Parmessar Singh v. Kailaspati

Chamier, C.J:— This is an application under Section 107 of the Government of India Act, 1915, for revision of an order of the Sub-divisional Magistrate of Barh in proceedings taken under Section 145 of the Cr PC, deciding that the respondents are in possession of 29 bighas of land, declaring that they are entitled to possession of the same until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction.

2. The applicants' case was and is that they purchased the land in execution of a decree obtained against one Kailaspati, and that it was his khudkasht land, thafe by their purchase they acquired a right to khas possession of the land, and that in fact they were placed in possession by the Civil Court in June 1915. The respondents' case was and is that the land was not the khudkasht of Kailaspati but was raiyati land, that they were and are in possession of it as raiyats, that the applicants did not by their purchase acquire a right to khas possession, and that the applicants were not in fact placed in khas possession by the Civil Court. Three points are urgad on behalf of the applicants, namely, that the Magistrate was bound to respect and maintain the possession delivered by the Civil Court, that the respondents claimed only 21 bighas of the land and therefore the Magistrate was wrong in declaring them to be entitled to 29 bighas, and that there was no evidence to support the finding that the land was raiyati land. A Special Bench was constituted to hear this application because it was said that great uncertainty prevailed as to the grounds on which this Court could interfere in cases of this kind, and it was felt that the practice of the Court should be settled. Under Section 107 of the Government of India Act, 1915:

“Each of the High Courts has superintendence over all the Courts for the time being subject to its appellate jurisdiction.”

3. These words take the place of similar words in Section 15 of the High Courts Act, 1861. The word “superintendence” in common parlance means supervision or care and oversight for the purpose of direction. In one case it was said that this provision authorised the High Courts to interfere for the purpose of remedying any wrong suffered by a party to a proceeding in a Court by reason of an erroneous finding of fact or law. If this provision bears this interpretation, the High Courts are by it invested with all the powers of an appellate Court as wall as with all the powers of a Court of Revision. A superintending jurisdiction has been exercise from ancient times by the King's Bunch, and Court of Chancery and it may, I think, be safely assumed that the Legislature when passing the Indian High Courts Act, 1861, did not intend to confer on the Indian High Courts a wider superintending jurisdiction than that enjoyed by the King's Bench or Court of Chancery. I have examined a large number of reported eases, in addition to those cited during the arguments, and I have had the advantage of reading the judgments which my learned colleagues have prepared. Here and there a discordant note may have been struck, but consider that the decisions of the Chartered High Courts, and particularly those of the Calcutta High Court, taken as a whole, lay down the rule that a High Court can and will interfere in a case of the kind now before us where the Magistrate has acted without jurisdiction or has exceeded his jurisdiction, that it will not interfere merely because there has been an irregularity in the proceedings or an erroneous decision on a question of fact or law, but that it can and will interfere when there has been a material irregularity which amounts to a refusal to exercise or an usurpation of jurisdiction or which has prejudiced a party to the proceedings. In order to establish prejudice, it is not sufficient to show that there has been an erroneous decision on a question of law or fact but it must be shown that the irregularity has prevented a party from having a fair trial. The object of the law is to prevent a breach of the peace by determining the actual possession of land etc., in dispute between certain parties who are likely on this account to break the peace: See Krishna Kamini v. Abdul Jubbar(1). Section 145 of the Cr PC, shows that the Legislature intended that the party dissatisfied with the order of the Magistrate should obtain a final decision of the question in dispute elsewhere. The High Court therefore as West, J., said in Shiva Nathaji v. Joma Kashinath(2), will not promote uncertainty and restlessness by an overnice scrutiny of proceedings that aim at promptness rather than refinement. The policy of the Indian Legislature in this matter is shown by the provision in Section 435 of the Cr PC, 1898, which prevents the High Court as Courts of Revision under Ch. 32, of the Code from sending for the record of proceedings under Ch. 12. The result is that High Courts in India which have no statutory power of superintendence cannot send for the record of proceedings which were in substance and in fact proceedings under Ch. 12 of the Code and were conducted by a Magistrate who had jurisdiction.

