Khazana v. Surjan

Judgement

This is an application in revision by one of the two defendants in the case against an order of the Subordinate Judge of Bilaspur, dated 22-5-1952, rejecting an application of the petitioner for framing certain additional issues.

2. This was a suit, instituted on 8-2-1951, for recovery of possession of land measuring one bigha and two biswas, described in the plaint. It was alleged by the plaintiff that there was an agreement for exchange, between the parties ten years before the suit whereunder the land in suit, which belonged to the plaintiff, was to be given to the defendants in exchange for twice that area which the defendants were to give to the plaintiff. It was further alleged that the defendants were permitted by the plaintiff to take possession of the land in suit in accordance with the terms of the aforesaid agreement, but that as the defendants failed to carry out their part of the agreement they were not entitled to retain possession of the same. The plaintiff made further allegations entitling him to the aforesaid relief, and these were that according to the law prevailing at the time of the agreement no exchange could take place without the permission of the: Government as the plaintiff was an agriculturist and the defendants non-agriculturists, that no exchange could be effected without a registered deed and that mutation respecting the exchange was disallowed on 15-9-2004 B.

3. The two defendants filed separate written-statements. It is sufficient to refer to the one filed by the present petitioner since that covers the entire ease of the defendants. He traversed all the said plaint allegations although he admitted that there was an agreement for exchange. He pleaded however that that agreement took place with the plaintiffs brother. He pleaded further that the suit was time-barred inasmuch as the plaintiff was not in possession of the land in suit within 12 years, that the defendants had acquired title to it by adverse proprietary possession for over 12 years, that the suit was barred by estoppel and that the suit had been under-valued for purposes of court-fee because the valuation of the houses constructed by the defendants on the land in suit, which came to Rs.2,500/-, had not been taken into account.

4. On the above pleadings the then Subordinate Judge, Sri Dina Nath, framed the following issues on 11-6-1951.

(1) Does the land in suit not belong to the plaintiff? (Onus on the defendants)

(2) In case of non-proof of issue No.1, have the; defendants been in adverse possession of the land in suit for 12 years? (Onus on the defendants)

(3) Is the plaintiff entitled to possession of the land by reason of the order dated 15-9-2004 B. disallowing mutation? (Onus on the plaintiff)

(4) Has the plaintiff cause of action for the suit? (Onus on the plaintiff)

(5) Relief.

5. The present defendant-petitioner filed an application on 6-8-1951 contending that all the issues arising from the pleadings had not been framed and praying that the issues as set forth in the application should be framed. On 20-11-1951 the Subordinate Judge retained the first two and the last issues, struck out the third and fourth issues and framed the following three additional issues:

(1) Have the defendants made any improvements on the land in suit? If so, what is toe-extent of those improvements and to what compensation are the defendants entitled? (Onus on the defendants)

(2) Is the plaintiff estopped from filing this suit due to his acts and conduct? (Onus on defendants)

(3) What is the valuation of the suit for purposes of court-fee? (Onus on the plaintiff)

6. The defendant-petitioner being still dissatisfied, he filed another application on 13-5-1952 contending that no issue with regard to the terms of the alleged exchange and the plaintiffs possession within twelve years of the suit had been framed, and praying that the same be framed and the issue regarding court-fee be decided first. This application was rejected by Sri Sant Ram Subordinate Judge, who had succeeded the former Subordinate Judge, on 22-5-1952 on the ground that he had no jurisdiction to review the orders of his predecessor-in-office. The present revision has been filed against this order.

7. There was a preliminary objection taken by the learned counsel for the plaintiff-respondent that no revision lies. The first ruling cited by him in support of his objection was - Kedar Nath v. Sheo Pratap, AIR 1919 All 349 (A). The trial Court refused in that Court the request of the defendants pleader to frame a particular issue, and the defendant moved the High Court in revision. On a preliminary objection that no revision lay from an interlocutory order, the revision was dismissed on the ground that the petitioner had another remedy open to him, viz., that of urging the point on appeal to the High Court.

8. The next ruling cited by the learned counsel for the plaintiff-respondent was - Ram Chandra v. Birendra Bikram Singh, AIR 1942 Oudh 431 (B). In that case the plaintiff went up in revision to the High Court against the order of the trial Court rejecting his application to recast a certain issue so as to remove the burden of proof imposed upon him. The revision was dismissed on the grounds that the order in question did not amount to a case decided, and that the fact of decision arrived at by the trial Court upon a certain point being wrong in law was not a ground which would justify interference in revision.

9. The last case cited by the learned counsel for the plaintiff-respondent was - Prakash Chand v. Mahendra Kumar, AIR 1948 All 288 (C). The order taken up in revision to the High Court in that case was one under O.14, R.5(2), C.P. Code, striking out certain issues as being not material to the decision of the case. The revision was dismissed on the ground that the order in question being an interlocutory order did not amount to a case decided within the purview of S.115 of the Code. It was further held that if a Court comes to a wrong decision on a point of fact or law it does not necessarily become a question of jurisdiction if the decision is erroneous. Another observation made in the course of the decision by Malik, C.J. was that as far as possible when a Judge is seized of a case as a Court off first instance his discretion in the matter of day to day progress of the suit should be uphampered by interference by a Court sitting in revision, especially when the errors or mistakes made by the learned Judge are such that they can be corrected by a Court of appeal, if it is of a different opinion.

