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1978 DIGILAW 323 (KER)

ACHUTHAN NAIR v. RAMAN

1978-12-01

P.JANAKI AMMA

body1978
Judgment :- 1. The revision petitioner is the plaintiff in O. S. No. 859 of 1967 on the file of the Munsiff, Irinjalakuda, a suit for injunction restraining the defendants from interfering with the plaintiff's possession in respect of a paddy field. Defendants 5, 6 and 10 claimed that they were cultivating the property as varam tenants and were entitled to fixity of tenure. The suit was dismissed on 17th August, 1971 after the coming into force of the Land Reforms Amendment Act (35 of 1969) holding that the plaintiff failed to prove his possession on the date of the suit. The decision of the trial court was reversed in appeal by the Subordinate Judge, Irinjalakuda. Defendants 5, 6 and 10 filed S. A. No. 366 of 1974 of this Court. By the time the case came up for hearing, a Full Bench of this Court had held in Anantha Narayana Iyer v. Paran (1976 KLT. 403) that in view of S.125 (3) of the Land Reforms Act the civil court had no jurisdiction to decide the question whether a person is a tenant and that the question should be referred to the Land Tribunal. Following the decision in Anantha Narayana Iyer v. Paran (1976 KLT. 403) Namboodiripad J. set aside the judgment and decree of the courts below and remitted the case back to the trial court with a direction to proceed with the matter in accordance with that decision. The Munsiff made a reference of the dispute regarding tenancy to the Land Tribunal under S.125(3) of the Land Reforms Act (Act I of 1964 as amended by Act 35 of 1669). By the time the records reached the Land Tribunal, the Supreme Court decided Eapen Chacko v. Provident Investment Co. (1977 KLT. 1) overruling Anantha Narayana Iyer v. Paran (1976 KLT. 403) and holding that S.125(3) of Act 1 of 1964 as amended by Act 35 of 1969 was prospective in operation and that cases pending before the civil courts on 1-1-1970. the date of commencement of Act 35 of 1969, need not be referred to the Land Tribunal. Relying on that decision the Land Tribunal returned the records to the Munsiff for necessary action. the date of commencement of Act 35 of 1969, need not be referred to the Land Tribunal. Relying on that decision the Land Tribunal returned the records to the Munsiff for necessary action. The Munsiff considered the issue afresh and held that the Land Tribunal had no jurisdiction to decide whether a reference made to it was legal or proper and that under S.125(4) of the Land Reforms Act if a reference is made to the Land Tribunal under S.125(1), the Land Tribunal is bound to decide question of tenancy. The Court also held that the subsequent decision of the Supreme Court in Eapen Chacko v. Provident Investment Co. (1977 KLT. I) did not make the order of remand in S. A. 366 of 1974 inoperative or invalid and that it was binding on the parties unless and until vacated in appropriate proceedings. Holding the above view, the Court directed retransmission of the records to the concerned Land Tribunal. It is against this order that the revision petition is filed; 2. A good number of decisions were cited at the Bar challenging the correctness of the order passed by the Munsiff. The learned counsel for the petitioner would contend that the direction in the order of remand based as it was on Anantha Narayana Iyer v. Paran (1976 KLT. 403) is unsustainable in view of the subsequent decision of the Supreme Court, that if the Land Tribunal has no jurisdiction to decide a question of tenancy in cases pending on 1-1-1970, the order of remand by this Court would not confer jurisdiction and that in any case in view of Art.141 of Constitution the Munsiff was bound to follow the decision in Eapen Chacko v. Provident Investment Co. (1977 KLT. 1). It is further argued that in view of the later decision of the Supreme Court, there is no bar of res judicata and the trial court is competent to decide whether if should refer the question of tenancy to the Land Tribunal. 3. There is no doubt that if the decision of the Supreme Court in Eapan Chacko v. Provident Investment Co. (1977 KLT. I) is to be followed, the trial court is competent to decide the question of tenancy and a reference to the Land Tribunal is unnecessary. But so far as parties to the present proceedings are concerned, they are bound by the order of remand. (1977 KLT. I) is to be followed, the trial court is competent to decide the question of tenancy and a reference to the Land Tribunal is unnecessary. But so far as parties to the present proceedings are concerned, they are bound by the order of remand. It is now fairly settled that a wrong decision of a court having jurisdiction is as much binding between the parties as a right one and is superseded only by appeals to higher tribunals or other procedure like review which the law provides. (See State of West Bengal v. Hemant Kumar (1966 SC. 1061). An order of remand falls under two classes, those falling under 0.41 R.23, Code