Skip to content


Sukhdeo Chunnilal Vs. Gendalal Salukchand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 249 of 1962
Judge
Reported inAIR1965MP24; 1965MPLJ102
ActsProvincial Small Cause Courts Act, 1887 - Sections 25; Code of Civil Procedure (CPC) , 1908 - Orders 6, 20 and 41, Rules 2, 4 and 12
AppellantSukhdeo Chunnilal
RespondentGendalal Salukchand and ors.
Appellant AdvocateG.M. Chafekar, Adv.
Respondent AdvocateP.G. Makode, Adv.
DispositionRevision dismissed
Cases ReferredRajeshwar v. Dashrath
Excerpt:
- .....court. this principle applicable, to an appeal as indicated by the several decisions of the, different high courts, would, in my opinion, be equally applicable to a revision, which is provided under, law against a decree, such as under section 25 of the provincial. small cause courts act or other enactments. it is not necessary for me to consider the case of an interlocutory order revisable under section 115 of the civil procedure code, where powers exercisable are of a different type. but if a revision be provided against the final decree or order on merits by any of the statutes, the same principle, according to me, will apply, as is laid down by sir asutosh mookerjee j., which has been accepted on all hands by ail high courts unanimously.of course, the position would be altogether.....
Judgment:
ORDER

P.K. Tare, J.

1. This revision under Section 25 of the Provincial Small Cause Courts Act is by the plaintiff against the decree, dated, 30-4-1962, passed by Shri M.L. Gupta, Small Cause Judge, Dhar, in Small Cause Suit No. 4 of 1962.

2. The petitioner's case was that the first respondent, who is the manager of the joint Hindu family of the respondents and in charge of management of the joint Hindu family firm, known as 'Kantilal Sardarmal', had taken the furnished shop of the petitioner on rent at Rs. 50/- per month with effect from 20-11-1959, The rent for the earlier period had been paid, but it was due with effect from 20-6-1961 to 20-12-1961. The electric charges had been settled at the rate of Rs. 5/- per month. There-fore, the petitioner claimed rent and electric charges for six months amounting to Rs. 330/- along with interest on the amount at the rate of Rs. 9/- per cent per annum.

3. The respondents in their defence alleged that no arrears of rent or electric charges were due. According to them, they had taken the premises, on rent at Rs. 10/-per month from 18-11-1959. The petitioner's son, Shantilal was a partner and a Munim in the firm of the respondents. When he made wrong entries in the account-books of the respondents regarding rent and electric charges, the respondents protested. They further alleged that they were liable to pay the charges for the actual electricity consumed, and not at a fixed rate. The amount of rent due for 19 months was Rs. 190/- and the electric charges Rs. 57/-. Thus the total amount due was Rs. 247/-, while the petitioner had recovered excess amount of Rs. 855/-. The said excess amount was, therefore, liable to be treated as advance rent for the future. It was also alleged that the petitioner's son, Shantilal had embezzled large amounts of the respondents' firm and had made wrong entries in the account-books. In order to counter the criminal cases started against Shantilal, the petitioner falsely filed the present suit for rent.

4. The learned Small Cause Judge, in spits of the fact that it was no party's case, came to the conclusion that as no rent of the premises was settled, the civil suit was not tenable and the remedy of the parties was to approach the Rent Controlling Authority for fixation of fair rent. In the view, the suit in its entirety was dismissed. The learned Judge held that the rent was not settled at Rs. 50/- per month. However, he did not decide whether the rent was settled at Rs. 10/- per month. Moreover, it was observed that even if it were to be assumed that the rent had been fixed at Rs. 10/- per month, the plaintiff had received more amount than was already due.

5. This Court while admitting the present revision restricted the admission as follows-

'Admit only on whether the Small Cause Court should, having disbelieved the plaintiff on the value of the monthly rent, have decreed according to defendants' ad-mission.'

