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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Karta Krishna and Kailash Nath
  • Sri Sri Rani Jee
Judges
  • Mahesh Chandra, J.
Acts
  • provisions of Order 10, rule 1 and Order 10, rule 2. Order 10, rule 1,
  • U.P Zamindari Abolition and Land Reforms Act, 1950.
  • section 118 of the old Civil Procedure Code.
  • Order X, rule 1 of the CPC,
  • Order X, Rule 2 of the CPC
  • rules land 2 of Order 10
  • O. 10, Rule 2 of the CPC
  • made.8. Order 10, rule 2,
  • rule 2 of Order 10
  • O. 10, rule 1
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Karta Krishna and Kailash Nath
  • Sri Sri Rani Jee
Judges
  • Mahesh Chandra, J.
Acts
  • provisions of Order 10, rule 1 and Order 10, rule 2. Order 10, rule 1,
  • U.P Zamindari Abolition and Land Reforms Act, 1950.
  • section 118 of the old Civil Procedure Code.
  • Order X, rule 1 of the CPC,
  • Order X, Rule 2 of the CPC
  • rules land 2 of Order 10
  • O. 10, Rule 2 of the CPC
  • made.8. Order 10, rule 2,
  • rule 2 of Order 10
  • O. 10, rule 1
See more information ...
Smart Summary

Structured Summary of the Opinion — Second Appeal (Decree of both Courts below)

Factual and Procedural Background

Respondents Mathura Prasad, Shyam Lal and Dan Bahadur sued appellant Balmiki Singh for possession of plots Nos. 428/22, 444/12 and 429/25, village Kundru, district Gonda, and for recovery of damages of Rs. 60. They alleged that their predecessor, Ram Govind, was a sub-tenant and became an adhivasi on the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1950; that Ram Govind subsequently died; and that as his heirs the respondents became adhivasis and thereafter sirdars (claimed date 30-10-1954). The respondents alleged the appellant wrongfully cut crops causing a loss (alleged Rs. 65, suit prayed Rs. 60).

The appellant's pleaded case was that he himself was the adhivasi and had become sirdar of the disputed plots effective 30-10-1954, and that the suit was barred by limitation.

The trial Court found in favour of the respondents: it held that respondents (and not the appellant) were the adhivasis and thereafter sirdars, that the suit was within time, and that respondents had sustained damage to the extent of Rs. 60, and accordingly decreed the suit. The first appellate Court dismissed the appellant's appeal. The present opinion is the second appeal against those concurrent decrees.

Legal Issues Presented

  1. Which party (the appellant or the respondents/their predecessor Ram Govind) was in cultivatory possession of the disputed plots in the relevant years (1356F and 1359F) and therefore entitled as adhivasi / sirdar?
  2. Whether the suit was barred by limitation as contended by the appellant?
  3. What is the legal effect of statements made in Court at the first hearing under Order X, rule 1 and Order X, rule 2 of the Civil Procedure Code (i.e., whether a statement made by a party's pleader under Order X, rule 2 binds the party, and whether an inadvertently made statement by counsel can be treated as conclusive)?

Arguments of the Parties

Appellant's Arguments

  • The appellant asserted that he was the adhivasi and had become sirdar of the disputed plots with effect from 30-10-1954.
  • The appellant contended the suit was barred by limitation.
  • The appellant further argued that the respondents were bound by a statement made by their counsel on the date of issues that (it was suggested) placed the death of Ram Govind earlier than 1359F; reliance was placed on authorities to the effect that admissions by counsel (in certain circumstances) bind the client.