of Civil Procedure where an appeal is provided under 0.43 R.1 (u) and those which are not appealable. In the former case the order of remand would become final unless appealed against. Where no appeal is provided, the order will be treated as an interlocutory one and the concerned party can challenge the findings in the remand order in an appeal filed against the final decision in the case. But where the appellate court has acted within its jurisdiction in remanding a case, it is the duty of the subordinate court to carry out the terms of the order of remand because but for the order of remand it has no seisin of the case. The jurisdiction to retry the case is circumscribed by the terms of the order of remand. This is so even in cases where the order of remand is not otherwise sustainable in law. (See K. Mudaliar v. K. Pillai (AIR. 1970 Madras 328). It is not open to the Subordinate Court to criticise the order of remand passed by the High Court and refuse to act upon it. (See Sultan v. Ayyappan, AIR. 1952 TC. 538). The court to which a case is remanded has no jurisdiction to enter into questions which fall outside the terms of the remand order. 4. In Nainsingh v. Koonwarjee (AIR. 1970 SC. 997) the appellate court entered findings on certain issues and remanded the case to the trial court for decision on some other points. 1952 TC. 538). The court to which a case is remanded has no jurisdiction to enter into questions which fall outside the terms of the remand order. 4. In Nainsingh v. Koonwarjee (AIR. 1970 SC. 997) the appellate court entered findings on certain issues and remanded the case to the trial court for decision on some other points. When the case came up before the High Court in Second Appeal after it was disposed of afresh by the trial court, the High Court reversed some of the findings of the courts below entered before the remand of the case, presumably under its inherent powers. The Supreme Court observed: "The High Court, in our opinion, erred in holding that the correctness of the remand order was open to review by it. The order in question was made under Rifle 23, 0.41, Civil Procedure Code. That order was appealable under 0.43 of that Code. As the same was not appealed against, its correctness was no more open to examination in view of S.105 (2) of the Code which lays down that where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom he shall thereafter be precluded from disputing its correctness. The High Court has misconceived the scope of its inherent powers." 5. In cases where the High Court decides a question before the order of remand, it is not open to it to revise its decision on the ground that it has turned to be wrong on account of subsequent binding decision of the same court or the Supreme Court. But such findings can be reversed in appeal in cases where an appeal lies from its final decision. A subsequent decision of the High Court or Supreme Court in a different case is not a ground for deviating from the terms of the order of remand. 6. In M. L. Das & Sons v. Sampatmull (AIR 1954 Cal. 103) the High Court of Calcutta allowed a revision petition by a tenant on a proceeding for standardisation of rent under the West Bengal Premises Rent Control Act and remanded the case with specific directions regarding standardisation of rent. 6. In M. L. Das & Sons v. Sampatmull (AIR 1954 Cal. 103) the High Court of Calcutta allowed a revision petition by a tenant on a proceeding for standardisation of rent under the West Bengal Premises Rent Control Act and remanded the case with specific directions regarding standardisation of rent. The Rent Control Court passed an order that as the decision in the case was apparently overruled by a subsequent Bench decision given in another case the parties should take appropriate directions from the High Court once again before the Rent Controller could proceed with the matter. A Bench of the High Court set aside the order and held: "It is impossible to find any provision of law under which this order of the Rent Controller can be justified. The Court had given him a definite direction in this very case to proceed in a particular manner. The matter was not taken up to any higher tribunal and, therefore, the finality and effectiveness of this Court's decision, giving the said direction, remained wholly unaffected so far as the present case was concerned. Whether the said decision was right or wrong, it was, in the circumstances stated above, fully binding upon the Rent Controller and upon the parties to this case and must be taken to have finally settled the question as to which part of S.9 of the Rent Control Act would apply to this case. The Rent Controller had no jurisdiction and, indeed, he had no business, to go behind that direction." 