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Hakam Singh Vs. Jaswant Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Misc. No. 1963-C of 1971 in Second Appeal No. 1712 of 1968
Judge
Reported inAIR1974P& H235
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rules 11, 32 to 37; Code of Civil Procedure (CPC) (Amendment) Act, 1888 - Sections 47 and 551
AppellantHakam Singh
RespondentJaswant Singh and ors.
Cases ReferredAltap Ali v. Jamsur Ali
Excerpt:
.....for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie..........mother smt. kartar kaur sold the disputed land without the permission of the court, in favour of hakam singh. the suit was decreed by the trial court and on appeal the judgment and decree of the trial court were affirmed by the additional district judge, ferozepur; still dissatisfied, hakam singh preferred r. s. a. no. 1712 of 1968 in this court which came up for preliminary hearing before me on 8th november, 1968. after hearing the learned counsel for the appellant, i sent for the records. the case was again put up for preliminary hearing before me on 10th december, 1968, but finding no merit in the appeal. i dismissed the same in limine, on that very day. it seems that at the time of execution it transpired that while giving details of killa numbers which were sold to hakam singh,.....
Judgment:

Prem Chand Jain, J.

1. In order to appreciate the controversy raised be fore me, some salient features of the case may be noticed which are as follows:--

Jaswant Singh and Pritam Singh, minors, though Harbans Singh, their uncle, filed a suit for possession of land measuring 125 Kanals and 14 Marlas, on the allegation that their mother Smt. Kartar Kaur sold the disputed land without the permission of the Court, in favour of Hakam Singh. The suit was decreed by the trial Court and on appeal the judgment and decree of the trial Court were affirmed by the Additional District Judge, Ferozepur; Still dissatisfied, Hakam Singh preferred R. S. A. No. 1712 of 1968 in this Court which came up for preliminary hearing before me on 8th November, 1968. After hearing the learned counsel for the appellant, I sent for the records. The case was again put up for preliminary hearing before me on 10th December, 1968, but finding no merit in the appeal. I dismissed the same in limine, on that very day. It seems that at the time of execution it transpired that while giving details of Killa numbers which were sold to Hakam Singh, Killa No. 4 of rectangle No. 34, measuring 8 Kanals was omitted at the time of the filing of the suit in the plaint, though a decree for the entire land sold was prayed for. Due to this mistake, the decree that was prepared by the trial Court and affirmed on appeal by the learned Additional District Judge, did not contain the omitted Killa number.

2. On the discovery of this fact, Jaswant Singh and Pritam Singh filed a fresh suit on 14th January, 1970, for possession of the said land measuring 8 Kanlas. Hakam Singh filed written statement on 20th May, 1970. The plaintiffs were directed to file replication on 17th June, 1970. Instead of filing replication, the suit was got dismissed.

3. Thereafter the present application was filed on behalf of Jaswant Singh and Pritam Singh minors under Sections 151, 152 and 153 of the Code of Civil Procedure, praying for the amendment of the decree passed in his favour in which Killa No. 4 of rectangle 34 was omitted.

4. Notice of this application was given by me on 21st August, 1970. Hakam Singh contests this application and has also filed a reply. Mr. Sachdev, learned counsel for Hakam Singh has raised a preliminary objection to the effect that this Court has no jurisdiction to amend the decree. In substance the contention of the learned counsel is that where the appeals are dismissed under the provisions of Order 41, Rule 11 of the Code of Civil Procedure, it is the trial Court or the first Appellate Court which has jurisdiction to amend the decree and not this Court. In support of his contention, the learned counsel has placed reliance on a Division Bench decision of the Patna High Court in Batuk Prasad Singh v. Ambica Prasad Singh, AIR 1932 Pat 238, a Division Bench decision of the Oudh High Court in Pt. Tribeni Prasad v. Mt, Rukmin Devi, AIR 1941 Oudh 251, a Single Bench decision of the Bombay High Court in Hussain Sab v. Sitaram Vighneshwar, AIR 1953 Bom 122, and a Single Bench decision of this Court in Smt. Murti Devi v. Bishan Singh, 1966 Cur LJ (Punj) 195. On the other hand it is contended by Mr. Bahl, learned counsel for the applicant that it is immaterial whether the appeal is dismissed in limine under the provisions of Order 41, Rule 11 of the Code of Civil Procedure or after hearing the parties and following the procedure laid down in Rules 30 to 37 of Order 41. The learned counsel, in support of his contention, referred to a Division Bench decision of the Andhra Pradesh High Court in Annapu Ramanna v. P. Sreeramulu, AIR 1958 Andh Pra 168, a Division Bench decision of the Madhya Pradesh High Court in Komalchand v. Pooranchand, AIR 1970 Madh Pra 119 a Division Bench decision of the Allahabad High Court in Durga Singh v. Wahid Raza, AIR 1965 All 226, a Single Bench decision of the Madras High Court in Subbamma v. Madhavarao, AIR 1946 Mad 492, and a Single Bench decision of the Calcutta High Court in Altap Ali v. Jamsur Ali, AIR 1926 Cal 638.

5. After hearing the learned counsel for the parties and after going through the various judicial pronouncements of the various High Courts, I find that the respective contentions of the learned counsel for the parties are supported by the decisions cited by them and on both sides weighty reasons are given for forming that particular view. However, Mr. Sachdev, learned counsel for Hakam Singh has an edge over the other side because of a Single Bench decision of this Court in Smt. Murti Devi's case, 1966 Cur LJ (Punj) 195(supra); in that decision, without discussing any authority, I. D. Dua, J; as his Lordship then was, observed thus:--

'It is common case before me that against the decree and judgment of the learned Senior Subordinate Judge, an appeal was preferred in this Court but the same was dismissed in limine. Now, if that be so, then there is no question of this Court's decree superseding or replacing that of the Court of first appeal. The result, therefore, is that the Court below must be considered to have declined to exercise the jurisdiction vested in it on wholly erroneous and illegal grounds because the petition, if meritorious, could only be disposed of by that Court and not by High Court.'

In the presence of this decision even if I am inclined to take a different view. I find it advisable to refer the case for decision to a larger Bench; otherwise also in view of the conflicting decisions of the various High Courts referred to above, I feel that it would be proper if authoritative pronouncement is given by this Court on this point. Accordingly I direct that the papers of this case be laid before my Lord, the Chief Justice, for appropriate orders. As I am referring the case on the preliminary objection for decision to a larger Bench, the question whether, in the circumstances of the case, amendment of the decree should be allowed or not, may also be decided by the Bench.


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