Skip to content


Municipal Council, Khandwa Vs. Santoshkumar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. Nos. 626 of 1967, 779, 781 and 783 of 1972
Judge
Reported inAIR1975MP36
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115; Madhya Pradesh Municipalities Act, 1961 - Sections 139(5)
AppellantMunicipal Council, Khandwa
RespondentSantoshkumar and ors.
Appellant AdvocateD.M. Dharmadhikari, Adv.;R.S. Dabir, Adv.
Respondent AdvocateA.R. Choubey, Adv. for Legal Representatives of Non-applicant No. 1 and ;Nonapplicants Nos. 2 and 3
Cases ReferredSawatram Ramprasad Mills v. Vishnu Pandurang
Excerpt:
- - --the rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court. it is now well settled that unjess there is an express bar to a revision in any other provision, the use of the word 'final' only means that there is no further appeal......139 (5) of the m. p. municipalities act, 1961.'this order shall also dispose of the connected civil revisions nos. 779, 781 and 783 of 1972. 2. sub-sections 139 (11 to (5) of the m. p. municipalities act, 1961, are as under:-- 139. (1) if any dispute arises as to the liability of any land or building to assessment or as to the basis or principle of assessment or as to the amount of tax assessed an appeal shall lie from the decision of the council to the civil judge, class i having jurisdiction over the municipal area and if there be no civil judge, class i at the headquarter of the municipality to the civil judge, class ii having jurisdiction at such headquarter and if there be no civil judge, class ii at such headquarter to the civil judge, class ii having jurisdiction, and in case.....
Judgment:

C.P. Sen, J.

1. The question referred for consideration of the Full Bench is:--

'Whether a revision lies from an order passed by the District Judge under Section 139 (5) of the M. P. Municipalities Act, 1961.'

This order shall also dispose of the connected Civil Revisions Nos. 779, 781 and 783 of 1972.

2. Sub-sections 139 (11 to (5) of the M. P. Municipalities Act, 1961, are as under:--

139. (1) If any dispute arises as to the liability of any land or building to assessment or as to the basis or principle of assessment or as to the amount of tax assessed an appeal shall lie from the decision of the Council to the Civil Judge, Class I having jurisdiction over the Municipal area and if there be no Civil Judge, Class I at the headquarter of the Municipality to the Civil Judge, Class II having jurisdiction at such headquarter and if there be no Civil Judge, Class II at such headquarter to the Civil Judge, Class II having jurisdiction, and in case of more than one such Civil Judges at the headquarter or having jurisdiction as the case may be, to such one of them as the District Judge may specify.

(2) Such appeal shall be presented to the Civil Judge within thirty days from the date of the order passed under Section 138 and shall be accompanied by an extract from the register of objections containing the order objected to.

(3) The provisions of Parts II and III of the Indian Limitation Act, 1908 (IX of 1908), relating to appeals shall apply to every appeal preferred under this section.

(4) No appeal shall be admitted under this section unless an objection has been preferred under Section 137.

(5) The decision of the Civil Judge in an appeal made under Sub-section (1) shall, subject to the decision in revision by Court to which appeals against the decisions of such Civil Judge ordinarily lie, be final and effect shall be given by Council to such decision.

3. It is clear that, revisional power is conferred not upon any special Tribunal or Authority constituted under this statute but on an established Court i.e.. to the Court to which appeals against the decision of such Civil Judge ordinarily lie, which is the Court of the District Judge, under the M. P. Civil Courts Act, 1958. In exercising the revisional power under this section, the revisional authority functions as a Court and not as a persona designata inasmuch as the jurisdiction is conferred under the Act on the Court itself. In Central Talkies Ltd. v. Dwarka Prasad, AIR 1961 SC 606, a persona designata has been denned as a person who is pointed out or described as an individual as opposed to a person ascertained as a member of a class or as filling a particular character. In this case the Supreme Court has approved the Full Bench decision of Madras High Court in Parthasaradhi Naidu v. Koteshwara Rao, AIR 1924 Mad 561 that 'personae designate are persons selected to act in their private capacity and not in their capacity as Judges'.

