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Venkataramana Udupa Vs. Kannan Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 153 of 1958
Judge
Reported inAIR1963Ker9
ActsEvidence Act, 1872 - Sections 114, 270, 279 and 282; Madras Village Courts Act, 1889 - Sections 13 and 14
AppellantVenkataramana Udupa
RespondentKannan Chettiar
Appellant Advocate T.S. Venkiteswara Iyer, Adv.
Respondent Advocate N. Sundara Iyer, Adv.
DispositionAppeal allowed
Cases ReferredPandurang Balaji v. Krishnaji Govind
Excerpt:
.....and free from error' the rule is applied 'only to the acts and judgments oil courts of general jurisdiction or courts of record',but not! i am happy to find support to that view in swadeshi cotton mills co. the mere exercise of the power which becomes vested only if a certain condition is satisfied cannot raise a presumption that that preliminary condition must have been satisfied before the power was exercised. ' it is obvious that the case came within the court's general jurisdiction and their lordships proceeded to enquire whether the exception therefrom was available to a party who failed to plead it in due time. that is the grammatical or literal meaning of the expression 'no action shall be brought in any such court'.it cannot be identified with 'no action shall lie' or with..........case.counsel for the defendant relied on illustration (e) to section 114, evidence act, to draw a legal presumption 'that judicial and official acts have been regularly performed' and therefore to presume that 'the written consent of both the parties executed before the court' which is requisite for the assumption of jurisdiction under section 14, madras village courts act, might have been taken before the court heard the cause.the presumption under illustration (e) to section 114, evidence act, is that judicial and official acts have been regularly performed. 'regularly performed' can only mean performed in accordance with form and procedure. it can-flot imply that the officer or the judge had authority to perform an act which is not ordinarily within his competence. this is made clear.....
Judgment:

M. Madhavan Nair, J.

1. This second appeal is by the plaintiff who sued for redemption of a possessory mortgage executed by his father in favour of the defendant. The defence was that the equity of redemption having been sold in execution of the decree in C. S. No. 32 of 1934 instituted against the plaintiff's father on the file of the Adoor Panchayat Court, the plaintiff had no title to redeem. Ext. B-5 is the sale certificate in that case, and Ext. B-6 a release or transfer of the rights thereunder by the auction-purchaser to the present defendant. In replication, the plaintiff asserted that the decree in C. 3. No. 32 of 1934 was void as the Panchayat Court had no jurisdiction to try that suit the claim wherein was above Rs. 200/- or to pass a decree against him who was then a minor on record as the sole legal representative of the defendant, The Munsif found the decree in C. S, No. 32 of 1934 to be 'beyond the pecuniary jurisdiction of the Panchayat Court and therefore totally void' and the court-sale 'vitiated by fraud and collusion' and passed a preliminary decree for redemption; but the Subordinate Judge, on appeal, held that 'the plaintiff's rights in the property have been lost by the court-sale which was valid and binding on the plaintiff' and dismissed the suit. Hence this second appeal.

2. From the facts narrated above it is clear that the real question in the case is the validity of the decree and court-sale had in C. S. No. 32 of 1934 on the file of the Adoor Panchayat Court, if the decree and sale are valid the plaintiff has no right to redeem the suit mortgage. If on the other hand, the decree and sale are void the plaintiff's title to the equity of redemption cannot be affected by them.

3. Counsel are agreed that the powers of the Adoor Panchayat Court are governed by the Madras Village Courts Act, 1888 (Act I of 1889), sections 13 and 14 of which relate to jurisdiction.

'13. The following are the suits which shall be cognizable by village courts (namely) -- claims for money due on contract, or for movable property or for the value of such property, or for any tax, fee, or other sum due to a local authority, when the debt or demand does not exceed in amount or value the sum of rupees fifty whether on balance of account or otherwise :

Provided that no action shall be brought in any such court --

(1) on a balance of partnership account unless the balance shall bave been struck by the parties or their agents;

(2) for a share or part of a share under an intestacy, or for a legacy or part of a legacy under a will;

(3) for rent for land unless such rent be due upon a written contract signed by the defendant;

(4) by or against the Government or public officers in their official capacity;

(5) by and against minors or persons of unsound mind.

14. With the written consent of both parties executed before the court, a village court may hear and determine suits of the nature described in Section 13, the amount or value of which shall not exceed Rs. 200.'

Admittedly the claim in C. S. No. 32 of 1934 was above Rs. 170/- and therefore the Adoor panchayat Court could have tried it only if both parties had given their consent thereto in writing executed before the Court.

