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Mandir Shri Deota Jakh Vs. Sheshi Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 41 of 1952
Judge
Reported inAIR1955HP5
ActsHimachal Pradesh (Courts) Order, 1948; ;Provincial Small Cause Courts Act; ;Code of Civil Procedure (CPC) , 1908 - Order 115
AppellantMandir Shri Deota Jakh
RespondentSheshi Ram
Appellant Advocate A.C. Hoshiarpuri, Adv.
Respondent Advocate A.C. Sud, Adv.
DispositionRevision dismissed
Cases ReferredLalla Ram v. Naresh Chand
Excerpt:
- .....the recovery of rs. 360/-. the subordinate judge of rohru decreed the suit. in appeal, the learned district judge of mahasu set aside the decree of the subordinate judge and dismissed the suit. hence this revision petition and the prayer made herein is that the decree of the district judge be set aside.2. under the proviso (ii) paragraph 35 of the himachal pradesh, (courts) order no revision petition, as contemplated in paragraph 35 (1) (b), can be admitted in a small cause suit under the value of rs. 1000/-. the expression 'small cause suit' has been denned in paragraph 2 (v) of the order as a suit of the nature cognizable by a court of small causes under the provincial small cause courts act. the present suit, obviously, comes within that definition. its valuation was less than rs......
Judgment:
ORDER

Ramabhadran, J.C.

1. This revision petition arises out of a money suit for the recovery of Rs. 360/-. The Subordinate Judge of Rohru decreed the suit. In appeal, the learned District Judge of Mahasu set aside the decree of the Subordinate Judge and dismissed the suit. Hence this revision petition and the prayer made herein is that the decree of the District Judge be set aside.

2. Under the proviso (ii) paragraph 35 of the Himachal Pradesh, (Courts) Order no revision petition, as contemplated in paragraph 35 (1) (b), can be admitted in a Small Cause Suit under the value of Rs. 1000/-. The expression 'Small Cause Suit' has been denned in paragraph 2 (v) of the Order as a suit of the nature cognizable by a Court of Small Causes under the Provincial Small Cause Courts Act. The present suit, obviously, comes within that definition. Its valuation was less than Rs. 1000/- and, therefore, in view of proviso (ii) to paragraph 35 the revision petition is incompetent.

3. Learned Counsel argued that even if paragraph 35 (1) (b) is not applicable, this may be treated as an application under paragraph 35 (1) (a).

4. Reading paragraph 35 as a whole, it seems to me that while under sub-paragraph (b) the Court could act on an application, it would act 'suo motu' under sub-paragraph (a). This is supported by the fact that all the provisos, contained in paragraph 35, refer to applications under sub-paragraph (b); where the Court acts under sub-paragraph (a), no proviso is prescribed. Therefore, when a revision application is made, it would fall under sub-paragraph (b). .

5. There is nothing, however, to prevent an aggrieved party from inviting the attention of this Court to a case covered by sub-paragraph (a) e.g. where a Civil Court has exercised a jurisdiction not vested in it by law, or, has failed ,to exercise such jurisdiction vested in it by law or, while exercising such jurisdiction has acted with material irregularity.

6. The facts of the present case are that the plaintiff filed a suit for the recovery of Rs. 360/-, alleging that the defendant had collected subscripions from the villagers, on behalf of the temple, but had kept back a sum of Rs. 360/- with him. This was denied by the defendant. The learned Subordinate Judge of Rohru remarked that the plaintiff had not conducted his case properly and had not produced proper accounts. On the basis of an alleged admission by the defendant, however, he granted the plaintiff a decree.

In appeal, the learned District Judge took a contrary view and dismissed the suit. It is difficult to say, under these circumstances, that the District Judge acted in the exercise of the jurisdiction with material irregularity.

7. Learned Counsel for the petitioner cited inter alia the following rulings :

(a) 'U Pan v. Maung Pa Tu' AIR 1927 Rang 90 (A), where it was held that, 'Where the lower Court has applied a wrong law to the case, revision lies.'

(b) 'Beg Ram v. Charan Das' AIR 1951 Him P 16 (B), where my learned predecessor observed that :

'Where the Court, in omitting to consider a proper and appropriate document in evidence, acts in defiance of a fact patent on the face of the record, it acts with material irregularity in the exercise of its jurisdiction within the intendment of Para. 35 (1) (a) (corresponding to Section 115 (c) Civil P.C.).' (c) 'Mt. Sukhia v. Pt. Kirpa Ram', AIR 1945 All 348 (C), where the decision was :

'Where the petitioner as a result of a misapplication of the law by the lower Court has been denied justice the High Court will interfere in revision as the lower Court must be taken to have acted with material irregularity.' (d) 'Kistama Nayildu v. Sankarayya', AIR 1945 Mad 278 (D), where it was held that: 'Where the decision of the lower Court is wrong on a point of law due to complete disregard of an elementary proposition of law it is impossible to say that the lower Court has not acted in the exercise of its jurisdiction with material irregularity. The High Court will, therefore, interfere in such a case in revision.'

