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Shivsingh Vs. Harjiram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Writ Appln. No. 78 of 1955
Judge
Reported inAIR1957Raj39
ActsCode of Civil Procedure (CPC) , 1908 - Order 7, Rules 2 and 7; Constitution of India - Article 227
AppellantShivsingh
RespondentHarjiram and anr.
Appellant Advocate Chandmal, Adv.
Respondent Advocate M.M. Vyas, Adv. for Opposite Party (Harjiram)
DispositionApplication partly allowed
Cases ReferredSubodh Bal v. State of West Bengal
Excerpt:
.....clearly of opinion that it is necessary for the plaintiff as a matter of law where he seeks general damages to assess them in a round sum and make a prayer for their award in the plaint. 75/-as mesne profits, was perfectly proper and it was only the remaining part which was open to challenge. ' the language of this article embraces all courts as well as tribunals working within the territorial jurisdiction of a high court with the exception of military tribunals, which exception is not at all relevant for present purposes. it seems to us well-settled at this date that the high court is invested with judicial superintendence over the acts or decisions of not only those courts which are under its appellate jurisdiction but also of tribunals over which it has no administrative..........special damages for the litigation in the hasiyat court; but the board went further and allowed general damages amounting to rs. 300/- and that even assuming that the sum of rs. 100/- out of this, was for the expenses of litigation in the hasiyat court, there is no proof or evidence whatsoever on the record as to the actual expenses incurred by harjiram in connection with the suit while it was pending in the hasiat court.it is, therefore, strenuously contended that the board had over-stepped its legitimate jurisdiction in awarding the sum of rs. 300/- as damages to the opposite party harjiram, and that it had acted illegally in the exercise of its jurisdiction and also that in doing so the board has obviously committed an error of law apparent on the face of the record.we may point.....
Judgment:

Modi, J.

1. This is a petition under Articles 226 and 227 of the Constitution by Shivsingh against the opposite party Harjiram and the Board of Revenue praying that a writ of certiovari or any other writ, direction or order be issued against them and the decree passed by the Board of Revenue dated the 22nd April, 1955, for Rs. 375/- be quashed.

2. The facts leading to this revision may be shortly stated as follows. The petitioner is jagirdar of Nokha, Tehsil Nagaur, and the opposite party No. 1 Harjiram was his tenant with respect to a field called Badi Jao situate in village Nokha. Harjiram brought a suit against the petitioner on the ground that he had been unlawfully dispossessed of the said field by the latter in Smt. 2000 and thereby he was deprived of the mesne profits thereof amounting to Rs. 500/- annually for the Samwat years 2000 and 2001.

He also stated that he had filed a suit in the first instance in the Hasiat court on the 10th July, 1944, the jagir of Nokha being under the management of it, but the management of the Hasiat court came to an end during the pendency of the suit and, therefore, the plaint was returned to him on the 13th August, 1946, and in that litigation Harjiram allegesto have suffered considerable expense but he assessed it at Rs. 100/- only.

Harjiram thus filed a suit for the recovery of Rs. 1100/- as compensation in the court of the Judicial Superintendent, Nagaur, on the 27th August, 1946. The petitioner resisted the suit and pleaded that Harjiram had cultivated the field in question from Smt. year 1991 to 1999 during the minority of the petitioner and had thereafter surrendered the field, and since then the petitioner was in actual cultivating possession of it.

The petitioner also contended that Harjiram had filed a criminal complaint against the former under Sections 447 and 427, I. P. C. in respect of the field in question and that eventually that dispute was settled by compromise on the 12th August, 1944, according to which the petitioner gave another field called Kharchiawala to Harjiram for three years.

The petitioner also denied his liability to pay any damages to the opposite party. The Assistant Collector, Nagaur, to whom the case had in the meantime been transferred decreed the plaintiff's suit for Rs. 92/- as mesne profits. Both parties challenged the above decree in the court of the Additional Commissioner, Jodhpur, who allowed the appeal of the petitioner and dismissed Harjiram's suit by his order dated the 28th May, 1952.

