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Sheo Prasad Singh Vs. Kastura Kuar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1888)ILR10All119
AppellantSheo Prasad Singh
RespondentKastura Kuar
Excerpt:
jurisdiction, presumption of - maxim, omnia praesumuntur rite et solemniter esse acta--civil procedure code, sections 103, 283, 647--high court's power of revision---civil procedure code, section 622. - - , the 15th june 1887. what happened then is best represented by the order of the learned subordinate judge himself, and it runs as follows. further, the learned counsel argues that another remedy was open to the petitioner before asking this court to revise the order complained of, and that remedy was a regular suit such as section 283 of the civil procedure code contemplates......applied to this ease; and that, until the contrary is shown, the order by the learned subordinate judge. pandit kashi narain, of the 15th june 1887, should be deemed to be an order passed with jurisdiction and in the manner the law contemplates.7. to this argument the reply which pandit sundar lal, on behalf of the petitioner, could make was that the only manner in which the case could be within the jurisdiction of the subordinate judge was that a court of appeal exercising its functions had transferred it under section 25 of the civil procedure code, and that the mere. circumstance of the absence-of such order from the record of the present case removed the presumption, and, indeed, proved, as the learned pleader contends, that the subordinate judge, pandit kashi narain, had no.....
Judgment:

Mahmood, J.

1. This is an application presented to this Court invoking its interference, as a Court of revision, by exercise of the authority conferred upon it by Section 622 of the Civil Procedure Code. The facts from which this application has arisen may briefly be recapitulated to be the following.

2. One Musammat Kastura Kuar obtained a money decree against one Musammat Jelaba Kuar on the 16th July 1884, and in execution of the decree the property to which this litigation relates was attached on the 30th November 1886, as the property of the judgment-debtor. These proceedings of attachment admittedly took place in the Court of the Additional Subordinate Judge of Ghazipur, and it was in that Court that the present petitioner, Babu Sheo Prasad, filed an application on the 30th March 1887, objecting to the attachment mainly upon the ground that the judgment-debtor was not the owner of the property attached. Indeed, Pandit Sundar Lal, on behalf of the petitioner, concedes that the application was of the character contemplated by Section 278 of the Code of Civil Procedure.

3. It appears, then, that Rai Cheda Lal was the Additional Subordinate Judge of Ghazipur, and we find that, on the 10th May 1887, he adjourned the hearing of the application. Another adjournment was made by his order of the 4th June 1887, and then the case appears to have come on for hearing, not before the Additional Subordinate Judge, Rai Cheda Lai, but before Pandit Kashi Narain, who is the Subordinate Judge of the District, and by his order of the 14th June 1887, the hearing of the application was once more adjourned. The order says that the pleaders for the parties having departed, the case was to come on for hearing the next day, i.e., the 15th June 1887. What happened then is best represented by the order of the learned Subordinate Judge himself, and it runs as follows.

4. 'The case came on to-day again, and the pleaders have departed. Ordered that the case should be struck off for default.' This order dated the 15th June is the one of which revision is prayed for in this application.

5. The application originally came on before the learned Chief Justice, who, by his order of the 9th August 1887, directed notice to be issued to the opposite party to 'show cause why the order of Pandit Kashi Narain, dated the 15th June 1887, should not be set aside on the ground that it was made without jurisdiction, and why the case should not be restored to the list of the Additional Subordinate Judge for disposal.'

6. In obedience to this order Mr. Spankie has appeared to show cause on behalf of the opposite party, and the learned Counsel has, among other things, relied upon a preliminary contention which aims at showing that in the due exercise of its revisional powers this Court should not interfere. In the first place, the learned Counsel contends that the rule contained in the maxim Omnia praesumuntur rite et solemniter esse acta applied to this ease; and that, until the contrary is shown, the order by the learned Subordinate Judge. Pandit Kashi Narain, of the 15th June 1887, should be deemed to be an order passed with jurisdiction and in the manner the law contemplates.