Respondents' Arguments

  • The respondents maintained that their predecessor Ram Govind was the sub-tenant/adhivasi in actual possession in the relevant years and that they (as heirs) became adhivasis and later sirdars.
  • On the point of the counsel's statement, respondents contended that the statement attributed to their counsel was made inadvertently and did not bind them; they also contended the Court had no power to record that statement as a conclusive admission under Order X on the date of issues.
  • The respondents relied on authorities indicating that statements made under Order X, rule 2 do not necessarily bind the party and that oral examination under that rule cannot supplant ordinary evidence procedure.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Abdul Aziz v. Mariyam Bibi, ILR 49 All 219 : AIR 1926 All 710 Admission under Order X, rule 1 is conclusive against the party (case dealt with statements under O.10, r.1). The Court distinguished this case: it concerned Order X, rule 1 only and therefore is not directly applicable to a statement made under Order X, rule 2 (the situation in the present case).
Rajunder Narain Rae v. Bijai Govind Singh, (1837-41) 2 Moo Ind App 253 (PC) Where a vakil (lawyer) with due authority consents or admits in Court, that consent/admission may bind the client. The Court noted this was a case of expressed consent with due authority and held that it cannot be read to preclude inquiry into whether a lawyer's statement was made inadvertently or without authority; thus it does not preclude the lower Courts from investigating the circumstances of the counsel's statement here.
Nand Kishore Rai v. Ganesh Prasad, AIR 1929 All 446 Where an admission by a lawyer has been acted upon by a subordinate Court, it may be incorrect to reopen that matter on appeal. Court observed that the lower Courts here did not decide solely on counsel's admission but examined that statement alongside witness testimony and documents; hence Nand Kishore Rai did not help the appellant.
Manmohan Das v. Mt. Ramdei, AIR 1931 PC 175 Order X, rule 2 permits oral examination by the Court but that examination must not replace the ordinary evidence procedure (Order XVIII) — Court should not treat such examination as testimony in lieu of regular evidence. The Court accepted the principle that O.10, r.2 examinations cannot supplant trial procedure, but used the authority to show O.10, r.2 may be used to obtain information on material questions and that such information may be investigated for inadvertence; thus O.10, r.2 examination was permissible on the material issue here.
Janki Prashad v. Arku Lal, (1905) 2 All LJ 777 Pertained to section 118 of the old CPC and was relied upon to argue that examining the counsel was illegal. The Court held that relying on that decision was without force in the light of the specific wording of Order X, rule 2, which permits such examination; the present examination under O.10, r.2 was therefore not illegal.
Suraimal v. Mt. Chhote, AIR 1926 All 411 Statement made under Order X, rule 2 by a person appearing to prosecute or look after the case is not necessarily binding on the party. The Court relied on this authority to support the proposition that statements under O.10, r.2 do not stand on the same footing as admissions under O.10, r.1 and may be deemed inadvertent and not binding.
Vasumal Valiram v. Karam Chand, AIR 1941 Sind 41 Reiterated that examination under O.10, r.2 cannot take the place of the procedure under Order XVIII; the Court may examine to obtain information on material questions but not substitute trial evidence. The Court cited it to emphasize that while examination under O.10, r.2 is permissible to obtain material information, it does not displace ordinary evidence procedure; this supported the conclusion that the lower Courts could examine and then determine whether counsel's statement was inadvertent.

Court's Reasoning and Analysis

The Court's analysis proceeded in two interrelated strands: the evaluation of primary evidence (documentary and oral) on the question of possession and the legal effect of a statement made by the respondents' counsel at the first hearing.

Documentary and oral evidence on possession

  • The Courts below examined both oral and documentary evidence, including discrepant extracts of the revenue khasras (Exs. A1 and A2 provided by the patwari) and certified copies issued from the Record Room (Exs. 9 and 10).
  • There was a material discrepancy: certified copies (Exs. 9 and 10) recorded Ram Govind as sub-tenant of the disputed plots whereas the patwari's extracts filed by the appellant omitted that entry.
  • The lower Courts found the patwari's extracts incorrect. The appellate Bench noted specific errors: Ex. A-2 was wrongly dated/labelled (it purported to be for 1359F but had actually been issued in 1356F) and the patwari had copied entries improperly (e.g., copying entries from 1355F). No explanation was offered by the patwari for these defects.
  • Given these defects, the certified copies from the Record Room were held to be the correct record. The Courts below also considered oral testimony and concluded respondents (and their predecessor Ram Govind) were in cultivatory possession in the relevant years and thus were adhivasis and later sirdars.

