Skip to content


Maharaj Ram Bijai Prasad Singh Vs. Ram Bhanjan Singh - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All638
AppellantMaharaj Ram Bijai Prasad Singh
RespondentRam Bhanjan Singh
Excerpt:
- - we are satisfied that this is not a ease in which any such indulgence should be extended to the appellant. we have examined the pleadings of the parties and we are satisfied that neither the liability nor the amount of the liability of the parties in respect of land revenue was in issue either in the trial court or before the district judge......court, in accordance with the provisions of section 264 and serial no. 14 of hat 2 of schedule 2, agra tenancy act. it is a matter of admission that when the appeal was filed it was not accompanied by a copy of the judgment of the original court, that is the judgment of the assistant collector of the first class. it was maintained, in these circumstances, for the respondent that the appeal fell to be dismissed, and that a copy of the judgment could not now be filed as the appeal was beyond time.2. section 264, agra tenancy act, directs that the provisions of the civil procedure code shall apply to all suits and other proceedings under the act, subject to the modifications contained in list 2 of schedule 2. serial no. 14 of list 2 of schedule 2 directs that in addition to the copies.....
Judgment:

Thom, C.J.

1. This is a plaintiff's appeal arising out of a suit in which the plaintiff sought to recover from the defendant the Hum of Rs. 55-14-7 on account of revenue alleged to have been realized from him in respect of the defendant's share of revenue for the year 1928, plus Rs. 11-12.0 interest, Rs. 67-10-7 in all. A preliminary objection to the appeal has been taken on behalf of the defendant-respondent. It has been urged that the appeal should be dismissed upon Ute ground that the memorandum of appeal was not accompanied by a copy of the judgment of the first Court, in accordance with the provisions of Section 264 and serial No. 14 of Hat 2 of Schedule 2, Agra Tenancy Act. It is a matter of admission that when the appeal was filed it was not accompanied by a copy of the judgment of the original Court, that is the judgment of the Assistant Collector of the First Class. It was maintained, in these circumstances, for the respondent that the appeal fell to be dismissed, and that a copy of the judgment could not now be filed as the appeal was beyond time.

2. Section 264, Agra Tenancy Act, directs that the provisions of the Civil Procedure Code shall apply to all suits and other proceedings under the Act, subject to the modifications contained in list 2 of Schedule 2. Serial No. 14 of list 2 of Schedule 2 directs that in addition to the copies required by Order 41, Rule 1, rand with Order 42, Civil P.C., every memorandum of second appeal shall be accompanied by a copy of the judgment of the original Court. Order 42, Rule 1 enjoins that 'the rules of Order 41 shall apply, so far as may be, to appeals from appellate decrees,' subject to the following provisions:

ft shall not be necessary for an appellant in a second appeal to produce a copy of the judgment of the Court of first instance, or any judgment other than the judgment on which the decree appealed against may be founded, and the record of the case shall be sent for at the expense of the appellant.

3. The proviso did not form part of the original rule. It was introduced as an amendment to the rule by this Court. The Court has jurisdiction to amend the rules in Schedule 1, Civil P.C. It has no jurisdiction however to effect, by way of a rule, an amendment to the provisions of the Agra Tenancy Act. Serial No. 14 of list 2 of Schedule 2, Agra Tenancy Act, stands therefore unaffected by the proviso introduced into Rule 1 of Order 42. It was contended for the appellant that the expression 'second appeal' in serial No. 14 of list 2 of Schedule 2 had a special meaning and referred to appeals to the Board of Revenue. It was urged in support of this contention that Section 246, Tenancy Act of 1926 is differently worded from the corresponding Section of the earlier Act of 1901. In the latter Section the expression used was 'second appeal.' In Section 246 of the 1926 Act the word 'second' has been dropped, and under the provisions of the Section, an appeal shall lie to the High Court from the appellate decree of a District Judge, whether that decree be passed in first or second appeal. In our judgment, the fact of this amendment introduced into the 1926 Act does not support the plaintiff's contention. The amendment was intended merely to make it plain that an appeal should lie to the District Judge on the grounds specified in Section 100, Civil P.C., whether against a first appellate decree or second appellate decree. Furthermore, we would observe that serial No. 14 of list 2 of Schedule 2 refers specifically to Order 42. Order 42 is headed 'Appeals from appellate decrees,' and it is not in doubt that this order covers second appeals. In our judgment, the provisions of Section 264 and serial No. 14 of list 2 of Schedule 2, Agra Tenancy Act, are perfectly plain and admit of no doubt whatever. If a party desires to file a second appeal in a suit under the Agra Tenancy Act, then his memorandum of appeal must be accompanied by a copy of the judgment of the original Court.

4. We have been informed that many such appeals have been admitted and disposed of by this Court where the memorandum of appeal has not been accompanied by a copy of the judgment of the original Court. In these circumstances, learned Counsel invited the Court to extend to the plaintiff the benefits of the provisions of Section 5, Limitation Act. We are satisfied that this is not a ease in which any such indulgence should be extended to the appellant. It appears that there are no merits in the appeal. The value of the suit is less than Rs. 200 and in these circumstances, no appeal lay to the District Judge in view of the provisions of Section 242, Agra Tenancy Act. Learned Counsel for the plaintiff contended that the appeal to the District Judge was competent under Sub-section (d) of this Section. Under Sub-section (d), an appeal in any suit under Sections 221, 222, 223, 224, 226 and 227 is competent if the amount of revenue annually payable has been in issue in the Court of first instance and is in issue in appeal. We have examined the pleadings of the parties and we are satisfied that neither the liability nor the amount of the liability of the parties in respect of land revenue was in issue either in the trial Court or before the District Judge. The only question in issue was whether, in fact, the plaintiff had paid a sum in the name of land revenue which the defendant should have paid. In the result the appeal is accordingly dismissed with costs.


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