Skip to content


Hudi Goshaon Vs. Sudi Goshaon and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Misc. No. 630 of 1960
Judge
Reported inAIR1962P& H467
ActsPunjab Gram Panchayat Act - Sections 53, 57 to 64 and 65; ;Government of India Act, 1915 - Sections 107; Code of Civil Procedure (CPC), 1908 - Sections 99 and 141 - Order 3, Rules 1 and 2; Constitution of India - Articles 226 and 227
AppellantHudi Goshaon
RespondentSudi Goshaon and ors.
Cases ReferredIn Marwa Manghani v. Sanghram Sampat
Excerpt:
.....judge in respect of civil suits may on his own motion or on an application of the aggrieved party set aside or modify any decree or order made by a panchayat in a civil suit or direct the re-trial of the suit by the same or any other panchayat of competent jurisdiction or by any other court subordinate to him if the is satisfied that there has been a failure of justice whether on a point of fact or law. infirmities (if at all the defect pointed out by the senior subordinate judge can be so described) like those on the basis of which the learned senior subordinate judge has interfered under his power of supervision, are precisely the infirmities meant to be cured by s. the learned senior subordinate judge has in my opinion, failed even to take into account the salutary provisions of..........lal, signed their names in urdu.(4) sudi defendant took the matter in revision to the court of the senior subordinate judge. the learned senior subordinate judge, however, allowed the revision and set aside the judgment of the panchayat on the ground that the suit had been instituted my by mst. mano devi wife of the plaintiff, hudi and not by hudi himself. the original record, according to the learned senior subordinate judge, did not disclose that hudi plaintiff had over appointed his wife as his mukhtar-i-am. on this basis the plaint was held not to have been properly presented. nor was the suit held to have been properly conducted by the plaintiff. the panchayat was, therefore, held not to be justified in entertaining the suit and passing a decree in the absence of a mukhtar-name in.....
Judgment:
ORDER

(1) Hudi, son of Goshaon, approached the Panchayat, Bhattu Sansal, praying for a decree for a sum of Rs. 200/- against the defendants on the basis of a promissory note executed in his favour. The principal amount was described to be Rs. 175/- and a sum of Rs. 25/- was claimed by way of interest. The Panchayat duly held an enquiry into the allegations. Ludia defendant made a statement stating that the promissory note in question bore only his thumb-impression and that the other defendants, Sudi and Shrimati Dhochki, affixed their thumb-impressions after admitting the debt to be correct. He had refunded Rs. 30/- and therefore he expressed his readiness and willingness to pay the balance due from him as his share. Sudi defendant stated that the promissory note did bear his thumb-impression but he had done so under some misunderstanding, the misunderstanding was represented to be that Ludia alone would be responsible for the payment of the amount. Shrimati Dhochki also admitted the affixation of her thumb-mark in token of her consent but she stated that she was not liable to pay any amount since the responsibility to repay the loan was not hers.

(2) On behalf of Hudi, Shri Suraj Ram, the scribe of the pronote appeared as a witness and he deposed that he had scribed the pronote after the settlement of the dispute between the parties, and all the three defendants affixed their thumb-impressions after admitting the contents of the promissory note to be correct. Atma, who is a witness to the pronote, also appeared in support of the plaintiff's version. The defendants produced one Waziru as a witness who, though not a witness to the promissory note, stated that he once gathered a Panchayat about the dispute in question and the Panchayat held that only Ludia would be liable to pay Rs. 175/-. The promissory note, according to Waziru, was executed and completed in his presence.

(3) After considering the material, the Panchayat unanimously passed a decree for a total sum of Rs. 200/- in favour of the plaintiff against the three defendants. The parties were however ordered to bear their own costs of the proceedings. This conclusion was based on the finding that the defendants' witness was unreliable and also that Ludia's claim that he had already refunded Rs. 30/- was unsubstantiated. I may here mention that the Panchayat consisted of four persons out of whom two signed their names in English. Those who signed their names in English are Dina Nath and Uttam Chand. The other two Panches, Buta Ram and Sham Lal, signed their names in Urdu.

(4) Sudi defendant took the matter in revision to the Court of the Senior Subordinate Judge. The learned Senior Subordinate Judge, however, allowed the revision and set aside the judgment of the Panchayat on the ground that the suit had been instituted my by Mst. Mano Devi wife of the plaintiff, Hudi and not by Hudi himself. The original record, according to the learned Senior Subordinate Judge, did not disclose that Hudi plaintiff had over appointed his wife as his mukhtar-i-am. On this basis the plaint was held not to have been properly presented. Nor was the suit held to have been properly conducted by the plaintiff. The Panchayat was, therefore, held not to be justified in entertaining the suit and passing a decree in the absence of a mukhtar-name in the name of Shrimati Mano Devi.