4. No proceeding of the Panchayat Court in the aforesaid C. S. No. 32 of 1934 is in proof in this case.

Counsel for the defendant relied on Illustration (e) to Section 114, Evidence Act, to draw a legal presumption 'that judicial and official acts have been regularly performed' and therefore to presume that 'the written consent of both the parties executed before the Court' which is requisite for the assumption of jurisdiction under Section 14, Madras Village Courts Act, might have been taken before the Court heard the cause.

The presumption under Illustration (e) to Section 114, Evidence Act, is that judicial and official acts have been regularly performed. 'Regularly performed' can only mean performed in accordance with form and procedure. It can-flot imply that the officer or the Judge had authority to perform an act which is not ordinarily within his competence. This is made clear by the legislature itseif in the rider attached to the aforesaid illustration (e).

'But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:

as to Illustration (e) -- a judicial act, the regularity of which is in question, was performed under exceptional circumstances;

The adversative conjunction 'but' indicates that the rider is set in contrast or as an exception to what is mentioned in the Illustration (e). In Mt. Jawai v. Emperor, AIR 1942 tah 214, the effect of illustration (e) and its rider is mentioned thus :

'the presumption under section 114 is, however, only an optional presumption. The Court is not bound to make it and the counter illustration (e) itself indicates a case in which the Court would not draw it, e.g., where there are some exceptional circumstances surrounding the doing of the act.'

It then follows that the presumption mentioned in illustration (e) is not to be drawn as a matter of course In thecase of judicial acts of a special or a contingent Jurisdic-tion.

5. It is pertinent to note in this connection that in England and America, where

'it is presumed that the doings of a court of record are regular and proper, that its jurisdiction was properly acquired, that its proceedings are legal and valid, and that its decisions are well-founded and free from error'

the rule is applied 'only to the acts and judgments oil courts of general jurisdiction or courts of record', but not! to acts of special jurisdiction or of inferior courts.

'We are told that nothing is intended to be out of the jurisdiction of a superior court but what specially appears to be so, and nothing is intended to be within the jurisdiction of an inferior court but what is specially alleged. .............. Hence, when a court of general jurisdiction pronounces judgment, the presumption is in favour of its jurisdiction, and it fs not incumbent upon one who bases a right upon such judgment to aver facts essential to the existence of jurisdiction .......... (But) it is an established rule that when a court of general jurisdiction has special and statutory powers conferred upon it, which are wholly derived from statute, and not exercised according to the course of the common law, or are not part of its general jurisdiction, it is to be regarded as quoad ad hoc an inferior or limited court, and its judgments to be treated accordingly, that is, its jurisdiction must appear on the record and cannot be presumed ........ In such cases the facts essential to the exercise of the special jurisdiction must appear upon the face of the record.'

The rule is stricter in the case of inferior courts.

'There is a fundamental distinction between superior and inferior courts ........... Courts of inferior or limited powers must not only act within the scope of their jurisdiction, but it must appear on the face , of their proceedings that they so acted; the record or minutes or papers in the case must affirmatively show the existence of every fact necessary to give jurisdiction in tne particular cause; otherwise the judgment may be impeached collaterally, no presumptions are indulged in its support,... ....... 'where one seeks to enforce the judgment of court of limited and special jurisdiction, its organization 19 open to inquiry, and its jurisdiction must be estauiishea. ......... (if) the record of such a court be silent on the subject or defective in its showings, there is no presumption to aid it, ......... (But) the jurisdictional requisites may be shown by outside evidence.' See Sections 270, 279 and 282 of Black on Judgments, Second Edition. That the same is the law in England is clear from Halsbury's Laws of England, Third Edition, Vol. 9, page 349, where it is observed: 'It is in connection with jurisdiction that we find the chief distinctions between superior and inferior courts .......... Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within tha jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognisance of the particular court ......Another distinction between superior courts and inferior courts Is that while the judgment of a superior court un-reversed is conclusive as to all relevant matters 'thereby decided, the judgment of an inferior court involving a question of jurisdiction is not final.'

In Mayor and Aldermen of the City of London v. Richard Henry Cox, (1866) 2 HL 239 at 262-263, it is likewise observed:

'......... 'the rule, that in inferior Court and proceedings by magistrates the maxim omnia praesumun-tur rite esse acta does not apply to give jurisdiction, never has been questioned'. And, therefore, not only must the declaration In the inferior court allege jurisdiction, but also, In an'action brought in a superior Court upon adjudgment of an Inferior Court, duly obtained, it must be again averreo that the original cause of action arose within the jurisdiction of the inferior Court, so that upon a traverse of tnat averment the question of jurisdiction may be retried.'

6. ! feel that the same is the law in India as enactea In Illustration (e) to section 114, Evidence Act, read along with the rider thereto. I am happy to find support to that view in Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal, AIR 1956 All 689 at p. 695, where it is held:

'The mere exercise of the power which becomes vested only if a certain condition is satisfied cannot raise a presumption that that preliminary condition must have been satisfied before the power was exercised.'