4. Their Lordships of the Supreme Court in N. S. Thread Co. v. James Chadwick and Brothers, AIR 1953 SC 357, have held:--

'The rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court. This rule was very succinctly stated by Viscount Haldane, L. C. in National Telegraph Co. v. Postmaster-General, 1913 AC 546 in these terms:--

'When a question is stated to be referred to an established court without more, it in my opinion imports that the ordinary incidents of the procedure of that court are to attach and also that any general right of appeal from its decision likewise arises,'

This decision has been approved in Collector, Varanasi v. Gauri Shankar, AIR 1968 SC 384, and it has been held that while acting under Section 19 (i) (f) of the Defence of India Act, 1939, High Court functions as a Court and not as designated person.

5. So, the revisional authority viz., the Court of District Judge under Section 139 (5) of the Act functions as a Court and that ordinary incidents of theprocedure of that Court, including any rights of appeal or revision, will attach to the decision rendered by the Court of District Judge in the exercise of jurisdiction conferred by this section, so long as there is no statutory provision excluding such right of appeal or revision. But, here the finality is given to the decision of the Civil Judge in appeal and not that of the Court of District Judge in revision and there is nothing in the sub-section which says that revisional order shall not be called into question in higher Court. In the Provincial Insolvency Act, 1920, under Section 4(2), finality is given to the decision of the District Court but no such finality is given to the decision of the High Court in appeal under Section 75(2) and the Privy Council therefore held in Maung Ba Thaw v. Ma Pin, AIR 1934 PC 81 that a further appeal lay to the Privy Council from the appellate decision, of the High Court. It is now well settled that unjess there is an express bar to a revision in any other provision, the use of the word 'final' only means that there is no further appeal. It cannot exclude the power of revision. [Parthasaradhi Naidu v. Koteshwara Rao, AIR 1924 Mad 561 (Supra) and Anandrao v. Board of Revenue, 1965 Jab LJ 307 = (AIR 1965 Madh Pra 2371 (FB).]

6. Under Section 115 of the Code of Civil Procedure, the High Court can call for the record of any case which has been decided by a Court subordinate to such High Court sq as to keep the subordinate Courts within the bounds of their jurisdictions. The power being one of superintendence and visitorial. In Ladli Prasad v. Karnal Distillery Co., AIR 1963 SC 1279, a Court subordinate to the High Court is defined as a court subject to the superintendence of the High Court. Their Lordships of the Supreme Court in S. S. Khanna v. F. J. Dillon AIR 1964 SC 497 have laid down:--

'The expression 'case' is a word of comprehensive import: it includes Civil Proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a Civil Court. To interpret the expression 'case' as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice. The expression 'case' includes a suit, but in ascertaining the limits of the jurisdiction of the High Court, there would be no warrant for equating it with a suit alone.'

A Division Bench of this Court in Kailashchandra v. D. J. Bhopal, 1963MPLJ 270 = (AIR 1963 Madh Pra 218), while considering Section 12 of the M. P. Accommodation Control Act. 1955, held:--

'It is clear from the wording of Section 12 that an appeal lies to the Court of the District Judge and not to the District Judge acting as a persona designata. The decision of the Court of the District Judge given in an appeal under Section 12 is open to revision under Section 115 of the Civil Procedure Code. Although Section 12 says that the decision of the appellate Court shall be final, that does not exclude the High Court's power of revision under Section 115 of the Civil Procedure Code.'

7. It is, therefore, clear that so lone as there is no specific provision in the statute making the decision by the District Court final and excluding the supervisory power of the High Court under Section 115 of the Code of Civil Procedure, it has to be held that the decision rendered by the Court of District Judge under Section 139 (5) being 'a case decided' by a court subordinate to the High Court, in which no appeal lies thereto, is liable to be revised by the High Court under Section 115 of the Code.