4. In the application of the rule, which the High Courts have laid down for themselves in matters of this kind, there have no doubt been differences of opinion. For instance at one time it was said that a High Court could examine the information that there was a likelihood of a breach of the peace, on which the Magistrate initiated the proceedings with a view to testing its reliability ??? sufficiency, but it is now well settled that the sufficiency of the information is entirely a matter for the Magistrate and that the High Court will not require it to be furnished to him in any particular form. There is a reported case in which the refusal of a Magistrate to examine a host of witnesses on each side seems to have been treated as equivalent to a refusal to examine any witnesses at all. The better opinion seems to be that a refusal of the latter kind might be overruled by the High Court as a grave irregularity resulting in obvious prejudice to the parties, but that it is within the Magistrate's discretion to refuse to allow parties to produce a host of unnecessary witnesses. Judges have at times attempted to lay down a hard and fast rule to the effect that a Magistrate in proceedings under Section 145 of the Cr PC, must give effect to a recent decision or proceeding of a Civil or Criminal Court. It appears, however, that no such rule can be laid down: see the remarks on this subject made by Rampini and Mookerji, JJ., in Kulada Kinkar Roy v. Danesh Mir(3). Difficulties have also arisen regarding the powers of the Magistrate to add parties, the necessity for initiating fresh proceedings when this is done, and the power of the Magistrate to decide a question of possession between disputing parties, when other parsons not parties to the proceedings or concerned in the dispute are interested in part of the land. The Full Bench decision in Krishna Kamini v. Abdul Jubbar has set at rest several of these questions.

5. In the great majority of cases, however, the Courts have felt little difficulty in applying the rule set out above and that is the rule which, in my opinion, this Court should follow. To come to the facts of the case now before us, the Magistrate has distinctly found that khas possession did not pass to the applicants under the proceedings of the civil Court relied upon by them. We must accept this finding as correct. The second contention is not borne out by the record and as regards the third it is sufficient to say that there is evidence which has been believed by the Magistrate that the land was raiyati land. It is not suggested that the Magistrate exceeded his jurisdiction or that his proceedings were irregular. In my opinion the applicants have failed to establish any ground on which this Court should interfere in exercise of its power of superintendence. I would dismiss this application.

6. Sharfuddin, J.:— This Special Bench has been formed for the purpose of deciding whether the High Court has jurisdiction to interfere with an order passed under Section 145 of the Cr PC, by a competent Magistrate. S. 435 of the Code vests in the High Court certain powers of supervision. It may call for and examine the record of any proceeding before any Criminal Court for the purposes of satisfying itself as to the correctness, legality and propriety of any finding, sentence or order and as to the regularity of any proceedings of inferior Courts. There is no doubt that the provisions of this, section give extensive powers to the High Court, but under Cl. (3) of that section it is provided that proceedings under Ch. 12 are not proceedings within the meaning of that section. It is dear that the High Court cannot under the Code interfere with any order passed by a Subordinate Magistrate in a proceeding under Section 145 of the Cr PC.

7. But under Section 107 of the Government of India Act of 1915, a general power of superintendence over the Subordinate Courts has been given to the High Court which is somewhat analogous to the power of the King's Bench Division in the Supreme Court in England to interfere by mandamus. The literal meaning of the expression to “superintend” is to have oversight of. The meaning given in the dictionary is to oversee with powers of direction. On a review of the case-law on the subject I have no doubt that in the exercise of its power of superintendence a Chartered High Court is justified in interfering with an order under Section 145 of the Cr PC, if the order complained of has been passed without jurisdiction, and the High Court may also interfere in cases of grave and material irregularity where the party has been prejudiced or there has been a failure of justice. For instance if a Magistrate refuses to examine the witnesses cited by the parties, he acts without jurisdiction and in such a case this Court ought to interfere.

8. In the present case the grievance is that there was a Civil Court order in favour of the applicants which the lower Court has refused to respect and has passed an order directly in conflict with it. An order passed under S. 145, is in its nature a summary order and it is a preventive measure. The Magistrate gets jurisdiction if there is an apprehension of a breach of the peace with regard to “any land or water”, and the party found to be in possession may be declared entitled to remain in possession until evicted therefrom by a competent Court. A Civil Court decree in favour of a party will become infruotnous if the Magistrate interferes with it, but the Magistrate is not bound to maintain it blindly. If after the passing of the decree the Magistrate finds on evidence that the party's possession has been disturbed or that the possession has changed hands he has jurisdiction, but this will be a matter of fact which the Magistrate has to decide. If he comes to a finding, which would be a finding of fact, that such possession has been disturbed since the decree was passed, he has jurisdiction in a proceeding under S. 145 to pass orders irrespective of the Civil Court decree. In the case of a Civil Court decree of very recent date where there is no evidence to show disturbance or change of possession since the decree, the Magistrate is bound to respect the Civil Court decree and if he does not do so he acts without jurisdiction.

