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Bawa Amrita Nand Gir Chela Bawa Somwar Gir Baghichi Vs. Advocate-general Punjab at Chandigarh and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 3077 of 1970
Judge
Reported inAIR1974P& H334
ActsCode of Civil Procedure (CPC), 1908 - Sections 92 -Order 1, Rule 8; Constitution of India - Articles 226 and 227; Code of Civil Procedure (CPC), 1882 - Sections 539
AppellantBawa Amrita Nand Gir Chela Bawa Somwar Gir Baghichi
RespondentAdvocate-general Punjab at Chandigarh and ors.
Cases ReferredRaju v. Advocate
Excerpt:
.....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 clause (a)..........was filed by bawa amrita nand gir on september 19, 1970, to quash the order of the advocate-general (annexure 'j') under section 92 of the code of civil procedure as being illegal, without jurisdiction, unconstitutional and improper.6. the only ground on which the petition has been pressed before me by chaudhry roop chand, the learned advocate for the petitioner, is that the advocate-general had no jurisdiction to grant permission under section 92 of the code to the respondents, as they are deemed to be bond by the judgment of the competent civil court in the two previous cases on principles of constructive res judicata. it may be noticed that though the suit filed by nanak chand etc; was a representative suit filed under order 1, rule 8 of the code, the second suit has not been.....
Judgment:

R.S. NARULA, J.

1. On or about Dec. 10, 1946, Nanak Chand and four others filed a suit against Amrita Nand Gir Petitioner and one Somwar Gir alias Jiwan, for a declaration to the effect that the gift made by Somwar Gir (defendant No.2 in that suit) in favour of the petitioner (defendant No. 1 in that suit) regarding Dharamshala Chainpuri together with shops and temples attached thereto situate in bazar Nauhrian and the shops and houses situate in bazar Bhairon within the abadi of Jullundur City, was unlawful and null and void, and based on wrong facts and that Amrita Nand Gir defendant (petitioner before me) could have no right in the aforesaid property mentioned in the deed of gift. Annexure 'A' to the writ petition is a copy of the plaint of that suit. The suit was dismissed by Shri Tek Chand, Senior Subordinate Judge, Jullundur, on December 7, 1948. without framing issues on merits as it was held that the plaintiffs should have brought a suit for possession as the property was not proved to be wakf property and the plaintiffs were out of possession. That judgment was later set aside by the High Court on October 12, 1955, on the finding that the case had not been properly tried and that comprehensive issues covering all the points in dispute between the parties should have been framed and decision given upon them. The suit was remanded to the trial Court for decision accordingly.

2. In the post-remand proceedings, the suit was disposed of by Shri Chetan Dass Jain, Senior Subordinate Judge. Jullundur, on January 16, 1956. A copy of that judgment is Annexure 'B' to the writ petition. It was held that the gift by defendant No. 2 in favour of defendant No. 1 held good so long as the Bhaikh did not intervene and so long as some public spirited Sevak of the institution did not take necessary action under Section 92 of the Code of Civil Procedure for the removal of defendant No. 1(writ-petitioner) from the institution on account of his unworthy acts in claiming adverse title to it. Nanak Chand and others, the plaintiffs in that suit, preferred Regular First Appeal 78 of 1956, against the judgment and decree of the trial Court dismissing their suit. That appeal was, however, dismissed by Tek Chand J; on August 14. 1957, on account of non-prosecution, as the plaintiffs-appellants had failed to deposit the printing charges for the preparation of the appeal paper-book despite grant of several opportunities. Annexure 'C' is a copy of the High Court order.

3. Gian Chand and four others then moved the Advocate-General for the State of Punjab for his consent in writing under Section 92 of the Code of Civil Procedure for instituting a suit for removal of the writ-petitioner and for dispossessing him from the management of Dharmashala Chainpuri. The requisite sanction was granted by Shir S.M. Sikri (now the Chief Justice of India), the then Advocate-General on November 28, 1960. A copy of the plaint of the suit which was then filed in pursuance of the said sanction is Annexure 'E' to the petition. That suit was ultimately dismissed by the judgment of Shri Ranjit Singh Sood, Subordinate Judge First Class, Jullundur, date October 29, 1962(Annexure 'F'). Regular First Appeal 102 of 1963, preferred by the plaintiffs in that suit was dismissed by a Division Bench of the High Court (S.B. Capoor and I.D. Dua, JJ.) on October 20, 1965, on account of non-prosecution, A copy of that order is Annexure 'G' to the petition.

4. Thereafter the present respondents 2 to 6(none of whom was plaintiff in either of the two previous suits) made an application (copy Annexure 'H') to the Advocate-General, Punjab, for his sanction under Section 92 of the Code of Civil Procedure for filing a suit for the removal of the defendant (the writ-petitioner) from the management of the trust property known as Bagichi Chainpuri, and for the appointment of a new Manager of the institution and vesting the property in the new Manager and for directing the defendant to deliver possession of the trust property, and render accounts etc. The present petitioner filed written objections to the grant of permission under Section 92. A copy of those objections is Annexure 'I' to the petition. After hearing counsel for both sides. Shir Hira Lal Sibal, Advocate-General, Punjab, passed a detailed order (copy Annexure 'J') granting the sanction prayed for and directing respondents 2 to 6 to file a plaint in the office of the Advocate-General, Punjab, by the 15th August, 1970.

5. It is the common case of the parties that the plaint was filed, signed by the Advocate-General, and suit in pursuance thereof (copy Annexure R-1) filed in the Court of the District Judge, Jullundur. It is at this stage that the present petition was filed by Bawa Amrita Nand Gir on September 19, 1970, to quash the order of the Advocate-General (Annexure 'J') under Section 92 of the Code of Civil Procedure as being illegal, without jurisdiction, unconstitutional and improper.

