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Susil Kumar Adhya and ors. Vs. Rangalal Patwari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 245 of 1979
Judge
Reported inAIR1983Ori256
ActsEvidence Act, 1872 - Sections 45; Code of Civil Procedure (CPC) , 1908 - Sections 47 and 115
AppellantSusil Kumar Adhya and ors.
RespondentRangalal Patwari
Appellant AdvocateR.N. Sinha, Adv.
Respondent AdvocateP.K. Misra, Adv.
DispositionRevision dismissed
Cases ReferredAbbasbhai Alimahomed v. Haji Gulamnabi Hari Safibhai). The
Excerpt:
.....in exercise of jurisdiction illegally or with material irregularity, and in such a case, the high court could justly exercise its revisional jurisdiction to advance the cause of justice. in the facts of this case it cannot be said that the subordinate court in accepting the deed of agreement has exercised a jurisdiction not vested in it by law or has failed, to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity (see air 1964 sc 1341, abbasbhai alimahomed v......case no. 25 of 1976 of the same court. the present petitioners are the legal heirs of the late gopinath adhya who was the decree-holder in execution case no. 25 of 1976 and the present opposite party was the judgement-debtor. the late gopinath adhya had obtained a decree for eviction of the opposite party in h. r. c. case no. 29 of 1975 and the said decree was confirmed in h. r. c. appeal no. 19 of 1976. the late gopinath adhya filed execution case no. 25 of 1976 on 12-3-76. during the pendency of the execution case, the opposite party filed a petition on 21-2-77 under section 47 c. p. c. which was registered as misc. case no. 121 of 1977. 2. the opposite party's case is that after the disposal of h. r. c. appeal no. 19 of 1976 at the instance of some gentlemen a proposal for.....
Judgment:
ORDER

B.N. Misra, J.

1. This revision is directed against the order dated 5-2-79 passed by the learned Munsif, Puri in Misc. Case No. 121 of 1977, a proceeding under Section 47 C. P. C., allowing the said Misc. Case and dismissing the, concerned Execution Case No. 25 of 1976 of the same Court. The present petitioners are the legal heirs of the late Gopinath Adhya who was the decree-holder in Execution Case No. 25 of 1976 and the present opposite party was the judgement-debtor. The late Gopinath Adhya had obtained a decree for eviction of the opposite party in H. R. C. Case No. 29 of 1975 and the said decree was confirmed in H. R. C. Appeal No. 19 of 1976. The late Gopinath Adhya filed Execution Case No. 25 of 1976 on 12-3-76. During the pendency of the Execution case, the opposite party filed a petition on 21-2-77 under Section 47 C. P. C. which was registered as Misc. Case No. 121 of 1977.

2. The opposite party's case is that after the disposal of H. R. C. Appeal No. 19 of 1976 at the instance of some gentlemen a proposal for compromise was mooted between the parties and on 23-1-77 it was agreed to between the parlies that the late Gopinath Adhya was to be paid enhanced rent at the rate of Rs. 24/- per month from January, 1977 and the opposite party would continue as a tenant as before. According to the opposite party, in view of the fresh tenancy between the parties, Execution Case No. 25 of 1976 which was initiated for his eviction should be dismissed.

3. In his counter the late Gopinath Adhya had stated that the petition under Section 47, C. P. C., had been filed by the opposite party on false grounds only to harass him at his old age. It is denied that there was any agreement between the parties to the effect that on payment of enhanced rate of rent the opposite party was to continue as a tenant in the suit house.

4. On a scrutiny of the lower court records it is seen that on 20-9-77 Misc. Case No. 121 of 1977 was dismissed for default of the opposite party. On 21-9-77 the opposite party filed a petition under Section 151, C. P. C., for restoration of Misc. Case No. 121 of 1977 and this restoration petition was registered as Misc. Case No. 572 of 1977. On 26-9-77 as agreed to by the advocates on both sides Misc. Case No. 572 of 1977 was. allowed and Misc. Case No. 121 of 1977 was restored to file. In course of further proceedings of Misc. Case No. 121 of 1977, the deed of agreement (marked Ext 'X') was sent to the hand-writing expert and in the order-sheet dated 21-11-78 it is noted that the report of the hand-writing expert was received. However, the hand-writing expert has not been examined.