Legal effect of counsel's statement made at first hearing — Order X, rules 1 and 2

  • The Court carefully analysed Order X, rule 1 and Order X, rule 2 of the CPC. It observed that:
    • Order X, rule 1 relates only to ascertainment from the party or his pleader whether allegations in the pleadings are admitted or denied; such statements (under rule 1) are in the same position as written pleadings and are conclusive against the party.
    • Order X, rule 2 permits the Court to examine orally a party appearing in person, or any person able to answer material questions who accompanies the party (including the pleader), and is not confined to mere admissions or denials of the pleadings.
  • The Court emphasized the legal distinction between statements under rule 1 (conclusive admissions by the party or pleader) and statements under rule 2 (oral examination which may be of evidentiary value but does not automatically bind the party).
  • Applying these principles, the Court held that the statement attributed to the respondents' counsel was made under Order X, rule 2 and not under Order X, rule 1. Therefore, it did not have the conclusive effect of a rule 1 admission.
  • The Court further held that where a counsel's statement under rule 2 is made inadvertently, the party is entitled to show that the statement was a mistaken or inadvertent statement and to prove the true facts by evidence. Here respondent No. 1 (Mathura Prasad) gave testimony clarifying the correct time of death of Ram Govind and asserting continuing possession in 1356F and 1359F; the Courts below accepted that the counsel's statement was inadvertent.
  • In reaching this conclusion the Court reviewed the cited authorities, distinguishing cases that dealt with admissions under rule 1 or cases of express consent by an authorised vakil, and relying on authorities that show statements under rule 2 do not automatically bind the client and that courts may examine whether such statements were inadvertent.

On the combined view of documentary records (the certified khasras) and the oral testimony — including respondent No. 1's evidence which corrected the inadvertent statement of his counsel — the appellate Bench found no error in the concurrent findings of fact by the lower Courts that respondents (through their predecessor) were in cultivatory possession and were the adhivasis/sirdars in the relevant years.

Holding and Implications

Holding: The second appeal is dismissed. The Court upheld the concurrent findings of the trial Court and the first appellate Court that the respondents (through their predecessor Ram Govind) were the adhivasis and later sirdars of the disputed plots, that the suit was within time, and that damages of Rs. 60 were recoverable. The appeal was dismissed as without substance and with costs.

Implications:

  • The direct effect is that the decree of the trial Court (as affirmed by the first appellate Court) stands: respondents' claim for possession and Rs. 60 damages succeeded and is maintained.
  • The Court reinforced the legal distinction between admissions made under Order X, rule 1 (conclusive admissions) and statements/examination under Order X, rule 2 (which may be probative but are not automatically binding and may be shown to have been made inadvertently).
  • The opinion does not purport to lay down any novel principle of law; it interprets and applies existing authorities and rules to the facts. No new precedent beyond the application and clarification of the distinction between O.10, r.1 and O.10, r.2 was created in this opinion; the ruling affirms the courts below and disposes of the appeal with costs.

Decision rendered: Appeal dismissed.

Show full summary ...

    Balmiki Singh v. Mathura Prasad

    1. This is a defendants second appeal against the decree of both the Courts below. Mathura Prasad, Shyam Lal and Dan Bahadur respondents instituted a suit against Balmiki Singh appellant for possession over plots Nos. 428/22, 444/12 and 429/25 of village Kundru of district Gonda and recovery of Rs. 60 as damages, alleging that Ram Govind, the father of respondent No. 1 and grand father of respondents Nos. 2 and 3, was a sub-tenant of the disputed plots and became an adhivasi on the enforcement of the U.P Zamindari Abolition and Land Reforms Act, 1950. They alleged that Ram Govind died subsequently and as his heirs the respondents became the adhivasis of the disputed plots and became sirdars thereafter on 30-10-1954. The appellant is said to have wrongfully cut away the crops of these plots causing a loss of Rs. 65 to the respondents.

    2. The appellant contended that he himself was the adhivasi and had become sirdar of the disputed plots with effect from 30-10-1954 and that the suit was barred by limitation.

