Skip to content


Ganga Sahai Vs. Mt. Nafis Bano and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1946All508
AppellantGanga Sahai
RespondentMt. Nafis Bano and ors.
Excerpt:
.....cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - the special judge accepted his contention that he had sufficient cause for not making the application within the period of 3 months laid down in sub-section (2) and obviously held that the other conditions mentioned in the proviso were also satisfied. a preliminary objection has been raised on behalf of the respondents to the effect that the order complained of is not appealable. ' after hearing learned counsel for the parties and perusing the judgment of the court below, we are satisfied that this court should interfere in revision in this case, even if it is of opinion that no appeal lies under section 45 of the act against the order complained of. the reasons given by the special judge in..........of time under the proviso to that sub-section. one of such claimants was one brij nandan. the special judge accepted his contention that he had sufficient cause for not making the application within the period of 3 months laid down in sub-section (2) and obviously held that the other conditions mentioned in the proviso were also satisfied. the claim was accordingly admitted and was ultimately determined in favour of the claimant brij nandan on 22-1-1944. the present appellant thereupon, on 2-2-1944, filed an application under section 20 of the act praying that the proceedings under the act be quashed. the learned special judge has dismissed that application. this appeal has been brought by the landlord-applicant from that order. a preliminary objection has been raised on behalf of.....
Judgment:

Verma, J.

1. This appeal has arisen out of proceedings under the United Provinces Encumbered Estates Act. The material facts are these. The appellant, Ganga Sahai made an application under Section 4, Encumbered Estates Act and the proceedings prescribed by the Act were taken. Simple money decrees under Section 14(7) were ultimately passed on 31st July 1939, and were sent to the Collector as required by Section 19(1). Subsequently, claims under Section 11(2) were preferred by certain persons alleging that the claimants had sufficient cause for not making their applications within the period of 8 months mentioned in Sub-section (2), and claiming extension of time under the proviso to that sub-section. One of such claimants was one Brij Nandan. The Special Judge accepted his contention that he had sufficient cause for not making the application within the period of 3 months laid down in Sub-section (2) and obviously held that the other conditions mentioned in the proviso were also satisfied. The claim was accordingly admitted and was ultimately determined in favour of the claimant Brij Nandan on 22-1-1944. The present appellant thereupon, on 2-2-1944, filed an application under Section 20 of the Act praying that the proceedings under the Act be quashed. The learned Special Judge has dismissed that application. This appeal has been brought by the landlord-applicant from that order. A preliminary objection has been raised on behalf of the respondents to the effect that the order complained of is not appealable. We do not consider it necessary to express any opinion on this point, for the learned Counsel for the appellant has requested us to treat the Memorandum of Appeal as a petition for revision under Section 46 of the Act, if it is held that an appeal does not lie. Section 46, Encumbered Estates Act, is much wider in its scope than Section 115, Civil P.C., for it says that any Court empowered under the Act to hear an appeal may 'call for the record of proceedings in any case under this Act pending in a Court from which appeals lie to such Court' and, after giving notice to the parties concerned, 'pass such order thereon consistent with the provisions herein contain, ed as it thinks fit.' After hearing learned Counsel for the parties and perusing the judgment of the Court below, we are satisfied that this Court should interfere in revision in this case, even if it is of opinion that no appeal lies under Section 45 of the Act against the order complained of. Section 20 of the Act runs as follows:

The applicant may at any time within a period of one month from the day on which the Special Judge decides any claim under Section 11 apply that the proceedings under this Act be quashed and the Special Judge shall quash such proceedings and pass such order as to the costs of the proceedings before him as he thinks proper, provided that the order of quashing proceedings shall not take effect unless the landlord within one month of such order pays into court the amount of any costs ordered by the Special Judge under this Section.

2. The application having been dismissed, no occasion arose for any order under the later portion of the section requiring the landlord-applicant to pay any cost within a period of 1 month as mentioned therein. On the facts stated above, it appears to us to be obvious that the Special Judge was, in view of the mandatory nature of the provisions laid down in Section 20, bound to grant the application. A claim under Sub-section (2), Section 11 was preferred. It was decided by the Special Judge. The landlord filed his application under Section 20, within 1 month from the day on which the Special Judge had decided the claim. Thus, on the plain language of Section 20, the Special Judge had no option but to grant the application. The reasons given by the Special Judge in support of his order dismissing the application may be summarised thus : (1) When the legislature added the proviso to Sub-section (2), Section 11 by the Amending Act, 11 (XI) of 1939, it should have amended Section 20 also in a suitable manner, but through an oversight it failed to do so; (2) Section 20 should therefore be read as if it had been amended by the legislature in the manner in which, according to the learned Special Judge, it should have been amended and should be taken to mean that no application for quashing the proceedings can be entertained, if the claim under Section 11(2), which has been decided, was preferred after the expiry of the period of 3 months and the Court had admitted it on the ground that the claimant was entitled to extension of time under the proviso to that sub-section and (3) The word 'decides' in Section 20 must be read as 'decreed', otherwise certain anomalies would arise. It may be pointed out that this last ground is not relevant in the present case, as the claim preferred by Brij Nandan under Section 11(2) was allowed or decreed. So far as the first two grounds given by the learned Special Judge are concerned, it seems to us to be clear that he has done what a Court is not entitled to do. The function of the courts is to administer the law as it is and not as, in the opinion of individual Judges, it should be or would have been if the legislature had not forgotten to do what it should have done. The fact, if it be a fact, that certain anomalies would arise if the statute is read as it stands and the words used in it are interpreted according to their plain meaning can be no justification for the introduction by the Courts into the statutes, of amendments which have never been made. It is not the function of the Court to legislate. The reasons given by the learned Special Judge for dismissing the application filed by the appellant under Section 20 cannot, therefore, be accepted.

3. Learned Counsel appearing for the respondents has argued that the determination of Brij Nandan's claim on 22-1-1944, was merely an order amending the decrees passed under Section 14(7). We do not consider it necessary to express any opinion as to the correctness or otherwise of this contention and deem it sufficient to point out that whatever other effect or effects the determination of Brij Nandan's claim on 22-1-1944, might or might not have had, it is undeniable that by it the Special Judge decided a claim under Section 11 and that that is all that Section 20, as it stands, requires. We accordingly allow this petition whether it is treated as a petition of appeal or as a petition for revision, set aside the order of the Court, below and send the case back to that Court with the direction that it shall reinstate it to its original position in the register of pending cases and will proceed to pass orders on the application filed by the appellant in accordance with the plain and mandatory language of Section 20 of the Act, as explained by us above. The appellant or petitioner is entitled to his costs in this Court.


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