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1950 DIGILAW 8 (MP)

Jamila Begum v. Abdul Mughni Ansari

1950-02-10

MATHUR

body1950
ORDER : This is a revision application by Shrimati Jamila Begum plaintiff, against the order of the First Subordinate Judge, Bhopal, deciding issue No. 6 against her. Issue No. 6 was as below :- "What is the effect of the judgment of the First Additional Munsiff, Bhopal, on the present suit" ? 2. The present application can be dismissed on the technical ground of being not maintainable and also on merits. The revision powers of the Court of the Judicial Commissioner are contained in S. 34, Bhopal and Vindhya Pradesh (Courts) Act, 1950 which is similar to S. 115, Civil P.C. This Court can, therefore, interfere with the order of the Subordinate Court in the exercise of its revision jurisdiction only if some case has been decided in which no appeal lies and the Subordinate Court appears to have exercised a Jurisdiction not vested in it by law or to have failed to exercise jurisdiction so vested or to have acted in the exercise of its jurisdiction with material Irregularity. A revision would also be maintainable if, in the opinion of the Judicial Commissioner an important question of law or custom, is involved and such question requires further consideration. 3. The most important ingredient, before a revision can be maintainable, is that a case should, have been decided by the Subordinate Court. When only one of the preliminary issues has been decided, it cannot be said that there has been a decision of the case. Similarly if the Subordinate Court has merely made a mistake in the interpretation of law or evidence, that would be no ground for interference by the revision court, specially when it appears that there was no error in the exercise of jurisdiction and the only error committed was in the interpretation of the law or the evidence. 4. On the merits, the learned counsel for the applicant invited my attention to two cases, one of which is the one reported in - 'Sm. Raj Lakshmi Dasi v. Banamali Sen', AIR 1953 SC 33 (A). The important observations of their Lordships of the Supreme Court are at page 40 and are as below : "The condition regarding the competency of the former court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by S. 11 of the Code and has application to suits alone. The important observations of their Lordships of the Supreme Court are at page 40 and are as below : "The condition regarding the competency of the former court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by S. 11 of the Code and has application to suits alone. When a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the court that heard and decided the former case was a court of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principles can be successfully taken in respect of judgment of courts of exclusive jurisdiction, like Revenue Courts, land acquisition Courts, administration. Courts, etc. It is obvious that these Courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the Statute". The first part of the observations makes it clear that the general rule of res judicata (limited ?) by S. 11 of the Code is applicable to suits only, while a plea of res judicata founded on general principles of law is applicable to and can be taken in respect of judgments of courts of exclusive jurisdiction. In the present case the first judgment, i.e. of the Court of Additional Munsiff was a judgment of an ordinary Civil Court and not of a court of exclusive Jurisdiction. Both the first and the present are civil suits to be governed by the Code of Civil Procedure. In these circumstances the principle of res judicata as contained in S. 11 would be applicable to the present suit and judgment in the earlier suit decided by the Additional Munsiff who was not competent to try the present suit, would not estop the defendant from reagitating the point already decided in the first suit. But the learned Subordinate Judge would be well justified if he regards the judgment in the first suit a strong piece of evidence in favour of the plaintiff. 5. But the learned Subordinate Judge would be well justified if he regards the judgment in the first suit a strong piece of evidence in favour of the plaintiff. 5. In this connection it may also be observed that if the plea of res judicata is allowed to be raised on general principles of law in each and every case, the provisions of S. 11 would virtually be redundant, as thereby the parties to the litigation would be able to secure a judgment on the plea of res judicata in their favour even though the court deciding the earlier suit was not competent to try the latter suit and under S. 11 the finding given in the first suit could not act as res judicata. 6. The other case is of - Ishwar Datt Churamani v. General Assurance Society, Ltd'. AIR 1937 Lah 346 (B) which can be easily distinguished. In this Lahore case the earlier case was one which had been decided by a Court of Small Causes which may be said to have had exclusive jurisdiction to try that suit, while in the instant case the Additional Munsiff had no such exclusive jurisdiction. He was trying that suit as at regular civil Court and not as a court of exclusive jurisdiction. I may, however, add with due respect to the learned Judge that on certain ground it may not be proper to accept the view taken in this Lahore case. The judgment of a Court of Small Causes is not appealable and only a revision lies against it if the decision is against the law in cases of summary decision an aggrieved party has virtually no remedy left to have a wrong order set aside. It is also not possible for an aggrieved party to obtain decisions in his favour on questions of law which had been wrongly decided when the final order passed in the case does not cause any substantial injustice to him. In these circumstances the judgment of the Court of Small Caused would become final, without the defects, legal or factual, being removed by any higher court. The correctness of the decision in AIR 1937 Lah 346 (B) can better be considered later in some other case. 7. In these circumstances the judgment of the Court of Small Caused would become final, without the defects, legal or factual, being removed by any higher court. The correctness of the decision in AIR 1937 Lah 346 (B) can better be considered later in some other case. 7. At the close of the argument the learned counsel for the applicant also invited my attention to a case of the Privy Council reported in - 'Kedar Nath v. Ram Narain Lal', AIR 1935 PC 139 (C) where the earlier suit was instituted in the Court of the Subordinate Judge. Thus, the first suit was decided by a Court which was competent to decide the other one and this Privy Council case can be of no help to the applicant. 8. The revision application has thus no force and it is hereby dismissed summarily. Revision dismissed.