9. In the present case Parmessar Singh purchased at an auction in execution of a Civil Court decree the property of one Kailashpati Sahai in a mauzah. This was on the 23rd January, 1915 and on 3rd June he obtained delivery of possession through Court. His case was that what he purchased was an area of 58 bighas, that the whole area was khudkasht of the outgoing malik and that he was entitled to retain possession of the entire area; on the other hand the other party, consisting of some tenants, contended that out of the entire area, 29 bighas were raiyati land and that they were raiyats of those lands and were in possession. It was on the initiation of the purchaser that proceedings under S. 145 were in stituted by the Magistrate. The Magistrate after the perusal of written statements of both sides, recording evidence and hearing arguments, passed an order against the applicant. The applicant now contends that we ought to interfere with that order on the ground that the Magistrate had failed to respect the delivery of possession by the Civil Court. As already observed, it is the duty of a Magistrate to consider whether in the circumstances of a particular case and on the evidence before him he should or should not maintain the order of a Civil Court. I am of opinion that on that ground only we cannot interfere, but at the same time I am of opinion that in all such cases a Magistrate is bound to refer to the Civil Court decree and give reasons in his judgment why he passes an order against the party who has obtained that decree. There are other circumstances as well in which the Court ought to interfere. It is impossible to give an exhaustive list, but I may refer to some of them. For example, (1) if a Magistrate passes an order not on the evidence recorded but only on a perusal of the written statements, or (2) if he refuses to summon witness or where he had already issued summonses he refuses without reason to issue fresh summonses on the non-appearance of the witnesses, or (3) if he acts on his own information, this. Court could interfere. In the present case nothing has been done by the Magistrata which can be called without jurisdiction. I am, therefore, of opinion that the application should be rejected.

10. Roe, J.:— On the 23rd January, 1915, Parmessar Singh purchased at auction-sale in execution of a Civil Court decree the 16-annas proprietary interest of Kailaspati Sahai in Mauzah Aima. On the 3rd June, he obtained delivery of possession. He contends that included in the proprietary interest was the khud-kasht right to cultivate the whole of the land, 58 bighasr in which possession was delivered to him by the Civil Court. He was obstructed in an attempt to enter into cultivating possession of 29 bighas out of these 58 bighas and instead of going to the Civil Court under O. 21, Rr. 97 and 98, he asked the Criminal Court to issue an order under Section 144 of the Cr PC. The Magistrate after hearing the parties drew up proceedings under S. 145, and after taking evidence declared that certain tenants, whom Parmessar Singh alleged were mere dummies of Kailaspati Sahay, were in possession of the 29 bighas in dispute. Parmessar Singh now asks this Court to revise these proceedings, on the ground that the Civil Court having delivered possession to him of the property in dispute and a Revenue Court having made a decision in his favour, the Criminal Court should not have declared the opposite party to be in possession. Before considering the case on its merits propose to consider what jurisdiction this Court has over proceedings under S. 145. It is conceded at the Bar that we can only interfere under Section 107 of the Government of India Act, in the exercise of our powers of superintendence.

11. In Lekhrajram v. Debi Pershad(4) Woodroffe, J., states that there is no form of judicial injustice which the Court, if need be, cannot reach under this power but in the commentaries of Messrs Woodroffe and Ameer Ali on the Code of Civil Procedure, S. 115, it is conceded that certain limitations have been laid down which will ordinarily govern the Courts. That in the exercise of its powers of superintendence a Chartered High Court may interfere, if the order complained of is one passed without jurisdiction, is certain: Nilmoni Singh Deo v. Taranath Mukerjee(5). It is necessary only to enquire within what limitations this power has ordinaliry been exercised by the, four Chartered High Courts of India. When these Courts were established they had under S. 35 of Act 23 of 1861, no power of revision over Courts of first instance. In the early volumes of Sutherland's Weekly Reporter there is no suggestion that the Fort William Court felt the need or such powers, until on the 13th February, 1866, the case of DaCosta J. v. M.M Hall(6) came before a Full Bench composed of Peacock, C.J and Bayley, Saton-Karr, Sambhu Nath Pandit and A.G Macpherson, JJ. The isaue was in a sale in execution, in which a Court of first instance has made an order outside its jurisdiction, can the High Court set that order aside? The decision was:

“We have gone carefully through the Charter and there is nothing in it which induces the Court to think that it has any power to give relief to the parties.”

