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Bhagwat Das and ors. Vs. Chhedi Koeri and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1926All398; 95Ind.Cas.559
AppellantBhagwat Das and ors.
RespondentChhedi Koeri and anr.
Excerpt:
- - ' to put the matter briefly, the view is 'that the use of the expression just mentioned necessarily excludes the notion that this court can seal with cases like the present in revision. 8. it must be conceded that section 167 like several other sections of the u. tenancy act, has caused a good deal of difficulty, and indeed piggott, j. , in his judgment just delivered, this court has denied jurisdiction in revision in a case like the present for a long number of years from 1909 to 1925. last year a bench of this court disagreed with this long current of decisions and the matter has therefore been referred by a learned judge of this court to a full bench. i am not satisfied that the opinion of piggott, j......is whether in the particular circumstances of this case this court has power to exercise its revisional jurisdiction under section 115 of the code of civil procedure. the reference has been occasioned by conflicting decisions in this court regarding the question of the competence of this court to interfere in a matter of this kind by way of revision. the facts may be briefly stated as follows:2. two suits were filed by two zamindars for the recovery of what purported to be arrears of rent and these suits were suits under serial no. 2, group a, of the 4th schedule attached to the tenancy act. in each case the valuation of the suit was below rs. 100 and by reason of that fact the decrees in the suits were appealable to the collector under the provisions of section 176. the suits were.....
Judgment:

Lindsay, J.

1. These cases have been referred to this Full Bench and the matter for consideration is whether in the particular circumstances of this case this Court has power to exercise its revisional jurisdiction under Section 115 of the Code of Civil Procedure. The reference has been occasioned by conflicting decisions in this Court regarding the question of the competence of this Court to interfere in a matter of this kind by way of revision. The facts may be briefly stated as follows:

2. Two suits were filed by two zamindars for the recovery of what purported to be arrears of rent and these suits were suits under serial No. 2, Group A, of the 4th schedule attached to the Tenancy Act. In each case the valuation of the suit was below Rs. 100 and by reason of that fact the decrees in the suits were appealable to the Collector under the provisions of Section 176. The suits were decreed in the Court of first instance and thereupon there was an appeal to the Collector who affirmed the decrees of the trial Court. Then a further appeal was taken to the District Judge and the result of the proceedings before the District Judge has been that the suits of the two zamindars have been dismissed with respect to a certain portion of the claim in each case. It was held that certain sums claimed in each of the two suits as being rent were not in fact rent and could not be recovered in suits for arrears of rent.

3. Two applications in revision have been filed against the order of the District Judge passed in the circumstances above mentioned, and it is represented that for certain reasons this Court ought to interfere in revision and discharge the orders which have been passed by the District Judge. The question we have now to determine is whether or not this Court is competent to interfere with these orders of the District Judge in exercise of the powers conferred by Section 115. Prima facie this Court has jurisdiction to entertain these applications, for it is not to be denied that the Court of the District Judge is a Court subordinate to this High Court. It has however been contended that the jurisdiction of the High Court to exercise its powers in revision has been taken away by the special legislation contained in the Tenancy Act, U.P. Act II of 1901, and in particular by the enactment contained in Section 167 of that Act.

4. We have heard the learned Counsel at great length on both sides and all the reported cases in which the meaning of Section 167 of the Tenancy Act has been considered have been brought to our notice.

5. It is clear that for a long series of years this Court has interpreted Section 167 in a sense which is fatal to the case put forward here by the applicants. It has been held that under the terms of Section 167 the powers of the High Court to interfere in revision have been ousted. The decisions on this subject cover a period roughly from 1909 to 1925, the first case being Dambar Singh v. Sri Kishen Das (1909) 31 All 455. That was the decision of a Bench. The matter was again discussed in Parbhu Narain v. Harbans Lal AIR 1916 All 266. In that case one of the learned Judges dissented from the view that the jurisdiction of the High Court was ousted by the provisions of Section 167. In Jamna Prasad v. Karan Singh AIR 1918 All 14 a single Judge of this Court applied the law as it had been laid down in the earlier case of Dambar Singh v. Sri Kishen Das (1909) 31 All 455; and again in Ehtisham Ali v. Lalji Singh AIR 1919 All 146, Tudball, J, applied Section 167 in the sense in which it had been interpreted in these earlier decisions. Then we come to the case of Gaj Kumar Chander v. Salamat Ali AIR 1919 All 96. That was a case in which this very question was referred specially to a Bench; the view which was taken by the members of the Bench in that case affirmed the view which had been taken in the earlier cases. And lastly we have the ruling of Piggott, J. in Adya Saran v. Kali Charan AIR 1923 All 580, in which he reiterated the view which he had taken in the case of Parbhu Narain v. Harbans Lal AIR 1916 All 266.

6. It is clear therefore that the cursu curiae has been in the direction of holding that Section 167 is a bar to the exercise by this Court of its powers in revisional jurisdiction. The view which has been taken in this long series of decisions is based principally upon the concluding portion of Section 167 and in particular upon the words 'except in the way of appeal.' 'To put the matter briefly, the view is 'that the use of the expression just mentioned necessarily excludes the notion that this Court can Seal with cases like the present in revision.