(5) The plaintiff, Hudi has approached this Court under Article 227 of the Constitution of India, and it has been contended that the learned Senior Subordinate Judge has acted outside his statutory powers and has acted arbitrarily in setting aside the judgment of the Panchayat on the ground of improper presentation of the plaint and improper conduct of the suit by the plaintiff. In may opinion, this contention is full of merit and I feel no hesitation in setting aside the order of the learned Senior Subordinate Judge.

(6) The learned counsel for the petitioner has submitted that whether the plaint was properly presented by an authorised person; was a question which was to be determined initially by the Panchayat. No objection to its proper presentation having been raised before the Senior Subordinate Judge under Section 65 of the Punjab Gram Panchayat Act. He has also contended that the Panchayat Act does not in terms lay down that the petition presented under Section 57 of the Act must be signed by the claimant himself.

(7) As against this the learned counsel for the respondents has submitted that under Section 53 of the Panchayat Act the Panchayat, when trying a suit for money, is to be deemed to be a Civil Court, and under section 141, Code of Civil Procedure, the procedure provided in the Code in regard to suits should be followed as far as it can be made applicable in all proceedings in any court of civil jurisdiction.

The counsel has also in developing his argument made a passing reference to Section 62 of the Panchayat Act which lays down the circumstances in which a suit can be dismissed for default, and later restored. Section 63 of the Panchayat Act deals with the circumstances in which ex parte decisions can be given and Section 64 provides that at the conclusion of the trial the Panchayat is to pass the a decree in writing. From these provisions Shri Ganga Parshad infers that the Panchayat must be considered to be a full-fledged civil court the proceedings of which are governed by the provisions of the Code of Civil Procedure by virtue of S. 141 of the Code. Reference has also been made to Order III, Rules 1 and 2 of the Code, in support of the contention that appearances, applications or acts in or to a Panchayat must be made or done either by the party in person or by his recognised agent or by a pleader appearing, applying or acting as the case may be on his behalf.

(8) In my opinion, it is wholly unnecessary for the purposes of the present case to decide whether or not the deeming provision contained in Section 53 of the Gram Panchayat Act has been intended to confer on the Panchayat the status of a full-fledged civil court in the sense in which the word is used in Section 141 of the Code of Civil Procedure. For one thing, if that had been the intention, it is not explained as to where was the necessity of making separate and distinct provisions contained, inter alia, in Sections 57 to 64 of the Panchayat Act. Being a full-fledged civil court governed by the Code of Civil Procedure, it would perhaps also be amenable to the jurisdiction of the appellate Court and revisional courts in the hierarchy of the civil courts which function in the State. The provisions of section 65 would thus also be unnecessary, for the Panchayats would apparently be subject to the control of the superior courts, as contemplated by the Code of Civil Procedure. But as I do not consider it necessary in this case to express any considered opinion on this point, nothing more need be said in this connection.

(9) Section 65 of the Panchayat Act, which confers the power of supervisions on the District Judge, lays down, inter alia. that the District Judge in respect of civil suits may on his own motion or on an application of the aggrieved party set aside or modify any decree or order made by a Panchayat in a civil suit or direct the re-trial of the suit by the same or any other Panchayat of competent jurisdiction or by any other court subordinate to him if the is satisfied that there has been a failure of justice whether on a point of fact or law. However wide this power may be, it can hardly be construed to vest the Judge exercising supervisory jurisdiction under section 65 to set aside. a just and legitimate claim decreed by the Panchayat, on the hypertechnical ground of the plaint having not been signed by the plaintiff himself or because of the absence of a mikhtar-nama in favour of the plaintiff's wife who has without any objection or protest conducted the suit before the Panchayat. It may here be mentional that Hudi, the plaintiff, was admittedly suffering from leprosy and was unable to sign the plaint himself. There is an express recital in the plaint that the suit was being filed through Hudi's wife, Shrimati Mano, because Hudi himself was unable to affix his thumb-impression on the plaint.

(10) It is significant that in the trial before the Panchayat the defendants did not raise any objection to the proper presentation of the plaint or to the plaint being property singed by the plaintiff himself. Obviously, therefore, the Panchayat did not go into this matter. Had any objection on these grounds been raised, the Plaintiff would certainly have tried to remedy the defect. It is unfortunate that the learned Senior Subordinate Judge should have taken no pains to go through the record and to read the plaint for himself and notice the circumstances in which the same had been scribed and presented.

(11) But this apart, even if the Code of Civil Procedure were to be held to be applicable, S. 99 of the Code contains a very salutary provisions which debars reversal or substantial variation of a decree on appeal on account of any error or irregularity not affecting the merits of the case or the jurisdiction of the Court. Infirmities (if at all the defect pointed out by the Senior Subordinate Judge can be so described) like those on the basis of which the learned Senior Subordinate Judge has interfered under his power of supervision, are precisely the infirmities meant to be cured by S. 99 of the Code. The learned Senior Subordinate Judge has in my opinion, failed even to take into account the salutary provisions of Section 99 of the Code, the aim of which is to prevent technicalities from overcoming the ends of justice. When once a case has been tried on the merits and judgment given, it should not be liable to be reversed on mere technicalities which do not result in failure of justice, see Kiran Singh v. Chaman Paswan, AIR 1954 SC 340. Procedure, it must never be forgotten by judicial and quasi-judicial Tribunals in this country, is a handmaid and not a mistress of law, and rules of procedure should subserve and not govern, for they are only a channel to administer law and they should never be utilised for impeding or obstructing justice they are designed to advance and not to defeat the cause of justice; see Punjab Co-operative Bank Ltd. v. Bikram Lal, AIR 1959 Punj 71.