    3. The trial Court held that the respondents and not the appellant were the adhivasis and thereafter sirdars of the disputed plots, that the suit was within time and that the respondents suffered damage to the extent of Rs. 60. The suit was accordingly decreed. The appeal was dismissed by the first appellate Court.

    4. The Courts below considered in detail the oral and documentary evidence produced by the parties. In particular there was a difference in the extracts of Khasras (Exs. A1 and A2) relating to 1356F and 1359F respectively given by the patwari and filed by the appellant and certified copies of the same Khasras (Exs. 9 and 10) issued from the Record Room. In the certified copies (Exs. 9 and 10) there was an entry in the name of Ram Govind, the father of respondent No. 1 and grand-father of respondents Nos. 2 and 3, as sub-tenant of the disputed plots while in the copies given by the patwari and filed by the appellant there was no such entry. The copies given by the patwari were obviously incorrect as found by the Courts below, because we find that Ex. A-2 purporting to be for 1359 F. was really issued in 1356F, i.e on 25-5-1957. No explanation has been offered by the patwari. In respect of the entries in 1356F also he had merely copied the entries of 1355F. The Courts below cannot, therefore, be said to have gone wrong when they hold the certified copies issued from the Record Room to be correct and the extracts given by the patwari to be incorrect. They also considered the oral evidence adduced by the parties and then came to the conclusion that the respondents and not the appellant had become the adhivasi and later on sirdars of the disputed plots.

    5. The only contention of the learned counsel for the appellant is that the respondents could not be in cultivatory possession of the disputed plots in 1359F, since their counsel himself stated on the date of issues that Ram Govind had died six years prior to his statement and this would place the death of Ram Govind prior to 1359F. This contention was considered by both the Courts below and they were of the view that the statement was made inadvertently by the learned counsel for the respondents on the date of issues and that respondent No. 1 Mathura Prasad had specifically stated in the witness-box that Ram Govind died 21/2 or 3 years prior to the date on which the witness was making the statement Learned counsel for the appellant contends that the respondents are bound by the statement of their counsel. For this he relies on Abdul Aziz v. Mariyam Bibi, ILR 49 All 219 : (AIR 1926 All 710): Rajunder Narain Rae v. Bijai Govind Singh (1837-41) 2 Moo Ind App 253 (PC), and Nand Kishore Rai v. Ganesh Prasad AIR 1929 All 446 On behalf of the respondents the contention is that the statement of the learned counsel for the respondents will not bind his clients as it was made inadvertently and also because the Court had no power to record that statement of his under Order 10 on the date of issues and relied on Manmohan Das v. Mt. Ramdei AIR 1931 PC 175, Janki Prashadv Arku Lal (1905) 2 All LJ 777. Suraimal v. Mt. Chhote AIR 1926 All 411 and Vasumal Valiram v. Karam Chand AIR 1941 Sind 41.

    6. Before we consider the decisions relied upon by the learned counsel for the parties it would be useful if we look at the provisions of Order 10, rule 1 and Order 10, rule 2. Order 10, rule 1, runs as follows:—

    “At the first hearing of the suit the Court sholl ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement if any of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials.”

    7. It will be evident that this rule relates only to ascertainment by statements, of the parties themselves or their pleaders whether allegations in the pleadings were admitted or denied by them. It will also be clear from rule 1 that this ascertainment is to be made by the Court only when the allegations are not expressly or by necessary implication admitted or denied by the party against whom they are made.

    8. Order 10, rule 2, runs as follows:—

    “At the first hearing of the suit, or at any subsequent hearing, any party appearing in person or present in Court, or any person able to answer any material questions relating to the suit by whom such party or his pleader is accompanied, may be examined orally by the Court, and the Court may, if it thinks fit, put in the course of such examination questions suggested by either party.”

