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Kehri Singh Vs. Thirpal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1926All113
AppellantKehri Singh
RespondentThirpal and ors.
Excerpt:
- - this objection is well founded. on the other hand, the other learned judge in the case last mentioned, as well as other learned judges in the eases of gaj kunwar chancier v. the suit bad been filed in the court of an assistant collector of the first class and dismissed. but whatever be the reason for the words, i cannot believe that the legislature would have adopted such a vague method of including in the prohibition enacted by section 167 such a clearly defined class of proceeding such as revisions. 39. i agree, however, that it is not a case in which we should refer the matter to a full bench as in the course of the hearing we have been satisfied that the application has no merits.sulaiman, j.1. this is an appeal from an order of remand passed by the district judge in an appeal from a revenue court. a preliminary objection has been taken that no appeal lies. this objection is well founded. under section 175 of the agra tenancy act no appeal from any decree or order passed by any court under that act lies except as therein provided. under section 177 an appeal is provided from a decree of a district judge passed on appeal but no appeal is provided from an order passed by a district judge. it is, therefore, apparent that no appeal from his order of remand, which, of course is not a decree, lies to this court. this view is concluded by the decision of the full 'bench case of zohra v. mangu lal (1906) 28 all 753 which has been followed recently in the case of gulzari.....
Judgment:

Sulaiman, J.

1. This is an appeal from an order of remand passed by the District Judge in an appeal from a Revenue Court. A preliminary objection has been taken that no appeal lies. This objection is well founded. Under Section 175 of the Agra Tenancy Act no appeal from any decree or order passed by any Court under that Act lies except as therein provided. Under Section 177 an appeal is provided from a decree of a District Judge passed on appeal but no appeal is provided from an order passed by a District Judge. It is, therefore, apparent that no appeal from his order of remand, which, of course is not a decree, lies to this Court. This view is concluded by the decision of the Full 'Bench case of Zohra v. Mangu Lal (1906) 28 All 753 which has been followed recently in the case of Gulzari Lal v. Latif Husain (1916) 38 All 181.

2. The learned vakil for the appellant, however, contends that an appeal lies under para. 11 of the Letter Patent of this Court. In our opinion no such appeal lies under that paragraph at all. Under that paragraph this High Court is constituted a Court of appeal from the Civil Courts and has power to exercise appellate jurisdiction 'in such cases as are subject to appeal to the said High Court by virtue of any laws or regulations now in force.' The constitution of this High Court as a Court of appeal is quite a different thing from saying that this Court has jurisdiction to hear appeals from every decree or order passed by a Subordinate Court. If, therefore, there is no law or regulation which allows an appeal to it, the High Court cannot assume an appellate jurisdiction. The power of revision and superintendence, however, is much wider.

3. The learned vakil for the appellant next urged that his appeal should be treated as a revision and that inasmuch as the learned District Judge has assumed jurisdiction which was not vested in him, this Court should interfere in revision. This argument is based on the assumption that no appeal lay to the District Judge because no question of proprietary title had been raised in the first Court and no question of jurisdiction had been decided by it. The reply of the learned advocate for the respondent is that the High Court has no power of revision in a revenue matter at all. The qustion whether the High Court has power to interfere in revision has been considered in a number of cases which are by no means unanimous and so far there is no Full Bench decision on this matter. The position is as follows:

4. In at least three cases, Ahmad Ullah Khan v. Murli (1908) 5ALJ 123, Kesho Das v. Murat Pandy AIR 1914 All 123 and Lalta Prasad v. Zharga AIR 1923 All 313, an applicat ion for revision was entertained. Then against in the case of Parbhu Narain Singh, Kashi Naresh v. Harbans Lal (1916) 14 ALJ 281, at least one Judge expressed the view that a revision may lie from an order passed by a Judge on appeal. On the other hand, the other learned Judge in the case last mentioned, as well as other learned Judges in the eases of Gaj Kunwar Chancier v. Salamat Ali AIR 1919 All 96 and Muhammad Ehtisham Alt v. Lalji Singh AIR 1919 All 116 have expressly laid down that the High Court has no revisional jurisdiction in cases under the Tenancy Act.

