Skip to content


Balmiki Singh Vs. Mathura Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 949 of 1958
Judge
Reported inAIR1968All259
ActsCode of Civil Procedure (CPC) , 1908 - Order 10, Rules 1 and 2
AppellantBalmiki Singh
RespondentMathura Prasad and ors.
Appellant AdvocateKarta Krishna and ;Kailash Nath, Advs.
Respondent AdvocateSri Ram Jee, Adv.
DispositionAppeal dismissed
Excerpt:
.....2 of order 10 of code of civil procedure, 1908 - differences between statement under rule 1 and rule 2 - statement under order10, rule 1 is confined only to ascertainment from the party or his pleader - statement under rule 2 provides for examination not only of the party or the pleader but also companion of the party. - - the statement having been made on 28-4-1956 and the zamindari having been abolished by the issue of notification on 1-7-1952, it clearly means that ram govind died in the year 1952 and not six years before the statement of respondent 1's counsel on 1-8-1956 the same counsel sri mohd. 16. in begin of the skype highlighting 0043/1926 end of the skype highlighting :air1926all411 (supra) this court clearly held that a statement made under order x, rule 2, by a person..........had become the adhivasi and later on sirdars of the disputed clots.6. the only contention of the learned counsel for the appellant is that the respondents could not be in cultivatory possession of the disputed plots in 1359f since their counsel himself stated on the date of issues that ram govind had died six years prior to his statement and this would place the death of ram govind prior to 1359f. this contention was considered by both the courts below and they were of the view that the statement was made inadvertently by the learned counsel for the respondents on the date of issues and that respondent no. 1 mathura prasad had specifically stated in the witness-box that ram govind died 2 1/2 or 3 years prior to the date on which the witness was making the statement. learned counsel for.....
Judgment:

Mahesh Chandra, J.

1. This is a defendant's second appeal against the decree of both the Courts below.

2. Mathura Prasad, Shyam Lal and Dan Bahadur respondents instituted a suit against Balmiki Singh appellant for possession over plots Nos. 428/22, 444/12 and 429/ 25 of village Kundru of district Gonda and recovery of Rs. 60 as damages, alleging that Ram Govind, the father of respondent No. 1 and grand father of respondents Nos. 2 and 3, was a Sub-tenant of the disputed plots and became an adhivasi on the enforcement of the U. P. Zamindari Abolition and Land Reforms Act, 1950. They alleged that Ram Govind died subsequently and as his heirs the respondents became the adhivasis of the disputed plots and became sirdars thereafter on 30-10-1954. The appellant is said to have wrongfully cut away the crops of these plots causing a loss of Rs. 65 to the respondents.

3. The appellant contended that he himself was the adhivasi and had become sirdar of the disputed plots with effect from 30-10-1954 and that the suit was barred by limitation.

4. The trial Court held that the respondents and not the appellant were the adhivasis and thereafter sirdars of the disputed plots, that the suit was within time and that the respondents suffered damage to the extent of Rs. 60. The suit was accordingly decreed. The appeal was dismissed by the first appellate Court.

5. The Courts below considered in detail the oral and documentary evidence produced by the parties. In particular there was a difference in the extracts of Khasras (Exs. A1 and A2) relating to 1356 F. and 1359F respectively given by the patwari andfiled by the appellant and certified copies of the same Khasras (Exs. 9 and 10) issued from the Record Room. In the certified copies (Exs. 9 and 10) there was an entry in the name of Ram Govind, the father of respondent No. 1 and grand-father of respondents Nos. 2 and 3, as Sub-tenant of the disputed plots while in the copies given by the patwari and filed by the appellant there was no such entry. The copies given by the patwari were obviously incorrect as found by the Courts below, because we find that Ex. A-2 purporting to be for 1359F. was really issued in 1356F, i. e. on 25-5-1957. No explanation has been offered by the palwari. In respect of the entries in 1356 F also he had merely copied the entries of 1355 F. The Courts below cannot, therefore, be said to have gone wrong when they hold the certified copies issued from the Record Room to be correct and the extracts given by the patwari to be incorrect. They also considered the oral evidence adduced by the parties and then came to the conclusion that the respondents and not the appellant had become the adhivasi and later on sirdars of the disputed clots.

6. The only contention of the learned counsel for the appellant is that the respondents could not be in cultivatory possession of the disputed plots in 1359F since their counsel himself stated on the date of issues that Ram Govind had died six years prior to his statement and this would place the death of Ram Govind prior to 1359F. This contention was considered by both the Courts below and they were of the view that the statement was made inadvertently by the learned counsel for the respondents on the date of issues and that respondent No. 1 Mathura Prasad had specifically stated in the witness-box that Ram Govind died 2 1/2 or 3 years prior to the date on which the witness was making the statement. Learned counsel for the appellant contends that the respondents are bound by the statement of their counsel. For this he relies on Abdul Aziz v. Mariyam Bibi : AIR1926All710 Rajunder Narain Rae v. Bijai Govind Singh, (1837-41) 2 Moo Ind AMP 253 (PC), and Nand Kishore Rai v. Ganesh Prasad : AIR1929All446 On behalf of the respondents the contention is that the statement of the learned counsel for the respondents will not bind his clients as it was made inadvertently and also because the Court had no power to record that statement of his under Order 10 on the date of issues and relied on Manmohan Das v. Mt. Ramdei , Janki Prashad v. Arku Lal, (1905) 2 All LJ 777, Surajmal v. Mt. Chhote 0043/1926 : AIR1926All411 and Vasumal Valiram v. Karam Chand, AIR 1941 Sind 41.

