Skip to content


Yagya Dutt Vs. Kamta and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 359 of 1959
Judge
Reported inAIR1960All584
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100
AppellantYagya Dutt
RespondentKamta and anr.
Advocates:Shankar Sahai Varma, Adv.
DispositionAppeal dismissed
Excerpt:
civil - remission of issue to civil court is illegality - section 100 of code of civil procedure, 1908 - objection not raised in trail and appellate court - procedural irregularity - held, appeal dismissed. - - but it is well known that a rule of procedure in civil cases can be waived with the consent of the parties. it is well known that in these two kinds of proceedings the court can take into consideration the conduct of the litigant before deciding whether his petition should be allowed on the ground that the lower court had no jurisdiction. if it were otherwise, the result will be that it would be open to any litigant deliberately to hold back any objection on the ground of jurisdiction or illegality till the last moment and raiso it by way of second appeal if he happens to be..........of second appeal and that the court is bound to hear him. i am afraid i do not agree that any question of jurisdiction arises in this case nor do i agree that the appellants are entitled as of right to be heard on this point. the revenue court admittedly had the jurisdiction to entertain and decide the suit. during the course of hearing, it adopted a procedure for the decision of a particular issue in the case which the appellants now challenge as illegal. even assuming that their contention is right, it merely amounts to this that the trial court was guilty of illegality or irregularity in procedure.but it is well known that a rule of procedure in civil cases can be waived with the consent of the parties. even if the remission of the issue to the civil court is something more than.....
Judgment:

S.S. Dhavan, J.

1. In these two appeals Mr. S. S. Varma on behalf of the appellants has raised a question whether the revenue court was justified inremitting two issues to the civil court. According. to him, these should have been decided by the revenue court itself. Learned counsel conceded, very properly in my opinion, that the revenue court had the jurisdiction to entertain the suits and to pass any decree by way of relief. But he contended that in remitting an issue to the civil court it exceeded its jurisdiction. Mr. Varma also conceded, on a question from me, that the present appellants raised no objection when the issue was remitted to the civil court.

He also stated that the appellants had gone to the civil court without protest and led evidence in support of their respective cases before it. He also admitted that the appellants raised no protest against the remission of the issue to the civil court at any stage of the suit, nor did they raise it in their appeals before the lower appellate court. Learned counsel brought these facts to my notice suo motu and his advocacy is consistent with the high traditions of the bar.

2. However he contended that the appellants had the right to raise this question even at the stage of second appeal and that the court is bound to hear him. I am afraid I do not agree that any question of jurisdiction arises in this case nor do I agree that the appellants are entitled as of right to be heard on this point. The revenue court admittedly had the jurisdiction to entertain and decide the suit. During the course of hearing, it adopted a procedure for the decision of a particular issue in the case which the appellants now challenge as illegal. Even assuming that their contention is right, it merely amounts to this that the trial court was guilty of illegality or irregularity in procedure.

But it is well known that a rule of procedure in civil cases can be waived with the consent of the parties. Even if the remission of the issue to the civil court is something more than an irregularity of procedure and amounts to an illegality, this court has the inherent power to refuse to hear a litigant who did not feel aggrieved by the course adopted by the lower court at the time and who did not object to it even on appeal to the lower appellate court. In Mula v. Babu Ram, S. A. No. 840 of 1956: (AIR 1960 All 573), I held that this High Court has the power to refuse to allow a litigant, who took part in the proceedings before the lower court without protest or objection and had a fair hearing, to raise the question of jurisdiction before the High Court in Second Appeal.

I further held that the inherent power of the Court to prevent the abuse of the process of the court or refuse to interfere even on a question of jurisdiction is not confined to revision, under Section 115 C. P. C. or proceedings under Article 226 of the Constitution and extends to appeals under Section 100 C. P. C. It is well known that in these two kinds of proceedings the court can take into consideration the conduct of the litigant before deciding whether his petition should be allowed on the ground that the lower court had no jurisdiction.

I held that the same principle extends to appeals under Section 100 C. P. C. and that the mere fact that the litigant comes to the High Court through the door of Section 100 C. P. C. and notSection 115 C. P. C. does not affect the Court's inherent power to prevent an abuse of the process of the court or pass any other order in the interests of justice. If it were otherwise, the result will be that it would be open to any litigant deliberately to hold back any objection on the ground of jurisdiction or illegality till the last moment and raiso it by way of second appeal if he happens to be defeated on merits.

I see no reason to depart from the principle laid down in that case. In this case, as stated above, no question of jurisdiction arises but only one of some illegality or irregularity of procedure committed by the trial court.

3. Learned counsel relied on a decision of V. D. Bhargava, J. in Mahomed Nabi v. Raghunath, 1957 All LJ 845, in which the learned Judge observed that there can be no concession on a question of jurisdiction. This is perfectly true, if I may say so with respect, and it is elementary that consent or concession will not confer jurisdiction where none exists under the law. But the question whether the court i,s bound to hear a litigant who has never objected to a particular procedure at any stage of the suit or the first appeal was neither raised nor decided by the learned Judge. Learned counsel also relied on an observation of the Supreme Court in State of U. P. v. Mohammad Nooh, AIR 1958 SC 86, in which that court interfered on a ground which had not occurred to the High Court.

That was a case in which a Government servant had challenged the order of dismissal passed against him. The High Court dismissed his petition but granted a certificate under Articles 132 and 133 of the Constitution. His objection was allowed and the special appeal filed by the State was dismissed, but the High Court granted a certificate to appeal under Articles 132 and 133 of the Constitution. It is well settled that, after a certificate has been granted by the High Court the Supreme Court is seized of the entire case and can decide it on any point irrespective of whether it was raised before the High Court or not.

Taking into consideration the circumstances of the case, the Supreme Court considered it necessary in the interest of justice to decide the appeal on the question which had occurred to it. The facts of that case were so different that they offer no guide to the question before me namely, whether I am bound to hear a litigant in second appeal on a point which he never raised at any earlier stage of the proceedings.

4. I think it will be very unjust to the other side if I permit the appellant to raise the question of jurisdiction of the trial court at this stage, as it may result in the entire dispute being heard de novo. The suit was filed in 1954. If the appellant's objection had been taken at the proper time assuming that it was well taken the appropriate procedure would have been followed. But the plaintiff appeared before the Civil Court and produced evidence. He had had a fair trial and learned counsel was not able to show that he was prejudiced in any way.

He now objects to the jurisdiction of the civil court to decide the issues. If his objection is entertained at this late stage, the result may be a further delay of several years in the disposal of this case. Counsel for the appellant very frankly admitted that he was unable to explain why this objection had never been taken by the appellant at any earlier stage. In these circumstances he has disentitled himself to raise it now.

5. Accordingly I hold that the appellant is not entitled to raise this question in second appeal. I make no comments on the merits of the points sought to be raised by learned counsel. No other point was argued before me. The appeal fails and is rejected under Order 41, Rule 11, C. P. C.


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