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Abdul Haq Vs. Sheo Ram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All334
AppellantAbdul Haq
RespondentSheo Ram
Excerpt:
.....lab ic 1858 overruled]. - be this as it may, the district judge has not, in my opinion, exercised a jurisdiction not vested in him or failed to exercise a jurisdiction vested in him. the consequence is that an application like this has to be rejected and what appears likely to be an abortive criminal suit has to be allowed to take place......of the subordinate judge of cawnpore who refused to make a complaint under section 476 of the criminal procedure code, for the prosecution of the present applicant abdul haq on the ground of perjury. the facts are as follows: three brothers claimed certain property. they had not sufficient means to bring and prosecute a suit for the same. accordingly they made an arrangement with abdul haq that he would finance them. the arrangement was recorded in a sale-deed of a share of the interest of the three brothers in the property claimed. there was a stipulation in this deed that abdul haq, in the event of the suit being successful, would not be entitled to any share of any costs that might be awarded by the civil court. a decree was passed on the 22nd january 1925 in favour of the three.....
Judgment:

Ashworth, J.

1. This is an application in revision under Section 115 of the Civil Procedure Code, made by one Abdul Haq against an order of Mr. L.S. White, District Judge of Cawnpore, on the 6th March 1926, allowing an appeal against an order of the Subordinate Judge of Cawnpore who refused to make a complaint under Section 476 of the Criminal Procedure Code, for the prosecution of the present applicant Abdul Haq on the ground of perjury. The facts are as follows: Three brothers claimed certain property. They had not sufficient means to bring and prosecute a suit for the same. Accordingly they made an arrangement with Abdul Haq that he would finance them. The arrangement was recorded in a sale-deed of a share of the interest of the three brothers in the property claimed. There was a stipulation in this deed that Abdul Haq, in the event of the suit being successful, would not be entitled to any share of any costs that might be awarded by the Civil Court. A decree was passed on the 22nd January 1925 in favour of the three brothers and of Abdul Haq and the decree provided for the plaintiffs getting their costs.

2. No appointment was made of these costs and no stipulation in the decree was entered that Abdul Haq should not be entitled under the decree to any share in these costs. Subsequently by an application dated the 30th April 1925, Abdul Haq asked to be allowed to realise the whole of the costs which had been deposited in Court saying that he was himself entitled to one-half of them. Presumably this application must be interpreted to mean that as a joint decree-holder he was entitled under the decree to realize the whole costs but that under some arrangement with the other decree-holders he would only be entitled to retain one-half of those costs and would be bound to pay the other half over to the decree-holders. The execution Court, whose attention had been drawn by this time to the sale-deed by the three brothers in favour of Abdul Haq which resulted in Abdul Haq being a plaintiff in the civil Court, asked Abdul Haq to explain how in view of the stipulation in that sale-deed he could be entitled to any costs. Apparently his explanation was satisfactory or else the execution Court ultimately considered that it could not go into the matter as an execution Court. Any way, an order was passed allowing Abdul Haq to take the costs deposited.

3. Now one of the three brothers had gone to South Africa. One of the other two put in an application to the Subordinate Judge complaining that Abdul Haq had committed perjury in his application of the 30th April 1925, which application was verified by an affidavit, in stating that he was entitled to half the costs and asking the Subordinate Judge to make a complaint to the criminal Court for his prosecution in respect of this perjury. The Subordinate Judge rejected this application but the District Judge of Cawnpore on appeal passed an order allowing the appeal and stating that he would himself make a complaint to the District Magistrate. It is against this order that this application in, revision is filed.

4. Abdul Haq at first brought the matter in revision to this Court under Section 439 of the Criminal Procedure Code. The present Acting Chief Justice by an order dated the 4th May 1926, expressed an opinion that the District Judge of Cawnpore should not have made the order that he did in the circumstances but he held that an application in revision did not lie to the High Court on the Criminal Side. He allowed Abdul Haq to represent his application on the Civil Side without any further payment of stamp or fee.

5. It is incumbent on me to accept the view that the application in revision must be presented on the Civil Side. I would refer to the Full Bench ruling In the matter of the petition of Bhup Kunwar [1904] 26 All. 249. I concur with the view of Sulaiman, J., in Banwari Lal v. Jhunka : AIR1926All229 . that the alterations in Section 476 introduced by the Criminal Procedure (Amendment) Act, 1923, have not affected the arguments of the decision in the Full Bench case referred to.

6. It is clear to me that having regard to the language of Section 115 of the Civil Procedure Code, no revision on the Civil Side of the District Judge's order can be made. I concur with the view of the Acting Chief Justice that in the circumstances of this case it is not proper to order the prosecution for perjury of Abdul Haq, but this opinion must remain a mere obiter dictum. The order of the District Judge may have been based on a faulty appreciation of the fasts or may have been based on a faulty view of the law. I mean that Abdul Haq in his application, where he stated that he was entitled to realize the costs, may have meant that legally he was entitled as a joint decree-holder to realize the costs under the decree. Be this as it may, the District Judge has not, in my opinion, exercised a jurisdiction not vested in him or failed to exercise a jurisdiction vested in him. Nor again has he acted illegally or with material irregularity in the exercise of his jurisdiction to accept the appeal under Section 439(b) of the Criminal Procedure Code. '

7. It appears to me that some alteration of the law is desirable to obviate the undesirability of such an application as this being dismissed on the ground that it cannot be entertained under Section 115 of the Civil Procedure Code. The real position appears to be this. Section 476 is part of the Criminal Procedure Code, and the Legislature when drafting it doubtless considered that Sections 436 to 439 of the Criminal Procedure Code, would operate to afford means whereby the High Court could set aside such an order now impugned if it thought fit. Unfortunately by reason of the Full Bench decision of this Court it is not Sections 435 to 439 of the Criminal Procedure Code, that will govern such an application in revision but Section 115 of the Civil Procedure Code. The language of Section 115 is too narrow to meet the case where the Judge by his order decides to prosecute the person on insufficient grounds or on wrong grounds. The consequence is that an application like this has to be rejected and what appears likely to be an abortive criminal suit has to be allowed to take place.

8. For the reasons stated this application is dismissed but in the circumstances I make no order as to costs.


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