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Lumbaram Vs. Vardaram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 59 of 1981
Judge
Reported inAIR1982Raj105
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115; Constitution of India - Article 227
AppellantLumbaram
RespondentVardaram and ors.
Advocates: M.L. Shreemali, Adv.
DispositionPetition dismissed
Cases ReferredPoonam Nahta v. Amarchand
Excerpt:
- - it is, thus, clear that in municipal board, kushalgarh's case (supra), the order was set aside on the ground that there was apparent error in the order of the additional district judge inasmuch as he failed to take note of the order of the chief-ship of the former kushalgarh state dated may, 7, 1942, under article 227of the constitution, the high court can interfere in cases of, (a) erroneous assumption or excess of jurisdiction, (b) refusal to exercise jurisdiction; the power under article 227 is an extraordinary one and intended to be used only in exceptional cases and not as a substitute for ordinary revisional or appellate powers......defendant-petitioner against the defendants (petitioner and non-petitioner no. 2) inthe court of civil judge, pali. the document dated august 6, 1974 was written on a stamp of rs. 3/- only and it is unregistered. the objection material for the present purpose taken in the written statement was that the document dated aug. 6, 1974 is not an agreement to sell but it is completed sale and as it is insufficiently stamped and unregistered, it is not admissible in evidence. the learned civil judge, pali framed issue no. 9 covering this objection. by his order dated sept. 20, 1980, the learned civil judge held that the document in question is an agreement to sell and, therefore, it is admissible in evidence. he, accordingly, decided issue no. 9 against the defendants. by this very order, he.....
Judgment:
ORDER

S.K. Mal Lodha, J.

1. Plaintiff-non-petitioner No. 1 instituted a suit for specific performance of the contract on the basis of a document dated August 6, 1974 alleged to have been executed by the defendant-petitioner against the defendants (petitioner and non-petitioner No. 2) inthe Court of Civil Judge, Pali. The document dated August 6, 1974 was written on a stamp of Rs. 3/- only and it is unregistered. The objection material for the present purpose taken in the written statement was that the document dated Aug. 6, 1974 is not an agreement to sell but it is completed sale and as it is insufficiently stamped and unregistered, it is not admissible in evidence. The learned Civil Judge, Pali framed issue No. 9 covering this objection. By his order dated Sept. 20, 1980, the learned Civil Judge held that the document in question is an agreement to sell and, therefore, it is admissible in evidence. He, accordingly, decided issue No. 9 against the defendants. By this very order, he also decided issues Numbers 11 and 12.

2. Being dissatisfied with the order dated September 20, 1980 of the learned Civil Judge, the defendant-petitioner filed a petition under Articles 226 and 227 of the Constitution praying that issues Nos. 9, 11 and 12 may be decided in his favour.

3. On January 15, 1981 learned counsel appearing for the petitioner sought adjournment to move an application that the writ petition may be treated as a revision petition against the impugned order of the Civil Judge dated Sept. 20. 1980, On Feb. 6, 1981, an application was filed by the learned counsel for the petitioner praying that if the impugned order dated Sept. 20, 1980 of the learned Civil Judge is held to be within the scope of Section 115 C. P. C., the writ petition may be treated as a revision petition under that provision. On this application, the following order was passed on Feb. 6, 1981:

'Mr. M. L. Shrimali, learned counsel for the petitioner has filed an application that this writ petition be treated as a revision petition against the impugned order of the Civil Judge, Pali dated 20-9-1980. Subject to all just exceptions by the non-petitioners, the writ petition is treated as a revision petition against the impugned order of the Civil Judge, Pali dated 20-9-1980.'

Put up the revision petition for admission on 10-2-1981.' When the matter was listed for admission, the Court ordered a show cause notice and the record was requisitioned' The record has been received.

4. I heard Mr. M. L. Shreemali, learned counsel for the defendant-petitioner. Nobody appeared on behalf of the non-petitioners despite service of notice.

5. The material portion of the document dated August 6, 1974 is as follows;

(Matter in vernacular omitted --Ed.)

As stated above, the learned Civil Judge held that the document in question is an agreement to sell and that it did not require registration and so it is admissible in evidence.

6. A Full Bench of this Court in Harakchand v. State of Rajasthan ILR (1970) 20 Raj 88 observed as under :

'A construction of a document is a pan of proceedings of a Court and if these proceedings are conducted properly and a mistake is made in construing the document, the order passed by the Court is not revisable.'

The view, whether a document is admissible or not admissible is a matter of procedure, was held to be not correct. The learned Civil Judge after construction of the document found that it is an agreement to sell. This finding has nothing to do with the jurisdiction of the Civil Judge as construction of a document is a part of proceedings of a Court and if a mistake is made in construing the document, the order passed cannot be revised. In these circumstances, no revision lies against the part of the impugned order dated Sept. 20, 1980 of the learned Civil Judge, by which, he decided issue No. 9.