The latter then went in appeal to the Board of Revenue which allowed the appeal by its order dated the 7th January, 1954, and remanded the case to the Additional Commissioner for fresh decision. Thereupon the Additional Commissioner by his judgment dated the 27th July, 1954, allowed the appeal of Harjiram and raised the amount of damages granted by the Assistant Collector, namely, Rs. 92/- to Rs. 520/-.

Thereupon both parties went to the Board of Revenue which by its judgment dated the 22nd April, 1955, partially allowed the appeal of the petitioner and reduced the decree passed by the court below to Rs. 375/- only and dismissed the cross-objection of Harjiram.

3. The findings of the Board were briefly these. The Board was of opinion that the Additional Commissioner had given no valid reasons for assessing the mesne profits at Rs. 520/- and that his finding in that respect was conjectural. The Board on a careful examination of the evidence led by the parties, came to the conclusion that the yield of the land was Rs. 35/- and Rs. 40/- respectively for the Smt. years 2000 and 2001.

Having come to this conclusion, the Board stated what the meaning of the expression ''compensation' was and relied on the decision of a learned Single Judge of this Court in Bhawani Ram v. Ram Narain, 1955 Raj LW 112 (A), and then went on to hold that the opposite party was entitled to recover a sum of Rs. 100/- each under three heads, namely,

1. the value of the time spent in establishing the right violated,

2. the actual expense or costs of suit and

3. the mental suffering e.g., vexation, anxiety and worry, and consequently awarded a sum of Rs. 300/- (in addition to mesne profits amounting to Rs. 75/-) as compensation to the opposite party Harjiram.

In this view, the petitioner's appeal was partially allowed and the cross-objection of Harjiram was dismissed. The Board left both parties to bear their costs throughout. The petitioner has now come up to this Court by this writ petition.

4. The only point on which we have heard this writ petition in the exercise of our extra-ordinary jurisdiction is the one contained in Clause (d) of para 9 of the petition. This ground relates to the alleged award of damages amounting to Rs. 300/- to the opposite party No. 1 when they had not been claimed by him in the plaint at all.

The case of the petitioner is that all that Harjiram had claimed in the plaint was Rs. 500/- per year as mesnc profits for the samwat years 2000 and 2001 (in respect of which the Board of Revenue thought fit to grant a sum of Rs. 75/-) and a further sum of Rs. 100/- as more or less special damages for the litigation in the Hasiyat Court; but the Board went further and allowed general damages amounting to Rs. 300/- and that even assuming that the sum of Rs. 100/- out of this, was for the expenses of litigation in the Hasiyat Court, there is no proof or evidence whatsoever on the record as to the actual expenses incurred by Harjiram in connection with the suit while it was pending in the Hasiat Court.

It is, therefore, strenuously contended that the Board had over-stepped its legitimate jurisdiction in awarding the sum of Rs. 300/- as damages to the opposite party Harjiram, and that it had acted illegally in the exercise of its jurisdiction and also that in doing so the Board has obviously committed an error of law apparent on the face of the record.

We may point out at once that so far as the amount of Rs. 100/- which appears to us to have been allowed by the Board as damages in connection with the suit in the Hasiat Court is concerned, there was an allegation with respect to it in the plaint; and this item stands on a somewhat different footing from the other two items in respect of which it is admitted before us that there was no mention whatsoever in the plaint.

As already stated above, we allowed the parties to argue the petition on a limited scope as set forth above, and so we propose to confine our judgment to the examination of this contention only.

5. The reply of the opposite party Harjiram is that in law it is and was not necessary for him to plead general damages or assess them in the plaint and that the Court was always at liberty to award such damages irrespective of the consideration whether such damages had been specifically asked for or not.

It was consequently argued that the Revenue Board had the jurisdiction to award the entire sum of Rs. 300/- on the three counts mentioned above as general damages and that there was no question of its judgment having been given without jurisdiction or in excess of jurisdiction nor of there being any error of law apparent on the face of the record.