The learned counsel for the petitioner urged that this restricted admission of the revision confining the petitioner to certain ground only would not be in accordance with the provisions of Order 41 Rules 11 and 12 of the Civil Procedure Code and, therefore, the petitioner could not be precluded from arguing the entire case on merits. It was pointed out that at the most an appeal or a revision could be admitted partially with respect to the subject-matter of the suit, and not regarding any particular grounds. Once the appeal or the revision is admitted on any ground, all the grounds of attack are open at the final hearing.

5. In this connection, attention was invited to the observations of Sir Asutosh Mookerjee J. in the Division Bench case of Lukhi Narain Serowji v. Sri Ram Chandra, 15 Cal, WN 921. The learned Judge observed as follows :

'But in so far as the objection is taken that the Appellants should be restricted to the one ground for the consideration of which the appeals were admitted, we are of opinion that it ought not to prevail. It is not competent to a Court of Appeal under Rule 12 of Order 41 of the Code to restrict the ground or grounds upon which..... the appeal admitted under that Rule is to be heard finally; in other words, the.......restrictive order of this Court made at the time when the cases were heard under Rule 11 of Order 41 was ultra vires. Rule 11 provides that 'the Appellate Court after sending for the record, if it thinks fit so to do, and after fixing a day for hearing the Appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal without sending notice of the appeal to the Court against whose decree the appeal is made and without serving notice on the Respondent or his pleader,' Rule 12 then provides that 'unless the Appellate Court dismisses the appeal under Rule 11 it shall fix a day for hearing the appeal.' It is worthy of note that a day is to be fixed for hearing the appeal, that is to say, the whole appeal and not any selected ground out of those specified in the memorandum of appeal. Consequently all the grounds taken in the memorandum of appeal by the Appellants are open for consideration at this final hearing, and we now proceed to examine them.'

This case has been followed by all Indian High Courts with slight variations. The learned Judge unambiguously expressed the opinion that such a partial admission of an appeal would be illegal.

7. The question was subsequently considered by the same learned Judge sitting in Division Bench along with Roe, J. in Janaki Nath Hore v. Prabhasini Dasi, ILR 43 Cal 178 : (AIR 1916 Cal 741), when, the learned Judge observed that after an appeal was allowed under Order 41 Rule 12 after review, the appellants could not be restricted to the single ground for appeal which was the basis for review, but the whole of the appeal would be before the Court at the final hearing.

8. A Full Bench of the Bombay High Court consisting of Beaumont, C. J, and Tyabji and Wadia JJ. in Krishnaji Shrinivas v. Madhusa Appansa, ILR 58 Bom 406 : (AIR 1934 Bom 207(210)) (FB), held that an appeal could not be admitted in part End dismissed in part regarding grounds of attack. However, the learned Judges further held that if the subject matter of the appeal be severable, it could be admitted in part and dismissed in part regarding such severable subject-matter.

9. The said view of the Bombay Full Bench was followed by Rangilal J. in Mohammad Ali v. Mt. Fatehbibi, AIR 1935 Lah 34 (FB). The said reasoning of the Full Bench of the Bombay High Court has also been adopted by a Division Bench of this Court consisting of V.R. Sen, J. and Deo, J. in Tukaram v. Radhabai, ILR (1952) Nag 564 : (AIR 1953 Nag 55), which was a case especially referred by Mudholkar, J, (as he then was) in view :of the importance of the question as Bose J. (as he then was) had admitted the appeal on some of the grounds only. Therefore, the question referred to the larger Bench was whether it is open to a Court of appeal to admit an appeal, in part and dismiss it as to the rest'. The learned Judges constituting the Division Bench answered the question referred to in the affirmative by stating that if the subject-matter be severable, the appeal can be admitted in part and dismissed in part. While if the subject-matter be not severable, such a restricted order of admission could not be made. However, the Division Bench left open the question whether the appeal could be admitted on some of the grounds while dismissed on other grounds. Therefore, so far as the Nagpur High Court or the Madhya Pradesh High Court is concerned, the question is still at large whether an appeal can be admitted on some grounds and dismissed on other grounds.

