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IN THE HIGH COURT OF ALLAHABAD
D. S. Mathur, J.
MOOL CHAND - Appellant
Versus
KAMTA PRASAD - Respondents
Second Appeal nil Of 1960
Decided On : 10/04/1960
CIVIL PROCEDURE - Second Appeal - Memorandum of Appeal - Documents to be filed - Copy of finding of civil or revenue court - Whether necessary - Limitation Act (IX of 1908), Section 5 - Rules of Court, 1952, Chapter IX, Rule 8 - C. P. C. , Order XLII, Rule 1.
Fact of the Case:
The issue before the court was whether the finding of the civil or revenue court should be part of the judgment of the trial court and a copy thereof furnished along with the trial court's judgment, whether the memorandum of Second Appeal should be accompanied by a copy of the finding of the civil or revenue court, whether it was necessary for the appellant to move an application under Section 5 of the Limitation Act, accompanied by an affidavit, if copies of the trial court's judgment and revenue or civil court's finding were not filed within the prescribed period of limitation, and whether the Registrar could grant time for filing copies of the trial court's judgment and of the finding of the civil or revenue court on oral request, without an application accompanied by an affidavit.
Finding of the Court:
1. The finding of the revenue court under Section 332-B of the U. P. Zamindari Abolition and Land Reforms Act is a part of the judgment of the civil court and a copy thereof must be furnished along with the copy of the trial court's judgment. 2. It is not necessary for the appellant to file a copy of the finding of the civil court or of the revenue court on an issue referred to it for decision under any enactment other than the U. P. Zamindari Abolition and Land Reforms Act with the memorandum of appeal. 3. If the copy of the judgment of the trial court containing the finding of the revenue court under Section 332-B of the U. P. Zamindari Abolition and Land Reforms Act, or copies of the judgment of the trial court and the finding of the revenue court under the aforementioned section, if not contained in the judgment of the trial court or not appended thereto, are not filed within the period of limitation, an application under Section 5 of the Limitation Act would be necessary, unless the filing of the copy or the copies, as the case may be, has been dispensed with. 4. The Registrar can grant time under Ch. IX Rule 21 of the Rules of Court on an oral request.
Issues: 1. Whether the finding of the civil or revenue court should form part of the judgment of the trial court and a copy thereof furnished along with the trial court's judgment? 2. Whether the memorandum of Second Appeal should be accompanied by a copy of the finding of the civil or revenue court? 3. Whether it is necessary for the appellant to move an application under Section 5 of the Limitation Act, accompanied by an affidavit, if copies of the trial court's judgment and revenue or civil court's finding were not filed within the prescribed period of limitation? 4. Whether the Registrar could grant time for filing copies of the trial court's judgment and of the finding of the civil or revenue court on oral request, without an application accompanied by an affidavit?
Ratio Decidendi: 1. The finding of the revenue court under Section 332-B of the U. P. Zamindari Abolition and Land Reforms Act is a part of the judgment of the civil court because Sub-section (5) of Section 332-B is capable of two interpretations, one which is more favourable to the litigants and the other which would put them to additional expenses. It is, therefore, but necessary that the law be construed in the same manner as fiscal laws, i.e. the law should be construed strictly and where two interpretations are possible, one favourable to the subject be adopted. 2. It is not necessary for the appellant to file a copy of the finding of the civil court or of the revenue court on an issue referred to it for decision under any enactment other than the U. P. Zamindari Abolition and Land Reforms Act with the memorandum of appeal because the Rules of Court, 1952, Chapter IX, Rule 8, which were published long after the incorporation of Order XLII, C. P. C. , on the other hand, lays down that every memorandum of second Appeal shall be accompanied by a copy of the decree against which the appeal is directed, a copy of the judgment upon which such decree is founded and a copy of the judgment of the court of the first instance. 3. If the copy of the judgment of the trial court containing the finding of the revenue court under Section 332-B of the U. P. Zamindari Abolition and Land Reforms Act, or copies of the judgment of the trial court and the finding of the revenue court under the aforementioned section, if not contained in the judgment of the trial court or not appended thereto, are not filed within the period of limitation, an application under Section 5 of the Limitation Act would be necessary, unless the filing of the copy or the copies, as the case may be, has been dispensed with because the copy of the trial court's judgment must be complete, i.e. in other words, in cases where an issue has been remitted to the revenue court for decision under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, the copy of the trial court's judgment should contain the finding of the revenue court or the copy of such finding be filed separately, within the period of limitation. 4. The Registrar can grant time under Ch. IX Rule 21 of the Rules of Court on an oral request because under Ch. IX, Rule 21 (1) of the Rules of Court that the Registrar can receive a memorandum of appeal if it is not in the proper form and is not accompanied by the necessary documents, and for sufficient cause shown can grant such time is he may consider proper for supplying such documents or removing such defects. This rule does not lay down whether the cause should be shown by moving an application accompanied by an affidavit, if necessary, or an oral request can be made.
