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Shri Parsa Vs. Shri Kanshi Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 21 of 1963
Judge
Reported inAIR1964HP12
ActsHimachal Pradesh Courts Order, 1948; ;Provinical Small Cause Courts Act, 1887 - Section 25; ;Extra Provincial Jurisdiction Act, 1947 - Section 3
AppellantShri Parsa
RespondentShri Kanshi Ram
Appellant Advocate A.C. Sud, Adv.
Respondent Advocate Chhabil Das, Adv.
DispositionApplication rejected
Cases ReferredGhulla Singh v. Sardar Singh.
Excerpt:
- .....by the high court if there has been unwarranted usurpation of jurisdiction or failure to exercise jurisdiction or material irregularity in the exercise of jurisdiction there is no such provision in section 25. the aforesaid section is wider to this extent that while clause (b) to para 35(1) of the order 1948 provides for the filing of an application in revision if an important question of law or custom is involved the section permits interference if the court has not acted according to law and secondly that while the section provides for interference in a case irrespective of its value an appli-cation in revision cannot be entertained under para 35 if the value of the suit is below rs. 1000/-. the question has been considered in previous decisions of this court and i now advert.....
Judgment:
ORDER

C.B. Capoor, J.C.

1. This application in revision by Shri Parsa is directed against the judgment and decree of the learned Judge Small Cause Court, Theog, whereby a suit filed by the respondent against the petitioner for recovery, of a sum of Rs. 180/- was decreed for a sum of Rs. 142/- with proportionate cost. The office objection is that the application was not maintainable in view of the 2nd proviso to paragraph 35(1)(b) of the Himachal Pradesh Courts Order 1948 hereinafter to be referred as the Order 1948.

2. The application was admitted subject to the aforesaid objection. The same objection has been put forward on behalf of the respondent.

3. The question that arises for consideration is as to whether the application in revision is maintainable. Para 35 (1) of the Order 1948 reads as below:

'The Court of the Judicial Commissioner may call for the record of any case which has been decided by a Civil Court subordinate to it and in which no appeal lies to it, and

(a) if the Civil Court by which the case was decided appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction with material irregularity, or

(b) if on an application made to it the Court of the Judicial Commissioner is of opinion that there is an important question of law or custom involved and that such question requires further consideration, the Court of the Judicial Commissioner may make such order in the case as it thinks fit.

Provided that (1) no application under sub-paragraph (b) shall be admitted after the expiration of ninety days from the date of the Order in respect of which the application is made, unless the applicant satisfies the Court of the Judicial Commissioner that he had sufficient cause for not making the application within that period; (2) no such application shall be admitted in a small cause suit under the value of one thousand rupees or in an unclass-ed suit under the value of two hundred rupees; (3) on any such application the Court of the Judicial Commissioner shall not revise the decision of the Court below except in so far as such decision involves the question of law or custom in respect of which the application has been admitted; and (4) when any such application has been admitted, the Court of the Judicial Commissioner shall, subject to proviso (3) treat the matter of the application as if it were an appeal.

Explanation.-- A question of procedure is not a question of law or custom within the meaning of sub-paragraph (b).'

4. According to paragraph 2 Clause 5 a small cause suit means a suit of the nature cognizable byCourt of Small Causes under the Provincial Small Cause Courts Act 1887 (9 of 1887).

5. It would thus appear that while it is within the power of the Court of the Judicial Commissioner to call for the record of any case decided by a Civil Court subordinate to it if the Court usurped jurisdiction not vested in it by law, or failed to exercise a jurisdiction so vested in it, or acted in the exercise of its jurisdiction with material irregularity, an application in revision made by a party to a suit cannot be admitted if it is directed against a decree in a small cause suit under Rs. 1000/- in value. The value of the suit in which the decree sought to be revised was passed was much below Rs. 1000/-. It would, therefore, follow that the application in revision under consideration is not entertainable.

6. It has been contended on behalf of the petitioner that the provisions contained in Section 25 of the Provincial Small Cause Courts Act are much wider than those contained in paragraph 35 referred to above and as the application of former Section has not been excluded by the latter paragraph the section will govern the application under consideration. I am, however, unable to accede to that contention. The preamble to the aforesaid Order 1948 indicates that the Order was issued as it was considered expedient to consolidate and amend the law relating to Courts in Himachal Pradesh. The Act which is intended to consolidate' and amend the law on a subject must be construed as forming a Code complete in itself and exhaustive of the matters dealt with therein vide Rayulu Subba Rao v. Commissioner of Income-tax, Madras (S) AIR 1956 SC 604. Thus even though application of section 25 of the Provincial Small Cause Courts Act, has not been specifically excluded, there is no escape from the conclusion that the section has been modified by the provisions of the Order of 1948 and has to be read subject to those provisions.

