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Banwari Lal Vs. Chhedi Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All250
AppellantBanwari Lal
RespondentChhedi Lal
Excerpt:
- - the munsif originally dismissed the opposite party's suit on 31st january 1929, and there was an appeal to the subordinate judge which failed owing to the law of limitation......not always been consistent on this point, and a recent ruling has been quoted on behalf of the opposite party, viz., that of the case of sher alt v. jugmohan ram : air1931all333 , in which it was held that it was a recognized rule of procedure that the special and extraordinary remedy by invoking the revisional powers of this court should not be exercised unless as a last resource for an aggrieved litigant. it is however clear to me that in the present case no appeal lay to the high court. it is true that there might have been an appeal against the order allowing the review to the lower appellate court under order 43, rule 1 (w), but from the appellate order no appeal has been provided by section 104, civil p.c. in my opinion, therefore there is no doubt that the high court has.....
Judgment:
ORDER

Kendall, J.

1. This is an application for the revision of an order of the Munsif of Patehpur allowing a review. One of the questions raised was whether such an order was open to revision by the High Court. Under Section 115, Civil P. C.:

The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto,

and in case of Mahadeo Prasad v. Khubi Ram : AIR1929All793 a Bench of this Court held that:

Where a trial Court has acted with material irregularity in the exercise of its jurisdiction or acted illegally, the High Court has power to interfere in revision provided that no appeal lies to the High Court. Section 115, Civil P.C., does not require that no appeal in the meantime should have been preferred to the Distriot Judge or that, if preferred, it is only the order of the District Judge which can be revised.

2. These observations are of importance because it transpired in the course of the hearing that the order of the Munsif against which this application is directed had been made the subject of an appeal to the Subordinate Judge and that the decree which the Munsif had given in consequence of his review had been modified. It must be admitted that the decisions of this Court have not always been consistent on this point, and a recent ruling has been quoted on behalf of the opposite party, viz., that of the case of Sher Alt v. Jugmohan Ram : AIR1931All333 , in which it was held that it was a recognized rule of procedure that the special and extraordinary remedy by invoking the revisional powers of this Court should not be exercised unless as a last resource for an aggrieved litigant. It is however clear to me that in the present case no appeal lay to the High Court. It is true that there might have been an appeal against the order allowing the review to the lower appellate Court under Order 43, Rule 1 (w), but from the appellate order no appeal has been provided by Section 104, Civil P.C. In my opinion, therefore there is no doubt that the High Court has jurisdiction to revise the order of the Munsif allowing a review, and I have heard the matter argued at considerable length.

3. The facts of the case are stated in full detail in the order of the Munsif. The Munsif originally dismissed the opposite party's suit on 31st January 1929, and there was an appeal to the Subordinate Judge which failed owing to the law of limitation. A second appeal was made to the High Court which was dismissed under Order 41, Rule 30, on 14th February 1930. In spite of this the Munsif in the order mow applied against allowed a review of his original order and decree dismissing the suit, and decreed the suit of the plaintiff opposite party. It will be observed that the result of these proceedings is that the decree of the Munsif, which followed the review or rather appellate decree of the Subordinate Judge which resulted from an appeal from the Munsif's decree, is wholly inconsistent with the decree of the High Court dated 14th February 1930.

4. In my opinion, the original decree and order of the Munsif dismissing the suit had merged in that of the High Court and the Munaif no longer had any control over the suit so as to be able to review his previous order. There are numerous decisions of this and other GourtB to show that in such circumstances there can only be one decree and that is the decree of the final Court of appeal. I need only here refer to the decision in the case of Mathura Prasad v. Ram Charan Lal A.I.R. 1915 All. 2. It has been suggested on behalf of the opposite party that there was in reality no decree either of the lower appellate Court or of the High Court in those proceedings. An appeal was certainly preferred against the decree and order of the Munsif of 31sb January 1929, but it is argued that it was never really admitted. The order passed by the Court was 'admit subject to arguments', and it was subsequently held that the application made by the appellant under Section 5, Limitation Act, could not be allowed. There is therefore some plausibility in the argument used. The fact appears to be that the appeal never ought to have been admitted. The application under Section 5 should have been heard on the merits, and until it was allowed the appeal should not have been admitted. The fact remains, however, that it was admitted, cross-objections were made by the other side, and the appeal was dismissed. The consequence of this was that what came before the High Court was merely the question of limitation and not the merits of the case, and the decree of the High Court was merely based on this. The merits of the case have in fact never been adjudicated upon, and it appears from the account of the matter in the judgment of the Munsif that there are equities in favour of the opposite party. It also appears that the opposite party has put himself into the unfortunate position in which he is now, owing to the fact that he allowed his appeal against the original order of the Munsif to become barred by limitation. In allowing the review the Munsif was influenced considerably by the equities of the case and in fact appears to have considered that Section 151, Civil P.C., might be applied to it, but Section 151 can only be properly used 'for the ends of justice or to prevent abuse of the process of the Court' and not for the purpose of remedying the effects of negligence.

5. A great number of legal questions were discussed in the course of the argument, but it appears to me that the matter can be and should be disposed of simply on the ground that the Munsif could not reopen a matter that had been concluded by the decree of the High Court, and that he therefore acted irregularly and without jurisdiction in granting the review. I am compelled therefore to allow the application and to set his order of review aside. The result of thia order no doubt will be that the proceedings following the granting of the review will become null and void, and that the decrees which followed, viz., that of the Munsif himself and of the lower appellate Court, which are inconsistent with that of the High Court in the same matter, will be inoperative. In the circumstances of this case and as the equities appear to have been with the opposite party, I pass no order as to the costs of this proceeding.


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