7. This matter was discussed again in a very recent ruling of a Bench of this Court which is reported in Kehri Singh v. Thirpal : AIR1926All113 , and from this it is apparent that the learned Judges who composed that Bench were of opinion that the interpretation of Section 167, which had been previously accepted, was erroneous. They held that Section 167 did not bar the exercise by this Court of its powers in revision.

8. It must be conceded that Section 167 like Several other sections of the U.P. Tenancy Act, has caused a good deal of difficulty, and indeed Piggott, J. in the case in which he has given expression to the view I have mentioned above, was constrained to allow that the matter was one of some complexity. It may therefore be taken that there is Some ambiguity about Section 167 and other sections with which it is related. That being so, it seems to me that the proper principle to be followed in a matter of the kind before us is to adhere to the view which has been taken in the long series of cases above mentioned. While it cannot be argued, of course, that this Bench as a Full Bench has no authority to overrule these earlier decisions, nevertheless, where we have a series of rulings relating to a matter of procedure in which Section 167 has always been construed in the same sense, it is not, in my opinion, proper to depart from that construction unless we are convinced that there are most cogent reasons for holding that the earlier interpretation is erroneous.

9. With regard to the decision reported in Kheri Singh v. Thirpal : AIR1926All113 . I can only say with all respect that the reasons given in that judgment do not satisfy me that the earlier view taken of the scope and meaning of Section 167 is erroneous. In this state of affairs therefore I express my agreement with the view which has hitherto prevailed in this Court, and I am of opinion that these present applications by way of revision are not entertainable.

Dalal, J.

10. As stated by Lindsay, J., in his judgment just delivered, this Court has denied jurisdiction in revision in a case like the present for a long number of years from 1909 to 1925. Last year a Bench of this Court disagreed with this long current of decisions and the matter has therefore been referred by a learned Judge of this Court to a Full Bench. I am not satisfied that the opinion of Piggott, J. in Parbhu Narain v. Harbans Lal AIR 1916 All 266 is manifestly incorrect. If the matter has come before me without any previous decision, I would have been inclined to accept the arguments of Pandit Sunder Lal and those of Walsh, J. in Parbhu Narain v. Harban Lal AIR 1916 All 266. Having regard to the accepted opinion of this Court for a long number of years I hold that no revision lies.

Daniels, J.

11. I concur with Lindsay, J. and would add that, in my opinion, the view which has, with one exception, been consistently taken by this Court until the recent case of Kehri Singh v. Thirpal : AIR1926All113 , is the correct interpretation of a difficult section. My view is substantially that of Piggott, J. in Parbhu Narain Singh v. Harbans Lal AIR 1916 All 266. Section 167, Tenancy Act, forbids any Court other than a revenue Court to take cognizance, except by way of appeal, in certain special cases, of any dispute or matter in respect of which a suit or application under the Tenancy Act might be brought. The suit or matter in this case was a claim to recover arrears of rent. The applicant contends that the District Judge has wrongly taken cognizance of this matter by way of appeal in that he has entered an appeal which ha had no jurisdiction to entertain. We can only set the matter right by taking cognizance of the same matter by way of revision in direct defiance of Section 167, Tenancy Act. The fact that the revisional section, Section 115, has not been specifically excluded in applying the Code of Civil Procedure to proceedings under the Tenancy Act does not to my mind carry any weight, because by Section 193 the procedure of the Code is only to be followed so far as it is not inconsistent with the provisions of the Tenancy Act. In the case of Kehri Singh v. Thirpal : AIR1926All113 Sulaiman, J. did not really consider this point. He addressed himself to answering the argument that the revision was excluded because a revision under Section 185, Tenancy Act, is entered as No. 51 of Group D of the fourth schedule of the Act. On this point I agree with him. Revision is however only a step in a chain of procedure the object of which is to arrive at a decision on the real matter in dispute which was the claim for arrears of rent. The decision of Boys, J. is based on the grouped that the words ''take cognizance of' in Section 167 apply only to the original Court. With great respect it seems difficult to see how this view can be maintained in view of the fact that the section itself speaks of taking cognizance by way of appeal. The section allows cognizance to be taken by way of appeal in certain cases and thereby excludes a civil Court from taking cognizance by way of revision. A question was raised in the course of the argument as to whether the local legislature had power to exclude the High Court's powers of revision in the case. The answer to this is to be found in Section 4, Civil P.C., which lays down that nothing is the Code shall limit or otherwise affect any special or local law or any special form of procedure prescribed by or under any law for the time being in force.

12. I regret the decision at which we are obliged to arrive because it appears to me that on the merits the District Judge had no jurisdiction to entertain the appeal. No question of proprietary right had been raised and the question of jurisdiction means a plea that the Court has no jurisdiction to entertain the particular suit or matter brought before it. The plea raised before the Collector in this case was at most a plea that one portion of the amount claimed could not be recovered as part of the claim for arrears of rent. The jurisdiction of the Court to entertain the suit for arrears of rent was not and could not be disputed.

13. I rejoice to find from a perusal of the U.P. Gazette of 29th August 1925 that the difficulty which has been felt in these and similar cases is likely to be shortly removed. In the draft Bill published in that Gazette a clause has been inserted definitely conferring a power of revision on the High Court in cases where an appeal lies to the civil Court,

14. For the reasons given above we dismiss the application for revision, but in view of all the circumstances we make no order as to costs.


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