    9. Evidently, it does not relate merely to the allegations in the pleadings. It provides for oral examination of the party or; companion of the party able to answer any material questions relating to the suit. There is no limitation in this rule that the questions must be limited to the allegations specifically made in the pleadings. Even the phrase “any material questions” has only-been used in connection with the ability of the companion of the party to answer it and the rule says that the party or such a companion may be examined orally by the Court. I agree with the learned counsel for the respondents that this examination cannot take the place of evidence. As held by their Lordships of the Judicial Committee in AIR 1931 PC 175 (supra) the Court would go wrong if under this provision it chose to examine any person as a witness. These provisions are not meant to take the place of Order XVIII. At the same time it would be incorrect to say that the oral examination by the Court would be limited to the admission or denial of the specific allegations in the pleadings. Nor does the decision of their Lordships of the Privy Council lay down any such proposition.

    10. The two rules land 2 of Order 10 cannot stand on the same footing for another reason also. Rule 1 is confined only to ascertainment from the party — or his pleader. Rule 2 provides for examination not only of the party or the pleader but also a companion of the party, that is any person by whom a party or its counsel is accompanied. The statement of a pereoa aocompanying a party without any authority or power on his behalf cannot certainly occupy the same position as the statement of the arty or his pleader made under rule 1. It as been repeatedly held that so far as the statement under O. 10, rule 1 is concerned, administrations made by a party under this rule are conclusive against him. Such a statement is in the same position as written pleadings of the parties. A statement under rule 2 of Order 10 would certainly be of great value and has to be considered in the decision of the case, but there is a clear difference between a statement under Rule 1 and one under Rule 2.

    11. It is true that in this case the statement was made by the learned counsel for the plaintiffs and not by a mere companion of the party. The party was, however, entitled to show that the statement of the learned counsel was made inadvertently and did not represent the true state of affairs. Mathura Prasad (respondent No. 1) himself came into the witness-box and stated on 4-11-1957 before the Munsif that his father Ram Govind died three years ago. In the Revenue Court Mathura Prasad (respondent No. 1) explained that his counsel had stated about the death of his father six years ago, but it was really his (respondent No. 1's) brother who had died six years ago and that his father died in the year the zamindari was finished. He had also stated definitely that his father was in possession in 1356F. and 1359F and had died about 2) or 3 years ago. The statement having been made on 28-4-1956 and the zamindari having been abolished by the issue of notification on 1-7-1952, it clearly means that Ram Govind died in the year 1952 and not six years before the statement of respondent l's counsel on 1-8-1956 The same counsel Sri Mohd. Ayub, who made the statement before the trial Court, also argued the case before the trial Court and the first appellate Court and had evidently contended before them that his statement had been made inadvertently. There is no question of an amendment of an oral statement which had actually been made the learned counsel could only inform the Court about the mistake in his statement. Respondent No. 1 himself had certainly done so when after mentioning his counsel's statement he stated that his brother had died six years ago and that his father Ram Govind died in the year in which the zamindari was abolished. The Courts below were then perfectly justified in considering whether or not the statement of the learned counsel for the respondents was made inadvertently. After considering this aspect of the matter they came to the conclusion that the statement was actually made inadvertently and relied on the statement of respondent No. 1 himself regarding the time of the death of his own father after considering the documentary evidence also.

    12. In AIR 1926 All 710 (supra) this Court was considering a statement made under Order X, rule 1 only and not under Order X, rule 2. As mentioned already, in the case of a statement under Order X, rule 1 it was an admission of the plaintiffs allegations in the pleadings and had to be taken as conclusive. It was not a statement under Order X, rule 2.

    13. In (1837-41) 2 Moo Ind App 253 (PC) (supra) the question raised was about the mode in which the accounts were directed to be taken by the decree giving possession. The case had been decided by the Provincial Court on 28-7-1809 and by the Sudder Dewanny Adawlut on 27-7-1812. It was on 18-12-1819, more than seven years after the decree of the Sudder Dewanny Adawlut, that an order was made for taking an account of what the respondent had to receive with reference to one moiety or portion of the profits of the zamindari. The calculations were made and the Vakil for the appellant had agreed in the name of client to the sum calculated as the mesne profits of the zamindari. It was in that connection that the Privy Council and held that the admission and consent of a Vakil made with due authority would bind his client and that where an order was made for the payment of a certain sum being the moity of the profits of an estate founded on the amount for which security had been taken as the rental of the zamindari when possession was given up, and that amount was admitted and assented to by the Vakil in Court and the order made accordingly. It was held that such a consent was binding on the client and precluded him from afterwards opening the account. That was the case of a consent and the Privy Council itself observed that their Lordships did not state that it was their opinion that the case might not be made out that the admission of the Vakil was not made with due authority, but in the case before them there was no doubt that he had the authority of his clients this decision cannot therefore, be interpreted to mean that courts are precluded from going into the question whether the statement can be said to have been and was actually made inadvertently without the authority of the client on the point, particularly when it is not a case of a consent.