7. Mr. Shreemali, learned counsel for the defendant-petitioner on the basis of the judgment rendered in Municipal Board, Kushalgarh v. Raj Kumar Inderjeet Singh (Civil Revn. Petn. No. 140 of 1973, decided by the Rajasthan High Court on March 19, 1981) contended that the order dated Sept. 20, 1980 of the Civil Judge deciding issue No. 9 can be quashed under Article 227 of the Constitution. In that case, a gift deed was produced, which was written on a stamp-paper of Rs. 10/- and was duly registered by the donor. An objection was raised to its admissibility in evidence by the defendant-petitioner on the ground that the deed in question was not executed on a sufficiently stamped paper and was, therefore, inadmissible in evidence till the deficitduty plus penalty were paid by the plaintiff. On behalf of the plaintiff, it was contended that the Indian Stamp Act was not in force in the former Kushalgarh State and the deed being a settlement and not a gift-deed simpliciter was out side the purview of Section 2(24)(d) of the Stamp Act and the duty chargeable on the deed was not Rs. 250/-. The Additional District Judge opined that the provisions of the Stamp Act were inapplicable to the document in question and so the gift-deed was not insufficiently stamped and inadmissible in evidence. The Municipal Board, Kushalgarh filed a revision which was subsequently converted into a writ petition under Article 227 of the Constitution with the permission of the Court. On behalf of the non-petitioner a preliminary objection was raised that the writ petition under Article 227 of the Constitution was not maintainable because the question concerning the admissibility of document on payment of duty plus penalty was decided by the learned Additional District Judge in exercise of his exclusive jurisdiction and, therefore, this Court should be slow to interfere with the due exercise of discretion by the Additional District Judge in the matter and that it would be open for the petitioner to challenge the impugned order in an appeal against the decree in the suit if the suit is decided against him. The learned single Judge was of the opinion that there was an apparent error on the face of the impugned order passed by the Additional District Judge relating to the admissibility of the gift-deed in question. He, therefore, get aside the order and directed the Additional District Judge to decide the matter regarding duty chargeable on the gift-deed in question after taking into consideration the order of the Chief-ship of the former State of Kushalgarh dated May 7, 1942 and after determining the question whether the deed in question is a gift-deed simpliciter or whether it is a settlement. It is, thus, clear that in Municipal Board, Kushalgarh's case (supra), the order was set aside on the ground that there was apparent error in the order of the Additional District Judge inasmuch as he failed to take note of the order of the Chief-ship of the former Kushalgarh State dated May, 7, 1942, Under Article 227of the Constitution, the High Court can interfere in cases of, (a) erroneous assumption or excess of jurisdiction, (b) refusal to exercise jurisdiction; and (c) error of law apparent on the face of the record, as distinguished from a mere mistake of law or error of law relating to jurisdiction. The power under Article 227 of the Constitution cannot be exercised to correct an error of fact or of law. An error apparent on the face of the record is, of course, an exception. The power under Article 227 is an extraordinary one and intended to be used only in exceptional cases and not as a substitute for ordinary revisional or appellate powers. It is settled that the discretionary power is not to be exercised merely for the purposes of correcting errors of fact or law in the decision of the Courts or Tribunals and the High Court should not ordinarily assume appellate powers to correct mistake of law.

8. The Full Bench of this Court in Harakchand's case (ILR (1970) 20 Raj 88) held that construction of a document is no doubt a question of law but simply because it is a question of law, it does net mean that in construing a document as having particular import, the subordinate court acted with illegality or material irregularity. The learned Civil Judge has construed the document dated August 6, 1974, to be an agreement to sell and this is only a question of law and not an error of law apparent on the face of the record. Municipal Board, Kushalgarh's case (supra) is distinguishable, for, in that case, it was held that there was an apparent error on the face of the order. Tt is of no avail to the petitioner.

9. In Motilal & Kankubai v. District Judge, Pali, 1977 WLN (UC) 281 a somewhat similar question arose before a learned single Judge of this Court. In that case, the trial Court held that the documents in question were neither receipts nor promissory notes but they were bonds and they could be admitted in evidence on payment of proper stamp duty, and penalty. The learned single Judge in that case held that it would not be proper for this Court, to interfere in its writ jurisdiction with the decision of a single issue by a civil court, which issue does not relate to the jurisdiction of that Court and that if the petitioners feel aggrieved against the decision of the issue, they can agitate the matter in regular civil first appeals that may be filed in this Court against the decrees that would be passed by the learned District Judge, Pali. This decision was noticed in Shiv Shankar v. Civil Judge, Pratabgarh, 1978 WLN (UC) 370, wherein the order of the learned Civil Judge holding that the document Is a complete sale-deed and since it has not been registered, it cannot be read in evidence was challenged. After considering Poonam Nahta v. Amarchand, 1972 WLN 1124 and Motilal and Kanku Bai's case was held by me that the petitioner is not entitled to invoke the extraordinary jurisdiction of this Court. As the document dated August 6, 1974 in the present case has been construed by the learned Civil Judge as an agreement to sell and hence admissible in evidence and further as there is no apparent error of law in this regard. I am of opinion that power under Article 227 of the Constitution cannot be exercised.

10. It may be mentioned that the learned counsel appearing for the petitioner stated that so far as the findings on issues Nos. 11 and 12 are concerned, he will challenge the findings on these issues by setting forth grounds of objection in the memorandum of appeal, which may, if necessary be filed.

11. For the reasons mentioned above, the revision petition against the order dated Sept. 20, 1980 of the learned Civil Judge deciding issue No. 9 against the petitioner holding the document dated Aug. 6, 1974 to be an agreement to sell does not lie and the power under Article 227 of the Constitution cannot be exercised to quash the aforesaid order.

12. The result is that the revision petition is dismissed summarily.


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