7. Their Lordships have also observed in the above-said case, AIR 1956 All 689:

'Illustration (e) to Section 114, Indian Evidence Act, permits a presumption to be drawn in matters of procedure. That provision, in our opinion, does not permit a presumption to be drawn where the question does not relate to the manner of doing an official act but goes to the root of the validity of that order.'

Identical is the view expressed in State of Madhya Bharat v. Behramji Dungaji, AIR 1958 Madh Pra 71 .

'Section 114, Illustration (e), authorises the presumption that a particular judicial or official act, which has been performed, has been performed regularly. But it does not authorise the presumption without any evidence that the act has been performed or that it is a valid one. The presumption under that section is as regards the manner of doing an official act and not as regards its validity.'

8. Further, the presumption under illustration (e), Section 114, Evidence Act, is only that judicial and official acts have been regularly performed. This has been construed in a long string of decisions to mean that if a judicial or official act is proved to have been performed, it may be presumed to have been regularly performed, but not to raise a presumption that any act has been performed. It Is as If the emphasis is on the word 'regularly' and not on tna word 'performed'.

In Narendra Lal Khan v. Jogi Hari, 1LR 32 Cal 1107, Woodroffe, J. observed:

'The meaning of Section 114(e), Evidence Act, is tnat If an official act is proved to have been done, it will be presumed to have been regularly done. It does net raise any presu'mption that an act was done, of which there is no evidence and the proof of which is essential to the plaintiff's case.'

Murugappa Chettiar v. Thirumalai Nadar, AIR 1948 Mad 191, has also expressed the same view:

'It is true that illustration (e) to S. 114, Evidence Act, declares that judicial and official acts may be presumed to have been regularly performed. But it does not say tnat It may be presumed that any particular judicial or otltciai act has been performed. No doubt when the only evidence Is that particular judicial or official act has been performed and there is no other evidence on record, it may be presumed that that particular judicial or official act was regularly performed. But when the dispute is whether a particular judicial or official act was performed or not, I ihink there is nothing in law which enables a court to pre-sume that that act was as a matter of fact performed.'

The same view has been expressed also in Deputy Legal Remembrancer v. Sarwarjan, 6 Cal WN 845, Walvekar v. tm-peror, AIR 1926 Cal 966, Hitnarain Singh v. Rambarai Ral, AIR 1928 fat 459, Hlra Lal v. Jagatpati Sahai, AIR 1928 Pat 600, Municipal Council, Rajarmmdry v. Sinhadri Ranga-nayakalu, (S) AIR 1955 Andhra 107, Union of India v. Pritam Singh, AIR 1956 Punj 106 and Commr., Purnea Municipality v. Fateh Chand Ranka, 1LR 36 Pat 989.

9. In Narayan Anatidram v. Gowbal, 1LR 37 Bom 413, cited at the Bar, the property of an agriculturist mortgagor was sold in execution of a money decree by the civil court and the auction purchaser's rights subsequently became vested in the mortgagee. As Section 22 of the Dehhan Agriculturists' Relief Act, prohibited execution sales of agriculturists properties, the mortgagor treated the sale as void and suea to redeem the mortgage; and the mortgagee relied on the court-sale to contend that the mortgagor tiad no right to redeem. The Subordinate Judge, the District Judge, on ap-peal, and a Judge of the High Court on second appeal, an held the court-sale void; but on Letters Patent Appeal, Scott, C. J., speaking for himself and Chandavarkar, J., held:

'Now the provisions of section 22 of the Dektian Agriculturists' Relief Act are provisions conferring upon members of a certain class great privileges in litigation. The section confers upon a person who is shown to be a member of the privileged class the right to resist the attachment or sale of any of his immovable property and to contend that if an attachment or sale took place in violation of the provisions of the section, such attachment or sale shall be held to be void.

How then is Ihe Court to know when it is authorized to attach and sell property and when it is not? The ordinary rule is that set out in the Civil Procedure Code, section 60, which reproduces section 266 of the Code of 1882. It provides that property liable to attachment and sale in execution of a decree is lands, houses, etc., belonging to the judgment-debtor. An agriculturist in order to resist the application of that general rule must, we (think, show that he belongs to the privileged class so as to render section 22 of the Dehhan Agriculturists' Relief Act applicable to his case. That conclusion seems to follow from the provisions of Sections 101, 102 and 103 of the Evidence Act. In the absence of proof we, therefore, hold that there is no-reason to treat the immovable property sold by the Vinchur Court as the property of an agriculturist.'

and dismissed the suit adopting the dictum of Sir Lawrence Jenkins in Pandurang Balaji v. Krishnaji Govind, ILR 28, Bom 125;

'It is a general rule that in Courts of law only those facts can be taken to exist which are proved; so that it is manifest that in the absence of proof the exemption from liability to attachment or sale did not exist for the purpose of the execution proceedings. Therefore the executing 'Court had complete jurisdiction to make the Order it did.'