5. If there were no direct authority in point I would have no hesitation in saying that there is no provision in the Tenancy Act which bars the revisional jurisdiction of the High Court. In the first place, under Section 193 of the Act the provisions of the Code of C.P., with the exception of certain provisions mentioned therein, are made applicable so far as they are not inconsistent with the Act. Section 115 of the Code of C.P., corresponding to the old Section 622, is not excluded. Prima facie, therefore, the revisional section of the Code of O.P., is made applicable to suits and proceedings under the Tenancy Act unless there are other provisions of the Act which are repugnant to its application. In cases where it has been held that the High Court has no jurisdiction to interfere, reliance has been placed solely on the provisions of Section 167 of the Act. Now Section 167 bars suits and applications of the nature specified in the fourth schedule and it also prevents every Court other than a Revenue Court from taking cognizance of any dispute or matter in respect of which any such suit or application might be brought or made. It seems to us that the present application for revision would not be incompetent unless it be shown that a suit or application of the nature of this application could be brought or made in the Revenue Court as specified in the fourth schedule. Reference has been made to serial No. 51 in the fourth schedule where an application for revision under Section 185 of the Act can be filed without any fixed period of limitation. But Section 185 is expressly confined to revisions to the Board of Revenue from subordinate revenue Courts. 1t does not refer to revisions from the Court of the District Judge. It is, therefore, impossible to suggest that any application of this nature could have bean brought or made in the Revenue Court. It would then follow that Section 167 cannot be a bar to this application. If the argument be accepted that the High Court has no revisional jurisdiction to interfere at all, then it was wholly futile to make Section 115 of the Code of C.P., applicable to the Act for no case would then be conceivable where a revision would lie and Section 167 would not be a bar. If the view urged on behalf of the appellant were not the correct view, then the result would be that an order passed by a District Judge without jurisdiction, and howsoever illegal it might he would remain final and be not open to revision either by the Board of Revenue or by the High Court. We do not, however, consider it necessary to refer this case to a larger Bench because it is possible to dispose of the case on different grounds. In the written statement. the defendant had taken several pleas in cluding a denial of the relation of landlords and tenant and also a plea of want of jurisdiction of the Civil Court. The Assistant Collector only framed one issue as to whether the relation of landlord and tenant existed between the parties or not, and decided it by a summary judgment. The learned District Judge was of opinion that the suit had not been decided in a satisfactory manner inasmuch as the first Court did not even take the trouble to go into the question whether the tenant had really relinquished the holding or whether the alleged relinquishment was valid. He did not even come to a defining findite whether a surrender had been made, for before the mortgagee could be ejected, it was necessary to find that a surrender had actully taken place. In view of those defects the learned District Judge has set aside the decree not remanded the case for re-trial after taking such additional evidence as may be tendered by the parties. After all, the case will be re-tried after both parties have had full opportunity of producing their evidence. No real injustice has been done to the parties. It is not a fit case, even assuming that we have power to interfere in revision, in which we ought to interfere, I would dismiss the appeal.

Boys, J.

6. I agree with the order proposed by my learned brother Mr. Justice Sulaiman. The appeal is from an order of remand passed by a District Judge under Section 177 of the Tenancy Acton appeal from a decree of an Assistant Collector of the first class.

7. It has hardly been contended that an appeal lies but we are asked to treat thematter as an application under Section 115 on the revisional side. It is contended for the opposite party that no revision lies and the contention is certainly supported by judicial authority.

8. The relevant sections of the Tenancy Act are Sections 167, 177, 185, 193 and 196.

9. We had to consider the following oases: Damber Singh v. Sri Kishan Das (1910) 31 All. 455, Parbhu Narain Singh v. Harbans Lal (1916) 14 ALJ 281, Jamna Prasad v. Karan Singh AIR 1918 All 14, Mohammad Ehtisham Ali v. Lalji Singh AIR 1919 All 96 and Gaj Kumar Chander v. Salamat Ali AIR 1919 All 116.

10. We were also referred to Ahmad Ullah Khan v. Murli (1908) 5ALJ 123, Kesho Das v. Murat Pandey AIR 1914 All 123, and Lalta Prasad v. Kharga AIR 1923 All 313, but though a revision was in fact entertained, the point whether a revision is competent was not raised in those cases.

