Lakshmi Chand v. Nand Kishore — 1965 DIGILAW 137 (ALL)

JUDGMENT D.S. Mathur, J. - This order shall govern Civil Revisions Nos. 1078 and 1397 of 1963, wherein a common question of law is involved. Civil Revision No. 1078 of 1963 is by Lakshmi Chand, plaintiff, against the judgment of the Additional Civil Judge of Aligarh, allowing the appeal of Nand Kishore, defendant, and thereby dismissing the plaintiff's suit for the recovery of Rs. 500/-; while Civil Revision No. 1397 of 1963 is by Smt. Jasoda, defendant, against the judgment of Additional Civil Judge of Jaunpur allowing the appeal of Ramdhan, plaintiff, and thereby decreeing his suit for the recovery of Rs. 413/-. Both the suits were instituted before the Nyaya Panchayat concerned but were withdrawn by the Munsif for trial by himself. This was done either during the pendency of the proceeding before the Nyaya Panchayat or after its judgment was quashed in revision. 2. The common question of law raised in both the revisions is whether a decree or order passed by the Munsif in a suit instituted before the Nyaya Panchayat, though later withdrawn by him for trial, is appealable and if so, can the District Judge entertain the appeal and transfer it to a Civil Judge or Additional Civil Judge for hearing? 3. Before commenting upon the provisions of the U. P. Panchayat Raj Act (to be referred hereinafter as the Act) and other enactments it shall be proper to make a reference to the earlier decisions of this Court, to lay down whether there exists any conflict in such decisions and also whether for purposes of the present revisions, it is necessary to refer the question to a larger Bench for resolving such conflict. 4. Banshi v. State, A.I.R. 1952 Alld. 38 : 1951 A.L.J. 654 is a case where the order of the Sub-Divisional Magistrate passed under the Act was challenged before the Sessions Judge in a revision under Section 435, Civil Procedure Code In view of Section 83(l) of the Act it was held that the provisions of the Code of Criminal Procedure and also other Acts specified therein did not apply to a criminal case instituted in a Nyaya Panchayat at whatever stage it may be, whether it may be in revision before the Sub-Divisional Magistrate or in the stage of trial before the Nyaya Panchayat. Relying upon the observation that the expression "in a Panchayati Adalat (now Nyaya Panchayat)" means "instituted in a Panchayati Adalat," it is urged on behalf of the applicants that the Code of Civil Procedure shall not apply to a civil case instituted in a Nyaya Panchayat, even after it is withdrawn for trial by the Munsif, and hence no appeal shall lie under Part VII of the Code of Civil Procedure. Agarwala, J., was considering a case instituted in the Nyaya Panchayat and also decided by it, and not a case though instituted in the Nyaya Panchayat, decided by the Munsif after withdrawal under Section 85 (1) (i) or 89 (2) (d) of the At. The present cases fall in this category. There is still another category of cases, namely, cases decided by the Nyaya Panchayat though not instituted before it. They are cases transferred to the Nyaya Panchayat under Section 56 of the Act and tried denovo by such Panchayat. This may be the reason why only two meanings of the phrase "in a Panchayati Adalat" were commented upon in the above case. The question formulated was, does the above phrase used in the last sentence of Section 83(l) of the Act mean "instituted in the Panchayati Adalat" or "while it is pending in the "Panchayati Adalat?" Another meaning of the phrase could be "tried or being tried in the Panchayati Adalat" (now Nyaya Panchayat). 5. In the above circumstances, the observation of Agarwala, J., that the phrase "in the Nyaya Panchayat" means "instituted in the Nyaya Panchayat" cannot be made applicable to each and every case; and Banshi v. State' can, in an appropriate case, be distinguished as was done in Janardan Prasad v. Kalindri Prasad, 1963 ALJ 59. In this view of the matter there exists no conflict in these decisions. The point in issue in Janardan Prasad v. Kalindri Prasad, 1963 A. L. J. 59 was the same as in the instant revisions, whether an appeal lies to the District Judge in civil cases instituted in the Nyaya Panchayat but withdrawn by the Munsif for trial. In this view of the matter there exists no conflict in these decisions. The point in issue in Janardan Prasad v. Kalindri Prasad, 1963 A. L. J. 59 was the same as in the instant revisions, whether an appeal lies to the District Judge in civil cases instituted in the Nyaya Panchayat but withdrawn by the Munsif for trial. It was held that the Munsif exercising the power of withdrawal and then trying the suit himself acts as a Munsif pure and simple and exercises the jurisdiction conferred upon him by the Bengal, Agra and Assam Civil Courts Act, and so any decree passed in such a suit after withdrawal would be a decree passed by the Munsif in his local jurisdiction and would be appealable under Part VII of the Code of Civil Procedure. This, in my opinion, lays down the correct law, and can be applied to the instant revisions. 