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High Court Of Madhya Pradesh
K. K. Verma J.
JAWALA SUNDER AHIR
Versus
PUTTANLAL PHOOLCHAND PODDAR
Decided On : Feb 13,1985
The words 'illegally' and 'with material irregularity' as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, relate either to breach of some provision of law or to material defects of procedure affecting the decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. AIR 1971 SC 2324 relied on. [ Para 10
The error or defect in the procedure to which the clause refers is, as the clause clearly and unambiguously indicates, an error or defect connected with, or relating to, the procedure, it is not an error or defect in the appreciation of evidence adduced by the parties on the merits. That is why even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. On the other hand, if in dealing with a question of fact, the lower appellate Court has placed the onus on a wrong party and its finding of fact is the result, substantially of this wrong approach, that may be regarded as a defect in procedure, if in dealing with questions of fact, the lower appellate Court discards evidence on the ground that it is inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure. If the lower appellate Court fails to consider an Issue which had been tried and found upon by the trial Court and proceeds to reverse the trial Court's decision without the consideration of such an issue. that may be regarded as an error or defect in procedure; if the lower appellate Court allows a new point of fact to be raised for (he first time before it, or permits a party to adopt a new plea of fact, or makes out a new case for a party, that may, in some case be said to amount to a defect or error in procedure. AIR 1963 SC 302 relied on. [Para 12
(2) Civil P. C., 1908-O. 19, R. 3- affidavits verified in contravention of rule 3 -cannot be used in evidence.
Where affidavits were verified in contravention of rule 3 of order 19 to be true from knowledge and belief, cannot be used in evidence. AIR 1944 Nag. 161 relied on. [Para 17
(3) Civil P. C, 1908-S. 115-jurisdiction of High Court-delineation and delimitation.
The High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appellate Court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong, may be in accordance with law or may not be in accordance with Jaw, but one thing is clear that it had jurisdiction to make that order. AIR 1973 SC 76 relied on. [Para 19
( 1. ) THIS is plaintiffs revision under Section 115 of the Civil procedure Code from the order dated 10-8-1983 of the Second Additional Judge to the court of the District Judge, Gwalior in Civil Miscellaneous Appeal No. 21/82, reversing the temporary injunction order dated 18-7-1982 of the Civil Judge (Class. II), Bhander restraining the defendants in C. S. No. 31-A/82 (filed on 13-5-1982) from interfering with the plaintiffs possession over certain agricultural holdings (area 3. 546 hectares) situate at village Berachh, tehsil Bhander, district Gwalior.
( 2. ) THE plaintiffs case is that on 12-8-1971 he mortgaged the suit lands (owned by him) with defendant No. 1 Puttan Lal and his brother Haridas (defendant No. 2) for Rs. 3,000/- and executed a registered deed in token of the mortgage. He however, continued to be in possession of the lands. In February 1982 the plaintiff came to know that the defendants 1 and 2 had in fact got a sale-deed executed for a stated consideration of Rs. 5,000/- and some-how manipulated mutation of the suit lands in their names on the basis of this registered instrument dated 12-8-1971 and then on 19-1-1982 they executed one registered sale-deed in favour of defendants No. 4 and 5 for Rs. 16,000/- in respect of 2. 733 hectares of the suit lands and another registered sale-deed in favour of defendant No. 3 for Rs. 6,000/- in respect of O. 733 hectare of the suit lands. Thus, the defendants now seek to dispossess the plaintiff of the suit lands. The plaintiff seeks a declaration of his title to the suit lands and for cancellation of the so called Sale deed dated 12-8-1971 after declaring it to be an instrument executed for securing a loan, and for a permanent injunction for restraining the defendants from interfering with the plaintiffs possession.
( 3. ) THE plaintiff filed an application for temporary injunction on the aforementioned averments along with the plaint. The trial Court passed a detailed order on 13-5-1982 and issued an ex-parte temporary injunction against the defendants. The defendants filed written statements and written replies to the application for a temporary injunction. The parties filed documents.
( 4. ) THE plaintiff filed his own affidavit dated 11-5-1982 and affidavits of Dunsai, infrani and Rajaram and of Narayan Das. On the other hand, defendant No. 4 Hukum Singh, Pnnna, Balbir Singh filed affidavits.
( 5. ) THE learned Civil Judge heard the counsel on the matter of temporary injunction on 7-7-1982 and passed an order on 14-7-1982 restraining the defendant from interfering with the plaintiffs possession of the suit lands.
( 6. ) THE learned Trial Judge gave the following reasons :
( 7. ) THE defendants took an appeal to the first appellate Court. The learned first appellate Judge heard the counsel and allowed the appeal. The learned Judge stated in his order as follows :
9. ". . . . It is manifest that the plaintiff/respondent executed a deed which on the lace of it, is a sale-deed executed in favour of appellants Nos. 1 and 2 for a consideration which was got registered by the Sub-Registrar, Bhander, in whose presence, the respondent confirmed having sold the land to appellants Nos. 1 and 2. Its perusal further exhumes the factum of the delivery of possession to the purchasers authorising them to get the land mutated in their name. The respondent of course made a sporadic attempt to exhibit that he continued to be in possession and title over the said land despite the execution of this deed which according to him, did not pass title of the land to the appellants Nos. 1 and 2 and which showed that he had actually not sold out the land. It is of course borne out from the copies of Khasra that the name of the respondent continued to exist till the year 1979-80 (Samvat 2036) but in the year 1980-81 the name of the appellants was mutated not only in Khasra but also in KHATONI being the record of rights by an order of competent authority and they appeared as BHUMISWAMI of t
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