    14. In Nand Kishore's case. AIR 1929 All 446 (supra) it has only been decided that where an admission had been made by the lawyer of a party and the Subordinate Court had decided the case upon that admission it would not be correct to reopen the matter in appeal. In the present case both the Courts below had themselves considered the statement of the learned counsel for the respondents and far from deciding the case on the statement of the learned counsel for the respondents they considered that statement and the statement of respondent No. 1 himself and came to the conclusion that it was the statement of respondent No. 1 which disclosed the true state of affairs and that the statement of the learned counsel for the respondents was made inadvertently. Nand Kishore Rai's case AIR 1929 All 446 also cannot, therefore, help the appellant.

    15. (1905) 2 All LJ 777 (supra) dealt with section 118 of the old Civil Procedure Code. This was a case relied upon by the learned counsel for the respondents for the proposition that the examination of the learned counsel for the respondents made in the trial Court was illegal. This contention is without force in view of the specific wording of Order X, rule 2, which permits examination not only of the party but also of his companion. As mentioned also, and as pointed out by their Lordships of the Privy Council in Manmohan Das, AIR 1931 PC 175 (supra) it was not for superseding the ordinary procedure of trial and take the place of Order XVIII, but only to be used to obtain information on material questions. The question about the time of death of Ram Govind was a material question and the Court could obtain information on that point. But if the learned counsel for the respondents made a mistake while giving that information, respondent could show the correct state of affairs and also show that the statement by the counsel was made inadvertently. The manner in which the mistake of the learned counsel was made could also be explained and on this point the Courts have, as already seen, found that the statement was inadvertently made.

    16. In AIR 1926 All 411 (supra) this Court clearly held that a statement made under Order X, rule 2, by a person appearing to prosecute a case or to look after it on behalf of the party is not necessarily binding on that party. This would also show that the statement under Order X, rule 2, does not stand on the same footing as the statement under Order X, rule 1, and the question whether a particular statement made under Order X. rule 2, would or would not bind the party concerned can be considered by the Courts and when they come to the conclusion that the statement was made by the counsel inadvertently that statement made inadvertently could not be said to be binding on his clients.

    17. Vasumal Valiram's case, AIR 1941 Sind 41 (supra) also can be authority for the proposition that the Court is not entitled to examine a party or his counsel when he finds it necessary to obtain any information from such party on any material question. All that it held is that it could not take the place of the procedure under Order XVHI.

    18. It would, therefore, follow from an examination of the decisions cited by the learned counsel for the parties that it was open to the Courts below to ask the learned counsel for the parties under O. 10, Rule 2 of the CPC about the time of the death of Ram Govind which was a material question. The statement made was not a statement under Order X, rule 1 of the CPC, but only under Order X, Rule 2 of the CPC and it was open to the Courts below to go into the question whether the statement of the learned counsel for the respondents was made inadvertently and whether the statement of respondent No. 1 himself on that question was correct. After having gone into that question and coming to a finding of fact the Courts could not be said to have been in error when they found that actually the respondents and their predecessor were in cultivator/possession in 1356F and 1359F. The entry of actual possession in the khasra of 1356F was also in favour of the respondents' predecessor Ram Govind and not the appellant, vide Ex. A-1. So was the entry in 1359 F-note Ext. A-2. The appeal is accordingly without substance and is dismissed with costs.

    BDB/D.V.C

    19. Appeal dismissed.

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    Comments

    Balmiki Singh v. Mathura Prasad
    (Nov 21, 1966)