Lakhpat Singh v. Dal Singh — 1964 DIGILAW 304 (ALL)

JUDGMENT Jagdish Sahai, J. - This special appeal is directed against the judgment of A.P. Srivastava, J., dated 16.7.1959 allowing First Appeal No. 273 of 1947. For the decision of the question raised in this appeal, it is not necessary to mention the facts of the case. The learned counsel for the appellant has submitted before us that on the date when the appeal was heard by Srivastava, J., a notification under Section 4 of the U.P. Consolidation of Holding Act (hereinafter called the Act) had been published in the U.P. Gazette, dated 14.2.1959 regarding the village in which the property in dispute is situate, that the property in dispute is subject to orders passed by the consolidation authorities and that under the provisions of the Act the only order that could be passed in First Appeal No. 273 of 1947 was to stay the hearing until the proceedings before the consolidation authorities were concluded and thereafter decide the appeal in terms of the decision of the final authority in consolidation matters. Section 5 of the Act, so far as relevant for our purposes, reads: "5. Effect of declaration: Upon the publication of the notification under Section 4 in the official Gazette, the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified thereunder till the publication of notification under Section 52 or sub-Section (1) of Section 6, as the case may be ensue in the area to which the declaration relates, namely :- (a) ....... (b) (i) all proceedings for correction of the records and all suit for declaration of rights and interests over land, or for possession of land, or for partition, pending before any authority or court, whether of first instance, appeal, or reference of revision, shall stand stayed, but without prejudice to the right of the persons effected to agitate the right or interests in dispute in the said proceedings or suits before the Consolidation authorities under and in accordance with the provisions of this Act and the Rules made thereunder; (ii) the findings of consolidation authorities in proceedings under this Act in respect of such right or interest in the land, shall be acceptable to the authority or court before whom the proceedings or suit was pending which may, on communication thereof by the parties concerned, proceed with the proceeding or suit, as the case may be; ........." 2. The effect of sub-clauses (i) and (ii) of clause (b) of Section 5 of the Act is that even a first appeal in this court stands stayed and is to be decided in accordance with the findings of the consolidation authorities. It is admitted that on the date the first appeal was decided by Srivastava, J. the notification under Section 4 of the Act had already been published. That being the position, Srivastava, J. could not have disposed of the appeal on merits but could have only ordered it to be stayed until the consolidation authorities had decided the matter and then to decide the appeal in terms of the orders passed by the consolidation authorities. 3. In support of his contention Mr. Ambika Pd. placed reliance upon Bahadur v. Bachai 1962 A.L.J. 817. That was a case where the Division Bench deciding a second appeal was not apprised of the fact that a notification under Section 4 of the Act had already been issued. A review application was, therefore, made before the learned Judges who allowed the same, recalled their earlier order and declared the second appeal as stayed. This decision was followed by another Division Bench in Jalal Uddin v. Ishaque Review Application No. 50 of 1962 in S.A. No. 1686 of 1955. That was also a case of review of a judgment delivered by a learned Single Judge in ignorance of a notification under Section 4 of the Act. This decision was followed by another Division Bench in Jalal Uddin v. Ishaque Review Application No. 50 of 1962 in S.A. No. 1686 of 1955. That was also a case of review of a judgment delivered by a learned Single Judge in ignorance of a notification under Section 4 of the Act. The Judge having retired, the matter was disposed of by a Division Bench on 2.9.1961. We agree with the view taken by the learned Judges in the two cases mentioned above though we would not like to rest our decision on the ground that if an appeal is decided on merits, in ignorance of the fact that a notification under Section 4 of the Act had been issued, the judgment would be a nullity. We are of the opinion that it would be a case of the Court acting with material irregularity in the exercise of its jurisdiction. It cannot be denied that the appeals giving rise to the two decisions mentioned above were competent and had been rightly entertained by this Court. It cannot also be disputed that the two Benches which heard the two cases mentioned above had jurisdiction to hear them. The effect of Section 5 of the Act was not to divest this Court of the jurisdiction of entertaining or deciding the appeals but only to require the decisions to be in conformity with the provisions of Section 5(b)(i) and (ii) of the Act. It is for this reason that, with respect, we are unable to agree with Mukerji and Manchanda, JJ., in the first case and with Oak and Seth, JJ. in the second case when they held that the judgments were nullity, being without jurisdiction. The effect of the notification under Section 4 of the Act was that even though Srivastava, J. had the jurisdiction to entertain and hear the appeal, he could not pass any order in derogation of the provisions of sub-Cls. (i)and (ii) of Clause (b) of Section 5 of the Act. He had, therefore, to stay the hearing of the appeal until the consolidation authorities had decided the matter and thereafter to pass and order in accordance with the decision of the consolidation authorities. That being the position, we are satisfied that there is merit in the submission of the learned counsel for the appellant. The question,however, is as to what order we should pass in this appeal. That being the position, we are satisfied that there is merit in the submission of the learned counsel for the appellant. The question,however, is as to what order we should pass in this appeal. We would like to mention that the consolidation authorities having decided the dispute, the matter is now pending in this court in the form of a writ petition challenging the orders passed by them. 4. Mr. Seth has made the following two submissions before us: 1. That the bar created by Section 5(b)(i) and (ii) of the Act still continues and we should stay the hearing of the special appeal for the present and after the matter has been decided by this Court in exercise of its writ jurisdiction to pass an order in accordance with the same. It is also contended that if the learned Single Judge hearing the petition sends the case back to the consolidation authorities, then the order in this special appeal has to be in accordance with what the consolidation authorities decide. 