7. To this argument the reply which Pandit Sundar Lal, on behalf of the petitioner, could make was that the only manner in which the case could be within the jurisdiction of the Subordinate Judge was that a Court of appeal exercising its functions had transferred it under Section 25 of the Civil Procedure Code, and that the mere. circumstance of the absence-of such order from the record of the present case removed the presumption, and, indeed, proved, as the learned pleader contends, that the Subordinate Judge, Pandit Kashi Narain, had no jurisdiction to dispose of the case. The learned pleader has also argued that even if it be taken for granted that the learned Subordinate Judge and the Additional Subordinate Judge had concurrent jurisdiction over the matter, the circumstance that Rai Cheda Lal, the Additional Subordinate Judge, wag seized of the case, would render the concurrent jurisdiction of the learned Subordinate Judge, Pandit Kashi Narain, ineffective in taking over a case and making orders thereon, of which case the Additional Subordinate Judge was already seized. In supporting this argument the learned pleader has used the analogy of the concurrent jurisdictions of the various Judges of this Court, and he has contended that as one Judge seized of a case cannot thereafter be deprived of it by another Judge, so even if the Additional Subordinate Judge and the Subordinate Judge did possess concurrent jurisdiction, one could not be deprived of his legal powers to adjudicate upon a case he was seized of.

8. So far as the latter part of this contention is concerned, I do not think it necessary to determine the point because, although the argument has been very ably put before me by Pandit Sundar Lal, I cannot help feeling that the answer Mr. Spankie relies upon renders its decision unnecessary in this case. Mr. Spankie's contention is that the want of jurisdiction upon which the whole argument proceeds must not be presumed. I think this is a sound argument, because it seems to me that the want of jurisdiction may arise owing to numerous classes of facts which are to be determined by the lower Courts and not by Courts of revision. There may be want of jurisdiction, owing to territorial limits of jurisdiction, owing to the nature of the class of litigation, owing, perhaps, to an order such as Section 25 of the Civil Procedure Code contemplates, owing, perhaps, to the appointment of the Judge not being duly and lawfully made, owing to the cause of action having accrued at a place other than that where the litigation commenced, and owing to other numerous matters, such as the defendant's living in a foreign jurisdiction. In regard to the manner in which I understand the word 'jurisdiction,' I need only say that I have already given expression to my views in Dhan Singh v. Basant Singh I. L. R., 8 All., 519, and that I still adhere to those views.

9. But the question is whether I, sitting here as a Court of revision, should enter into the various hypotheses and possibilities which may result in one answer or other as to the question of jurisdiction. Mr. Spankie contends that this Court should not exercise, under the circumstances, the discretionary powers it possesses under Section 622 of the Civil Procedure Code. Apart from the questions of fact which may have a bearing upon the question of jurisdiction, the learned Counsel contends that the ordinary remedies which were oper to the present petitioner have not been adopted by him, and that, therefore this Court should not interfere in revision. The learned Counsel contends with great force that the order of the 15th June 1887, now sought to be revised was such as could have been passed under Section 102, read with Section 647, of the Civil Procedure Code, and that, indeed, the usual remedy open was to apply under Section 103 of the Civil Procedure Code for the restoration of the case and due adjudication thereupon. Further, the learned Counsel argues that another remedy was open to the petitioner before asking this Court to revise the order complained of, and that remedy was a regular suit such as Section 283 of the Civil Procedure Code contemplates.

10. I am of opinion that this contention has force. The principles upon which the visitatorial functions of the Courts of revision, such as in this case, should be exercised were fully considered by Mr. Justice West in the case of Shiva Nathaji v. Joma Kashinath I. L. R., 7 Bom., 341, in which, at the end of the judgment, certain conclusions are specifically enumerated. I have always entertained the greatest respect for the rulings of that eminent Judge, and I have more than once stated that this particular judgment was one deserving of the highest respect from the Indian Courts, and I adopted it in Sundar Das v. Mama Ram I. L. R., 7 All., 407, in which my brother Brodhurst concurred. The general effect of these rulings, as far as this case is concerned, is to lay down general principles that the especial and extraodinary remedy by invoking the revisional powers of this Court should not be exercised unless as a last resource for an aggrieved litigant. In this case the ordinary remedies have not been adopted by the petitioner, and I do not think it is necessary for me, as a Court of revision, to go into the detail whether or not such facts exist as to justify the conclusion that the lower Court did not exercise jurisdiction.

11. Pandit Sundar Lal in an elaborate and able argument has, indeed, contended, as a matter directed to induce me to exercise the revisional powers of this Court, that the simplest course would be for me not only to decide matters of fact which would suggest one decision or other as to jurisdiction, but also to decide, even if there was jurisdiction, whether or not sufficient reasons existed for striking off the case in default. All I need say to this argument is that I do not think that the Legislature intended this Court, as a Court of revision, to exercise any such functions. I, therefore, decline to interfere in revision and dismiss the application with costs.


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