7. It has also been contended on behalf of the petitioner that the Order 1948 was made by the Central Government and its provisions could not over-ride Section 25 of the Provincial Small Cause Courts Act. The contention is a misconceived one. The Extra Provincial Jurisdiction Act, 1947 was passed by the Central Legislature and Section 3 of that Act made it lawful for the Central Government to exercise extra provincial jurisdiction in such manner as it thought fit and it could not, therefore, successfully be contended that the provisions of Order 1948 could not override the provision contained in Section 25 of the Provincial Small Cause Courts Act.

8. In this view of the matter it is not necessary to go into the question as to whether Section 25 referred to above is wider than the provisions contained in para 35 of the Order 1948. The question was debated at the Bar and out of deference to that debate I would like to observe that in some respects the former section is wider and in other narrower. It is narrower as while para 35 permits interference by the High Court if there has been unwarranted usurpation of jurisdiction or failure to exercise jurisdiction or material irregularity in the exercise of jurisdiction there is no such provision in Section 25. The aforesaid section is wider to this extent that while Clause (b) to Para 35(1) of the Order 1948 provides for the filing of an application in revision if an important question of law or custom is involved the section permits interference if the Court has not acted according to law and secondly that while the section provides for interference in a case irrespective of its value an appli-cation in revision cannot be entertained under Para 35 if the value of the suit is below Rs. 1000/-. The question has been considered in previous decisions of this Court and I now advert to those decisions. In the case of Duni Chand v. Munshi Amar Nath, AIR 1953 Him Pra 68 it was observed that if a High Court is satisfied that the decree or order passed by the Court of Small Causes is not according to law there would be still room for interference under Section 25 of the Act even though none of the grounds set forth in paragraph 35(1) of the Order 1948 may exist. The aforesaid case was considered by my learned predecessor in office Shri T. Ramabhadran, in C. R. No. 26 of 1957, Firm Bhagwan Das Hardawari Lal v. L. Parshottam Das, dated 9-10-1957 (Him Pra) and No. 14 of 1959, Firm Hindu Khandan Mushtarka Kundan Lal Gurdeyal Chand v. Firm Sardar Mehar Singh Arjun Singh Hindu Khandan Mushtarka, D/- 25-4-1959 (Him Pra) and it was held that an application in revision against a decree in a small cause suit below Rs. 1000/- in value did not lie, but the court could suo motu interfere with such a decree if the conditions laid down in Clause (a) to Para 35(1) were not fulfilled. I am in respectful agreement with those observations. I had also occasion to consider the question as to whether an application in revision against a decree passed in a small cause suit below Rs. 1000/-in value could lie and it was answered in the negative vide Civil Revn. No. 13 of 1963, Jaggan Nath v. Mehar Singh, D/- 3-7-1963: (AIR 1963 Him Pra 53).

9. On behalf of the petitioner reliance was placed upon the following cases: (1) Maung Bo Saw v. Maung Thwe, AIR 1927 Rang 159, (2) Ram Nath Tulsi Ram v. Salig Ram, AIR 1933 All 339.

10. These cases are distinguishable as Para 35 of the Order 1948 or provisions corresponding to that Para were not considered therein.

11. I am, therefore, of the opinion that the application in revision does not lie.

12. I am, further of the opinion that the Court below did not assume jurisdiction not vested in it, did not fail to exercise jurisdiction so vested in it and did not act with material irregularity in the exercise of its jurisdiction and under Clause (a) to Para 35(1) also there is no justification for interfering with the order sought to be revised.

13. On behalf of the petitioner reliance was placed upon the Rangoon and Allahabad cases supra and the case of Ghulla Singh v. Sardar Singh. 106 Pun Re. 1908 p. 491. Those cases are not applicable to the instant case in-as-much as the latter has not been decided on mere assumption and the Court did not omit to frame or determine the necessary issues arising from the pleadings and Jo consider all the material on the record.

14. In conclusion the application fails and is hereby rejected.


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