6. Now, the decree of the Revenue Board in this case is clearly divisible into two parts, namely

(1) for Rs. 75/- as mesne profits in lieu of the actual yield obtained from the field in dispute by the petitioner for Smt. years 2000 and 2001 and

(2) for Rs. 300/- as other damages, out of which Rs. 200/- have been awarded as general damages and Rs. 100/- virtually as special damages for the expenses incurred by the opposite party No. 1 in connection with his suit in the Hasiat Court.

7. So far as the first part of this decree goes, the position is clear. The finding of the Board of Revenue is that it had examined the evidence relating to that part of the case and had come to the conclusion that the actual yield of the field for the relevant years was Rs. 35/- plus Rs. 40/- only, and it is not for us to scrutinise the evidence upon which this finding is based.

It is only the remaining part of the decree as to the other damages awarded which is assailed before us as having been given without jurisdiction or in excess thereof and it is that part only with respect to which we have allowed this petition to be argued before us, and we propose to consider the same presently.

8. The first question for determination then is whether in the circumstances of the case the Board was within its authority to award general damages to the extent of Rs. 200/- in the manner in which it did. It is not disputed before us that so far as the plaint is concerned, the relief clause therein merely prayed that a decree for Rs. 1100/- with costs bo awarded to the plaintiff against the defendant.

This sum of Rs. 1100/- was claimed in two parts (1) Rs. 1000/- as mesne profits for Samwat years 2000 and 2001 and (2) Rs. 100/- as compensation for expenses incurred in the Hasiat Court while the plaintiff's suit was pending there. In other words, no general damages were at all asked for by the opposite party Harjiram in his plaint.

It was strongly contended on his behalf that no prayer for the award of general damages was required to be made in the plaint for the purpose of obtaining such a relief and that the Board was fully competent to grant such damages even though they had not been asked for in the plaint.

Reliance was sought to be placed in support of this view on the practice and procedure in English Courts; but we consider it unnecessary to say anything with regard to that aspect, as the scheme of our own law is entirely different and the question falls to be determined in accordance with the law as it obtains in our own country.

9. Now, Order VII Rule 1 Clause (i), C. P. C. requires that the plaint must contain, among other particulars, a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and court-fees so far as the case admits. Then Rule 2 of the same Order requires that where a plaintiff institutes a suit for recovery of money (which includes a suit for damages) the plaint must state the precise amount claimed.

We have also no doubt that the plaintiff must in a suit for damages pay ad valorem court-fee upon the value of the subject-matter of the plaint and this value cannot but include, among other things, the amount of the general damages claimed; and upon the value so determined would also depend the jurisdiction of the court in which the suit may be brought.

We are further of opinion that Order VII, Rule 7, C. P. C. upon which some reliance was placed on behalf of the opposite party in support of his contention cannot and should not be so interpreted as to obviate the necessity of claiming general damages in the plaint in a round sum and paying court fees on it.

10. In this connection, learned counsel for Harjiram invited our attention to the case of Arya Pradeshik Pratinidi Sabha v. Ramchand, AIR 1924 Lah 713 (B), where it was held that in a suit for specific performance the court can grant damages even when a plaint does not contain a prayer for them.

This view appears to have been propounded on the language of Section 19 of the Specific Relief Act; but, with respect, we wish to point out that the very first paragraph of the section says that any person suing for the specific performance of a contract may also ask for compensation for its breach either in addition to or in substitution for such performance which clearly implies that damages must be prayed for in such suits also.

The illustrations to the section also indicate that a prayer for compensation should be made by the plaintiff in such cases. This case, in our opinion, cannot be accepted as any authority for the view that damages may be awarded without being claimed even in a suit for specific performance. In any case, the present case is not one under the Specific Relief Act and the damages claimed herein are of an entirely different character and Section 19 of the Specific Relief Act can have no application at all.

11. We are, therefore, clearly of Opinion that it is necessary for the plaintiff as a matter of law where he seeks general damages to assess them in a round sum and make a prayer for their award in the plaint.

In saying so, however, we should not be understood to lay down or require that it is necessary for the plaintiff to give particulars of such damages in the plaint or to prove them at tile trial. The principle, underlying this view is that the law presumes such damages to be the natural and probable result of the defendant's alleged conduct where it is provedto be unlawful.

