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HIGH COURT OF HIMACHAL PRADESH
CHOWDHRY, J.
Kewal Ram
Versus
Bhagwan Dass
Civil Revn. No. 10 of 1951
Decided On : 17-05-1951
REVISION - MAINTAINABILITY - HIMACHAL PRADESH (COURTS) ORDER, 1948 - REPEAL BY MERGED STATES (LAWS) ACT, 1949 - CIVIL PROCEDURE CODE, 1908 - APPLICABILITY - GROUNDS FOR REVISION - MATERIAL IRREGULARITY - SUBSTANTIAL JUSTICE - REMAND.
Fact of the Case:
The plaintiff filed a suit for recovery of possession of 9 biswas of land, alleging that the defendant had encroached on that area belonging to the plaintiff by constructing a wall. Both the Courts below found that the wall in question had been constructed by the defendant on the thoroughfare, and that as a result thereof the thoroughfare had been diverted into the plaintiff's land.
Finding of the Court:
The court found that the decree in question should not have been granted as the plaintiffs would have been entitled to a decree only if they had succeeded in proving that the alleged encroachment had been made on their land, or on any portion of it, by the defendant. The finding, on the contrary, was that the defendant had not encroached on any portion of the plaintiff's land by the construction of the wall but on a thoroughfare.
Issues: 1. Whether the Himachal Pradesh (Courts) Order, 1948 was repealed by the Merged States (Laws) Act, 1949? 2. Whether the Civil Procedure Code, 1908 is applicable to the present case? 3. Whether there is a good ground for interference in revision under para. 35 (1) (a), Himachal Pradesh (Courts) Order? 4. Whether a second appeal was open to the defendant-applicant? 5. Whether substantial justice has been done in this case? 6. Whether the case should be remanded for disposal after framing the necessary issues?
Ratio Decidendi: 1. The Himachal Pradesh (Courts) Order, 1948 was not repealed by the Merged States (Laws) Act, 1949, as the provisions of the Order relating to appeals and revisions are special provisions relating to only a few of the matters covered by the Civil Procedure Code and extending to only the State of Himachal Pradesh. 2. The Civil Procedure Code, 1908 is not applicable to the present case as the Himachal Pradesh (Courts) Order, 1948 is a special provision relating to appeals and revisions in the State of Himachal Pradesh. 3. There is a good ground for interference in revision under para. 35 (1) (a), Himachal Pradesh (Courts) Order, as the two Courts below acted with material irregularity in the exercise of their jurisdiction by recording arbitrary findings and passing a decree in utter disregard of the pleadings of the parties and the issues framed in the case. 4. A second appeal was not open to the defendant-applicant as the value of the suit was below Rs. 1,000 and therefore, a second appeal was barred under Para. 32 (1) (b) (ii), Himachal Pradesh (Courts) Order. 5. Substantial justice has not been done in this case as the plaintiffs never came with the allegation that an encroachment had been made by the defendant on a thoroughfare and that they were, therefore, entitled to have the encroachment removed. 6. A remand is not justified in this case as the plaintiffs admittedly never came with the necessary allegations.
Final Decision: The revision is allowed, the judgments and decrees of the two Courts below are set aside and the plaintiff's suit is dismissed with costs to the defendant in all the Courts.
2. A preliminary objection was taken on behalf of the pltfs.-resps. that the provisions of the Himachal Pradesh (Courts) Order are not applicable, but those of the Code of Civil Procedure, and that under S. 115 of the Code the present revision is not maintainable. It is necessary to dispose of this preliminary objection since provisions relating to appeals and revisions in the said Order are different from those in the Code.
3. Before proceeding further, it would be as well to set forth here in brief the salient points of difference with regard to the above provisions. Provisions relating to first appeals are contained in para. 31 in the Himachal Pradesh (Courts) Order. It deals not only with the right of appeal but also with the question of jurisdiction of Courts to entertain appeals and is thus a composite of S. 96, C. P. Code, and such provisions as Ss. 20 and 21, Bengal, Agra and Assam Civil Courts Act, (XII [12] of 1887) and Ss. 38 and 39, Punjab Courts Act, (VI [6] of 1918). Second appeals are dealt with in para. 32 of the said Order. Besides providing for the jurisdiction of the Court of the Judicial Commissioner to entertain appeals in certain classes of cases, having regard to their nature and valuation, it lays down that a second appeal shall lie to the Judicial Commissioner on any ground which would be a good ground of appeal if the decree had been passed in an original suit. In other words, a second appeal can be heard by the Judicial Commissioner on any ground on which a first appeal would lie. It is not necessary, therefore, that a second appeal to the Judicial Commissioner of this State should be on any of the grounds mentioned in S. 100, C. P. Code. The provisions of O. 41, C. P. Code, other than R. 35, have also been made applicable. As regards revisions, besides the grounds mentioned in Cls. (a) to (c) of S. 115, C. P. Code, except that in Cl. (0) the word illegally has been omitted, a revision to the Judicial Commissioner would lie on the additional ground that there is an important question of law and custom involved which requires further consideration. With regard to this additional ground a number of provisos have been laid down relating to limitation, valuation etc It is further specifically provided that S. 115, C. P. Code, shall not apply to Himachal Pradesh. A comparison of the provisions in the Himachal Pradesh (Courts) Order with the corresponding provisions in the Civil P. C. will show that wider powers of second appeal and revision have been conferred upon the Judicial Commissioner of this State than would have been possible under the Civil. P. C. The reason for this conferment of wider powers is patent, namely, that there may be greater scope for the Judicial Commissioner to rectify the mistakes of subordinate Courts in this newly formed State.
4. The history of prevalence of relevant law in Himachal Pradesh is as follows. On 15-4-1948 the Central Govt. passed the Himachal Pradesh (Administration) Order, 1948, whereunder it formed certain hill States collectively into the State of Himachal Pradesh, took over the governance of those States and appointed a Chief Commissioner at the head of the administration. Under s. 5 of this Order existing laws were continued until repealed or amended. One of such existing laws was the State Courts Act of 1943, which made provisions for the hearing of original cases, both civil and criminal, appeals and revisions, the Chief Judicial Officers Co
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