6. If it be assumed that Banshi v. State' lays down an inflexible rule that except as provided in the Act or as may be prescribed, the Code of Civil Procedure, the Indian Evidence Act and the Indian Limitation Act do not apply to a civil case instituted in a Nyaya Panchayat, even when withdrawn by the Munsif and tried by him, it can rightly be said that there exists a conflict in these decisions Banshi and others' laying down that these Acts do not apply to such a case while Janardan Prasad, that they do. However, it shall not be necessary to refer the question to a larger Bench if it be found that even under the laws other than the enactments detailed in Section 83(l) of the Act, such a decree of the Munsif is appealable to the District Judge and the appeal can be transferred to the Civil Judge for hearing. 7. The Munsif who can withdraw a civil case from the Nyaya Panchayat and thereafter try it himself is not a court constituted under the U. P. Panchayat Raj Act but is a Munsif constituted under the Bengal, Agra and Assam Civil Courts Act, 1887, and, consequently, the provisions of this Act shall apply to his decisions. 7. The Munsif who can withdraw a civil case from the Nyaya Panchayat and thereafter try it himself is not a court constituted under the U. P. Panchayat Raj Act but is a Munsif constituted under the Bengal, Agra and Assam Civil Courts Act, 1887, and, consequently, the provisions of this Act shall apply to his decisions. The Bengal, Agra and Assam Civil Courts Act is not one of the enactments included in Section 83(l) of the Act, and this Act shall not be inapplicable even on the assumption that the enactments detailed in Sec 83(l) of the Act do not apply to cases instituted in the Nyaya Panchayat, irrespective of whether they arc decided by the Nyaya Panchayat or by the Munsif. 8. Section 21(2) of the Bengal, Agra and Assam Civil Court Act read with Section 20 thereof clearly provides that "save as otherwise provided by. any enactment for the time being in force, an appeal from a decree or order of a Munsif shall lie to the District Judge." By virtue of Section 22 (1) of the Bengal, Agra and Assam Civil Courts Act a District Judge can transfer appeals to any Civil Judge under his administrative control pending before him from the decrees or orders of Munsifs. Consequently, unless any enactment takes away the right of appeal an appeal shall lie and the decree or order of the Munsif can be challenged in appeal before the District Judge and such appeal can be transferred to any Civil Judge including the Additional Civil Judge for hearing. 9. We are proceeding with the assumption that the provisions of the Code of Civil Procedure do not apply to civil cases instituted in the Nyaya Panchayat. We shall therefore have to look into the provisions of the Act in determining whether an appeal or revision lies from the order of the 'Munsif in a civil case instituted in the Nyaya Panchayat but later withdrawn by him for trial. 10. It shall be found that the Act lays down the rules of procedure governing hearing of civil, criminal and revenue cases by the Nyaya Panchayat, and not by the Munsif, Sub Divisional Magistrate or Sub-Divisional Officer. 10. It shall be found that the Act lays down the rules of procedure governing hearing of civil, criminal and revenue cases by the Nyaya Panchayat, and not by the Munsif, Sub Divisional Magistrate or Sub-Divisional Officer. For example, Section 83 (1) of the Act provides that the Nyaya Panchayat shall receive such evidence as the parties may adduce and may call for such further evidence as, in their opinion, may be necessary for the determination of the point in issue; that it shall be the duty of the Nyaya Panchayat to ascertain the facts of every case before it by every lawful means with-in its power and thereafter make such decree or order, with or with-out costs, as to it may seem just and legal; and that it can make local investigation in the village to which the dispute relates. Thereafter it is provided that the Code of Civil Procedure, the Code of Criminal Procedure, the Indian Evidence Act an the Indian Limitation Act shall no apply to any civil case, criminal case, or revenue case in a Nyaya Panchayat except as provided in the Act or as may be prescribed. 11. The first part of Section 83(1) of the Act details the power and the procedure to be followed by the Nyaya Panchayat for ascertaining truth, and not how such cases shall, on withdrawal, be heard by the Munsif, Sub-Divisional Magistrate or a sub Divisional Officer. In this view of the matter not only this part but also the subsequent part of the sub-Section shall he applicable to case decided by the Nyaya Panchayat and not on withdrawal of the case by the Munsif, Sub-Divisional Magistrate or Sub-Divisional Officer. In any case, the sub-section leaves it open to the Munsif, Sub-Divisional Magistrate or the Sub-Divisional Officer to adopt such procedure as he may consider proper. This is on the assumption that the enactments detailed in the sub-section do not apply to a case tried by any of these officers after withdrawal from the Nyaya Panchayat. If I were free to express an opinion I would have recorded the finding that all these enactments do apply to a case decided by the Munsif after withdrawal from the Nyaya Panchayat. If I were free to express an opinion I would have recorded the finding that all these enactments do apply to a case decided by the Munsif after withdrawal from the Nyaya Panchayat. However, whatever view may be adopted no illegality shall be committed if the Munsif decides to follow these enactments in so far as they are not inconsistent with the provisions of the Act. Similarly, in Section 89(4) of the Act it is provided that: "Except as aforesaid, a decree or order passed by a Nyaya Panchayat in any civil case, criminal case or revenue case shall not be open to appeal or revision in any court." 