It is obvious that the case came within the court's general jurisdiction and their Lordships proceeded to enquire whether the exception therefrom was available to a party who failed to plead it in due time. The facts and circumstances of that case are so different that the decision therein is of little assistance in the present case.

10. It may perhaps open another valve for arguments If the act of the parties, giving their consent in writing executed before the court to hear and determine the cause, is taken not to be a judicial or official act. But as neither counsel contended so, I am not now adverting to that aspect in this case.

11. It is not disputed that Adoor Panchayat Court) exercising powers under the Madras Village Courts Act is an inferior court of a very limited jurisdiction. Its jurisdiction as provided in section 13 of the Act is confined to certain suits of valuation not exceeding Rs. 50/-. A special power is also conferred on it by section 14 of the Act to hear and determine suits of value not above Rs. 200/- in a particular contingency, viz., when both parties to the action have expressed their consent thereto in writing executed before the court. In the light of -the principles discussed above, the party basing his right on the decree in C. S. No. 32 of 1334 has to show that the decree made in exercise of the special power was intra vires the village Court and for that purpose prove the essential requisite to the court's special jurisdiction positively. There being no legal presumption to aid, he has to prove that the requisite consent did exist in fact. And the general rule in courts of law is that 'only those tacts can be 'taken to exist which are proved', unless there be a legal presumption of their existence in tlie circumstances of the case. As there is nothing on. record in this case to show the existence of the jurisdictional requisite and there cannot be any presumption to aid, jurisdiction has to be held against, and the decree in C. S. No. 32 of 1934, and the court-sale following it, held void.

It may be mentioned he're that I suggested to counsel that it may satisfy the requirements of law if the judgment of the Panchayat Court contains a statement that the parties consented in writing executed beiore the coutr to their hearing the cause and offered to give time for producing a copy of the judgment; but counsel thought illustration (e) to Section 114, Evidence Act, would suffice to validate the decree concerned. I have held otherwise.

12. Counsel for the appellant had a further contention that, though the suit was originally instituted against a sui juris, on his death the present plaintiff, then a minor, was imp leaded as his sole legal representative and the trial continued against the minor which could not be in a Panchayat Court, and therefore the decree was void. The basis of this contention is clause (5) of the proviso to section 13 of the Village Courts Act, which reads;

' .......... no action shall be brought In any such court--

******

(5) by and against minors or persons of unsound mind.'

Obviously this provision relates only to the institution of a suit. That is the grammatical or literal meaning of the expression 'no action shall be brought in any such court'. It cannot be identified with 'no action shall lie' or with 'no action shall be maintained' or the like. It is not contended that at the institution of the suit any party thereto was a minor. The plaintiff's father who was the original defendant in the case was admittedly a sui juris. It follows that the prohibition against the institution of a suit against minors in the proviso to Section 13 has no application to the facts of the aforesaid C. S. Ho. 32 of 1934.

It is nowhere provided in the Act that the Jurisdiction once acquired in the cause will cease on the happening of any subsequent event. Section 68 of the Village Courts Act provides for impleading legal representatives on the death of a party to the suit; and section 72 for execution against legal representatives on the death of a Judgment-debtor. No distinction is made there between major and minor legal representatives.

'68. If a plaintiff or a defendant die before decree is passed in the suit, the name of his legal representative may be entered in his place on the record, on the application of the opposite party or of such legal representative, but no decree shall be passed against the legal representative of a deceased defendant beyond the value of the assets derived from him and not duly accounted for.'

'72. If a judgment-debtor die before the decree has been fully executed, it may be executed on the application of the decree-holder against the legal representative of the judgment-debtor, to the extent of assets derived; from him and not duly accounted for.'

The indication in these rules, can only be whether the legal representative is major or minor the jurisdiction once properly acquired by the court continues till the end of the case. The general rule is that jurisdiction once acquired by a judicial tribunal in a cause continues till it is finally disposed of by it. It follows that by the impleading of a minor as legal representative of the original defendant, the court cannot he held to have lost Us jurisdiction.

But as I have held that jurisdiction under Section 14, which is special and not part of the general jurisdiction of the inferior court, has not been shown to have arisen in the cause the decree has to be held void, and with the decree must fall the court-sale based on it. It is not disputed that if the court-sale in C. S. No. 32 of 1934 is void the plaintiff is entitled to decree for redemption in this case.

13. This second appeal is therefore allowed and in reversal of the decree of the lower appellate court, that of the court of first instance Is restored with costs her and in the court below. Leave granted.


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