7. In P. N. Jinabhai v. P.G. Venidas (AIR 1972 Gujarat 229) the trial court after hearing the parties held that it had pecuniary jurisdiction to entertain a suit. Subsequently the finding was reversed by that Court under S.151 C.P.C. on the ground that the decision was rendered doubtful in view of a subsequent decision of the High Court. The High Court in revision held that the trial court was not competent to do so. 8. An argument was advanced that in as much as an order of remand by the High Court is not appealable, it can be considered only to be an interlocutory order and, therefore, no bar of res judicata can arise in respect of an order of remand. 8. An argument was advanced that in as much as an order of remand by the High Court is not appealable, it can be considered only to be an interlocutory order and, therefore, no bar of res judicata can arise in respect of an order of remand. Even assuming that the order of remand is interlocutory in nature and it is open to the Supreme Court to consider the legality of the order of remand and the findings entered, in an appeal from the final decision, so far as the High Court and the subordinate Courts are concerned, it is a binding decision. This is the principle which has been recognised by the Supreme Court in Satyadhan v. Smt. Deorajin Debi (AIR. 1960 SC 941). The above case has been followed in Ganapathi Thevar v. S. N. Devasthanam (AIR 1969 SC 764) and Jesraj v. Hemrai (AIR 1977 SC. 1011). In Budhilal v. Jagannathdas (1963 Madhya Pradesh 344) it was held that an order of remand by a Single Judge of the High Court could not be questioned before the same appellate court in appeal against the decision after remand, but that the correctness of the said order could be challenged in a Letters Patent Appeal against the judgment of the single Judge. The above ruling is also an authority to the proposition that the powers and jurisdiction of a subordinate Court to deal with a suit after remand depend upon the specification of the remand order and when the order of remand lays down any limit for the enquiry to be made by the subordinate Court, that Court has no jurisdiction to enter into any question which falls outside those limits. In the instant case even if a second appeal is preferred against the ultimate decision in the case, it may not be open to this Court to reconsider the correctness of the order of remand based on the decision in Anantha Narayana Iyer v. Paran (1976 KLT 403). If this Court is not competent to review the decision, there can be no doubt that the subordinate Courts which are bound by the order of remand are also not expected to ignore the directions in the remand order. 9. If this Court is not competent to review the decision, there can be no doubt that the subordinate Courts which are bound by the order of remand are also not expected to ignore the directions in the remand order. 9. On behalf of the petitioner a contention was raised that under Art.141 of the Constitution the law declared by the Supreme Court is binding on all courts within the territory of India. Reference was made to the decision in S. F. P. Cement Co. v. Union of India (AIR. 1967 Patna 315). The case arose under the Payment of Bonus Act, 1965. There was an order for payment of interim bonus under S.10 and 33 of the Payment of Bonus Ordinance. S.33 of the Payment of Bonus Act which replaced S.33 of the Ordinance was held invalid by the Supreme Court. Though the decision was delivered after the order of interim bonus, it was held that the law as laid down by the Supreme Court should be followed. The principles have no application in a case where the invalidity of a statute is not involved, and where a civil court of competent jurisdiction enforces its decision in relation to rights of parties inter se. No doubt, if a statute is struck down as unconstitutional, no person is entitled to claim rights on the basis of the provisions which have been so struck down. But a wrong interpretation given to a statute is different from declaration that the statute itself is unconstitutional. In fact the underlying principle behind the theory of prospective overruling mentioned in Golaknath's case (AIR 1967 SC 1643) is that settled matters should not be raked up on the basis of a subsequent declaration of the law by the Supreme Court. It is this principle which has been recognised by the Supreme Court in State of West Bengal v. Hemant Kumar (AIR. 1966 SC 1061) already referred, when it held that a wrong decision by a court of a competent jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which law provides. The scope of a decision of the Supreme Court should be decided by applying the principles of interpretation laid down by that court. 10. The scope of a decision of the Supreme Court should be decided by applying the principles of interpretation laid down by that court. 10. There is, therefore, no doubt that the subordinate Courts and the Land Tribunal are bound by the order of remand in S. A. 366 of 1974. 11. In the light of the above conclusion I do not propose to consider the further question whether in view of S.123(4) it is open to the Land Tribunal to refuse to decide the question of tenancy on a reference being made to it under S.125(3). The revision is dismissed. Dismissed.