7. Before we consider the decisions relied upon by the learned counsel for the parties it would be useful if we look at the provisions of Order 10, Rule 1 and Order 10, Rule 2, Order 10, Rule 1, runs as follows:--

'At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such alegations of fact as are made in the plaint or written statement if any of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials.'

8. It will be evident that this rule relates only to ascertainment by statements of the parties themselves or their pleaders whether allegations in the pleadings were admitted or denied by them. It will also be clear from Rule 1 that this ascertainment is to be made by the Court only when the allegations are not expressly or by necessary implication admitted or denied by the party against whom they are made.

9. Order 10, Rule 2, runs as follows:--

'At the first hearing of the suit, or at any subsequent hearing, any party appearing in person or present in Court, or any person able to answer any material questions relating to the suit by whom such party or his pleader is accompanied, may be examined orally by the Court, and the Court may, if it thinks fit, put in the course of such examination questions suggested by either party.'

10. Evidently, it does not relate merely to the allegations in the pleadings It provides for oral examination of the party or companion of the party able to answer anv material questions relating to the suit. There is no limitation in this rule that the questions must be limited to the allegations specifically made in the pleadings. Even the phrase 'any material questions' has only been used in connection with the ability of the companion of the party to answer it and the rule says that the party or such a companion may be examined orally by the Court. I agree with the learned counsel for the respondents that this examination cannot take the place of evidence. As held by their Lordships of the Judicial Committee in AIR 1933 PC 175 (supra) the Court would go wrong if under this provision it chose to examine any person as a witness. These provisions are not meant to take the place of Order XVIII. At the same time it would be incorrect to say that the oral examination by the Court would be limited to the admission or denial of the specific allegations in the pleadings. Nor does the decision of their Lordships of the Privy Council lay down any such proposition.

11. The two Rules 1 and 2 of Order 10 cannot stand on the same footing for another reason also. Rule 1 is confined only to ascertainment from the party -- or his pleader. Rule 2 provides for examination not only of the party or the pleader but also a companion of the party, that is any person by whom a party or its counsel is accompanied. The statement of a person accompanying a party without any authority or power on his behalf cannot certainly occupy the same position as the statement of the party or his pleader made under Rule 1. It has been repeatedly held that so far as the statement under Order 10, Rule 1 is concerned, administrations made by a party under this rule are conclusive against him. Such a statement is in the same position as written pleadings of the parties. A statement under Rule 2 of Order 10 would certainly be of great value and has to be considered in the decision of the case, but there is a clear difference between a statement under Rule 1 and one under Rule 2.

12. It is true that in this case the statement was made by the learned counsel for the plaintiffs and not by a mere companion of the party. The party was, however, entitled to show that the statement of the learned counsel was made inadvertently and did not represent the true state of affairs. Mathura Prasad (respondent No. 1) himself came into the witness-box and stated on 4-11-1957 before the Munsif that his father Ram Govind died three years ago. In the Revenue Court Mathura Prasad (respondent No. 1) explained that his counsel had stated about the death of his father six years ago, but it was really his (respondent No. 1's) brother who had died six years ago and that his father died in the year the zamindari was finished. He had also stated definitely that his father was in possession in 1356F. and 1359F. and had died about 2 1/2 or 3 years ago. The statement having been made on 28-4-1956 and the zamindari having been abolished by the issue of notification on 1-7-1952, it clearly means that Ram Govind died in the year 1952 and not six years before the statement of respondent 1's counsel on 1-8-1956 The same counsel Sri Mohd. Ayub, who made the statement before the trial Court, also argued the case before the trial Court and the first appellate Court and had evidently contended before them that his statement had been made inadvertently. There is no question of an amendment of an oral statement which had actually been made The learned counsel could only inform the Court about the mistake in his statement. Respondent No. 1 himself had certainly done so when after mentioning his counsel's statement he stated that his brother had died six years ago and that his father Ram Govind died in the year in which the zamindari was abolished. The Courts below were then perfectly justified in considering whether or not the statement of the learned counsel for the respondents was made inadvertently. After considering this aspect of the matter they came to the conclusion that the statement was actually made inadvertently and relied on the statement of respondent No. 1 himself regarding the time of the death of his own father after considering the documentary evidence also.

