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Shiv NaraIn Vs. Deputy Director (C), Mathura and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 286 of 1957
Judge
Reported inAIR1959All487
ActsCode of Civil Procedure (CPC) , 1908 - Order 3, Rule 1 - Order 4, Rule 1; Uttar Pradesh Consolidation of Holdings Act, 1953 - Sections 12 and 16; Constitution of India - Article 226
AppellantShiv Narain
RespondentDeputy Director (C), Mathura and ors.
Appellant AdvocateS.B.L. Gour, Adv.
Respondent AdvocateStanding Counsel
DispositionAppeal dismissed
Excerpt:
.....presentation is at most a curable irregularity - undue importance not given to irregularity by deputy director - no error of law - held, order of deputy director to send the case back to courts below to consider objection after correcting irregularity is not vitiated by error of law. - - 5. the learned counsel for the appellant has failed to satisfy us that this view of the deputy director of consolidation was vitiated by any manifest error of law or defect of jurisdiction. so far as the question of improper presentation is concerned, it appears to be well settled that the physical act of presentation is not of much importance and defective presentation of an application or plaints is at the most an irregularity which is easily curable. the only contention raised by the appellant..........20.this contention appears to have been rightly overruled by the deputy director. the respondents. had in fact filed an objection under section 12 and it was not vitiated on account of any fatal defect. the question of title could therefore be raised by the respondents and referred to arbitration at their instance under section 20 of the act.9. we have therefore no doubt that the deputydirector of consolidation had jurisdiction to passboth the orders which are sought to be impugnedand the view of law he took in passing those orders was in no way erroneous. in any case the orders are not such as can be said to have led toany injustice so as to call for interference in theexercise of powers under article 226 of the constitution. the petition of the appellant must therefore be held to.....
Judgment:

Srivastava, J.

1. This appeal has been preferred against an order of Mr. Justice Chaturvedi by which he dismissed a petition filed by the appellant under Article 226 of the Constitution.

2. One Govind Ram had several holdings in village Nagla Parsu, Mazra Mouza Gutehra, Pargana Saidabad District Mathura. He owned some of these holdings exclusively. In others he only owned a share. On his death the appellant claimed to be entitled to the holdings on the ground that he had been adopted by Govind Ram.

The respondents Nos. 2 and 3 contested the appellant's claim, denied his adoption and claimed to by the heirs of Govind Ram under the Hindu Law. The appellant, however, succeeded in having mutation ordered in his own favour. Consolidation proceedings then started in the village and in accordance with Section 11 of the Consolidation of Holdings Act a statement of the plots of tenure holders was prepared and published. In that statement the appellant was shown as tenure holder of the plots which formerly belonged to Govind Ram.

An objection purporting to be one under Section 12 of the Consolidation of Holdings Act was then sent by post to the Assistant Consolidation Officer. It purported to be on behalf of respondents Nos. 2 and 3, but is alleged to have been signed by one Radhan Kishan only. The Assistant Consolidation Officer rejected the objection on the ground that it had not been properly presented and had not been made by an authorised person.

The respondents Nos. 2 and 3 then went up in appeal to the Settlement Officer, who agreed with the view of the Assistant Consolidation Officer and dismissed the appeal. They then went up in revision to the Deputy Director of Consolidation who allowed the application in revision an 20-4-1957 set aside the order dismissing the objection and remanded the case for disposal on merits after giving an opportunity to the respondents Nos. 2, 3 to remove the defect that had been pointed out in respect of the objection.

In the meantime a statement of principles had been prepared and published under Section 16 of the Consolidation of Holdings Act on the basis that no objection had been filed on behalf of the respondents. A statement of proposals under Section 19 of the Act was also prepared and published. The respondents Nos. 2 and 3 then filed an application under Section 20 of the Act raising a question of title in respect of the holdings of Govind Ram and made a prayer to the Consolidation Officer that the question of title raised by them be referred to arbitration.

This prayer was opposed on behalf of the appellant on the ground mat no objection under Section 12 having been filed at was not open to the respondents to raise a question of title and to have it referred to arbitration. The Consolidation Officer allowed the application of the respondents an respect of the khata of which Govind Ram was the sole owner and referred the question of title raised in respect of that khata to arbitration.

He however rejected their prayer in respect of the khatas in which Govind Ram owned only a share and refused to make a reference in respect of those khatas. The respondents filed an appeal before the Settlement Officer against the order refusing to make a reference while the appellant preferred an appeal against the order making the reference. The respondents' appeal was dismissed by the Settlement Officer while the appellant's appeal was allowed.

The respondents then filed two applications in revision before the Deputy Director of Consolidation against the two orders of the Settlement Officer. These two applications were allowed by the Deputy Director of Consolidation by his orders dated the 29th May and the 30th May 1957. He took the view that the respondents were entitled to have the question of title referred to arbitration in respect of all the khatas in dispute.

He was of the opinion that the appellant's objection that no question of title could be raised as no objection had been filed under Section 12 of the Act was not tenable because he had already held that an objection under Section 12 had been filed and had directed by his previous order dated 20-4-1957 that the objection be heard on merits. The appellant then filed the writ petition against the dismissal of which the present appeal has been filed and prayed that the orders of the Deputy Director of Consolidation dated 20-4-1957 and 30-5-1957 be quashed by a writ of certiorari.

The main ground pressed in support of the application was that the Deputy Director of Consolidation committed a manifest error of law when he entertained the objection filed under Section 12 even though it had not been signed or presented by an authorised person. The other ground urged was that if in the eye of the law the objection filed under Section 12 was not a valid objection at all it was not open to the respondents to request under Section 20 of the Act that a question of title be referred to arbitration.

