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inder Singh Vs. Deputy Commr. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberL.P.A. No. 5 of 1954
Judge
Reported inAIR1957P& H60
ActsCode of Civil Procedure (CPC) , 1908 - Sections 107 - Order 41, Rule 1; Evidence Act, 1872 - Sections 115
Appellantinder Singh
RespondentDeputy Commr. and ors.
Appellant Advocate H.S. Gujral, Adv.
Respondent Advocate H.R. Sodhi, Adv.
DispositionAppeal dismissed
Excerpt:
.....amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to..........the constitution in which he challenged the validity of two orders, one passed by the authorised deputy custodian on the 27th february 1952 and the other passed by the additional custodian on the 28th august 1952. a learned judge of this court dismissed the petition on the ground that the petitioner had not exhausted the remedies available to him under the law and the petitioner has accordingly preferred an appeal under clause 10 of the letters patent.2. mr. h. s. gujral, who appears for the petitioner, contends, that this client presented a petition to the deputy custodian-general under section 27 of the administration of evacuee property act but this petition was dismissed on the 2nd december 1953. the petitioner was not aware or this order when the case came up for hearing before.....
Judgment:

Bhandari, C.J.

1. One Captain Indar Singli presented a petition under Article 226 of the Constitution in which he challenged the validity of two orders, one passed by the Authorised Deputy Custodian on the 27th February 1952 and the other passed by the Additional Custodian on the 28th August 1952. A learned Judge of this Court dismissed the petition on the ground that the petitioner had not exhausted the remedies available to him under the law and the petitioner has accordingly preferred an appeal under Clause 10 of the Letters Patent.

2. Mr. H. S. Gujral, who appears for the petitioner, contends, that this client presented a petition to the Deputy Custodian-General under Section 27 of the Administration of Evacuee Property Act but this petition was dismissed on the 2nd December 1953. The petitioner was not aware or this order when the case came up for hearing before the learned Single Judge on the 7th December 1953 and his counsel was accordingly unable to invite the attention of the Court to this fact.

Mr. Gujral contends that the learned Single Judge was in error in holding that his client had not exhausted the remedies available to him under the law and prays that the order which had proceeded on a wrong assumption of facts should be abrogated and set aside.

3. Although an appellate Court has full power to consider questions which were not presented to or parsed upon by the Court below, an appellate Court is usually most reluctant to exercise this power save in exceptional circumstances and in specified classes of cases.

The rule that an appellate Court win consider only such questions as were raised before the trial Court is based on sound common sense, for if a party were permitted to raise objections before the appellate Court which could and should have been raised before the trial Court the decision of casps would be delayed, the expenses of litigation would increase and the venue of cases would in substance and effect be shifted from the trial Court to the appellate Court.

It has accordingly been held that the failure of a party to object when it had a right to do so before the trial Court constitutes a waiver of the right to object and precludes him from exercising the said right in the appellate Court. Such waiver of estoppel may arise from mere silence or inaction or from inconsistent conduct or statements or from admission, concession, consent or acquiescence or from acceptance of the benefits of a ruling of the trial Court or its Judgment or decree or from an error which was in-vited by the party itself.

Had the petitioner in the present case invit-ed the attention of the leamed Single Judge to the fact that the petition presented by him to the Deputy Custedan-General was dismissed on the 2nd December 1953, there can be littie doubt that the learned Single Judge would have passed a completely different order from the one which was actually passed by him.

The petitioner cannot be permitted at this late stage to question the facts the existence of which was assumed before the learned Single Judge or to complain of an error for the commission of which he himself was responsible.

4. For these reasons I am of the opinion that there is no substance in the appeal. I would accordingly direct that the appeal be dismissed with costs.

5. We understand that the petitioner has presented a fresh petition under Article 226 of the Constitution against the order of the Deputy Custodian-General. That petition will doubtless be heard and disposed of on merits.

Khosla, J.

6. I agree.


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