12. In Subjaun Ostagar v. Promothonath Ghose(7), on the 31st August 1866, Jackson, J., declined to exercise judicially a power of superintendence. Before Norman and Seton-Karr, JJ., on the 25th January, 1867, came a case in which a Sader Amin had insisted upon adding unnecessary parties to the record and on refusal by the plaintiff to add those parties had dismissed his suit. Both Judges were of opinion that the action of the Sadar Amin was not justified by law. They disagreed upon the question whether they had power to interfere. Seton Kerr, J., having refused to sign the order made by Norman, J., that order was an order by a single Judge. Under Letters Patent it came before Peacock, C.J and Jackson and Macpherson, JJ. On 25th February, 1868 these three Judges agreed [Judooputtee Chatterjee v. Chunder Kant Bhuttacharjee(8)], that under Section 15 of the High Courts Act, they had power to interfere. Peacock, C.J and Macpherson, J., were parties to the decision in DaCosta J. v. M.M Hall. Jackson, J., had denied his power to interfere in Subjann Ostagar v. Promothonath Ghose.

13. Sir Barnes Peacock gives no explanation of his change of front save that it had been suggested by one of his learned brothers whether if the Sadar Amin had made an order that the suit should not be heard for 20 years, such an order would be binding. Macpherson, J., merely concurred with the Chief Justice. Sir Louis Jackson wrote a separate judgment. He too gave no reasons for his altered view. Their reasons are, I think, to be found in Gopal Singh v. Court of Wards on behalf of the Maharajah of Darbhangah(9). All that could be said on the subject had been said there by Norman, J., on 2nd May, 1867, and had been followed on 7th June, 1867 by Jackson, J., [Greesh Chunder Lahooree v. Kasheessuree Debia(10)] and on 9th June [In the petition of Moonshee Oodiut Zuman(11)] Jackson, J., had doubted the correctness of the Full Bench decision in DaCosta J. v. M.M Hall. For the reason possibly that the two Judges sitting with Norman, J., refused in that case to exercise the power of superintendence over a Revenue Court, this judgment of Norman, J., has never been referred to in subsequent decisions. Nonetheless, it had, I believe, most important results and is itself of such interest that this extract at least is worthy of reproduction. Norman, J.

“The term ‘superintendence’ is one not only quite intelligible in itself, but it has a legal force and signification which are perfectly well-known to the legislature. In 3 Blackstone's Commentaries, p. 110, is pointed out that it is the peculiar business of the Court of King's Bench to superintend all inferior tribunals, and therein to enforce the due exercise of those Judicial and ministerial powers with which the Crown or legislature have invested them, and this not only by restraining their excesses, but also by quickening their negligence and obviating their denial of justice.

“In Bacon's Abridgment, title Prohibition, it is said; As all external jurisdiction, whether ecclesiastical or civil, is derived from the Crown and the administration of justice is committed to a great variety of Courts, hence it has been the care of the Crown that these Courts keep within the limits and bounds of their several jurisdictions prescribed to them by laws and Statutes of the Realm. The superior Courts at Westminister, having a suparintendence over all inferior Courts, may, in all cases of innovation, award a prohibition. In this the power of the Court of King's Bench has never been doubted, being the superior Common law Court of the Kingdom.” * * * *

“This power of superintendence is entirely distinct from the jurisdiction to hear appeals. If the inferior Court, after hearing the parties, comes to an erroneous decision, either in law or fact, on a matter within its jurisdiction, the Court having power of superintendence never interferes. The only mode of questioning the propriety of such a decision is by appeal.”

14. This strict definition was emphasised by Sir Louis Jackson, on 25th March, 1868 in Nuffur Chunder Paul v. Naduroonissa, Beebee(12), and on 28th April, 1869 in Kasheenath Roy Chowdhry v. Shabitree Soonduree Dossee(13) Jackson, J., and Markby, J., approved these limitations. Thenceforth and for many years the Fort William Court observed strictly the limitations set by Norman, J., to its power of superintendence. In Tej Ram v. Harsukh(14) it will be seen that the Allahabad Court set itself to follow strictly the rules of superintendence laid down by Norman and Jackson, JJ. The leading case on superintendence in Bombay is that of Shiva Nathaji v. Jama Kashinath. This is a Full Bench case in which Raymond West, J., laid down seven broad principles upon which the High Court would interfere cinder Section 622 of the old CPC read with Section 15 of the Charter Act. The following passage in the judgment indicates that West, J., regarded superintendence from much the same point of view as Norman, J.,

“In such a conflict of opinion as has arisen on the subject we are now considering, it may be useful to see how similar questions have been dealt with by the Courts in England. Their decisions can of course only afford analogies, not precedents for Courts so differently constituted as those in India: but these analogies point to principles of general application and thus repay our attentive consideration. A superintending and visitatorial jurisdiction has been exercised from ancient times by the Queen's Bench and by the Court of Chancery. The powers of the former Court have been executed through the writs of mandamus and prohibition.”

