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Kishen Chand Singh Vs. Mukan Sarup and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1931All91
AppellantKishen Chand Singh
RespondentMukan Sarup and ors.
Excerpt:
- - . lastly, it seems to us doubtful whether it was open to the court below to cancel its previous order after the revenue court had inquired into the matter and submitted its finding under section 273. it was for the court to be satisfied that the suit related to an agricultural holding before it remitted an issue and submitted the record to the revenue court for decision......cannot allow the plaintiff now to change his ground and urge for the first time before us that his previous application had not been under order 47, rule 1, at all. if the order passed was under order 47 there can be no question that an appeal lies from the order granting the application.3. on the merits this appeal must succeed. in the first place, the application was made by the plaintiff beyond time and there was no prayer for extension of time. it is also clear that the ground urged on his behalf was a ground which he could have known if he had been diligent and careful. in the second place, the court below has acted wrongly in reviewing its former order merely on the ground that a ruling of this high court had not been brought to its notice on the previous occasion. this itself is.....
Judgment:

Sulaiman, J.

1. This is an appeal from an order dated 5th February 1930 of the Court below cancelling a previous order dated 19th January 1929, under which an issue was remitted to the revenue Court under Section 273, Agra Tenancy Act. It is quite clear that at that time the Court must have been of opinion that the suit related to an agricultural holding and therefore an issue had to be remitted on the plea of tenancy raised by the defendant. The revenue Court on the receipt of the record inquired into the matter and recorded its finding and submitted it to the civil Court. After the receipt of the finding the defendant filed an application without indicating under what section it was made in which the Court was asked to treat the decision of the revenue Court as being ultra vires and to rehear the case on the merits. The learned Subordinate Judge entertained this objection and has set aside his former order and fixed a date for the disposal of the suit.

2. Subsequently the defendant filed a fresh application for a review of this last mentioned order, which was resisted by the plaintiff on the ground that Order 47, Rule 9, Civil P. C, was a bar to it. The Court below accepted the plaintiff's objection and dismissed the application of the defendant as being barred by the provisions of that rule. There can therefore be no doubt that both the plaintiff and the Court below treated the order of 6th February 1930 as having been made under Order 47, Rule 4, Civil P.C., and it was on that ground alone that a. subsequent application of the defendant was dismissed. It therefore seems to us that we cannot allow the plaintiff now to change his ground and urge for the first time before us that his previous application had not been under Order 47, Rule 1, at all. If the order passed was under Order 47 there can be no question that an appeal lies from the order granting the application.

3. On the merits this appeal must succeed. In the first place, the application was made by the plaintiff beyond time and there was no prayer for extension of time. It is also clear that the ground urged on his behalf was a ground which he could have known if he had been diligent and careful. In the second place, the Court below has acted wrongly in reviewing its former order merely on the ground that a ruling of this High Court had not been brought to its notice on the previous occasion. This itself is not a sufficient ground for his thinking that the holding was not an agricultural holding.. Lastly, it seems to us doubtful whether it was open to the Court below to cancel its previous order after the revenue Court had inquired into the matter and submitted its finding under Section 273. It was for the Court to be satisfied that the suit related to an agricultural holding before it remitted an issue and submitted the record to the revenue Court for decision. After the revenue Court reframed the issue and decided it and returned its finding, the civil Court could not go behind it. The section provides that:

the civil Court shall then proceed to decide the suit and accept the finding of the revenue Court on the issues remitted to it.

4. As the language of the section stands the civil Court is bound to accept it. That question should be taken to have been finally settled so far as the trial Court was concerned. It is not absolutely necessary to decide this point finally, but we are inclined to think that it would be too late for the trial Court to go back upon its previous order after the revenue Court had gone into the matter and recorded its finding in favour of one party. Of course if the Court below acted wrongly the mistake can be rectified on appeal. On all these grounds we must allow this appeal and setting aside the order dated 6th February 1930, direct the Court below to dispose of this case according to law. The appellant will have his costs of this appeal from the respondents.


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