8. It is true that there is no provision in the Code for two revisions i.e., revision against a revisional order although there was such a provision in the Code of Criminal Procedure (old). But here it is to be remembered that the revision before the Court of the District Judge has been provided under a special enactment and Section 115 of the Code gives the revisional power to the High Court against an order of the subordinate Court. Even though the order of the Court of District Judge, under Section 139 (5) is in revision, nonetheless it is an order of a court subordinate to the High Court. A Full Bench of the Kerala High Court in V. K. Ouseph v. Mary, AIR 1969 Ker 103 (FB), held that against the revisional order of the District Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, a further revision also lies to the High Court under Section 115 of the Code of Civil Procedure as the District Court functions as a Court and not as a persona designata and ordinary incidents of the procedure of that court will attach to the decision and no appeal is provided and there is nothing which says that the revisional order under Section 20 shall be final. The Supreme Court in E. V. Mathal v. Sub-Judge, Kottayam, AIR 1970 SC 337 has also approved the order in revision under Section 115 of the Code against the revisional order of the District Court under Section 20 of the said Kerala Buildings (Lease and Rent Control) Act. J. C. Shah, J. (as he then was), in C. B. Municipality v. Multanchand, AIR 1956 Bom 675 heldthat a revision lay under Section 115 to the High Court against the revisional order of the Court of Sessions Judge under Section 111 of the Bombay Municipal Boroughs Act, 1925, because the disputes relate to Civil liability,

9. In Maganlal v. Chandrakant, AIR 1969 SC 37, it has been observed that the High Court has full power to revise under Section 115 of the Code the appellate decree of the Assistant Judge, passed under Section 29(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In Surindra Mohan v. Dharam Chand, AIR 1971 J. & K. 76 (FB), it has been expressed that the order passed by the Chief Judicial Magistrate under the J and K. Houses and Shops Rent Control Act, 1966, is revi-sable under Section 115 of the Code, as appointment of Chief Judicial Magistrate under Section 17 is by his designation and not by name and so he is not persona de-signata but a Court. A Division Bench of this Court in Manager Hindusthan Journals v. Govind Ram, AIR 1963 Madh Pra 25 has held that, the District Court, acting as an appellate Tribunal under Section 17 of the Payment of Wages Act, 1936, is not a persona designata but a Civil Court already functioning under the Code of Civil Procedure and so a revision lies under Section 115 against the appellate order. The Supreme Court in C. Rly., Workshop, Jhansi v. Viswanath, AIR 1970 SC 488 has upheld the revi-sional order under Section 115 of the Allahabad High Court against an appellate order under Section 17 of the Payment of Wages Act. But in Sawatram Ramprasad Mills v. Vishnu Pandurang, AIR 1950 Nag 14, a Division Bench has opined that Authortiy under the Payment of Wages Act is not Civil Court and no revision lies against his order, because the Authority under the Act in M. P. was a S. D. O. and he was said to be working in an administrative capacity, but revision may lie against the appellate order.

10. In the present case, originally a petition under Article 227 of the Constitution was filed and the Division Bench on 27-9-1967 rightly directed the applicant to convert the petition into revision as a revision lies from the impugned order. Accordingly, it was converted into Civil Revision under Section 115 of the Code of Civil Procedure. But, when the Civil Revision was placed before a Single Judge, the learned Single Judge directed that the case be placed before Honourable the Chief Justice for constituting a Division Bench although the revisions are heard by a Single Bench, by overlooking the earlier order of the Division Bench. The applicant then filed an application for revival of the writ petition under Article 227 of the Constitu-tion. When the matter was placed before another Division Bench, the present reference was made. Therefore, refer-ence is answered in the affirrmative that a Civil Revision lies under Section 115 of the Code of Civil Procedure against the impugned order under Section 139 (5) of the M. P. Municipalities Act, 1961.


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