15. I have not been able to find any case in which the Madras Court in its early days had recourse to the Charter Act. That Court was content with S. 622 of the Code of 1877: Manisha Eradi v. Siyali Koya(15). Kristamma Naidu v. Chapa Naidu(16) and the invariable practice was to interfere only when there had been an error in jurisdiction. We have, therefore, in all the earlier decisions a cursus curiac throughout the Chartered Courts. The High Court would interfere when the Subordinate Court had acted without jurisdiction for when having jurisdiction, the Subordinate Court had refused to exercise it or made any colorable pretense of exercising it. That modern decision in Calcutta is in accordance with the early view is clear from Hurbullubh Narain Singh v. Luchmeswar Prosad Singh(17), Raj Chunder Sen v. Ganga Das Seal(18), Kulada Kinkar Boy v. Danesh Mir, Sukh Lal Sheikh v. Tara Chand Ta(19), Malik Protap Singh v. Khan Mahomed(20) and Sardari Sha v. Hakum Chand(21). Of these I would quote only a few lines from Maclean, C.J's judgment in the Full Bench case of Sukh Lal Shaikh v. Tara Chand Ta:

“Section 15, Charter Act, in giving this Court a general power of superintendence over the Subordinate Courts, vests in it a power somewhat analogous to that of the King's Bench Division in the Supreme Court in England to interfere by mandamus.”

16. I am satisfied upon this investigation, that the power of superintendence is not a legal fiction whereby a High Court: Judge is vested with omnipotence. It is a term having a legal force and signification. It is the power by which English Courts interfere by prohibition and mandamus. It is confined to cases in which the Court has acted without jurisdiction, or in excess of jurisdiction or has refused to exercise a jurisdiction vested in it by law. The High Court will not interfere merely because there has been an irregularity in the proceedings.

17. It will interfere if the irregularity had been so serious that one of the parties has suffered prejudice. By prejudice is meant disability to lay before the Court that party's version of the facts of the case and the law to be applied. It will not interfere with any decision arrived at after a fair trial however erroneous in law or fact that decision may appear to be. The only question for decision in the case before us is: Had the Magistrate jurisdiction to make an order under Ch. 12? There is no question of any irregularity in the form of his proceedings.

18. From the petition of Parmessar Singh himself it is clear that there was a likelihood of the breach of the peace. The Magistrate had materials before him upon which he had jurisdiction to take action under Ch. 12. His proceedings were in order. His jurisdiction under Ch. 12 was complete. In the allegation that the Magistrate's orders deal with more land than is covered by the claim of the opposite party, there is no substance whatever. Our attention has been called to the case of Doulat Koer v. Rameswari Koeri(22), in which Prinsep, J., and Wilkins, J., held that a Magistrate had no jurisdiction to interfere in cases in which the civil Courts had recently made a pronouncement in respect of title. This ruling was followed in Kunja Behari Das v. Khetra Pal Singh(23). On the strength no doubt of these decisions the Calcutta High Court in Atul Hazra v. Uma Charan Changdar(24) set aside as without jurisdiction an order made in similar circumstances. But that this is not the universal practice of the Calcutta Court is clear from the case of Kulada Kinkar Roy v. Donesh Mir:

“There is no inflexible rule of law that a Magistrate in deciding the question of possession under Section 146 of the Cr PC, is concluded by every previous order of a Civil or Criminal Court relating to the subject of dispute and that the weight to be attached to any such previous order must depend upon the facts and circumstances of the particular case.”

19. With this view I entirely agree. The weight to be attached to each order is a question for the consideration of the Magistrate and as laid down in Shiva Nathaji v. Joma Kashinath,

“The Court will not substitute its own appreciation of evidence or its own judgment thereon for the determination of the inferior Court in any matter committed by the Legislature to the discretion of such Court.”

20. I am of opinion that we have no authority to go into the merits of the case. I would therefore, reject this application.

V.S/R.K

21. Application dismissed.