10. There is a sharp conflict between the Allahabad and Oudh views on the one hand and the Lahore view on the other on the question in revision to the High Court against interlocutory orders. And so far as this Court is concerned it has preferred the latter. The latest Lahore view is contained in the Full Bench decision reported as - Bibi Gurdevi v. Mohammad Bakhsh, AIR 1943 Lah 65 (D). It was laid down in that case as follows:

"The word case in S.115 does not always mean the whole suit. It is of a very wide import, and means any state of facts juridically considered. This meaning is wide enough to include a decision on any substantial question in controversy between the parties affecting their rights, even though such order is passed in the course of the trial of the suit. An interlocutory order deciding a question of this kind as distinguished from purely formal and incidental order is a case decided within the meaning of S.115, but it will be open to revision only if the other conditions expressly laid down in S.115 are satisfied."

11. Objections of the kind referred to above in - AIR 1948 All 288 (C), relating to its being undesirable to interfere with the discretion of the trial Court in the day to day progress of the suit were met by the following observations in the Full Bench ruling of the Lahore High Court

"The main objection to this wide interpretation seems to be the feeling that it may cause great inconvenience to the parties by delay in the disposal of suits by petitions for revision. But this objection loses its force when it is remembered that the exercise of the revisional powers under section 115, Civil Procedure Code, is subject to two-fold restrictions. Firstly, there are the various restrictions expressly mentioned in the section itself. Secondly, there are the other implied restrictions which are to be deduced from the very nature of the extraordinary jurisdiction under S.115, C.P. Code, as pointed out above. In view of these implied restrictions, the High Court will not be justified in interfering in revision unless (i) the decision relates to a substantial question of controversy between the parties which is of such a nature that it will result in a grave wrong and defeat of the law, unless (ii) such grave wrong or defeat of law cannot be prevented or remedied except by interference in revision - either because there is no other remedy) or the remedy is too remote or cumbersome to be of any practical utility in the particular circumstances of the case. If all the express and implied restrictions on the exercise of revisional powers are carefully borne in mind while admitting petitions for revision, there should be little risk of any unnecessary delay in the disposal of suits."

12. The argument of the learned counsel for the plaintiff-respondent in this case that acceptance of revisions from interlocutory orders would delay the disposal of cases has therefore no force. On the contrary, grave wrong might be caused to a party if the trial Court persists in not framing the necessary issues or in casting the onus of proof on the wrong party, if the party aggrieved by such a course is made to wait until the case is decided by the trial Court and he comes up in appeal to a higher Court. So far as the present case is concerned, it is manifest that no issue with regard to the terms of the alleged agreement of exchange or with regard to whether the suit was time-barred by reason of the plaintiff not having been in possession of the property in suit within twelve years has been framed. An issue with regard to compensation to the defendants has been framed although no such issue arose from the pleadings. Onus of proof of the original first issue relating to the title of the property in suit has been wrongly placed upon the defendants. The decision of the learned Subordinate Judge dated 22-5-1952 rejecting the defendant-petitioners application for framing the necessary issues is therefore a decision on a substantial question in controversy between the parties affecting their rights and therefore amounts to a case decided.

The other condition of the case falling under one or the other of the provisions of S.115, C.P. Code, corresponding to paragraph 35 of the Bilaspur (Courts) Order, 1949, is also satisfied since the Subordinate Judge has failed to exercise a jurisdiction which no doubt vested in him on the wrong view that it was not open to him to review the order of his predecessor-in-office. It was not a case of review at all but of carrying out the mandatory provisions of O.14, R.5(1) of the Code, which makes it incumbent upon a Court to make all such amendments and frame such additional issues as may be necessary for determining the matters in controversy between the parties. The present Subordinate Judge should have amended the issues and framed the additional issues of his own accord, and much more so as soon as his attention was drawn by the defendant-petitioner to the erroneous issues or to the omissions. It is therefore not a case of a mere wrong decision on a question of law but of the Court below having failed to exercise a jurisdiction which clearly vested in it. I am supported in this view by a decision reported as - Shiba. Prasad Singh v. Nilabji Bali, AIR 1947 Pat 45 (E). I am aware of the fact that the view expressed in this decision was dissented from in the aforesaid - AIR 1948 All 288 (C), ruling; but, with great respect, I agree with the view of the Patna High Court.

13. The revision is allowed with costs and the trial Court is directed to decide the case after refraining the issues as follows :

(1) What were the terms of the exchange, who were the parties to it, and when did it take place? Did; it take place with the plaintiffs brother and not with the plaintiff, and, if so, what is its effect, if any? (Onus on the plaintiff)

(2) Is the land in suit the property which belonged to the plaintiff and was to be given to the defendants under the exchange? (Onus on the plaintiff)

(3) Is the plaintiff entitled, to recover possession of the land in suit because, if at all, (a) the defendants committed breach of their part of the contract of exchange, or (b) no exchange could take place without the permission of the then Government, and no such permission was obtained, or (c) a registered-deed of exchange was necessary, or (d) mutation respecting the exchange was disallowed on 15-9-2004 B? (Onus on plaintiff) (4) Is the suit within time? (Onus on plaintiff) (5) Have the defendants acquired title to the property in suit by adverse proprietary possession for more than 12 years? (Onus on the defendants)

(6) Has the suit been properly valued for purposes of court-fee, and is the court-fee paid sufficient? (Onus on the plaintiff)

(7) Is the suit barred by estoppel? (Onus on the defendants)

(8) To what relief, if any, is the plaintiff entitled?

The trial Court will ask for further particulars from the defendants with regard to the plea of estoppel giving rise to issue No.7. It is further directed to decide the issue relating to court-fees first before proceeding to take up any other issue.

Revision allowed.