12. When the Legislature made a provision regarding the decisions of the Nyaya Panchayat but not decrees or orders passed by the Munsif, it can be assumed that it was their intention that the decree or orders passed by the Munsif shall be appealable and can be challenged in a revision also. 13. When an appeal lies against the decree or order passed by the Munsif, the appeal shall, by virtue of Section 21 of the Bengal, Agra and Assam Civil Courts Act, lie to the District Judge and such appeal can be transferred to a Civil Judge or Additional Civil Judge for hearing. Comments may now be made on the other points raised by the learned advocates for the applicants against the view expressed above. It was first of all contended that if the decree or order of the Munsif was held to be appealable it would be possible for the parties to the proceeding to challenge the decree or order in appeal even though they could not do so had the suit been instituted, in the first instance, before the civil court. This contention is based upon the assumption that the suit would have been instituted in the court of Judge Small Causes whose decisions are not subject to an appeal and only a revision under Section 25 of the Provincial Small Cause Court Act lies against such decision if it is not according to law. 14. There is no regular court of Small Causes in every district. The pecuniary jurisdiction of Judges, Small Cause Court, constituted under the Provincial Small Cause Court Act, extends to suits of Small Cause Court nature of the valuation of Rs. 1,000/-. 14. There is no regular court of Small Causes in every district. The pecuniary jurisdiction of Judges, Small Cause Court, constituted under the Provincial Small Cause Court Act, extends to suits of Small Cause Court nature of the valuation of Rs. 1,000/-. In districts where there is no regular court of Small Causes, Civil Judges are invariably invested with Small Cause Court powers up to Rs. 500/- and Munsifs up to Rs. 250/-. The jurisdiction of the Nyaya Panchayat now extends to suits of a valuation of Rs. 500/- which would otherwise have been cognizable by the Judge, Small Cause Court, or by Civil Judge or Munsif invested with Small Cause Court powers. 15. In case the creation of regular courts of Small Causes in some of the districts only is invalid and discriminatory, it could be said that the provision for the trial of suits of Small Cause Court nature by the Munsif on the regular side was also invalid. The creation of regular courts of Small Causes in some of the districts and not all has never been regarded to be unconstitutional. In any case, the differentiation cannot be said to be unreasonable and hence unconstitutional. The legislature can rightly think that regular courts of Small Causes should be created in only those districts where the work is heavy and where senior and experienced officers can easily be posted. The same can be said with regard to suits instituted in the Nyaya Panchayat but later withdrawn by the Munsif for trial. The legislature may think that such cases be placed in a group of their own and be heard as regular suits. In this view of the matter the hearing of civil cases by the Munsif as regular suits after withdrawal from the Nyaya Panchayat cannot be said to be discriminatory and unreasonable. 16. At this place a reference may also be made to Sec, 24, Civil Procedure Code providing that suits instituted in the courts of Small Causes shall on transfer he heard as Small Cause Court suits. Suits instituted before the Nyaya Panchayat are not suits instituted before the Small Cause Court and hence Section 24 of the Code of Civil Procedure shall not be applicable and such cases can be heard as regular suits even though similar case, if originally instituted in the civil courts, would have been cognizable by the court of Small Causes. Suits instituted before the Nyaya Panchayat are not suits instituted before the Small Cause Court and hence Section 24 of the Code of Civil Procedure shall not be applicable and such cases can be heard as regular suits even though similar case, if originally instituted in the civil courts, would have been cognizable by the court of Small Causes. 