Final Decision: The court held that the finding of the revenue court under Section 332-B of the U. P. Zamindari Abolition and Land Reforms Act is a part of the judgment of the civil court and a copy thereof must be furnished along with the copy of the trial court's judgment. It is not necessary for the appellant to file a copy of the finding of the civil court or of the revenue court on an issue referred to it for decision under any enactment other than the U. P. Zamindari Abolition and Land Reforms Act with the memorandum of appeal. If the copy of the judgment of the trial court containing the finding of the revenue court under Section 332-B of the U. P. Zamindari Abolition and Land Reforms Act, or copies of the judgment of the trial court and the finding of the revenue court under the aforementioned section, if not contained in the judgment of the trial court or not appended thereto, are not filed within the period of limitation, an application under Section 5 of the Limitation Act would be necessary, unless the filing of the copy or the copies, as the case may be, has been dispensed with. The Registrar can grant time under Ch. IX Rule 21 of the Rules of Court on an oral request.
( 1 ) THE points for consideration are :
(1) Should the finding of the civil or revenue court form part of the judgment of the trial court and copy thereof furnished along with the trial courts judgment?
(2) Should the memorandum of Second Appeal be accompanied by a copy of the finding of the civil or revenue court, as the case may be?
(3) Is it necessary for the appellant to move an application under Section 5 of the Limitation Act, accompanied by an affidavit, if copies of the trial courts judgment and revenue or civil courts finding are not filed within the prescribed period of limitation? and
(4) Can the Registrar grant time for filing copies of the trial courts judgment and of the finding of the civil or revenue court On oral request, without an application accompanied by an affidavit?
( 2 ) THERE may be two kinds of references to the revenue court for recording a finding on issues remitted to it for decision) one under the provisions of the U. P. Zamindari Abolition and Land reforms Act and the other under any other enactment. The finding of the revenue court on a reference made under any enactment other than the above act, and of the civil court under any enactment stand in the same category; but in view of the phraseology of Section 332-B of the U. P. Zamindari Abolition and Land Reforms Act, reference made thereunder must be classed in a different group.
( 3 ) SECTION 332 of the U. P. Zamindari Abolition and Land Reforms Act governs the reference of an issue made to the civil court for decision in cases where question of title is involved; while section 332-B applies to a similar reference made to the revenue court by a civil court. The two sections have been similarly worded, but in Section 332-B one more sub-section has been added which provides that the finding of the Collector or subordinate revenue court on the issues referred to it shall for the purposes of appeal, be deemed to be part of the finding of the civil court. It will be found that the word finding has been used in the sub-section at two places, in the beginning with special reference to the finding of the revenue court and at the other with reference to the finding of the civil court. The term finding has not been defined in the U. P. Zamindari Abolition and Land Reforms Act and consequently it must be given the meaning which was, or shall be deemed to have been, in the mind of the legislature. But in view of the fact that the word has not been similarly used at the two places, it may become necessary to give a restricted meaning at one place and a broader one at the other. Had the legislature merely laid down that the finding of the Collector or subordinate revenue court on the issues referred to it shall be deemed to be a finding of the civil court, there would have been no controversy as, in the eye of law, the finding recorded by a revenue officer would be a finding recorded by the civil court, at par with findings recorded by the civil court on preliminary issues or issues decided before the final hearing. e. , pronouncement of judgment. But the legislature has laid down in Sub-section 5 of Section 332-B that the finding of the revenue court shall be deemed to be a part of the finding of the civil court. The finding of the revenue court, being a part of the finding of the civil court, the latter must have reference, not to a decision on one or few issues prior to the pronouncement of judgment, but to the judgment itself. In other words, the finding of the revenue court under Section 332-B is, in the eye of law, a part of the judgment of the civil court.
( 4 ) IN any case, Sub-section (5) of Section 332-B is capable of two interpretations one which is more favourable, to the litigants and the other which would put them to additional expenses. It is, therefore, but necessary that the law be construed in the same manner as fiscal laws. e. the law should be construed strictly and where two interpretations are possible, one favourable to t
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