11. In Chuttan Lal v. Kanhaya Lal (1912) 10 ALJ 478, the point was raised but not decided. I shall not, therefore, further refer to these last four cases.

12. Of the first five cases that I have mentioned it will be convenient to give a brief account in order to judge exactly how far they are opposite to the facts of the present case and in order that it may be possible to form a correct estimate as to the steps by which the proposition may be said to have become nearly established that a revision does not lie.

13. In Damber Singh v. Sri Kishan Das (1910) 31 All. 455 Richards and Alston, JJ., had before them an application in revision of an order of an Assistant Collector refusing execution. The suit bad been filed in the Court of an Assistant Collector of the first class and dismissed. The District Judge held that it should not have been tried in a Revenue Court, but under the provisions of Sections 177, 196, 197 of the Tenancy Act, entertained the appeal and decreed the suit. The decree-holder applied to the Assistant Collector in execution. The Assistant Collector refused the application, and the decree-holder applied to the High Court in revision. It was held that a revision was barred by Section 167 of the Tenancy Act; and reliance was placed on the words 'except in the way of appeal.' In support of his right to apply in revision the applicant urged that the decree to be executed was in fact the decree of the District Judge. Richards, J., remarked 'possibly his remedy was to apply to the District Judge for execution of the decree.' This suggests at least the possibility that an application in revision might have been considered competent if it had been framed as a revision from the order of a District Judge. The actual case dealt with the revision by the High Court of an order of an Assistant Collector, i.e., an order of a revenue Court and can have no direct bearing on the case before us. The more general effect of some of the remarks I will consider later. In Parbhu Narain Singh v. Harbans Lal (1916) 14 ALJ 281 Piggott and Walsh, JJ., had before them a revision of an order of a District Judge under Section 180 of the Tenancy Act dismissing a suit on second appeal from a Collector. Piggott, J.,after holding that in any event the application did not come within the narrow compass of the provisions of Section 115, Civil P. C, further held that the revision was wholly excluded by the last clause of Section 167 of the Tenancy Act, that to entertain a revision would amount to 'taking cognizance' of the dispute or matter in respect, of which the suit was brought; and that the fact that Section 115 of the Code of C.P., is one of the sections made applicable by Section 193 of the Tenancy Act to proceedings under the Tenancy Act did not affect the matter as Section 193 was expressly subject to and could not override Section 167. Walsh, J., differed, holding that 'the decision of a District Judge given by way of an appeal from a Revenue Court is a decision of the civil Court and is therefore subject to revision,' and further that the hearing of the revition would not amount to 'taking cognizance' of the dispute or matter in respect of which the suit was brought.

14. In Jamna Prasad v. Karan Singh AIR 1918 All 14 Abdul Raoof, J., had before him a case in which an appeal had been filed under Section 177 before a District Judge from the decree of an Assistant Collector. The District Judge held that no appeal lay to his Court from the decree of the Assistant Collector and returned the memorandum of appeal. Abdul Raoof, J., refused to distinguish the case of Damber Singh v. Sri Kishan Das (1910) 31 All. 455, and following the construction of Section 167 in that case held that no revision was competent. I find myself unable to appreciate why the learned Judge found himself unable to distinguish the case of Damber Singh v. Sri Kishan Das (1910) 31 All. 455, which as I have quoted above, was a case where the Court was asked to revise, not the order of a District Judge, a civil Court, but of an Assistant Collector, a revenue Court.