12. Before we proceed further, we think it right to state that it seemed to us at one time as somewhat doubtful whether in the exercise of our certiorari jurisdiction, it is open to us to interfere with the judgment of the Revenue Board as a portion thereof, that is, with respect to the sum of Rs. 75/-as mesne profits, was perfectly proper and it was only the remaining part which was open to challenge.

But after careful consideration, we do not feel that it is necessary to express any opinion on that subtle question inasmuch as we have come to the conclusion that our jurisdiction has been invoked in this case under Article 227 of the Constitution also and that Article undoubtedly furnishes us with the requisite authority in an appropriate case to substitute our own order in place of or to vary an unjustifiable order of any tribunal exercising authority within our territorial jurisdiction.

13. The relevant portion of Article 227 is in these terms :

'Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.'

The language of this article embraces all courts as well as tribunals working within the territorial jurisdiction of a High Court with the exception of military tribunals, which exception is not at all relevant for present purposes. Then, the word 'superintendence' in this context connotes judicial superintendence and not merely administrative superintendence which the High Court may or may not possess withregard to some of the courts or tribunals functioning in its territorial jurisdiction.

It seems to us well-settled at this date that the High Court is invested with judicial superintendence over the acts or decisions of not only those courts which are under its appellate jurisdiction but also of tribunals over which it has no administrative control but which are functioning within the territorial jurisdiction of the High Court.

14. The question, however, arises, what is the precise nature and scope of this judicial superintendence. We are clearly of opinion on general principles that this superintendence does not mean that the High Court is an appellate court from the decisions of such tribunals or that its duty is to correct any mere errors of law or of fact committed by them in the exercise of their jurisdiction.

We also think that the superintending jurisdiction must not be considered to be identical with ourordinary revisional jurisdiction from the decisions of courts subordinate to the High Court. The kindof jurisdiction which is entrusted under this article to a High Court, being the highest court within a State, is in the nature of a special responsibility, an extraordinary power, and it should be exercised with extraordinary care and circumspection.

While, therefore, we should guard ourselves against being placed in the position of an appellateor revisional court so as to correct any mere errors of law or fact committed by courts or tribunals within our territorial jurisdiction, it should be remembered at the same time that it is our duty to see that such courts and tribunals act within the due bounds of their authority and that they exercise such authority in the manner prescribed by law and not arbitrarily or capriciously.

We are fortified in this view by the following observations of Harries C. J. in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (SB) (C), with reference to Article 227 :

'The power of superintendence it confers is a power of a known and well-recognised character and should be exercised on those judicial principles which give it its character. In general words, the High Court's power of superintendence is a power to keep subordinate courts within the bounds of their authority to see that they do what their duty requires and that they do it in a legal manner.

The power of superintendence is not a power given to this Court to correct errors, otherwise, it would be tantamount to a right to entertain appeals on law and fact. The right should be exercised only in cases where the courts have clearly done something which they were not entitled to do. The power must be used to keep the courts below within the bounds prescribed by law for such courts.'

We next refer to the decision of their Lordships of the Supreme Court in Waryam Singh v. Amarnath, AIR 1954 SC 215 (D). In that case the appellants were tenants of the respondents and fell into arrears of rent. The respondents filed an application for eviction on the ground oF non-payment of rent. Thereafter the appellants applied to the Rent Controller for fixation of fair rent.

Although the fact of rent being in arrears was admitted, the Rent Controller declined to make anorder putting the respondents in possession on the ground that the tenants were waiting for the fixationof fair rent and that there was not enough ground for ejectment. On appeal the District Judge upheld the same order.

The respondents then went to the Judicial Commissioner under Articles 226 and 227 of the Constitution against the order of the District Judge. The learned Judicial Commissioner held that in view of the admitted failure of the appellants to pay the rent, the courts below had acted arbitrarily in refusing to make an order of ejectment against the tenants, and as those courts failed to do what was incumbent upon them under the law, such a situation called for interference to keep the subordinate courts within the bounds of their authority and the learned Judicial Commissioner accordingly set aside the orders of the courts below and allowed the application for ejectment giving the appellants three months' time for vacating the premises.