2. Inasmuch as the power of remand can be conferred only be express provisions and there being no such provisions with regard to a special appeal this Bench has no jurisdiction to remand the case to the learned Single Judge. We will deal with the submissions in the same order. 1. Mr. Seth had to concede that in view of the notification under Section 4 of the Act, the learned Single Judge was legally required to stay the hearing of the appeal and all that he could ultimately do was to pass an order in terms of the decision of the consolidation authorities after the matter had been finally decided by them. In our opinion, we would be complying with the terms of Section 5(b) rather than infringing its provisions if we set aside the judgment of the learned Single Judge and remand the case to him in order to keep it stayed until the orders of the consolidation authorities are either confirmed by this Court in exercise of its writ jurisdiction or finally decided by the consolidation authorities as a consequence of the orders of this Court in exercise of its writ jurisdiction, and then ultimately to pass an order in terms of the decision of the consolidation authorities. We are unable to agree with Mr. We are unable to agree with Mr. Seth that in adopting this course, we would be departing from the provisions of Section 5(b) of the Act. In fact, as pointed out above, we would be giving effect to those provisions. 2. The special appeal to a Division Bench lay formerly under the provisions of Clause 10 of the Letters Patent of this Court. The Letters Patent have ceased to exist and rule 5, Chapter VIII, Rules of Court Vol. I, now provides for a special appeal. It reads:- "5. An appeal shall lie to the Court from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the Court, and not being an order made in the exercise of revisional jurisdiction and not being an order passed or made in the exercise of its power of superintendence, or in the exercise of criminal jurisdiction) of one Judge, and an appeal shall lie to the Court from a judgment of one Judge made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the Court, where the Judge who passed the judgment declared that the case is a fit one for appeal." 5. As a consequence of the U.P. High Court (Abolition of Letters Patent Appeals) Act, 1962, a part of this rule stands abrogated inasmuch as no special appeal shall lie to a Bench of this Court from the decision of a learned Single Judge recorded in exercise of the Court's appellate jurisdiction but the present case being earlier than the enforcement of the above Act is not hit by this Act. It would be noticed that the powers of the appellate Bench are not hedged in by any conditions and there are no limitations imposed on them. That being the position, in our judgment, the powers of the appellate Bench would be the same as those of the learned Single Judge who heard the appeal. It would be noticed that the powers of the appellate Bench are not hedged in by any conditions and there are no limitations imposed on them. That being the position, in our judgment, the powers of the appellate Bench would be the same as those of the learned Single Judge who heard the appeal. There is no direct authority on the point but in Nagendra Nath Bohra v. Commissioner of Hills Division and Appeals A.I.R. 1958 S.C. 398, it was held that if there are no conditions hedging in the powers of the appellate court or the revisional court, the same would be co-extensive with that of the original court. We see no reason to distinguish between the powers of the appellate court, vis-a-vis the trial court and that of the second appellate court, vis-a-vis, the first appellate court when no limitation. We find support from Lachmeshwar Prasad v. Keshwar Lal Chaudhari 1940 F.C.R. 84 and Ebrahim Aboobakar v. Custodian General of Evacuee Property A.I.R. 1952 S.C. 319. In fact in Nagendra nath Bohra's case A.I.R. 1958 S.C. 398, their Lordships made the following extract from their judgment in Ebrahim Aboobakar's case A.I.R. 1952 S.C. 319: "Like all courts of appeal exercising general jurisdiction in civil cases, the respondent has been constituted an appellate court in words of the widest amplitude and the legislature has not limited his jurisdiction by providing that such exercise will depend on the existence of any particular state of facts." 6. We are, therefore, of the opinion that in a special appeal, a Division Bench of this Court has the same power which the learned Single Judge had and inasmuch as the learned Single Judge had the jurisdiction to remand the case either under Or. 41, R. 23 or Or. 41, R. 25 or Section 151, C.P.C. the appellate Bench would also have the power. 7. There is another way of reaching the same conclusion. Section 117, C.P.C. reads: "117. Save as provided in this Part or in Part X or in rules, the provisions of this Code shall apply to such High Courts." 8. We are of opinion that by virtue of this section, the provisions of the Code of Civil Procedure will apply to proceedings before this Bench also. In Jwala Prasad v. The Jwala Bank Ltd. A.I.R. 1961 All. We are of opinion that by virtue of this section, the provisions of the Code of Civil Procedure will apply to proceedings before this Bench also. In Jwala Prasad v. The Jwala Bank Ltd. A.I.R. 1961 All. 381 (F.B.), Mootham, C.J., who delivered the majority judgment, while dealing with Section 117, C.P.C. observed as follows: "Sections 117 of the Code provides that save as provided in Part IX or Part X of the Code or in the rules made thereunder, the provisions of the Code shall apply to all High Courts. It is common ground that the only provision in Part IX or Part X or in the rules which restricts the application of the Code to appellate proceedings in a High Court is Or. 49, R.3 which provides that Or. 41, Rs. 35 (relating to the date and contents of a decree) shall not apply. Subject to this exception there is no doubt Section 117, which is quite general in terms, applied the provisions of the Code to all proceedings taken by the High Court in the exercise of its appellate jurisdiction." 9. Having observed as above, their Lordships held that even thought the High Court Rules did not provide for the review of a judgment recorded by a Bench in a special appeal, that could be done under Or. 47, R. 1, C.P.C. inasmuch as the provisions of Section 117 C.P.C. make the provisions of Or. 41 and Section 151, C.P.C. applicable to the proceedings before this Bench, we are of the opinion that we have the power to remand the case. We, therefore, overrule the submission of Mr. Seth that the Court has no power of remand in a special appeal. 10. No other submission has been made before us. 11. Having given the matter our anxious consideration, we allow this special appeal, set aside the judgment of the learned Single Judge dated 16.7.1959 and remand the case to him for disposal in accordance with law. In the circumstances of the case, we direct the parties to bear their own costs.