15. In Mohammad Ehtisham Ali v. Lalji Singh AIR 1919 All 96 Tudball, J., had before him a revision of an order of an Assistant Collector of the first class. The matter had not gone before a District Judge. Tudball, J., relied on Damber Singh v. Sri Kishan Das (1910) 31 All. 455, referred to Parbhu Narain Singh v. Harbans Lal (1916) 14 ALJ 281 and pointed out that 'Walsh, J., would apparently in the case of a revision of an order of an Assistant Collector have agreed that no revision was competent. Tudball, J., further relied on the words 'of the nature' in Section 167 and held that the nature of all revisions, whether civil, criminal or revenue, was alike. The learned Judge further remarked, and it is important) to note this, that in the matter before him the case had not gone into the civil Court at all because there had been no appeal whatever preferred to the District Judge, and there was therefore no order before him which could in any sense be deemed, to be an order of a civil Court. This again, as in the case of Damber Singh v. Sri Krishan Das (1910) 31 All. 455, suggests at least the possibility that the learned Judge would have decided otherwise if he had had before him the order of a District Judge. He held that there could be no revision of the order of the Assistant Collector. Here again the High Court was asked to revise the order of an Assistant Collector, a revenue Court, and the decision can have no direct bearing on the case before us. The more general effect of some of the remarks I will consider later.

16. In Gaj Kumar Chander v. Salamat Ali AIR 1919 All 116 Stuart and Wallach, JJ., had before them a revision of an appellate order of a District Judge under Section 180. After remarking that only revenue Courts can deal with original matters while appellate powers are sometimes vested in the revenue and sometimes in civil Courts, the learned Judges held that by virtue of Sections 167 and 193 'the only power that the High Court has to dispose of matters covered by Local Act 2 of 1901 is given by the Act itself; and the power of revision is not a power which is so given to it.' They held that the fact that there is no inclusion of Section 622(now S, 115) in Section 193 of the

17. Tenancy Act did not affect the question for the provisions of the Code of C.P., apply to the procedure in suits and other proceedings under the Rent Act so far as they are not so inconsistent therewith. They held, therefore, that no revision lies.

18. It will be seen that the question whether an application in revision lies against an order of a District Judge under Section 177 (the case before us) was only directly dealt with in Jamna Prasad v. Karan Singh AIR 1918 All 14, but the decision in Parbhu Narain Singh v. Harbans Lal (1916) 14 ALJ 281 and Gaj Kumar Chander v. Salamat Ali AIR 1919 All 116, which were cases where a District Judge acted under Section 180, are also analogous. Section 177 is expressly referred in the exception in Section 185 while Section 180 is not, but, whatever may be the reason for the omission, it does not seem to affect the present question, so I will regard the two later cases as also bearing on the case before us where the appeal was allowed by Section 177.

19. In the main reliance was placed in these cases on a particular interpretation put on Section 167; while any effect was denied to Section 193 on the ground that any other interpretation would be in conflict with the interpretation already put on Section 167.

20. I will first deal with these considerations.

21. In dealing with Section 167 the words 'of the nature' were relied on by Tudball, J., in Mohammad Ehtisham Ali v. Lalji Singh AIR 1919 All 96, as showing that not only revisions by the Board under Section 185 (Serial No. 51 of the fourth schedule) were excluded from the jurisdiction of revenue Courts, but all revisions whether by civil, revenue or criminal Courts. It may be that words 'of the nature' were used because there are some applications in the fourth schedule not further specified by sections (Serial Nos. 47, 48 and 49) or by way of precaution because there might be found to be analogous cases inclusion of which in the sole jurisdiction of revenue Courts was desirable. But whatever be the reason for the words, I cannot believe that the legislature would have adopted such a vague method of including in the prohibition enacted by Section 167 such a clearly defined class of proceeding such as revisions. Nor was it necessary to hold this to support the particular decision. The fact that a power of revision was conferred on the Board by Section 185 of the Tenancy Act was sufficient to exclude any power of the High Court under Section 115 of the Coda of G.P., which otherwise might be held to exist in virtue of Section 193 of the Tenancy Act.

22. Next, the words 'except in the way of appeal' were relied on in Dambar Singh v. Sri Kishan Das (1910) 31 All. 455 as showing that no revision lies. I will later state my view as to the real scope and intent of Section 167 and of these words in particular as meant merely to make Section 167 consistent with Section 196; but, even if that view be wrong, the words in question could at most be intended to make Section 167 consistent with Sections 177, 180 and 196; such a form of words could not rightly be used or be interpreted to enact affirmatively anything in regard to revisional jurisdictionnor was it necessary to attribute this effect to the words in order to support the particular decision. It could be supported for the same reason that I have already noted that the decision in Mohammad Ehtisham Ali v. Lalji Singh AIR 1919 All 96 could be supported.

