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Mst. Ayesha Bai and ors. Vs. Daleep Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Review Petn. No. 2 of 1960
Judge
Reported inAIR1961Raj186
ActsCode of Civil Procedure (CPC) , 1908 - Sections 21 and 24 - Order 47, Rule 1; Rajasthan Civil Courts Ordinance, 1950 - Sections 21
AppellantMst. Ayesha Bai and ors.
RespondentDaleep Singh
Appellant Advocate N.L. Jain and; S.T. Porwal, Advs.
Respondent Advocate V.P. Tyagi, Adv.
DispositionApplication rejected
Cases ReferredGarikapati v. Subbiah Choudhry
Excerpt:
- - 4. the learned counsel has sought to fortify his submissions on the authority of the well-known case of the colonial sugar refining co......in this court to hear the appeal which was filed before it.even at the time of the hearing of the appeal, no objection was raised as to the proper forum to which the appeal should have been presented nor was there any objection raised about the point of limitation. in fact, the defendants themselves preferred a cross-objection to the appeal. the whole case was heard on merits; and lengthy arguments advanced. after we had examined the entire evidence in the case, we came to our own findings decreeing the appeal. now, when the appeal has been decided against the petitioners, they have presented the application for review. we do not think that they can be allowed now to agitate the questions about the -forum of the appeal and the point of limitation, which was open to canvass at the time.....
Judgment:

Sarjoo Prosad, C.J.

1. The petitioners have applied for review of our decision dated 4-1-1960 given in First Appeal No. 68 of 1954.

2. The appeal arose out of a suit for recovery of Rs. 5,000/- from the defendant. In the written statement, the defendants admitted the claim to that extent, but at the same time pleaded that there were further transactions between the parties on mutual and current account, as a result of which the entire amount due to the plaintiff had been paid off and that in fact, on adjustment, the defendants were entitled to recover a further sum of Rs. 6,319/12/9 from the plaintiff for which the defendants preferred a counter-claim in the suit and paid court-fee thereon. The suit was instituted on the 1st February, 1951.

The trial court dismissed the claim of the plaintiff, but decreed the counter-claim of the defendants for a modified sum of Rs. 4,240/2/9 on 31-7-1954. Against that decree, an appeal was filed to this Court on 18-10-1954 and eventually decided by us under the judgment which is sought to be reviewed. It should be observed that when the appeal was filed, the defendants-respondents also preferred a cross-objection in which they prayed for a decree for the entire amount of their counterclaim.

This Court held that the defendants had not been able to substantiate their claim, while the plaintiff's claim had been established. In that view, this Court reversed the decision of the trial court and decreed the suit of the plaintiff with costs throughout dismissing the counter-claim of the defendants.

3. The only ground on which this application for review is founded is that since the suit was valued at Rs. 5,000/-, an appeal under Section 21 of the Rajasthan Civil Courts Ordinance, 1950 (No. VII of 1950) lay to the District Court against the decree of the trial court and not to this Court. Therefore, it is submitted this Court had no jurisdiction to hear the appeal, and accordingly, the decision passed by this Court should be vacated and the suit dismissed.

4. The learned counsel has sought to fortify his submissions on the authority of the well-known case of the Colonial Sugar Refining Co. Ltd. v. Irving 1905 AC 369 and the decision of the Supreme Court in Garikapati v. Subbiah Choudhry, (S) AIR 1957 SC 540 where it has been repeatedly held that the right of appeal is not a matter of mere procedure but is a substantive right

The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest ofthe career of the suit. It is contended that since the suit was instituted on the 1st of February, 1951, the appeal did not lie to this Court, but the appeal lax only to the District Court and, therefore, this Court had no jurisdiction to entertain the appeal. It is further pointed out that the limitation for filing the appeal to the District Court was within SO days from the date of the decree and the appeal presented to this Court was much Beyond the above period of limitation available under Article 152, Limitation Act.

5. In our opinion, none of these objections can be entertained and we do not think that they are fit grounds for interference in this application for review. It appears that Section 21 of the Rajasthan Civil Courts Ordinance, 1950 was amended on 26-5-1951, but the learned counsel for the petitioners contends that this amendment came into operation after the institution of the suit and, therefore, did not affect the incident of the suit as to the forum of the appeal. It must be conceded that a defect of jurisdiction, whether pecuniary, territorial or in respect of the subject-matter, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.

Even so, there is no substance in the contention that there was any inherent lack of jurisdiction In this Court to entertain the appeal. Under Section 24 of the Code of Civil Procedure, this Court had power to transfer the appeal itself and even though no such application was presented, it cannot be argued with any show of reason that there was lack of jurisdiction in this Court to hear the appeal which was filed before it.

Even at the time of the hearing of the appeal, no objection was raised as to the proper forum to which the appeal should have been presented nor was there any objection raised about the point of limitation. In fact, the defendants themselves preferred a cross-objection to the appeal. The whole case was heard on merits; and lengthy arguments advanced. After we had examined the entire evidence in the case, we came to our own findings decreeing the appeal. Now, when the appeal has been decided against the petitioners, they have presented the application for review. We do not think that they can be allowed now to agitate the questions about the -forum of the appeal and the point of limitation, which was open to canvass at the time when the case was heard by this Court.

Of course, it cannot be disputed that mere acquiescence on the part of the defendants will not cure the defect of lack of jurisdiction; but as we have pointed out, there was no inherent lack of jurisdiction in this Court to entertain the appeal. If the matter had been brought to the notice of this Court at that time, appropriate action might have been taken in the matter to return the memorandum of the appeal for presentation to the court of the District Judge, who might then have considered whether or not the delay in the presentation of the appeal, if any, should be condoned.

But the petitioners in this case did not raise those questions at all at the time of the hearing of the appeal. They have not discovered any new matter at this stage which they could not have discovered earlier. On the contrary, the defendantsthemselves filed a cross-objection and were heard fully in support of their cross-objection. There is, therefore, neither lack of jurisdiction nor prejudice caused to the petitioners, nor do we think that any case has been made out for entertaining the application on the grounds mentioned in Order 47, Rule 1 C. P. C.

6. The petitioners contend that they have been deprived of a right of second appeal to this Court, which would have been available to them if the appeal had been decided by the District Judge. This contention is illusory. A right of second appeal to this Court is limited merely to errors of law. Here, they have had the advantage of the entire evidence being reviewed by two Judges of a superior Court who after a careful examination of the matter pronounced their judgment in the appeal.

7. We, therefore, reject the application withcosts to the respondent; the hearing fee beingRs. 50/-.


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