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Mahesh Chand Vs. the State of Himachal Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 82 of 1968
Judge
Reported inAIR1974HP56
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96 and 100
AppellantMahesh Chand
RespondentThe State of Himachal Pradesh and ors.
Appellant Advocate D.M. Aggarwal,; B.N. Aggarwal and; S. Malhotra, Advs
Respondent Advocate B. Sita Ram, Adv. General
Cases ReferredBombay v. Scindia Steam Navigation Co.
Excerpt:
- .....in the income of the forest produce but also to a half share in the income from the trees. the learned district judge, therefore, confined himself to considering the latter claim alone. after consideration of the evidence on the record he found no substance in the claim.4. in second appeal before us, the first contention raised by learned counsel for the plaintiff is that the learned district judge has erred in observing that the plaintiff had not pressed for an adjudication on the validity of his removal from the management of the forest. an affidavit has been filed by the plaintiff in support of the contention that the point was in fact pressed before the learned district judge and that the observation made by him to the contrary is erroneous. the learned advocate-general contends.....
Judgment:

R.S. Pathak, C. J.

1. This is a plaintiff's second appeal arising out of a suit for declaration, damages and compensation.

2. The case has had a chequered history and has passed through several stages which we need not detail here. It is unfortunate that it cannot be disposed of even now.

3. In the judgment under appeal the learned District Judge has observed that the plaintiff did not press before him the point with regard to his removal from the management of the forest and that the only point argued was that even after his removal from the management he was entitled not only to a half share in the income of the forest produce but also to a half share in the income from the trees. The learned District Judge, therefore, confined himself to considering the latter claim alone. After consideration of the evidence on the record he found no substance in the claim.

4. In second appeal before us, the first contention raised by learned Counsel for the plaintiff is that the learned District Judge has erred in observing that the plaintiff had not pressed for an adjudication on the validity of his removal from the management of the forest. An affidavit has been filed by the plaintiff in support of the contention that the point was in fact pressed before the learned District Judge and that the observation made by him to the contrary is erroneous. The learned Advocate-General contends that the observation of the learned District Judge must be taken as correct, and he relies on Amanullah v. State of U. P.. AIR 1973 SC 1370. The case is of no assistance to the defendant. An observation made in the judgment of a Court that a certain point was not argued before it cannot be treated as conclusive of the fact. A presumption that the observation is correct may be raised, but the presumption is open to rebuttal by satisfactory evidence to the contrary.

5. We have heard learned Counsel for the parties on the affidavit which has been filed before us by the plaintiff. There is no affidavit tp controvert the averments made therein. A perusal of the affidavit gives the impression that the point regarding the validity of the plaintiff'sremoval from the management of the forest was argued before the learned District Judge but apparently because learned Counsel for the plaintiff felt that he was not making head-way before the Court he did not pursue his argument further. The learned Advocate-General urges that this would amount to counsel for the plaintiff abandoning the point. That is not a conclusion to which we can subscribe. It is common experience in the Courts that when counsel presses an argument before the Court and does not find the Court receptive to it he does not press it any further. That does not mean that counsel has abandoned the point.

6. The learned Advocate-General points out that the point was raised before the Appellate Court also and that counsel for the plaintiff conceded there that the order of removal was valid. It appears, however, from a perusal of the trial Court judgment that the trial Court decided the issue on its merits. It is clear from what the Supreme Court said in Commr. of Income-tax. Bombay v. Scindia Steam Navigation Co., Ltd., AIR 1961 SC 1633. that a question of law can arise from a judgment of a judicial tribunal when a point has been decided by the tribunal even though not raised before it. Therefore, even assuming that the point was abandoned by the plaintiff before the trial Court, the circumstance that it was decided on the merits by that Court entitles the aggrieved party to pursue it in appeal. Accordingly, the plaintiff was entitled to raise the point before the learned District Judge in the appeal against the trial Court judgment.

7. Having regard to the materialbefore us we are of opinion that the partof the judgment of the learned DistrictJudge containing the observation that thepoint regarding removal of the plaintifffrom the management of the forest wasnot pressed cannot be sustained. We holdthat the plaintiff is entitled to raise thatpoint before us.

8. The question whether the removal of the plaintiff from the management of the forest was justified requires consideration both of fact and law. The plaintiff has claimed certain reliefs consequent on the assertion that his removal was unjustified and invalid. They also require adjudication. It seems to us desirable to direct the learned District Judge to go into all these questions and give his findings thereon. A number of issues were framed by the trial Court in respect of the reliefs claimed by the plaintiff that his removal was invalid and he was entitled to consequential reliefs. We think it appropriate that the Lower Appellate Court should give a finding on all those issues.

9. Accordingly, we remit the issues mentioned above to the Lower Appellate Court for its findings thereon. It is made clear that the findings called for are those only which relate to the plaintiff's case that his removal was invalid and that he was entitled to consequential reliefs.

10. The Lower Appellate Court is allowed three months from the date of receipt by it of a copy of this order for submitting its findings. Thereafter, when the findings are received in this Court, the receipt of the findings will be notified in the cause-list and the parties will be given thirty days from the date of such notice for filing their objections, if any, to the findings.


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