23. Further the words 'take cognizance' were relied on in Parbhu Narain Singh v. Harbans Lal (1916) 14 ALJ 281 by Piggott, J., as excluding revision. Walsh, J.,held the contrary. I shall state later, when giving my own view the real scope, in my opinion, of these words.

24. In more than one case the force of the argument that while certain sections of the Code of C.P., are by Section 193 exeluded, Section 115 (the old Section 622) is not excluded was repelled by holding that it was excluded as being inconsistent with Section 167 of the Tenancy Act. The contention is of course sound, if in fact Section 167 does really exclude revision under Section 155 of the Civil P. C, but that only brings us back to the main question.

25. I have now considered earlier judicial authority and can find there in nothing that satisfies me that Section 167 is any bar to this Court exercising revisional jurisdiction in respect of an order passed under Section 177 of a District Judge who is undoubtedly a civil Court. I would add that I am confirmed in my view by the absence of any reason for excluding the revisional jurisdiction of this Court in regard to asubordinate civil Court, a District Judge, while allowing it to the Board, with one exception the reason for which is obvious, in regard to subordinate revenue Courts.

26. I am further confirmed in my view by the fact that when the legislature considered in Section 193 with such meticulous care what provisions of the Code of C.P., were to be excluded from importation by virtue of Section 193 or were to be modified in their application, it would not have left the exclusion of such an important provision as Section 115 a matter of doubtful inference.

27. Further I note that apparently in both the decisions, Damber Singh v. Sri Kishan Das (1910) 31 All. 455 and Mohammad Ehtisham Ali v. Lalji Singh AIR 1919 All 96, there are remarks to which I have referred above then summarising those which strongly suggest the possibility at least that they would have been decided differently if the revision had been against the order of a District Judge.

28. I have discussed what, in my opinion, Section 167 does not enact, namely, that it does not affirmatively, even indirectly, prohibit revision of an order of a District Judge. I will now state my view of what Section 167 does enact, the really limited scope and intent of the section.

29. It appears to me that the intention as expressed in Section 167 is that the section is only concerned with the hearing of original suits and applications. This view of the section was not raised before us, but it appears at the least certainly not untenable and to be in accord with the scheme of the Act.

30. Before considering in detail the contents of the section, I would observe that there is nothing, improbable in such a section being confined to original suits and other original proceedings. There is not the least need for any such section to contain any prohibition against appeals or revisions from orders of revenue Courts being heard by other than revenue Courts (except as provided). It is wholly unnecessary to forbid a civil Court to hear a matter in appeal from a revenue Court for the jurisdiction of civil Courts ordinarily to hear such appeals is already confined by the laws constituting such Courts to appeals from subordinate civil Courts, and they could not under any circumstance touch an appeal from a revenue Court, except where such power was expressly given. Such power is, of course, given by Sections 177,180 196. But except where such power is expressly given it would be entirely impossible to suggest that a civil Court could have any appellate power at all and therefore any prohibition would beentirely superfluous. Mutatis mutandis, exactly the same reasoning applies to revision. No civil Court could possibly entertain a revision of an order of a revenue Court under the ordinary powers and laws constituting the civil Courts. Therefore, there is no need to prohibit the exercise of such a rivisional power. When we come, however, to original suits and proceedings the situation is wholly different and a prohibiting section is essential. But for such a section civil Courts would have co-ordinate jurisdiction with revenue Courts in very many matters. It is, therefore, necessary to prohibit the exercise of such jurisdiction by the civil Courts, where it is desired to confine it to revenue Courts. If I have made my meaning clear, we should then expect to find in the Act a section forbidding the exercise by civil Courts of original jurisdiction in revenue matters and we should not expect to find such a section forbidding them to exercise appellate or revisional powers as such prohibitions would be superfluous.

31. I have thought it convenient to consider first what might be expected before considering what weactually find, thus inverting the usual course; while, of course, recognising that operative words must be interpreted in accordance with what has been actually said and that what might be expected can only be allowed weight in support or where ambiguity, if any, exists.