10. A Division Bench of the Patna High Court consisting of Fazl Ali and Luby JJ. in Rekha Thakur V. Ramnandan Rai, ILR 15 Pat 96 : (AIR 1936 Pat 7), held that an appeal could not be admitted on some grounds only and if admitted on any ground, the whole of the appeal, would be open. However, if at the time of admission the counsel gave up any particular ground, it would be open to the Court admitting the appeal to note this fact about certain ground being abandoned. But unless the grounds, were abandoned, a party could not be restricted to any particular ground at the final hearing.

11. However, a Full Bench of the Madras High Court in Eswariah v. Rameswarayya, ILR (1940) Mad 785 : (AIR 1940 Mad 483) (FB), went further and laid down that are admission of an appeal in part was illegal, altogether. The learned Judges did not accept the view of the Full Bench of the Bombay High Court that an appeal could be admitted in part with respect to the subject-matter. However, this view of the Madras Full Bench was specifically not followed by the Division Bench of the Nagpur High Court in ILR (1952) Nag 564 : (AIR 1953 Nag 56).

12. Later on, a Single Bench of the Travancore- Cochin High Court presided over by Subramonia Iyer J. in Ponnamma Pillai v. Padmanabha Pillai, AIR 1953 Trav-Co. 247, noting all the earlier cases, expressed the opinion that the Court could not on admission of an appeal restrict the ground on which the appeal was to be heard finally. The learned Judge followed the view of the Division Bench of the Patna High Court in ILR 15 Pat 96 : (AIR 1936 Pat 7), regarding abandonment of the ground of appeal at the time of admission.

13. Therefore, the High Courts may differ whether an appeal can be admitted partly and dismissed partly with respect to the subject-matter, if the same be severable. But all High Courts are unanimous on the point that an appeal cannot be admitted partly with respect to the grounds of attack. There is no difference of opinion on the point that once an appeal is admitted even on a single ground all the grounds of attack are open at the final hearing. So far as this Court is concerned, the point exactly may not have been decided by the Division Bench in ILR (1952) Nag 564 : (AIR 1953 Nag. 56), but I am of the opinion that the unanimous view as expressed in the several cases mentioned above appears to be the only correct view and there is no scope for dissenting from that view in view of the provisions of Order 41 Rules 11 and 12, Civil Procedure Code. Therefore, I am of the opinion that the appellate or revisional Court, while admitting an appeal or a revision, cannot restrict a party to any particular grounds; and if the appeal, or revision is once admitted on any ground, all the grounds of attack can be urged at the final hearing.

Of course, so far as the other proposition with respect, to the severable subject-matter is concerned, I am bound by the reported Division Bench case of this Court. This principle applicable, to an appeal as indicated by the several decisions of the, different High Courts, would, in my opinion, be equally applicable to a revision, which is provided under, law against a decree, such as under Section 25 of the Provincial. Small Cause Courts Act or other enactments. It is not necessary for me to consider the case of an interlocutory order revisable under Section 115 of the Civil Procedure Code, where powers exercisable are of a different type. But if a revision be provided against the final decree or order on merits by any of the statutes, the same principle, according to me, will apply, as is laid down by Sir Asutosh Mookerjee J., which has been accepted on all hands by ail High Courts unanimously.

Of course, the position would be altogether different where a special leave: under any of the statutory provisions is provided, such as, Clause 10 of the Letters Patent, or such, other special, provisions. In that type of cases, it would, always be open to the Court granting the leave to restrict leave, to a particular question, as laid down by a Full Bench of this Court in Kanhaiyalal v. Jerome D'Costa, ILR (1955) Nag 833 : ((S) AIR 1955 Nag 302), and the Division Bench case of N. Sethi v. Dr. Miss. J.D. Sharma, 1960 MPLJ 382. But the case of a statutory provision providing for a special appeal with leave stands altogether on different footing and cannot be used tonegative the proposition laid down by Sir Asuthosh Mookerjee, J. To conclude, regarding the preliminary questionraised by the learned counsel for the petitioner, I am ofopinion that he can urge all grounds of attack on merits.against the decree, of the. Small Cause Court. Therefore,I would hold that the petitioner is not restricted to theground on which, the revision, was admitted, which hasnecessarily to be decided on merits with reference to allgrounds of attack.

