as a limitation on the power of remand recognised in Section 107 in the sense that the powers to remand can be exercised only in the contingency mentioned in Order 41, Rule 23. Apart from this, it seems to me to be incontestable that Section 151, which embodies a statutory recognition of the inherent power of a Court to make such orders as may be necessary for the ends of justice, gives ample authority to the Court to make an order of remand in cases not comprised within Order 41, Rule 23, where the Court is satisfied that such order is necessary for the ends of justice'.

It may be observed that, under Section 564 of the Code of Civil Procedure, 1882, there was an express embargo on the power of the appellate Court to remand cases except for reasons specified in Section 562 of that Code which corresponds to Order 41. R. 23. It is not without significance that, in the Code of 1908, a provision analogous to Section 564 of the Code of 1882 was deleted. The principle enunciated by the Full Bench of the Calcutta High Court in ILR 44 Cal 929 = (AIR 1917 Cal 44) (FB), has been followed by almost all the Courts in India and it will be unnecessary and even pedantic to multiply the citation in respect of a proposition so well known that the appellate Court has an inherent power ex debito justitiae to remand a case for retrial in cases not falling strictly within the scope ofOrder 41, Rule 23 Civil P. C. Sanjeeva Row Nayudu, J., has taken a contrary view in : AIR1961AP226 . With respect to the learned Judge, we are of opinion that this decision is not correct either in principle or on the strength of judicial authority.

23. The power to remand cases in the interests of justice applies not only to civil Courts, but also to statutory tribunals created under special enactments. In Swarajyalakshmi v. State of A. P., : AIR1959AP321 , a question arose as to whether, in entertaining a revision under Section 64-A of the Motor Vehicles Act, 1939, the Stale Government could remand the case to that original authority for fresh disposal according to law. It was held by Satyanarayana Raju and Basi Reddy, JJ., that it was competent for the State Government under Section 64-A of the Motor Vehicles Act, 1939 to remand the case to the original authority for fresh disposal according to law. Satyanarayana Raju, J., who spoke for the Bench, observed as follows:

'A revisional authority can exercise the power of remand which is a necessary incident of its power to revise an order or proceeding of subordinate authorities. The revisional power conferred on the Government under Section 64-A of the Motor Vehicles Act is analogous to the jurisdiction vested in the High Court under Section 115 of the Code of Civil Procedure. The words 'may pass such order in reference thereto as it thinks fit' in Section 64-A of the Motor Vehicles Act are in pari mated a with the words 'may make such order in the case as it thinks fit' contained in Section 115 of the Code of Civil Procedure.

When once the jurisdiction to revise is established, there is no limitation imposed on the power of the authority as to the mode of disposal. The revisional authority may finally dispose of the case itself or pass any other order which may satisfy the justice of the case. What the order should be in any particular case would depend on the circum stances of that case'.

24. In Thimmasamduram Tobacco Co. v. Asst. Collector, : AIR1961AP324 , Chandra Reddy, Chief Justice and Ramachandra Rao, J., had to consider whether, under the terms of Section 35 of the Central Excises and Salt Act, 1944, the appellate authority can direct a fresh enquiry. The learned Chief Justice observed:

'It is true that the section speaks only of the appellate authority passing such order as he thinks fit, confirming, altering, or annulling the decision or order appealed against and there is no specific provision enabling the appellate authority to remit the matter to the original authority for making an inquiry afresh. We do not think that the absence of such provision disables the appellate authority from sending the matter back to the officer that passed the order.

The conferment of the appellate jurisdiction on a tribunal, in our opinion, necessarily implies that it has as much power to remand as it has to confirm, alter or annul and incidentally it has the power to hear the appeal. Without such power it is difficult for the appellate authority to dispose of an appeal satisfactorily. If the appellate authority finds that the procedure prescribed by a provision of law has been violated by an officer he has either to allow the appeal without directing any fresh inquiry or dismiss the appeal, if the argument of the appellant's Counsel were to prevail and this cannot be regarded as a satisfactory state of affairs. We, therefore, feel that the power of remand is inherent in the appellate jurisdiction conferred on an appellate authority'.

We are in respectful agreement with the view taken by the learned Chief Justice.

25. We, therefore, hold that the Collector, exercising his appellate jurisdiction under Section 92 of the Act, has the power not only to set aside the order appealed against, but has also the power ex debito justitiae to direct a remand of the case for disposal to the original authority.

26. For the reasons stated above, wehold that there is no substance in this revision petition and that it must fail. It is accordingly dismissed with costs.


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