32. I will now consider the indications to be found in the actual words of the section. The section may be divided into its two clauses. In the first clause the first phrase which suggests itself for consideration is 'all suits and applications.' This phrasing is certainly more appropriate to original proceedings. If it had been in tended to apply to appeals and revisions nothing would have been easier than to say so in plain language. In fact no reference is made in this clause in any way whatever to appeals and revisions. I will refer later to the reference to appeals in the second clause and will endeavour to show that that reference is entirely consistent with the view which I am now discussing.

33. In the second clause we next find the words 'shall take cognizance.' InParbhu Narin Singh v. Harbans Lal (1916) 14 ALJ 281 Piggott, J. held that it would be 'taking cognizance' of the dsipute or matter in which the suit was brought for a higher Court to deal in revision with the order of a civil Court (District Judge) on appeal from an order of a revenue Court. Walsh, J., differed and held that the term was not appropriate to the hearing of the revision from an appellate order. I have no hesitation in expressing my agreement with Walsh, J., for it appears to me difficult to hold that the words 'take cognizance' are not very much more appropriate to original proceedings and are not almost invariably applied to original proceedings. I am not prepared to go so far as to say that those words have never been applied by the legislature to appellate or revisional jurisdiction but I am certainly not aware of any such case, though it would not be difficult to quote very many instances of their application to original proceedings.

34. The next phrase calling for comment in the second clause of Section 167 is except in the way of appeal as hereinafter provided'. It is these words which, I think, have in some way or other not very clear to me appeared to at least one Judge to lend support to the view that Section 167 excluded revisional jurisdiction. So far as I am aware, the words were first referred to in Damber Singh v. Sri Kishan Das' (1910) 31 All. 455 where reliance was placed on them in a case where there was no question of the revision of an order of a District Judge but revision only of an order of an Assistant Collector refusing an application for execution.

35. In Mohammad Ehtisham Ali v. Lalji Singh AIR 1919 All 96 the report of the judgment of Tudball, J., shows that when quoting the earlier case, Damber Singh v. Sri Kishan Dai (1910) 31 All. 455, the words 'except by way of appeal' have been put in italics suggesting that the learned Jude was to some extant influenced by them. That again was a case only of a revision of an order of an Assistant Collector. I have suggested above when outlining those two cases that in neither of them was the suggested effect of the words necessary to support the decision. I am unable to appreciete that the words 'except by way of appeal' justify any such inference at all. In the view that I take that Section 167 only applies to original proceedings, the words are not superfluous or without meaning; but on the contrary, they are found to be essential and of import to effect consistency betweeen Section 167 and Section 196. But for those words it is clear that Section 167 would be making illegal entirely the hearing of certain original proceedings in any civil Court whilst Section 196 would be declaring that the hearing of such original proceedings in a civil Court was not in every case to be regarded as invalid. The words, then, 'except in the way of appeal as hereinafter provided' are necessary and have a definite appropriate intention and effect if the view which I suggest be correct that Section 167 only applies to original proceedings.

36. I am, therefore, of opinion with the greatest respect for other decisions to the contrary, that decisions which proceeded on the assumption that Section 167 has anything to do with appellate or revisional proceedings (except to the limited extent that I have specified) cannot be supported. I, therefore hold firstly, that there is nothing in Section 167 precluding the hearing by the High Court under Section 115, Civil P. C, of a revision of an order passed by a District Judge under Section 177, Tenancy Act, and, further, that it is reasonable that the High Court should have such power, and that to hold that it has such power is in accord with Section 193, Tenancy Act, and secondly, that Section 167 is only concerned with original proceedings.

37. For both these reasons I would hold that this Court has power to entertain a revision of an order made by a District Judge under Section 177, Tenancy Act.

38. As some of these considerations were urged before us on one side or the other, I have thought it desirable to put them on record and to express my opinion thereon; and in fact, we cannot really reject the revision on its merits without by implication approving the view that a revision lies.

39. I agree, however, that it is not a case in which we should refer the matter to a Full Bench as in the course of the hearing we have been satisfied that the application has no merits. I agree, therefore in the order proposed by my brother.

40. The appeal is dismissed with costs.


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