17. The next point contended was that the plaint before the Nyaya Panchayat need not be in writing. The case could be started before the Nyaya Panchayat orally and not necessarily by filing plaint or an application in writing. Where the case is instituted orally, it is necessary for the Sarpanch, Sahayak Sarpanch or Panch to record the prescribed particulars and to obtain the signature or thumb mark of the applicant (vide Sec, 75(2) of the Act). The fee chargeable for seeking remedy before the Nyaya Panchayat is much less than the court fee payable on the plaint. The limitation provided for suits instituted before the Nyaya Panchayat is not necessarily the same as for suits instituted before the regular courts. It was consequently urged that if the suit instituted before the Nyaya Panchayat could be heard by the Munsif he should be placed in the sane category as the Nyaya Panchayat, with the result that his decision shall not be subject to appeal or revision.. All these provisions restate to procedure and cannot determine the nature of the decree or order passed by the Munsif. 18. At this place it may be observed that cases triable by the Nyaya Panchayat but instituted before the regular courts are transferred to the Nyaya Panchayat of competent jurisdiction who shall thereafter try the same de novo (Sec. 56); that the Nyaya Panchayat can transfer a case to a court of competent jurisdiction (Sec. 58) and the Munsif, Sub-Divisional Magistrate or the Sub-Divisional Officer can withdraw a case and try it himself or transfer it to another Bench of the Nyaya Panchayat or transfer the same for trial or disposal to any other Magistrate, Munsif or Assistant Collector competent to try or dispose of the same (Sec, 85). After quashing the decision of the Nyaya Panchayat the case can also be transferred to another court or officer competent to try the same [Sec. 89(2)]. After quashing the decision of the Nyaya Panchayat the case can also be transferred to another court or officer competent to try the same [Sec. 89(2)]. When the Act makes a provision for the transfer of case to or from the Nyaya Panchayat, the case as originally instituted can be tried by the transferee court without payment of extra fee or court fee and also without the institution of a regular plaint or con plaint. 19. None of these matters are of such a nature as to justify the inference that while trying the case the Munsif acts as a special court not to be governed by any enactment not applicable to the Nyaya Panchayat. The mode of presentation of the plaint, court fee payable and also the limitation for suits are procedural clauses and it is for the legislature to lay down a separate rule to be applicable to suits instituted before the Nyaya Panchayat, and none of these matters can affect the I decision in the case nor they can be t of any assistance in determining; whether the decision of the Munsif is or is not subject to appeal or re vision. 20. Further, the provision laying down a different mode of presentation of the plaint, the court fee payable and also the limitation for suits instituted before the Nyaya Panchayat cannot be regarded to be discriminatory. On consideration of the special conditions prevalent in the rural area the legislature could easily provide that the Nyaya Panchayat can be moved orally, and not necessarily in writing and similarly lesser fee shall be chargeable for seeking remedy before the Nyaya Panchayat. The legislature could also consider providing a different limitation for such cases. Even if it could be held that the provision prescribing different limitation for cases instituted before the Nyaya Panchayat is discriminatory, the Limitation Act shall apply to cases instituted before the Nyaya Panchayat. It shall be found that the limitation for the present case as prescribed in the Act is the same as prescribed in the Limitation Act and hence the present suits were not time-barred and could not affect 14 the jurisdiction of the Munsif; nor the decrees passed by him and also Additional Civil Judge in appeal. 21. It shall be found that the limitation for the present case as prescribed in the Act is the same as prescribed in the Limitation Act and hence the present suits were not time-barred and could not affect 14 the jurisdiction of the Munsif; nor the decrees passed by him and also Additional Civil Judge in appeal. 21. To sum up, the U. P. Panchayat Raj Act does not prescribe any procedure for the trial by the Munsif of cases instituted before the Nyaya Panchayat but withdrawn by him for trial by himself. There is also no provision in the Act with regard to appealable or non-appealable character of the decree or order passed by the Munsif. Such provisions exist with regard to trial of cases by the Nyaya Panchayat only. By implication it can, therefore, be held that the decrees or orders passed by the ''Munsif in such cases are subject to appeal or revision and by virtue of the provisions of the Bengal, Agra and Assam Civil Courts Act an appeal shall lie to the District Judge and such appeal can be transferred to any Civil Judge including the Additional Civil Judge for hearing. The two Additional Civil Judges thus had the jurisdiction to hear the present appeals. 22. None of the Civil Judges had committed a breach of the provisions of the law nor any procedural irregularity, hence no revision is maintainable. 23. I have also gone through the judgments of the lower appellate courts and find that they are not improper. Consequently. no case for the exercise of revisional jurisdiction is made out. 24. Both the revisions have thus no force, they are hereby dismissed. costs on parties.