5. The opposite party has examined himself and three other witnesses in support of his case. He also relies on documentary evidence. On behalf of the petitioners, the evidence is confined to the testimony of the late Gopinath Adhya which has been recorded on commission. P. W. 1 works in a jewellery shop' which is situated close to the disputed house. He knows the parties. He has stated that in the month of January in his presence it was agreed to and decided between the late Gopinath Adhya and the opposite party that the monthly rent would be enhanced to Rs. 24/- and that the arrear dues of Rs. 60/- would be paid and in pursuance of the agreement the opposite party paid Rs. 60/- towards the arrears of rent and Rs. 24/- as advance rent for one month. In cross-examination P. W. 1 has stated that there were two or three other persons present at the time of agreement between the parties and, that there was talk of execution of a written agreement incorporating the payment of Rs. 84/- and allowing the opposite party to continue as a monthly tenant with effect from January, 1977. P. W. 3 has scribed the deed of agreement marked Ext. 'X'. He has stated that he had scribed the document in accordance with the instructions of the late Gopinath Adhya. After scribing the document he had read over the contents to the parties who had, put their respective signatures after being satisfied about the truth of the contents of the document. He has further stated that after execution of the deed of agreement the opposite party paid Rs. 84/- to the late Gopinath Adhya as per the terms of the deed of agreement. In cross-examination P. W. 3 has stated that except P. W. 4 no one else was present at the time of the execution of the agreement and that the opposite party was his friend. P. W. 4 has stated that in the month of January, 1977 there was a talk of compromise between the parties and two to four days thereafter the agreement was reduced to writing. The agreement was to the effect that the opposite party would pay Rs. 60/- towards the arrears of rent and Rs. 24/-as advance rent for one month and monthly rent was fixed at Rs. 24/- and pursuant to that agreement the opposite party was to continue as a tenant under the late Gopinath Adhya P. W. 4 has also stated that on the date of the execution of the dated of agreement, no money was paid but that money had been paid on the day on which talks for compromise had been held. P. W. 2 is the opposite party himself. He has also stated about the fresh agreement between him and the late Gopinath Adhya in pursuance of which he had paid the arrears of rent and had agreed to pay the rent at the rate of Rs. 24/- per month from January, 1977. In support of his case money order receipts, Exts. 1 to 4, have been filed.

6. On behalf of the present petitioners only the late Gopinath Adhya has been examined on commission. He has denied the allegations of the opposite party, According to him, he had never received payment of Rs. 84/- from the opposite party and he had never agreed that the opposite party would continue as a tenant from January, 1977 on payment of enhanced rent at the rate of Rs. 24/- per month. He has denied, that he had given any instruction to P. W. 3 to scribe the document marked Ext 'X'. He has also denied that the contents of the said document were ever read over to him. He has further stated that P. Ws. 1 and 4 did not have good relationship with him and that he did not know P. W. 3 at all. He has denied his signature on the deed of agreement marked Ext. 'X' and he has gone to the extent of denying his signatures on the execution petition and on his rejoinder dated 29-8-77.

7. As regards the deed, of agreement (marked Ext. 'X'), it bears the date '26-1-77'. It has been scribed by P. W. 3 and I see no reason why his evidence in this regard should not be accepted particularly when his evidence is fully corroborated by P. W. 4. The discrepancy in the evidence of P. Ws. 3 and 4 as to the date on which payment was made is a minor one. The evidence of P. W. 1 also corroborates the case of the opposite party. The main question is whether the deed of agreement (marked Ext. 'X') was executed by the late Gopinath Adhya and the opposite party or not. As already noted, while there is the evidence of P. Ws. 2, 3 and 4 that this deed was executed by the late Gopinath Adhya, on the side of the petitioners there is noevidence at all to corroborate the testimony of the late Gopmath Adhya that the signature on the document was not his. First of all his denial of the signature is a self-serving statement. Also, no relience can be placed on the testimony of the late Gopinath Adhya when he has gone to the extent of denying his signatures on his execution petition and his rejoinder dated, 29-8-77. No doubt the opinion of the hand-writing expert is to the effect that the signature of the late Gopinath Adhya on the deed of agreement is a product of traced forgery. However, no importance can be attached to the report of the hand-writing expert since he has not been examined in this case and his report could not be tested by way of cross-examination. Moreover, the learned Munsif has given reasons as to why he has differed from the opinion of the handwriting expert and has not accepted the same.

