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Natesa Naicker Vs. Sambanda Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1941Mad918; (1941)2MLJ390
AppellantNatesa Naicker
RespondentSambanda Chettiar
Cases ReferredJanardana Rao v. Lakshminarasamma
Excerpt:
.....light of murari rao v. but other judges have taken other views since that case was reported and i doubt whether it can be said that at the time of the district judge's review order there was a clearly established rule laying it down finally and with authority that a. but as the order which the district judge reviewed was clearly and demonstrably wrong on the established authorities of this court, whichever procedure code was applicable, i do not think that i should be justified in reversing the review order and restoring the wrong decision merely because the reasoning of the review order is open to criticism......criminal procedure acted as a civil court and could employ all the powers conferred by the code of civil procedure on a court of appeal, and the attention of the learned district judge was also drawn to kumaravel v. shanmugha : air1940mad465 , the full bench decision pronounced subsequent to the district judge's original judgment and establishing the correctness of the view that the appellate court in such a case was a civil court and not a criminal court. the learned district judge therefore reviewed his previous order and remanded the matter to the trial court for further evidence and a specific finding on the facts. it is against this order of review that the present appeal has been preferred. after the remand under the order of review there was a finding and a further hearing before.....
Judgment:

Wadsworth, J.

1. These two matters arise out of an application for the filing of a complaint under Section 206 of the Indian Penal Code in respect of the cutting of trees alleged to be under an attachment at the instance of the District Munsif 's Court, Poonamallee. The application was rejected by the District Munsif mainly on the ground that the attachment covered trees described as Palavrukshangal which the learned District, Munsif interpreted as fruit bearing trees, not including casuarina trees such as were cut. The applicant appealed to the District Judge of Chingleput who differed from the, District Munsif as to the interpretation of the phrase he translating it as 'various trees' not as 'fruit bearing trees' and considering that the attachment was intended to cover all the trees on the land and not merely fruit bearing trees. But the learned District Judge came to the conclusion that the materials on the record of the District Munsif 's inquiry were not sufficient to justify the filing of a complaint by the appellate Court and he also came to the conclusion that he had no power under Section 476-A of the Code of Criminal Procedure to remand the petition for the taking of additional evidence; nor had he the power to take additional evidence in appeal. The appeal was therefore dismissed with the observation that it was open to the decree-holder to move the High Court in revision. After the disposal of this appeal it was brought to the notice of the District Judge that there was ample authority for the view that the Court hearing the appeal against an order of a Civil Court declining to file a complaint under the powers conferred by Section 476-A of the Code of Criminal Procedure acted as a Civil Court and could employ all the powers conferred by the Code of Civil Procedure on a Court of Appeal, and the attention of the learned District Judge was also drawn to Kumaravel v. Shanmugha : AIR1940Mad465 , the Full Bench decision pronounced subsequent to the District Judge's original judgment and establishing the correctness of the view that the appellate Court in such a case was a Civil Court and not a Criminal Court. The learned District Judge therefore reviewed his previous order and remanded the matter to the trial Court for further evidence and a specific finding on the facts. It is against this order of review that the present appeal has been preferred. After the remand under the order of review there was a finding and a further hearing before the District Judge as a result of which the District Judge directed a complaint to be filed. Against the order for the filing of a complaint the Civil Revision Petition, has been preferred.

2. Dealing with the latter first, it seems to me that there are no grounds upon which this Court's revisional jurisdiction can be invoked in this case. The question of the precise scope of the attachment is one upon which two views were taken by the two Civil Courts which had to deal with the matter and one upon which the decision of the Criminal Courts will be final. But certainly the learned District Judge on the view which he took of the order of attachment had ample jurisdiction to direct the filing of the complaint and it is not possible for this Court sitting in revision to reverse the District Judge's order merely on a consideration of the comparative merits of the two interpretations which have been given of the order of attachment.