The Deputy Director of Consolidation therefore it was urged, acted without jurisdiction when he directed that the question be referred to arbitration as prayed by the responents. Both these contentions were rejected by the learned Single Judge and he dismissed the appellant's petition.

3. In appeal also the learned counsel for the appellant reiterated the contention that as the objection filed under Section 12 had not been presented by the respondents Nos. 2 and 3 themselves or by a person duly authorised by them it could not be considered to be an objection at all. He urged also that the so called objection had not even been signed by the respondents 2 and 3 and they had not shown that Radha Kishan who had signed it held any authority on their behalf to do so.

On that ground too the objection had no effect. It as therefore contended that the Deputy Director of Consolidation was wrong in ordering that the objection be entertained and be decided on merits.

4. From the copy of the order of the Deputy Director of Consolidation dated 20-4-1957 it does not appear whether the point that the objection filed under Section 12 was not signed by the respondents Nos. 2 and 3 or any person duly authorised on their behalf was taken before that officer. He allowed the application in revision and remanded the case for decision on merits because he felt that the present respondents had never been apprised of the defect pointed out in connection with their objection and had never been given an opportunity to remove it.

He also held that if an objection was really filed under Section 12 there was nothing to prevent the respondents from raising a question of title under Section 20 and having it referred to arbitration.

5. The learned counsel for the appellant has failed to satisfy us that this view of the Deputy Director of Consolidation was vitiated by any manifest error of law or defect of jurisdiction. So far as the question of improper presentation is concerned, it appears to be well settled that the physical act of presentation is not of much importance and defective presentation of an application or plaints is at the most an irregularity which is easily curable.

Thus in connection with the presentation of a plaint by an unauthorised person a Special Bench of this Court laid down in Wali Mohammad Khan v. Ishak Ali Khan AIR 1931 All 507:

'Omission to comply with the provisions regarding presentation of plaint is a mere irregularity and not an absence of jurisdiction; and if a person presenting it is not properly authorised the presentation would be irregular and the Court would then have the discretion to allow the irregularity to be cured or not.'

Later in Kanhaiya Lal v. Panchayati Akhara : AIR1949All367 , a Full Bench had to answer the question whether an application for execution which had been presented by a pleader who had no authority to do so was not to be considered to have been made in accordance with law for the purpose of saving limitation. After an elaborate discussion of the matter the question was answered in the negative.

The view taken was that the physical act of presentation could be performed by any person to whom the person making the application entrusted it and that even if it be assumed that the presentation by such a person was not strictly in accordance with law the defective presentation constituted a mere irregularity, which did not make the application in execution one not made in accordance with law. Very recently in the case of Satyanarayana v. Venkata AIR 1957 Andh Pra 172 (FB), the same question arose before the Andhra High Court.

It was urged in that case that the presentation of an application by a pleader to whom the authority in the prescribed manner under Rule 4, Order 3 of the Code of Civil Procedure was not given was a nullity and not only an irregularity which could be cured at a subsequent stage. The Full Bench which considered the question laid down that the presentation was not a nullity but merely an irregularity which could be cured.

In view of these authorities the Deputy Director of Consolidation cannot be held to have gone wrong when he refused to attach undue importance to the point raised by the appellant that the objection filed by the respondents under Section 12 was vitiated because of irregular presentation. The irregularity could in any case be cured and it was for that purpose that the Deputy Director of Consolidation sent the case back to the court below.

6. The alleged absence of the respondents' signature on the objection filed under Section 12 could also not render it absolutely void. In the case of Basdeo v. John Smidt, ILR 22 All 55, the plaint in a suit had not been signed by the plaintiff named therein or by any person duly authorised on his behalf. It was argued that that defect was fatal and made the plaint void, but the contention was not accepted and it was held that the defect could be cured by amendment at any stage of the suit if the suit was in fact filed with the knowledge and by the authority of the plaintiff.

The same view was taken in B. B. and C. I. Ry. Co. Ltd. v. Sivaji Mills Co. Ltd. : AIR1927All514 . In that case the plaint had been instituted by an agent with the knowledge and by the authority of the plaintiff, but had not been properly signed or filed. It was held that the irregularity was not fatal and could not affect the jurisdiction of the Court.

7. The defects pointed out in connection with the objection filed under Section 12 were thus curable and not fatal. If the Deputy Director of Consolidation found that the respondents had never been informed about the defect and had not been given any opportunity of removing them he could in our opinion afford that opportunity to them and allow the objection to be entertained and decided on merits.

8. It is not disputed that when both the appellants and respondents were claiming to be tenure holders of the holdings of Govind Ram a question of title was involved, and could be raised under Section 20 of the Consoliation of Holdings Act. The only contention raised by the appellant was that as the respondents had failed to file an objection under Section 12 (their objection being null and void for want of presentation and signatures) they could not raise the question of title under Section 20.

This contention appears to have been rightly overruled by the Deputy Director. The respondents. had in fact filed an objection under Section 12 and it was not vitiated on account of any fatal defect. The question of title could therefore be raised by the respondents and referred to arbitration at their instance under Section 20 of the Act.

9. We have therefore no doubt that the DeputyDirector of Consolidation had jurisdiction to passboth the orders which are sought to be impugnedand the view of law he took in passing those orders was in no way erroneous. In any case the orders are not such as can be said to have led toany injustice so as to call for interference in theexercise of powers under Article 226 of the Constitution. The petition of the appellant must therefore be held to have been rightly rejected. Theappeal has no force and is dismissed.


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