(His Lordship then passed the following order.)

14. By an earlier order, I have held that the petitioner cannot, be restricted to the ground, on which therevision; was admitted, and that all grounds of attack, canbe urged by him at the filial, hearing.

2. This revision under Section 25 of the Provincial. Small Cause Courts Act is by the plaintiff against, the decree, dated, 30-4-1962, passed by Shri M.L. Gupta, Small Cause Judge, Dhar, in Small Cause Suit No. 4 of 1962. (His Lordship here re-stated the petitioner's case, in Paras 15-16-17 as stated, in, paras. 2, 3, 4 and proceeded:)

18. The learned counsel for the petitioner urged that, it was no party's case that the rent had not been settled. Therefore, the Small Cause Judge, was not, right in holding that the remedy was to approach, the Rent Controlling Authority. On this question, the pleadings of the parties, are very specific. It is clear that the petitioner's contention, was that the rent agreed was Rs. 50/- per month, while, the respondents, put the figure at Rs. 10/- per month. In view of this, the Small Cause Court was bound to decide whether the version as given by the petitioner, or by the respondents was correct. To this extent, I accept the contention of the learned counsel for the petitioner that the Small Cause Judge was in error.

19. However, it is to be noted that the rent and the electric charges were said to be due for the period from 20-5-1961 to 20-12-1961. According to the respondents, the shop had been closed with effect from 3-7-1961 and, therefore, they were not liable to pay any rent or electric charges thereafter. When the respondents came to know of the fraud committed by their Munim, Shantilal (petitioner's son) who had made mere account-book, entries in the account-books of the respondents, they removed him and instructed the Banks not to honour cheques signed by Shantilal. No rent was at ail paid in. cash at any time. But right from the beginning it was Shantilal who made account-book, entries and debited large sums on account of rent at the rate of Rs. 50/- per month, as also electric, charges.

20. As regards the agreement to pay rent, at the rate of Rs. 50/- per month, the petitioner examined one, Prabhati (P. W. 1) who is coolie working at his shop. He stated about the talk regarding an agreement to pay rent. However, the petitioner himself as P. W. 2 had to admit in his deposition that no rent was paid in. cash, at any time and his son, Shantilal who was a Munim in the firm of the respondents had made mere account-book entries. The petitioner also is a business-man, who must be keeping regular books, of account. Strangely enough, no account-books were produced by him. The third witness, Babulal (P. W. 3) deposed to the other apartments of the petitioner's house being rented out to him at the rate of Rs. 20/- per month. However, the agreement of rent regarding the respondent's premises was not made in his presence.

21. The respondents examined four witnesses to state about the positive agreement of rent at the rate of Rs. 10/- per month. However, no convincing evidence was led by any of the parties about the alleged agreement. It appears that the parties kept back the documentary evidence in the shape of entries from the account-books. Under the circumstances, the learned Small Cause Judge cannot be said to have been in error in disbelieving the plaintiff's version. That was a conclusion possible under the circumstances and in view of the state of evidence on record. Therefore, this Court, while exercising revisional powers, would decline to interfere with that conclusion, unless it be found to be such as no Court of law acting legally and reasonably could have arrived at, as laid down by a Full. Bench of this Court in Rajeshwar v. Dashrath, ILR (1943) Nag 178 : (AIR 1943 Nag 117).

22. The petitioner's alternative claim, on the basis of the admission of the respondents about fixation of rent at the rate of Rs. 10/- per month also cannot be decreed in view of the fact that the petitioner, as observed by the Small Cause Court, had received more amount. Therefore, nothing would, be due if the defence contention, were to be upheld. Therefore, I am of the opinion, that the learned Judge of the trial Court was right in dismissing the plaintiff's suit in its entirety.

23. As a result, this revision fails and is dismissed; but under the circumstances there shall be no, order as to the costs of the present revision, as also the costs of the trial Court.


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