(e) 'Tamizali v. Md. Nasarali Bhuiya', AIR 1941 Cal 58 (E), where it was held that : 'Where the Courts below have taken an erroneous view of the law with regard to a particular matter and have thus acted illegally in the exercise of their jurisdiction, it is open to the . High Court to interfere in the exercise of its revisional jurisdiction under Section 115.'

8. In my opinion, however none of these rulings is applicable to the facts of the present case. It was, certainly, open to the learned District Judge not to believe plaintiff's story that the accounts were taken on the 25th of Jeth. It is immaterial if the village, where the accounts were gone into, is 14 miles from Rohru, as stated by the District Judge, or, only 7 miles, as argued before me. This was only one of the circumstances which the learned District Judge took into consideration for disbelieving the plaintiff's case.

It cannot be said that the District Judge has ignored or mis-construed any provision of law or failed to consider a part of the documentary evidence. As already remarked, even the trying Judge was not satisfied with the accounts produced by the plaintiff. He, however, granted a decree on the basis of an alleged admission made by the plaintiff, following the taking of accounts. This was however disbelieved by the District Judge. I am unable, therefore, to hold that the District Judge has acted with material irregularity in the exercise of his jurisdiction.

9. Learned Counsel for the respondent, while supporting the judgment of the District Judge, invited my attention to the following rules :

(1) 'Indo Parsian Trading Co. v. Parmanand Harnam Singh' AIR 1936 Sind 205 (P), there it was held that :

'Jurisdiction necessarily gives the power to decide wrongly as well as to decide rightly. Hence the fact that the High CoXirt, if it had been the trial Court, might have come to a different conclusion, is not sufficient to justify interference under Section 115.' (2) 'Mengha Ram v. Dhoma Ram Ramchand', AIR 1933 Lahore 783 (G), where Currie, J. observed that :

'Where the lower Court decides a question which it has jurisdiction to determine, no revision lies from such decision irrespective of the fact whether the decision is right or wrong.' (3) 'Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras', AIR 1949 P.C. 156 (H), where their Lordships of the Privy Council observed as follows :

'Section 115 applies only to cases in which no appeal lies, and where the Legislature has provided no right of appeal; the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters : (a) That the order of the Subordinate Court is within its jurisdiction; (b) That the case is one in which the Court ought to exercise the jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however pfofoundly, from the conclusions of the subordinate Court upon questions of fact or law. There can be no justification whatsoever for the view that Section 115 (c) was intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate Courts. It would indeed be difficult to formulate any standard by which the degree of error of subordinate Courts could be measured.' (4) 'Abdul Majid v. Daleep Singh', AIR 1949 All 744 (I), where a Division Bench of that High Court held that :

'Clause (c) of Section 115 will apply when the Court 'acts' illegally or with material irregularity is the exercise of its jurisdiction. It cannot apply to cases where the Court merely comes to a wrong decision on a question of fact or of law. The use of the word 'acted' indicates the true position and limits this clause to that class of. cases where the Court having jurisdiction violates any rule or law or of procedure prescribing the mode in which such jurisdiction is to be exercised. The arriving at a conclusion or decision is only a mental operation and the Court cannot be said to be 'acting' in so coming to a conclusion or decision on a question of law or of fact. Hence, where the decision of the lower Court is wrong as to the interpretation of a particular provision of the law, no revision would lie under Section 115 (c) if the Court has not 'acted' illegally or with material irregularity.' (5) 'Lalla Ram v. Naresh Chand', AIR 1952 Him-P & Bilaspur 28 (J), where my learned predecessor, following 'AIR 1949 PC 156 (H)' & 'AIR 1949 All 744 (I)', observed that: 'The arriving at a conclusion or decision is a mental operation and the Court cannot be said to be acting in so coming to a conclusion or decision on a question of law or of fact; and so far as arriving at a conclusion or decision is concerned, whether the lower appellate Court decides the questions rightly or wrongly it has jurisdiction to do so, and even if it decides wrongly it cannot be said to have acted with material irregularity in the exercise of its Jurisdiction.'

10. The result is that no case is made out for interference. Accordingly, the revision petition fails and is rejected, with costs assessed at Rs. 30/-.


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