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Kailash NaraIn and ors. Vs. Bhairoon Dutta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Special Appeal No. 380 of 1981
Judge
Reported inAIR1983Raj27
ActsConstitution of India - Articles 226; Stamp Act, 1899 - Sections 35
AppellantKailash NaraIn and ors.
RespondentBhairoon Dutta
Appellant Advocate M.D. Calla, Adv.
Respondent Advocate M.R. Singhvi, Adv.
DispositionAppeal dismissed
Cases ReferredIn Shah Prabhudas Ishwardas v. Shah Bhogilal Nathalal.
Excerpt:
.....status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the court will take these facts into consideration. - it is well settled that the words 'affecting the decision of the case' mean affecting the decision of the case on the merits. the law is well settled thatwhere there is an appropriate or equally efficacious remedy, this court should not interfere in its extraordinary jurisdiction under article 226 of the constitution......this court to interfere with interlocutory orders passed by a civil court in the exercise of its writ jurisdiction. the law is well settled thatwhere there is an appropriate or equally efficacious remedy, this court should not interfere in its extraordinary jurisdiction under article 226 of the constitution.'8. with respect of firm poonam natha's case, 1972 wln 1124, the learned judge observed that looking to the special circumstances of that case, the learned judge thought it proper to avoid the perpetuation of injustice in that case. the decision in motilal's case, 1977 wln (uc) 281 was followed by one of us in shiv shanker's case. 1978 wln (uc) 376.9. it is clear from the discussion made hereinabove that the order dated nov. 12, 1980 of the civil judge, jodh-pur holding the four.....
Judgment:

S.K. Mal Lodha, J.

1. Respondent No. 1 (plaintiff-non-petitioner No. 1) instituted a suit for redemption of mortgage dated April 14. 1954. The suit was filed against the legal representatives of the deceased mortgagee Ratanlal. The appellants (defendant-petitioners) are sons of Ratanlal. The suit was contested by the defendants (petitioners). Their case was that they had undertaken the repairs with the concurrence of the plaintiff-mortgagor in the years 1958-1961, 1965 and .1971. They obtained receipts for the amounts spent by them on repairs from the plaintiff-non-peti-tioner No. 1. These receipts were filed along with the written statement and the amount involved is Rs. 5,500. The receipts produced by the defendant-petitioners were unstamped. The learned Civil Judge, Jodhpur, by his order dated Nov. 12, 1980, held that by virtue of Section 35 of the Stamp Act as existed then. these receipts cannot be admitted in evidence. The defendant petitioners filed a writ petition under Articles 226 and 227 of the Constitution seeking to quash the order dated Nov. 12, 198o of the learned Civil Judge, Jodhpur. During the course of hearing of the writ petition, a preliminary objection was raised by the learned counsel for the plaintiff-non-petitioner No. 1 that the writ petition is not maintainable against the order dated Nov. 12, 1980 by which the learned Civil Judge held that the four receipts are inadmissible in evidence. The learned single Judge upheld the preliminary objection and dismissed the writ petition as not maintainable. Hence this special appeal under Section 18 of the Rajasthan High Court Ordinance.

2. Mr. M. Rule Singhvi has appeared on behalf of respondent No. 1 Bhairon Datta (Caveator).

3. We have heard Mr. M. D. Calls for the appellants and Mr. M. Rule Singhvi for respondent No, 1.

4. Mr. M. D. Calla. on the basis of the decision reported in Firm Poonam Natha v. Amarchand, 1972 WLN 1124 contended before us that the learned single Judge was not right in declining to entertain the writ petition, for the writ petition was maintainable against the order dated Nov. 12, 1980. On the other hand, Mr. M. Rule Singhvi, learned counsel for respondent No. 1 submitted that the order of the learned single Judge cannot be assailed in view of Motilal v District Judge, Pali, 1977 WLN (UC) 281 and Shiv Shanker v.Civil Judge, Pratapgarh, 1978 WLN (UC) 376.

5. A Full Bench of this Court in Harakchand v. State of Rajasthan ILR (1970) 20 Raj 88 held that whether a particular evidence was admissible according to law or not is a question oi law which the trial court was entitled to decide and if any error has been committed in deciding that question, it cannot be said that such error was in any way an error in the manner of exercise of jurisdiction. In Shah Prabhudas Ishwardas v. Shah Bhogilal Nathalal. AIR 1968 Gul 236, it was held that error of law by the subordinate court in deciding whether a document was promissory note within the meaning of Section 2(22) of the Stamp Act or not was not concerned with the jurisdiction of the subordinate court and, therefore, none of the three clauses of Section 115, C.P.C. were attracted to the case. The Full Bench in Harakchand's case followed Shah Prabhudas's case. It is clear from the Full Bench decision that the construction of a document is a question of law, but that by itself does not mean that in construing a document as having particular import, the court construing it acts with illegality or material irregularity in exercise of its jurisdiction.