6. The only ground on which the petition has been pressed before me by Chaudhry Roop Chand, the learned Advocate for the Petitioner, is that the Advocate-General had no jurisdiction to grant permission under Section 92 of the Code to the respondents, as they are deemed to be bond by the judgment of the competent Civil Court in the two previous cases on principles of constructive res judicata. It may be noticed that though the suit filed by Nanak Chand etc; was a representative suit filed under Order 1, Rule 8 of the Code, the second suit has not been filed in a representative capacity. Chaudhry Roop Chand, however, submitted that according to the law laid down by their Lordships of the Supreme Court in Ahmad Adam Sait v. M. E. Makhri, AIR 1964 SC 107(paragraphs 15 to 17 of the AIR report), a suit filed under Section 92 of the Code is as much a representative suit as one field under Order 1, Rule 8 of the Code and binds everyone, irrespective of his being or not being a party to the suit. Mr. H.L. Mital, learned Counsel for respondents 2 to 6 has on the other hand argued that in giving permission under Section 92 of the Code, the Advocate-General has not given any decision on the rights of the contesting parties which are affected by the permission, but has merely opened the gates of the Court for his clients, and that all pleas like that of constructive res judicata can be taken by the writ petitioner in his defence to the suit on merits. He has further urged that in any event this Court has no jurisdiction in exercise of its powers under Article 226 of the Constitution to set aside the order of the Advocate-General under Section 92 of the Code, as that is a purely administrative decision which is not amenable to a writ in the nature of certiorari. Mr. Roop Chand has tried to repell that argument on the basis of the judgment of a learned Single Judge of the Pepsu High Court (Mehar Singh J; as he then was) in Sadhu Singh Sunder Singh v. Mangalgir, Mohatmim Dera, AIR 1956 Pepsu 65. Following the judgment of the Travancore Cochin High Court in Abu Backer Adam Sait v. Advocate-General of Travancore Cochin State. AIR 1954 Trav Co 331, and differing from the view which had been taken by the Chief Court of Lahore in Dhian Das v. Jagat Ram, 1910 Pun Re 104(also reported in 8 Ind Cas 1160), as also the view taken by the Rajasthan High Court and the Allahabad High court in Shrimali Lal Kasliwal v. Advocate-General. AIR 1955 Raj 166, and Swami Shantanand Saraswati v. Advocate-General. U.P. Allahabad, AIR 1955 All 372, respectively, the learned Judge held that the functions of the Advocate-General under Section 92 of the Code are judicial in nature and not administrative or executive, and therefore, such decisions are amenable to a writ under Article 226 of the Constitution on a question of jurisdiction, or on account of there being a patent error of law apparent on the face of the record.

7. Besides relying on the judgments of the Allahabad and Rajasthan High Courts to which reference has already been made. Mr. H.L. Mital has referred me to the Full Bench judgment of the Kerala High Court in A.K. Bhaskar v. Advocate-General, AIR 1962 Ker 90(FB), wherein the law laid down by the Travancore Cochin High Court in the case of Abu Backer Adam Sait. AIR 1954 Trav Co 331(supra) was expressly overruled, the law laid down by the learned Single Judge of the Pepsu High Court was not approved, and the view of the Allahabad and Rajasthan High Court was adopted. Wanchoo, C.J. (As he then was), who prepared the judgment of the Division Bench of the Rajasthan High Court in the case of Shrimali Lal Kasliwal AIR 1955 Raj 166(supra), observed that the function of the Advocate-General under Section 92 of the Code cannot be called a judicial or quasi-judicial function, and, therefore, there is no question of revising it under Article 227, or issuing a Writ under Article 226 compelling him to do anything. The view taken by the Travancore Cochin High Court was expressly dissented from by the Division Bench of the Rajasthan High Court in that case. Swami Shantanand Saraswati's case AIR 1955 All 372(supra) had been decided by a Division Bench of the Allahabad High Court consisting of Raghubar Dayal and Aggarwala, JJ. They had taken the same view after dissenting from the view of the Travancore Cochin High Court and approving the view of the Lahore High Court in 1910 Pun Re 104(supra). In Dhian Das's case, Sir Arthur Reid. C. J; had declined to entertain a revision petition against an order of the Collector under Section 539 of the Civil Procedure Code, 1882(corresponding to Section 92 of the Code of Civil Procedure. 1908), on the ground that the order was an executive or administrative one, and, therefore, it could not be said that any case of which record could be called for and dealt with in revision had been decided.

8. There is an apparent conflict of authorities between the various High Courts on the question whether the order of the Advocate-General of a State under Section 92 of the Code s or is not amenable to a writ under Article 226 of the Constitution. As already indicated, the Division Benches of the Allahabad and Rajasthan High court have taken a view in favour of the respondent. A learned Single Judge of the Madras High Court has also taken the same view in Raju v. Advocate-General, Madras, AIR 1962 Mad 320. The judgment of the Travancore Cochin High Court does not exist in the eye of law as it has already been overruled. Though I am substantially inclined to follow the concensus of authorities on this point. I feel that it is not proper for me sitting in Single Bench to differ from the view taken by the learned Single Judge of the Pepsu High Court (who later became a Judge and then the Chief Justice of this Court). It would, in the circumstances of the case, be appropriate if this point, on the decision of which practically the fate of the whole case hangs, should be decided by a Division Bench in the very first instance particularly when an appeal under Clause 10 of the Letters Patent would lie against my judgment whichever way it goes, as a matter of right.

9. I, therefore, direct that the papers of this case may be laid before my Lord, the Chief Justice for passing appropriate orders under proviso (b) to Rule 1 of Chapter 3-B of Volume V of the Rules and Order of this Court. The costs of the present proceedings shall abide the result of the writ-petition.


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