8. Learned Counsel for the petitioners has submitted that in his petition under Section 47, C. P. C., the opposite party has mentioned the date of agreement to be 23-1-77 and therefore the deed of agreement dated 26-1-77 (marked Ext. 'X') should not have been accepted by the court below. I agree that the date indicated in the Section 47, C. P. C., petition and the date given in the deed of agreement are different, but this discrepancy is not so material as to render the document inadmissible. P. Ws. 1 and 4 have both stated that first there was a talk of compromise and the deed of agreement was executed a few days thereafter. Learned counsel for the petitioners has referred to AIR 1979 Raj 108 (Prakash Chander v. Smt Sunder Bai) and (1979) 48 Cut LT 416 (Jurinath Sahu v. Ramaballaya Brahma) in support of his proposition that when the existence of the written agreement and the date of the written agreement had not been disclosed in the Section 47, C. P. C., petition filed by the opposite party, the lower court acted with material irregularity in exercising his jurisdiction in accepting the deed of agreement (marked Ext. 'X'). In the former case it was held :--

'Thus, in view of the series of the authoritative pronouncements of the Supreme Court, the law appears to be well settled with regard to the scope of Section 115(1)(c), C. P. C. It is only when some illegality or material irregularity ig committed by the subordinate court in the manner of the exercise of its jurisdiction, that is, if some procedural errors in exercise of its jurisdiction are committed resulting into any illegality or material irregularity, such errors can be rectified by the High Court, while exercising the powers under Section 115(1)(c), C. P. C. After the amendment of Section 115 by the C. P. C. Amendment Act No. 104 of 1976, a proviso has been added in Sub-section (1). Even if the order falls under any of the clauses of Section 115(1), the High Court will have no jurisdiction to vary or reverse any order unless the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. There are two clauses of the proviso. So far as the present case is concerned Clause (a) of the proviso has no relevance. In view of Clause (b) of this proviso, the petitioner is further required to show that the impugned order would occasion a failure of justice or would cause an irreparable injury to him.'

In the latter case it was observed that if the subordinate court failed to take into account a material fact on record or misdirected itself regarding the effect of an admitted fact or misunderstood the effect of a document or a piece of evidence or material on record or misconstrued the effect of the same, that would amount to failure of exercising a jurisdiction vested in it by law, or to have acting in exercise of jurisdiction illegally or with material irregularity, and in such a case, the High Court could justly exercise its revisional jurisdiction to advance the cause of justice. I have already discussed that mention of a wrong date in the Section 47, C. P. C., petition is not very material. Once the document itself is accepted, the date noted in the document shall prevail over the date mentioned in the Section 47, C. P. C., petition. Moreover, P. Ws. 1, 2 and 4 have explained that the deed of agreement followed the talks of compromise, a few days later. In the facts of this case it cannot be said that the subordinate court in accepting the deed of agreement has exercised a jurisdiction not vested in it by law or has failed, to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity (see AIR 1964 SC 1341, Abbasbhai Alimahomed v. Haji Gulamnabi Hari Safibhai). The order of the learned Munsif does not suffer from any jurisdic-tional error and, therefore, interference by this Court is not called for.

9. In the result, this revision is dismissed and, the impugned order is confirmed. Parties will bear their own costs.

10. The Court below is directed to mark the deed of agreement (Ext. 'X') as a regular exhibit, in the case in view of the fact that the objection to its ad-missibility has been met and stamp duty and penalty on the document have been paid.


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