3. The appeal against the review order deserves more serious consideration. It was held in Murari Rao v. Balavanth Dikshit : AIR1924Mad98 that an error apparent on the face of the record under Order 47, Rule 1, Civil Procedure Code might be an error of law and in that particular case the error of law which was the ground for review was the failure to take note of an established authority reported in the Indian Law Reports finally deciding a matter of succession. That is to say, the Bench recognised the power of the Court in an appropriate case to review its order because it had overlooked a leading authority on a clear matter of law. So far as I am aware, this decision is still good law. I have followed it myself in a case, Venkatarayulu v. Rattamma : AIR1939Mad293 and though it has been criticised by a single Judge of this Court in a case, Opporti Padhi v. Paila Ujjulla : AIR1927Mad998 it has not, so far as I am aware, been dissented from by any subsequent Bench. Certainly the decision in Murari Rao v. Balavanth Dikshit : AIR1924Mad98 should not be taken any further than it goes. It is not authority for the view that whenever a Judge has overlooked a ruling he has a power to review his decision; nor is it authority for the view that whenever, after a judgment has been pronounced, a subsequent ruling changes the accepted view of the law, that subsequent ruling can be a ground for review. But when there is a legal position clearly established by a well-known authority and by some unfortunate oversight the Judge has gone palpably wrong by the omission of those concerned to draw his attention to the authority, it may in a proper case, in the light of Murari Rao v. Balavanth Dikshit : AIR1924Mad98 be a ground coming within the category of an error apparent on the face of the record. That seems to me to be the position, so far as this Court is concerned, in the light of Murari Rao v. Balavanth Dikshit : AIR1924Mad98 .

4. Now turning to the legal question which caused the difficulty of the learned District Judge in the present case, there was before the matter was settled by the Full Bench in Kumaravel v. Shanmugha : AIR1940Mad465 a considerable divergence 6f judicial opinion, not only in other Courts but in this Court, on the question whether proceedings taken by a Civil Court under Section 476 of the Code of Criminal Procedure and the following sections were properly to be regarded as civil proceedings governed for the purposes of appeal and revision by the Code; of Civil Procedure or as criminal proceedings in respect of which the Criminal Procedure Code would decide the powers of the Court of Appeal or Revision. It is not necessary to discuss the cases in which the two rival views were adopted. They are set forth in the decision of the Full Bench to which I have just referred. It is sufficient to say that there was very considerable doubt on this matter. The decision actually quoted before the District Judge was a decision of 1916 in a case in which two Judges of a Bench differed and the matter came before three Judges who decided by a majority that the proceeding in revision against the sanction order under Section 476 of the old Criminal Procedure Code was a civil proceeding. But other Judges have taken other views since that case was reported and I doubt whether it can be said that at the time of the District Judge's review order there was a clearly established rule laying it down finally and with authority that a. Court sitting in appeal against a decision of a civil Court under Section 476 of the Code of Criminal Procedure was governed by the Civil Procedure Code and not by the Code of Criminal Procedure. There is in fact a Full Bench decision of 1933, Janardana Rao v. Lakshminarasavnma : AIR1934Mad52 , which assumes that the procedure is covered by the Code of Criminal Procedure. But the point to notice is that at the time when the learned District Judge reviewed his order, whichever Code applied to the proceedings, the authority of this Court was clear that he had the power of remand which he thought that he had not. The Full Bench decision in Janardana Rao v. Lakshminarasumma : AIR1934Mad52 , decides that a Court acting under Section 476 (b) of the Code of Criminal Procedure has the power by the application of Section 423 of the Code to remand the matter for fresh disposal. It seems to follow that at the time when the District Judge dismissed the appeal, thinking that he had no power of remand, that order was quite definitely and obviously wrong on the established authorities whichever view might be taken as to the Code applicable to the proceedings. No doubt the learned District Judge in reviewing his order does not rely upon the Full Bench decision in Janardana Rao v. Lakshminarasamma : AIR1934Mad52 , but founds himself on the decision that the proceedings are civil and fortifies that view by the subsequent Full Bench ruling. If the matter rested solely on the existence of the power of the appellate Court under the Code of Civil Procedure to remand, I should have had some hesitation in upholding the order in review which to some extent depends upon a subsequent ruling of this Court. But as the order which the District Judge reviewed was clearly and demonstrably wrong on the established authorities of this Court, whichever Procedure Code was applicable, I do not think that I should be justified in reversing the review order and restoring the wrong decision merely because the reasoning of the review order is open to criticism. The District Judge ought to have remanded the case on the view he took of the attachment order and had he been fully appraised of the authorities he would certainly have done so. He reviewed the order on the basis of a decision which was perhaps at that time not as authoritative as he thought it to be and he fortified himself by quoting a decision pronounced subsequent to his original order, which in my opinion he had no power to rely upon for the purpose of review. But as the original order was demonstrably wrong, even though the decision upon which he relied in review, was not at the time of the original order unchallenged, I decline to interfere with that review order in appeal.

5. The appeal and the revision petition are therefore dismissed with costs in the civil revision petition.


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