6. Section 105, C.P.C. provides that every order whether appealable or not except an order of remand, can be attacked in an appeal from the final decree on the ground (1) that there is an error, defect or irregularity in the order: and (2) that such error, defect or irregularity in the order: affects the decision of the case. In other words, it enacts that an interlocutory order which has not been appealed from, either because no appeal lay or because even though an appeal lay, an appeal was not taken, can be challenged in an appeal from the final decree or order provided that it affects or is likely to affect the decision of the case. It is well settled that the words 'affecting the decision of the case' mean affecting the decision of the case on the merits. It is admitted by the learned counsel for the appellants that if the order dated November 12, 1980 is erroneous, holding the four receipts to be inadmissible in evidence, it. can be attacked in an appeal from the final decree on the fulfilment of the conditions laid down inSection 105(1), C.P.C. It is, therefore, clear that the order dated Nov. 12, 1980 holding the four receipts to be inadmissible in evidence is not final in the sense that it cannot be attacked in an appeal from the final decree.

7. Considerable reliance was placed by Mr. M.D. Calla on Firm Poonam Natha's case, 1972 WLN 1124. This decision was considered in Motilal's case, 1977 WLN (UC) 281 and Shiv Shanker's case, 1978 WLN (UC) 376. In Firm Poonam Natha's case, an issue was framed by the trial court and after examining the documents, the learned Addl. District Judge held that the instruments were bonds in respect of the amounts Rs. 39,500, Rs. 11,000 and Rupees 31,000 respectively and since they were not properly stamped, they could not bo admitted in evidence unless the stamp duty along with the penalty was paid by the petitioner. The proper stamp duty and penalty payable on the instruments were Rs. 11,000. It was contended, in that case, on behalf of the petitioner that demand of such a huge penalty and stamp duty against the provisions of the Stamp Act would result in gross injustice to him as the documents are rendered ineffective as the petitioner is precluded to base his claim on these documents without paying Rs. 11,000 and that this situation puts the petitioner in such a position that he cannot get his claim established to the property attached in the suit unless he pays a heavy amount of stamp duty and penalty. In those circumstances, the learned Judge held that the petitioner was entitled to invoke the extraordinary jurisdiction of this Court to avoid the perpetuation of injustice. The learned Judge observed as follows:

'It is true that the High Court while exercising its jurisdiction under Article 226 or 227 cannot assume the role of appellate authority, but if the mistake of law patent on the face of the record and if that error is likely to perpetuate gross injustice to the parties then in extraordinary circumstances this Court has been vested with a jurisdiction under Articles 226 and 227 to correct such errors of law.'

Before D.P. Gupta, J., in Motilal's case, the District Judge decided issues holding that the documents in question were bonds and they could be admitted inevidence on payment of proper stamp duty and penalty. The learned Judge declined to entertain the writ petitions observing as under:--

'In my view these writ petitions cannot be entertained by this Court against the decision of a single issue in the two civil suits which are still pending before the trial court. It is not the practice of this Court to interfere with interlocutory orders passed by a Civil Court in the exercise of its writ jurisdiction. The law is well settled thatwhere there is an appropriate or equally efficacious remedy, this Court should not interfere in its extraordinary jurisdiction under Article 226 of the Constitution.'

8. With respect of Firm Poonam Natha's case, 1972 WLN 1124, the learned Judge observed that looking to the special circumstances of that case, the learned Judge thought it proper to avoid the perpetuation of injustice in that case. The decision in Motilal's case, 1977 WLN (UC) 281 was followed by one of us in Shiv Shanker's case. 1978 WLN (UC) 376.

9. It is clear from the discussion made hereinabove that the order dated Nov. 12, 1980 of the Civil Judge, Jodh-pur holding the four receipts to be inadmissible in evidence can be challenged in an appeal that may be preferred against the final decree by setting forth a ground of objection in the memorandum of appeal. Further, it would not be proper to this Court to interfere in its writ jurisdiction with the question relating to admissibility of a document, which does not relate to the jurisdiction of that Court. There are no special circumstances so as to invoke the extraordinary jurisdiction under Article 226 of the Constitution. For all these reasons, we are unhesitatingly of the opinion that the learned single Judge was right when he upheld the preliminary objection and held that the writ petition against the order dated Nov. 12, 1980 holding the four receipts to be inadmissible in evidence is not maintainable.

10. The result is that there is no merit in this appeal and it is accordingly, dismissed summarily.


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