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Shiv Shankar Vs. Civil Judge - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ No. 2075/1974
Judge
Reported in1978WLN(UC)376
AppellantShiv Shankar
RespondentCivil Judge
DispositionPetition dismissed
Cases ReferredPoonam Nahta v. Amarchand and Ors.
Excerpt:
.....is reluctant to interfere with interlocutory orders passed by a civil court in the exercise of its writ jurisdiction.;the petitioner is not entitled to invoke the extraordinary jurisdiction of this court under article 226 of the constitution of india.;writ dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl..........226 of the constitution of india, in would not be proper for this court to interfere, in its writ jurisdiction, with the decision of issue no. 7 by a civil court, as it does not relate to the jurisdiction of that court learned counsel submitted that if the petitioner feels aggrieved against the decision of issue no. 7 he can egitate the matter in appeal, that may be filed in the appellate court against he deem, as and when it is passed in support of preliminary objection, the learned counsel for the non petitioner no 2 invited my attention to motilal & kauku bai v. district judge pali and ors. 1977 wln 281. mr. m.c. bhandari, learned counsel for the petitions on the basis of the decision poonam nahta v. amarchand and ors. 1972 wln 1124, urged that the impugned order (annexure 4).....
Judgment:

S.K. Mal Lodha, J.

1. This is a petition under Articles 226 and 227 of the Constitution of India for quashing the order (Annexure 4) of the learned Civil Judge, Pratabgarh dated April 6, 1973, passed in Civil Original Suit No. 84 of 1968 in which he held the document dated July 30, 1968 alleged to have been executed by non-petitioner No. 2 in favour of the petitioner as a 'conveyance' chargeable to stamp duty and penalty and for declaring that the document (Annexure 1) dated July 30, 1968, oh which the petitioner had instituted the suit for specific performance, is an agreement to sell and not a complete sale deed.

2. The petitioner, who is a plaintiff, instituted a suit for specific performance on the basis of document Annexure 1 dated July 30, 1968, alleged to have been executed by the defendant. The defendant raised an objection that since it is a saler-deed, it requires registration and proper stamp. The learned Civil Judge framed issue No. 1 which reads as under:

Whether the aferesaid agreement requires registration and proper stamp.

3. The learned Civil Judge, by his order dated April 6, 1973, held that the document is a complete sale-deed and since it has not been registered, it cannot be read in evidence. He, however, did not record any finding as to what would be effect of the proviso to Section 49 of the Registration Act on the admissibility of this document. He, however, held that the document, being a sale deed is a 'conveyance' chargeable to stamp duty and penalty as such.

4. Against this order, the petitioner has filed the present writ petition as aforesaid.

5. Learned Counsel appearing for the non-petitioner No. 2 has raised a preliminary objection that this petition under Articles 226 and 227 is not maintainable. He submitted that after the introduction of Sub-clause (3) in Article 226 of the Constitution of India, in would not be proper for this Court to interfere, in its writ jurisdiction, with the decision of issue No. 7 by a Civil Court, as it does not relate to the jurisdiction of that Court Learned Counsel submitted that if the petitioner feels aggrieved against the decision of issue No. 7 he can egitate the matter in appeal, that may be filed in the appellate court against he deem, as and when it is passed In support of preliminary objection, the learned Counsel for the non petitioner No 2 invited my attention to Motilal & Kauku Bai v. District judge Pali and Ors. 1977 WLN 281. Mr. M.C. Bhandari, learned Counsel for the petitions on the basis of the decision Poonam Nahta v. Amarchand and Ors. 1972 WLN 1124, urged that the impugned order (Annexure 4) dated April 6, 1973 has resulted in gross-injustice to the petitioner as the document Annexure 1, dated July 30, 1968 is almost rendered ineffective, as the petitioner in precluded from basing his claim on it without payment of duty amounting to Rs. 1494 and penalty of Rs. 14940, which according to the petitioner are quite huge. It was, therefore, submitted that the petitioner is entitled to invoke the extra ordinary jurisdiction of this Court to avoid the perpetuation of injustice.

6. I have given my most anxious and thoughtful consideration to this matter. The learned Civil Judge has decided issue No. 7 against the petitioner The decision on this issue can be challenged in an appeal from the final order or decree by setting forth a ground of objection in the memorandum of appeal as it is likely to effect the decision of the case on merits on failure to pay duty & penalty on the document dated July 30, 1968 which is the basis of the suit for specific performance instituted by the plaintiff.

7. The matter relating-to the admissibility of document on payment of duty and penalty was of the exclusive jurisdiction of the learned Civil Judge, before whom the suit is pending. It will not be proper to issue any direction order or writ in this case, as there is neither lack of jurisdiction nor want of, or illegal exercise of jurisdiction nor the proceedings before the leaned Civil Judge are ultra vires nor the rules and principles of the natural justice were violated in making the order. I prefer to leave the petitioner to pursue his remedy as and when necessary by challenging the impuged Order, by Which issue No. 7 has been decided against the petitioner in an appeal. This Court is reluctant to interfere with the orders parsed by a civil court in the exert i.e. of its writ jurisdiction. I am not satisfied that the impugned order has resulted in and gross injustice to the petitioner.

8. It is not open to the petitioner to seek the extraordinary jurisdiction of this Court under Article 226 of the Constitution. In Motilal & Kanku Ba's case 1977 WLN 281 Gupta, J. observed as follow:

As specific legal remedies are provided in these two casts by way of filing appeals in this Court against the final decrees that may be passed in the suits be the learned District Judge, Pali, this Court is unable to entertain these writ petitions, more so after the amendment of Article 226 of the Censtitution. It may be emphaesised that under Article 226 of the Constitution this Court exercise extraordinary jurisdiction and certainly interferes in cans of gross injustice. It may not be proper for this Court to interfile in its writ jurisdiction wish the decision of a single issue by a civil court which issue does not relate to the jurisdiction of that Court If the petitioners feel agrieved against the decision of the is me in these cases, they can agitate the matter in regular civil first appeals that may be filed in this Court against the decree that would be passed by the learned District Judge, Pali in the two suits which are pending before him.

The decision in Firm Poonam Nahta's case 1972 WLN 1124 was rendered by Tyagi, J., as he then was, in the peculiar facts and circumstances 'of that case. In the case in hand no such circumstances exist. I am, therefore, of the view that the petitioner is not entitled to invoke the extraordinary jurisdiction of this Court under Art 226 of the Constitution of India.

9. For the reasons mentioned above, the preliminary objection, raised by the learned Counsel fir the non-petitioner No. 2 is upheld and as such the writ petition must be dismissed.

10. The writ petition is accordingly dismissed without any order as to costs.


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