(12) Mr. Ganga Parshad has further contended that however erroneous the order of the learned Senior Subordinate Judge, there is no cogent ground for interference under Art. 227 of the Constitution with according to him has a very narrow scope. In Marwa Manghani v. Sanghram Sampat, AIR 1960 Punj 35, I had an occasion to deal, on a petition under Article 227 with an order of the Panchayat affirmed by the learned Senior Subordinate Judge under Section 65 of the Panchayat Act. There I said that the Constitution, which has sought to secure justice to the citizens as a top priority, has also for this purpose vested in the High Courts very wide powers of judicial supervision and superintendence over all Tribunals and Court in the State Derived as this power is directly from the constitution, which is the fountain source and parent of all laws and statutes in this Republic, this power imposes on the High Courts a grave and sacred responsibility for the entire administration of justice and vests in them an unlimited and unfathomable reserve of judicial power of control and supervision over all Courts and Tribunals in the State, which reserve can easily be drawn upon and utilised, if the interests of justice so demand.

I also observed that Section 65 of the Panchayat Act is couched in words of very wide amplitude and that it has been so worded in order to enable a senior judicial officer to properly canalise the proceedings of the Panches. In my opinion, this power, however wide, is not arbitrary or completely uncontrolled. The intrinsic and inherent limitation on this power lies in its purpose and object to further the cause of justice and not to promote injustice. This power has, therefore, been conferred on a senior judicial officer to set right unjust decisions of the Panchayat rather that to interfere with substantially just conclusions, which are otherwise free from any serious legal infirmity.

In the present case, I cannot help observing that this power has been utilised in the cause of injustice rather than justice. In this connection it would not be out of place to notice that in the grounds of revision filed before the Senior Subordinate Judge there is no specific and express ground raised on the point of improper presentation off the plaint or improper conduct of the proceedings before the Panchayat. As a matter of fact, Mr. Ganga Parshad put forth this plea for the purpose of escaping costs of the proceedings in this Court. He submitted that he had not urged before the Senior Subordinate Judge that the order of the Panchayat should be set aside on the ground of improper Presentation of the plaint or of improper conduct of the proceedings before the Panchayat. This submission does seem to find support, to some extent, from the grounds of revision, though I can imagine this point being urged at the Bar notwithstanding its omission from the memorandum of grounds of revision.

Another regrettable aspect of this case is that the Senior Subordinate Judge does not seem to have cared to apply his mind to the desirability of remanding the case to get, what he considered to be an infirmity, to be rectified. The dictates of justice in the case in hand did, in my opinion, demand due and proper consideration of this aspect.

(13) Before parting I may also notice a preliminary objection raised on behalf of the respondents to the competency of the petition under Article 227 of the Constitution. It was urged that the Senior Subordinate Judge is a necessary party to these proceedings and in his absence from the array of respondents this Court has no jurisdiction to interfere with the impugned order. I am unable to sustain this contention. Article 227, which is for all practical purposes a revival of section 107 of the Government of India Act, 1915 is not an article which in terms provides for writs etc; in this respect it is distinguishable from Article 226 of the Constitution which alone provides for writs etc. The rules framed by this Court for petitions under Article 226 of the Constitution are also suggestive of the distinction between the two Articles; see High Court Rules and Orders Volume V Chap 3-B. Proceedings under Article 227 are not original proceedings, for orders passed in these proceedings are not even amenable to Letters Patent Appeals, as has been held by this Court in more cases than one. As a matter of fact the prayer made in the present petition is also not for any writ, order or direction as contemplated, by Article 226 of the Constitution. Therefore, in may humble opinion, the considerations on which a Tribunal, to which a writ is to go is held to be a necessary party, are not attracted in the instant case. The label of Article 227 on the petition, in my opinion, does not by itself necessitate the impleading of the Tribunal whose order is assailed under this Article. Besides even if I were to hold that the Senior Subordinate Judge is a necessary party, I would certainly be inclined to allow the petitioner to implead him or to give him notice of this petitioner at this stage, and not disallow the petition as prayed, for such a course could not have advanced the cause of justice on the facts which are before me, but, as I am not inclined to uphold this objection, nothing more need be said about it.

(14) For the reasons given above, this petition succeeds and allowing the same I set aside the order of the learned Senior Subordinate Judge and restore that of the Panchayat. In the circumstances of the case, I do not think it is proper to burden the respondents with costs of these proceedings.

(15) Petition allowed.


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