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Raja Ram Pal and anr. Vs. Sardar Jaswant Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1228 of 1962
Judge
Reported inAIR1965All368; 1965CriLJ177
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 146(1) and 146(1D); Code of Civil Procedure (CPC) - Order 9
AppellantRaja Ram Pal and anr.
RespondentSardar Jaswant Singh and ors.
Appellant AdvocateR.B. Misra, Adv.
Respondent AdvocateGur Pratap Singh and ;Gyan Prakash, Advs. for Opposite Parties Nos. 1 to 9
DispositionRevision dismissed
Excerpt:
criminal - reference to civil court - section 146 of criminal procedure code, 1898 - reference under the section totally governed by the provisions of the section itself - held, the provisions of order 9 of code of civil procedure , 1908 can not apply to proceedings in civil court. - - 5. reading those provisions together, and keeping in mind that these provisions have been made for the purpose of preventing breach of peace and obtaining a speedy decision of the limited question of possession of one of the parties over the property in dispute, the intention of the legislature is quite clear that the proceedings before the civil court were not to be protracted proceedings like civil suits......judge of this court for the decision of me question.'whether the provisions of order 9 of the civil procedure code are applicable to proceedings before a 'civil court of competent jurisdiction' deciding a reference under section 146 cr. p. c.' the question arose in this way. there was a proceeding under section 143 cr. p. c. before a criminal court. the criminal court was unable to decide as to which of the parties was in possession and made a reference under section 146 (1) cr. p. c. to the civil court. after the civil court had decided the matter, two persons made an application to that court saying that they had not obtained information about the date when the civil court would proceed finally to decide the matter. they stated that the proceedings before the civil court had been.....
Judgment:

B. Dayal, J.

1. This case has been referred to a Division Bench by a learned Single Judge of this Court for the decision of me question.

'Whether the Provisions of Order 9 of the Civil Procedure Code are applicable to proceedings before a 'civil court of competent jurisdiction' deciding a reference under Section 146 Cr. P. C.'

The question arose in this way. There was a proceeding under Section 143 Cr. P. C. before a criminal court. The criminal court was unable to decide as to which of the parties was in possession and made a reference under Section 146 (1) Cr. P. C. to the Civil court. After the Civil Court had decided the matter, two persons made an application to that court saying that they had not obtained information about the date when the civil court would proceed finally to decide the matter. They stated that the proceedings before the Civil Court had been stayed by an order of the learned Sessions Judge but they did not know when the civil court restarted the proceedings after receipt of the record from the court of Session, and they, therefore, prayed that the decision made by the civil court be set aside as an ex parte decision and they may be heard.

The learned Munsif, before whom the application was made, did not go into the merits of the application but merely stated that the provisions of Order 9 of the Civil Procedure Code did not apply to a reference under Section 146 of the Criminal Procedure Code and on that basis dismissed the application, summarily. The applicant filed a revision in this court which was heard by a learned single Judge, and before him some cases were cited showing a conflict of views between this High Court and the Madras High Court. Consequently the question, mentioned above was referred to this Division Bench.

2. Before proceeding with the discussion of the question referred to us it may be noted that the case of Sri Sheonath Prasad v. City Magistrate Varanasi, AIR 1959 All 407 which was relied upon by the opposite parties was a case in which the question arose whether the civil court to which a reference had been made by the criminal court was a 'court of competent Jurisdiction' to decide the matter. The argument was that the property involved was valued at more than Rs. 5,000/- and, therefore, the Munsif to whom the reference had been made was incompetent to decide it. A learned Judge of this court, who heard that case, came to the conclusion that a reference under Section 146 Cr. P. C. pending in a civil court retains its character as a proceeding under Section 145 Cr. P. C. and the competence of the court is not to be decided by taking into consideration the pecuniary jurisdiction of the court, as in Civil suits, but it has to be decided only with reference to the territorial Jurisdiction of the court, as the Criminal Procedure Code contemplates only territorial Jurisdiction of criminal courts. The precise question which has arisen in this case did not really arise there, and, therefore, we need not go Into further consideration of that case.

3. The applicant had relied upon two cases of the Madras High Court--Kochadai Naidu v. Nagava-sami Naidu, AIR 1961 Mad 247 and Kondammal v. Duraiswaml Naicker, AIR 1961 Mad 384. In the first case the point for consideration was whether a proceeding referred to a civil court could be transferred under Section 24 of the Civil Procedure Code to another court of competent jurisdiction, and the learned Judge who decided that case came to the conclusion that a 'proceeding' mentioned in Section 24 of the Civil Procedure Code is wide enough to include a proceeding consequent upon a reference under Section 146, Cr. P. C. and, therefore, it could be transferred to any other competent court. In the second case the question was exactly the same as has arisen in the present revision, and the learned Judge who decided the case came to the conclusion that the provisions of Order 9, Rule 13, of the Civil Procedure Code apply to a proceeding upon a reference under Section 146 of the Criminal Procedure Code. The Judgment is a very short one and the decision is based upon the earlier decision mentioned above and it was taken to imply that all the provisions of the Civil Procedure Code are applicable to a proceeding on a reference under Section 146 of the Criminal Procedure Code.