On appeal by special leave to the Supreme Court, their Lordships declined to interfere with the order of the Judicial Commissioner and approved the observations of Harries C. J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee (C), already cited above. What their Lordships said is this :

'This power of superintendence conferred by Article 227 is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.'

Their Lordships further observed that the Judicial Commissioner in the case before them was right in holding that the lower courts had acted arbitrarily when they refused to make an order of ejectment and that it was, therefore, a case which called for interference and that the Judicial Commissioner had acted quite properly in doing so.

15. Another case to which we might usefully refer is Subodh Bal v. State of West Bengal AIR 1953 Cal 702 (E) where the learned Judges in a land acquisition case set aside part of an award, namely, relating to costs, granted to the State by the arbitrator while maintaining the rest of the award. The ground of interference was that the order as to costs was wholly contrary to principles and to the rules of the Court. We do not desire to multiply examples.

16. The principle which emerges from an examination of the cases clearly is that the High Court as the highest court in a State and as the custodian of justice therein is invested with a special jurisdiction to see that the courts & tribunals functioning within its jurisdiction do act within the bounds of their authority and that they act in the manner required by law and do not exceed their authority or act arbitrarily or capriciously, and where they transgress their due bounds, it is the duty of the High Court to set them right and undo the wrong, of course remembering always that this extraordinary power is to be exercised most sparingly and with requisite care and circumspection. Let us now apply these principles to the case before us.

17. The point with respect to which the order of the Board of Revenue is challenged before us is as to the award of general damages to the extent of Rs. 200/- and to the award of the remaining amount of Rs. 100/- by way of special damages.

We have already shown above that it is essential for the plaintiff to plead general damages and claim them in a lump-sum and pay court-fees thereon beforesuch damages can be awarded to him, although it is not necessary for him to give the particulars of such damages or prove them by actually leading evidence in support of the claim.

The opposite party No. 1 made no such averment in the plaint nor prayed for this relief. Our conclusion, therefore, is that in awarding such damages, the Board of Revenue acted with arbitrariness and beyond its proper bounds.

18. So far as the award of the remaining amount of Rs. 100/- is concerned, the position is slightly different. This amount was claimed in the plaint by way of special damages as expenditure suffered in connection with the filing of the suit in the Haisiyat Court. The reply of Harjiram that it was also claimed as general damages is, on the face of it, incorrect.

There is no denying the fact that Harjiram stated in the plaint that ho had to incur a good deal of expenditure in connection with his suit in the Haisiyat court but he was content to raise a claim for Rs. 100/-only in that connection. When Harjiram came into the witness box, he further stated that he had suffered an expenditure of nearly Rs. 100/- in connection with his suit in the Haisiyat Court.

It is true that Harjiram did not give any particulars of these damages in his evidence, but it is equally true that he was not cross-examined on that point either. Apparently the Board considered this as sufficient proof of the damages alleged on this count.

If we were hearing the matter in appeal or revision, we might conceivably have taken a different view but we are not prepared to hold that we should quash this part of the order while exercising our powers under Article 227 of the Constitution.

19. On a most careful consideration therefore we have arrived at the conclusion that the Board of Revenue in awarding a decree for general damages for Rs. 200/- to the opposite party when they had not at all been claimed in the plaint did not merely commit an error of law or of fact in the exercise of jurisdiction or did something which simply involves a reversal of its decision on the merits; but the error is something which is more vital and affects the very authority of that court to give relief in regard to general damages which it had no competence to give in the circumstances of the case.

Putting the whole thing in another manner we consider that the decision of the Roard in question discloses a patent error of law manifest on the very face of the record for which the petitioner has clearly no other remedy.

20. In this view of the whole matter, we partlyallow this application and vary the decree of theRevenue Board dated 7-1-3954 & hereby direct thatthe said decree shall stand quashed to the extent of thesum of Rs. 200/- allowed as general damages in favourof the opposite party Harjiram but the rest of it shallremain intact. In the circumstances we direct bothparties to bear their own costs in this Court.


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