13. In : AIR1926All710 (supra) this Court was considering a statement madeunder Order X, Rule 1 only and not under Order X, Rule 2. As mentioned already, in the case of a statement under Order X, Rule 1 it was an admission of the plaintiff's allegations in the pleadings and had to be taken as conclusive. It was not a statement under Order X, Rule 2.

In (1837-41) 2 Moo Ind App 253 (PC) (supra) the question raised was about the mode in which the accounts were directed to be taken by the decree giving possession. The case had been decided by the Provincial Court on 28-7-1809 and by the Sudder Dewanny Adawlut on 27-7-1812. It was on 18-12-1819, more than seven years after the decree of the Sudder Dewanny Adawlut, that an order was made for taking an account of what the respondent had to receive with reference to one moiety or portion of the profits of the zamindari. The calculations were made and the Vakil for the appellant had agreed in the name of client to the sum calculated as the mesne profits of the zamindari. It was in that connection that the Privy Council had held that the admission and consent of a Vakil made with due authority would bind his client and that where an order was made for the payment of a certain sum being the moity of the profits of an estate founded on the amount for which security had been taken as the rental of the zamindari when possession was given up, and that amount was admitted and assented to by the Vakil in Court and the order made accordingly. It was held that such a consent was binding on the client and precluded him from afterwards opening the account. That was the case of a consent and the Privy Council itself observed that their Lordships did not state that it was their opinion that the case might not be made out that the admission of the Vakil was not made with due authority, but in the case before them there was no doubt that he had the authority of his clients. This decision cannot therefore, be interpreted to mean that courts are precluded from going into the question whether the statement can be said to have been and was actually made inadvertently without the authority of the client on the point, particularly when it is not a case of a consent.

14. In Nand Kishore's case : AIR1929All446 (supra) it has only been decided that where an admission had been made by the lawyer of a party and the Subordinate Court had decided the case upon that admission it would not be correct to reopen the matter in appeal. In the present case both the Courts below had themselves considered the statement of the learned counsel for the respondents and far from deciding the case on the statement of the learned counsel for the respondents they considered that statement and the statement of respondent No. 1 himself and came to the conclusion that it was the statement of respondent No. 1 which disclosed the true state ofaffairs and that the statement of the learned counsel for the respondents was made Inadvertently. Nand Kishore Rai's case : AIR1929All446 also cannot, therefore, help the appellant.

15. (1905) 2 All LJ 777 (supra) dealt with Section 118 of the old Civil Procedure Code. This was a case relied upon by the learned counsel for the respondents for the proposition that the examination of the learned counsel for the respondents made in the trial Court was illegal. This contention is without force in view of the specific wording of Order X, Rule 2, which permits examination not only of the party but also of his companion. As mentioned also, and as pointed out by their Lordships of the Privy Council in Manmohan Das (supra) it was not for superseding the ordinary procedure of trial and take the place of Order XVIII. but only to be used to obtain information on material questions. The question about the time of death of Ram Govind was a material question and the Court could obtain information on that point. But if the learned counsel for the respondents made a mistake while giving that information, respondent could show the correct state of affairs and also show that the statement by the counsel was made inadvertently. The manner in which the mistake of the learned counsel was made could also be explained and on this point the Courts have, as already seen, found that the statement was inadvertently made.

16. In 0043/1926 : AIR1926All411 (supra) this Court clearly held that a statement made under Order X, Rule 2, by a person appearing to prosecute a case or to look after it on behalf of the party is not necessarily binding on that party. This would also show that the statement under Order X, Rule 2, does not stand on the same footing as the statement under Order X, Rule 1, and the question whether a particular statement made under Order X, Rule 2, would or would not bind the party concerned can be considered by the Courts and when they come to the conclusion that the statement was made by the counsel inadvertently that statement made inadvertently could not be said to be binding on his clients.

17. Vasumal Valiram's case, AIR 1941 Sind 41 (supra) also can be authority for the proposition that the Court is not entitled to examine a party or his counsel when he finds it necessary to obtain any information from such party on any material question. All that it held is that it could not take the place of the procedure under Order XVIII

18. It would, therefore, follow from an examination of the decisions cited by the learned counsel for the parties that it was open to the Courts below to ask the learned counsel for the parties under Order 10, Rule 2 C.P.C. about the time of the death of Ram Govind which was a material question. Thestatement made was not a statement under Order X, Rule 1, C.P.C., but only under Order X, Rule 2, C.P.C. and it was open to the. Courts below to go into the question whether the statement of the learned counsel for the respondents was made inadvertently and whether the statement of respondent No. 1 himself on that question was correct. After having gone into that question and coming to a finding of fact the Courts could not be said to have been in error when they found that actually the respondents and their predecessor were in cultivatory possession in 1356 F. and 1359 F. The entry of actual possession in the khasra of 1356 F. was also in favour of the respondents' predecessor Ram Govind and not the appellant, vide Ex. A-1. So was the entry in 1359 F-note Ext. A-2.

19. The appeal is accordingly withoutsubstance and is dismissed with costs.


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