The Madras High Court itself reconsidered the matter in Periyakaruppa Thevar v. Vellai, AIR 1963 Mad 338 and it was expressly held that the provisions of the Civil Procedure Code contained in Order 9, Rule 13, are not applicable to proceedings on a reference under Section 146 of the Criminal Procedure Code. (Thus no conflict now exists on the point). The main reasons which appealed to the learned Judges who formed the Division Bench deciding that case were that such a proceeding is not a proceeding within the meaning of Section 141 of the Civil Procedure Code as that section relates only to original proceedings originating in the Civil Court and also that the procedure of setting aside an ex parte order is in the nature of a substantive right and is not and is not merely a procedural provision and by virtue of Section 141 of the Civil Procedure Code this provision cannot be made applicable to proceedings of this nature.

4. After considering the whole matter and hearing learned counsel for the parties we are of opinion that the Criminal Procedure Code provides almost a complete procedure which the civil Court has to follow under Section 146 of the Criminal Procedure Code. By Sub-section (1A) of Section 146 it is provided as follows:

'On receipt of any such reference, the Civil Court shall peruse the evidence on record and take such further evidence as may be produced by the parties respectively, consider the effect of all such evidence, and after hearing the parties, decide the question of possession so referred to It.'

Then Sub-section (1B) provides for a period of three months from the date of the appearance of the parties before it for concluding the enquiry and remitting the finding. Sub-section (1D) is again important and is in the following words:

'No appeal shall lie from any finding of the Civil Court given on a reference under this section nor shall any review or revision of any such finding be allowed:'

And by the next Sub-section (1E), an order under the section is made subject to any subsequent decision by a court of competent jurisdiction.

5. Reading those provisions together, and keeping in mind that these provisions have been made for the purpose of preventing breach of peace and obtaining a speedy decision of the limited question of possession of one of the parties over the property in dispute, the intention of the legislature is quite clear that the proceedings before the civil court were not to be protracted proceedings like civil suits. It was to ensure this quick decision that the legislature definitely provided in Sub-section (1A) that all that the civil court has to do on receipt of a reference is to consider the evidence that is already on the record, or any further evidence that the parties may produce before It, to hear the parties, and to decide the case. The contention, of learned counsel for the applicant is that these being the normal steps taken by a civil court in deciding cases, such expressions only indicate that the civil court has to proceed in its own way and to decide the matter as a civil case. We are unable to agree with this contention. If the intention of the legislature had been to leave the civil court to decide the matter by following the same procedure which it follows in all civil suits, it was wholly unnecessary to provide what the legislature has in Sub-section (1A). If the matter has to be decided by the civil court within the limited period of three months and that period of three months is to start from the day on which the parties first appear before the court, the procedure before the civil court must be a very summary procedure. Sub-section (1) of Section 146 of the Criminal Procedure Code also provides that after making a reference to the civil court the criminal court will also fix a date on which the parties are bound to appear before the civil court. Normally the period of three months would, therefore, start from that date fixed by the criminal court, and the parties are bound to appear before the civil court on that date. If some of the parties, having known of that date, do not care to appear before the civil court, it cannot be said that the civil court is bound to keep on waiting till they actually appear before the court.

The provision in Sub-section (1-A) that the civil court will hear the parties can only mean that it will hear such of the parties as wish to be heard, and if there are some parties who having known the date on which they had to appear before the civil court either do not appear on that date or having appeared on that date fall subsequently to appear before the court, and are consequently not heard by the civil court, it cannot be said that the procedure prescribed by Sub-section (1A) was not followed, by me civil court.

6. Thus when the decision is given by the civil court after hearing such parties as do appear before it, Sub-section (1D) makes that decision final and further takes care to provide that the decision shall not be set aside or vacated by way of review or revision.

7. The contention of the learned counsel for the applicant is that here the applicant did neither want a review nor a revision of the decision of the civil court. What the applicant wanted was the setting aside of the ex parte order and an opportunity to be heard. We think that the setting aside of the order on the ground that a party could not appear before the civil court and could not make its representation is also a review within the meaning of this term in the Criminal Procedure Code. This word is to be interpreted as in the Criminal Procedure Code and not in the Civil Procedure Code. The Civil Procedure Code makes a distinction between an application for review and an application for setting aside an ex parte decree or order; but in the Criminal Procedure Code there is no such distinction. In this Code the word 'review' is used in the ordinary sense of a judgment or order being reconsidered by the very court which passed it. And when in Sub-section (1D) a review of the findings of the civil court is prohibited, it means that the civil court is debarred from reconsidering its own order for any reason whatever.

The reason for such a provision is also obvious. By the next Sub-section (1E) the decision has been directed to be subject to all subsequent decisions by any competent court. So that the decision by the civil court does not bind any competent court, and the parties who are aggrieved by that decision are free to me a regular suit or take other legal steps to get their rights adjudicated upon and the summary decision of the civil court under Section 140 of the Criminal Procedure Code will not be a hindrance in the way of that competent court deciding the matter afresh. In this view of the matter we are of opinion that a reference to the civil court made under Section 146 (1) of the Criminal Procedure Code is governed wholly by the provisions of that section itself, and when the Criminal Procedure Code provides the procedure to be followed and limits the powers which the civil court has, while deciding such a reference, there is no scope for the application of the provisions of Order 9 of the Code of Civil Procedure to such a proceeding.

8. The result, therefore, is that in our opinion the provisions of Order 9 of the Civil procedure Code do not apply to proceedings in a civil court on a reference by a criminal court under Section 146 (1) of the Criminal Procedure Code.

9. The file will be sent back to the learned single Judge with this reply.

Broome, J.

10. In view of the decision given by the Division Bench in this case on 30-3-1964, this criminal revision, application fails and is accordingly rejected. The interim order passed on 12-9-1962 staying delivery of possession is vacated.


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