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Tungal Ram Vs. Smt. Leelawati - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1822 of 1977
Judge
Reported inAIR1978All46
ActsConstitution of India - Article 254(1) and 254(2); Code of Civil Procedure (CPC) , 1908 - Sections 115 - Order 6, Rule 17; Uttar Pradesh Civil Laws (Amendment) Act, 1973; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 97(1)
AppellantTungal Ram
RespondentSmt. Leelawati
Appellant AdvocateGirish Chandra Saxena, Adv.
Respondent AdvocateS.C.
DispositionRevision dismissed
Excerpt:
civil - revision - sub-article (1) and proviso to sub-article (2) of article 254 of constitution of india, u.p. civil laws (amendment) act, 1973 and section 97 (1) of code of civil procedure (amendment) act, 1976 - u.p. act of 1973 empowered district judge to exercise powers under section 115 in cases arising out of original suit of value of less than rs. 20,000 - section 115 of code of civil procedure amended by central act of 1976 - amendment made by u.p. act of 1973 became ineffective - district judge no more empowered to exercise power under section 115. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal..........254 of the constitution it was held that the amendment made in section 102, c. p. c. by the state legislature by u. p. act no. 24 of 1954 would have to yield before the amendment made in the same section by the parliament by the central act 66 of 1956. i find it unnecessary to reiterate the reasons recorded by the division bench in kunmun singh's ease (supra) and on the basis of those reasons i am of opinion that on the coming into force of the code of civil procedure (amendment) act, 1976, on 1st of feb. 1977, the district judges ceased to have jurisdiction to entertain a civil revision under section 115, c. p. c. at this place i may also refer to sub-section (1) of section 97 of the code of civil procedure (amendment) act, 1976. it reads :-- '97. repeal and savings. -- (1) any.....
Judgment:
ORDER

N.D. Ojha, J.

1. The applicant is the defendant in a suit. After the plaintiff's wit-nessesg had been examined and cross-examined and the plaintiff closed her evidence an application was made for amendment of the written statement by the applicant on the ground that shortly before the defendant had met the plaintiff and was told by her that she had not instituted the suit at all. On the basis of this alleged conversation the written statement was sought to be amended incorporating a plea that the plaint was liable to be rejected not having been filed by the plaintiff. This application was dismissed by the Munsif. He disbelieved the applicant's version in regard to his meeting the plaintiff and the talk which is said to have taken place between the parties. The Munsif took the view that the defendant's version in this behalf did not inspire confidence. He also took the view that no case had been made out for amendment in the written statement after the close of the evidence by the plaintiff. This order was passed on 9th April, 1977. Against that order a revision was filed before the District Judge which was dismissed on 30th July, 1977, on the ground that in view of the amendment in Section 115 of the Code of Civil Procedure the revision was not maintainable. The present revision has been filed against this order of the District Judge.

2. The first ground which has been taken in support of the revision is that the District Judge was wrong in taking the view that the revision was not maintainable. In my opinion there is no substance in this ground. Section 115, C. P. C. conferred power on the High Court to call for the record of any case decided by any Court subordinate to it and in which no appeal lay thereto and to pass such order as it thinks fit provided the order suffered from any such error as mentioned in Section 115. This section wasamended by the State of Uttar Pradesh by U. P. Civil Laws (Amendment) Act, 1973 (President's Act No. 19 of 1973 as re-enacted by U. P. Act, No. 30 of 1974). By this amendment the power of the High Court under Section 115, C. P. C. to entertain a revision was left undisturbed in oases arising out of the original suits of the value of Rs. 20,000/- and above. In such cases where the value of the qriginal suits wag below twenty thousand rupees, however, the District Judges were authorised to exercise the power under Section 115, C. P. C. It was in pursuance of this amendment made by the State of! Uttar Pradesh that the revisions arising out of original suits of the value below rupees twenty thousand used to be entertained by the District Judges. The Code of Civil Procedure has since thereafter been amended by the Parliament by the Code of Civil Procedure (Amendment) Act, 1976. This Act came into force on 1st Feb. 1977. Section 115, C. P. C. as it stands after the amendment by the aforesaid amending Act of the Parliament confers power to exercise jurisdiction under Section 115, C. p. C. only on the High Court. It is thus apparent that in regard to cases arising out of original suits of the value below rupees twenty thousand an apparent inconsistency has arisen on account of the Central amendment. Whereas the revisions arising out of the original suits of the value of below rupees twenty thousand are cognizable by the District Judges in view of the State amendment, they are cognizable by the High Court in view of the Central amendment. Article 254 of the Constitution provides :--

'254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States :--

(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one ofthe matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing lew with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State :

Provided that nothing in this clause shell prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of State.' In the instant case it would be seen that the Central amendment is of a date subsequent to the amendment made by the State of Uttar Pradesh and as such Sub-article (2) of Article 254 of the Constitution will not apply. It is Sub-article (1) of Article 254 and the proviso to Sub-article (2) of the said Article which would be applicable and, therefore, the law enacted by the State Governent to the extent of its repugnancy to the law made by the Parliament will be void. A similar question arose before a Division Bench of this Court in Kunmun Singh v. Ram Sewak, (1961 All LJ 996) : (AIR 1962 All 299). After dealing with the scope of the two Sub-articles of Article 254 of the Constitution it was held that the amendment made in Section 102, C. P. C. by the State Legislature by U. P. Act No. 24 of 1954 would have to yield before the amendment made in the same section by the Parliament by the Central Act 66 of 1956. I find it unnecessary to reiterate the reasons recorded by the Division Bench in Kunmun Singh's ease (supra) and on the basis of those reasons I am of opinion that on the coming into force of the Code of Civil Procedure (Amendment) Act, 1976, on 1st of Feb. 1977, the District Judges ceased to have jurisdiction to entertain a civil revision under Section 115, C. P. C. At this place I may also refer to Sub-section (1) of Section 97 of the Code of Civil Procedure (Amendment) Act, 1976. It reads :-- '97. Repeal and savings. -- (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the Principal Act as amended by this Act, stand repealed.'

In view of this provision also the amendment made in Section 115, C. P. C. by the State of Uttar Pradesh no longer holds the field after the section being amended by the Code of Civil Procedure (Amendment) Act, 1976. In this view of the matter the District Judge was right in taking the view that the revision was not maintainable.

3. Coming to the merits of the amendment application it was urged by counsel for the applicant that the Mun-sif was wrong in dismissing the said application. I find myself unable to agree with this submission either. As seen above the amendment application had been made after the plaintiff had closed her evidence. It was based on a talk alleged to have taken place between the applicant and the plaintiff sometime before the making of the amendment application. The Munsif disbelieved the applicant's version in this behalf and has taken the view that the case of the applicant did not inspire confidence. I find no such error in the order of the Munsif which may justify interference under Section 115, C. P. C.

4. No other point has been pressed.

5. In the result I find no merit in this revision. It is accordingly dismissed.


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