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1987 DIGILAW 511 (ALL)

Akhtar Hussain v. Board Of Revenue, U. P.

1987-04-27

K.P.SINGH

body1987
JUDGMENT K.P. Singh, J. 1. This is a defendants' writ petition against the order of Sri D. P. Varun, I. A. S., Member Board of Revenue (Camp Bareilly) dt. 29-12-1978 whereby the revision petitions preferred by the defendant-petitioners have been dismissed. 2. The defendant-petitioners had taken a plea in the suit filed by the plaintiff-opposite parties to the effect that the suits were barred by the provisions of section 49 of the U. P. Consolidation of Holdings Act. The defendants' plea was rejected by the trial court through its order dated 14-7-1974 contained in Annexure ' 1 attached with the writ petition. The revision petitions preferred by the defendants were recommended to be allowed by the Additional Commissioner through his judgment dated 6-1-1977 (see Annexure ' 2 ) attached with the writ petition The learned Board of Revenue has disagreed with the recommendation and has dismissed the references through his order dated 29-12-1978. Against the order of the learned Member dated 29-12-1978 the petitioners have approached this Court under Article 226 of the Constitution. The learned counsel for the petitioners has contended before me that the learned Member has patently erred in holding that the revision petitions preferred by the petitioners were not maintainable. It has been emphasised before me that the learned Member has misunderstood and misconstrued the terms 'case decided' in the facts and circumstances of the present case ' ; therefore the impugned judgment should be quashed. 3. I have heard the learned counsel for the petitioners and I have gone through the imgugned judgment of the learned Member. In my opinion the learned Member has patently erred in holding that the revision petitions preferred by the petitioners were not maintainable in the facts and circumstances of the present case. The learned Member has relied upon the ruling Raja Deo Singh v. Kr. Shambhoo Krishna Narain, 1960 RD 139 and Chandi Prasad v. Narain, 1969 RD 300. In my opinion the decision of the learned Member is patently erroneous in view of the decision of the highest court of the country. 4. In Major S. S. Khanna v. Brig. F. J. Dillon, AIR 1964 SC 497 their Lordships of the Supreme Court have made the following observations :- "The expression 'case' is a word of comprehensive import. In my opinion the decision of the learned Member is patently erroneous in view of the decision of the highest court of the country. 4. In Major S. S. Khanna v. Brig. F. J. Dillon, AIR 1964 SC 497 their Lordships of the Supreme Court have made the following observations :- "The expression 'case' is a word of comprehensive import. It includes civil proceedings other than suits and is not restricted by anything contained in the section to the entirety of the proceedings in a civil court. To interpret the expression ‘case’ as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of the powers of superintendence to which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. The expression 'case' includes a suit, but in asserting the limits of the jurisdiction of the High Court, there would be no warrant for equating it with a suit alone AIR 1921 All. (FB) over-ruled." The High Court ruling relied upon by the learned member is mainly based upon the ruling reported in Budhoo Lal v. Mewa, AIR 1921 All. I which has not been approved by their Lordship of the supreme Court in the ruling mentioned above. 5. In Baldeodas Shivlal v. Filmistan Distributors (India) Pvt. Ltd., AIR 1970 SC 406 their Lordships of the Supreme Court have construed the term 'case' decided as below :- "The expression ' case' is not limited in its import to the entirety of the matter in dispute in an action. The expression ‘case’ is a word of comprehensive import ; it includes a civil proceeding and is not restricted by anything contained in section 115 of the Code to the entirety of the proceedings in a civil court. To Interpret the expression ‘case’ as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the interpretation of gross injustice. But every order of the court in the course of a suit does not amount to a case decided. But every order of the court in the course of a suit does not amount to a case decided. A case may be said to be decided, if the court adjudicates for the purposes of the suit some right or obligation of the parties in controversy ; every order in the suit cannot be regarded as a ' case decided ' within the meaning of section 115. By overruling an objection to a question put to a witness and allowing the question to be put, no case is decided." 6. In Madhu Limaye v. State of Maharastra, 1978 AWC 96 their Lordships of the Supreme Court in para 14 of the ruling have indicated as below :- ".........Many a time a question arose in India as to what is the exact meaning of the phrase "case decided" occurring in section 115 of the Code of Civil Procedure. Some High Courts had taken the view that it meant the final order passed on final determination of the action. Many others had, however, opined that even interlocutory orders were covered by the said term. This Court struck a mean and it did not approve of either of the two extreme lines. In Baldeodas v. Filmistan Distributors (India) Pvt. Ltd., AIR 1970 SC 406 it has been pointed out (at page 410) : "A case may be said to be decided, if the court adjudicates for the purposes of the suit some right or obligation of the parties in controversy. " We may give a clear example of an order......... On course, in a given case the point raised may be such that it is interwoven and inter-connected with other issues in the case and that it may not be possible to decide it under Order 14 Rule 2 of the Civil Procedure Code as a preliminary point of law. But, if it is a pure point of law and is decided one way or the other, then the order deciding such a point may not be interlocutory albeit may not be final either. Surely, it will be a case decided, as pointed out by this Court, in some decisions, within the meaning of section 115 of the Code of Civil Procedure. Surely, it will be a case decided, as pointed out by this Court, in some decisions, within the meaning of section 115 of the Code of Civil Procedure. We think it would be just and proper to apply the same kind of test for finding out the real meaning of the expression ' interlocutory order ' occurring in section 397 (2)." In the present case the decision whether the suit is barred by the provisions of section 49 of the U. P. Consolidation of Holdings Act or not will be a question which, if decided either way, would adjudicate upon the right or obligation of the parties in controversy. Viewed from this angle I think that the learned Member is not right in observing that the revisions preferred by the defendant petitioners were not maintainable. 10 During the course of arguments the learned counsel for the petitioners has referred the ruling reported in Food Corporation of India v. Birendra Nath Dhar, AIR 1978 Cal. 264 aswell as the ruling reported in M/s. Tate Iron and Steel Co. Ltd. v. M/s. Rajarishi Exports (P) Ltd., AIR 1978 Orissa 179. In view of my above conclusions it is not necessary to deal with these cases. 11. Since the learned Member has not decided the revision petitions on merits and has dismissed the references on the ground that the revision petitions were not maintainable I think that the impugned judgment should be quashed and a direction be issued to the learned Member to restore the revision petitions to their original numbers and decide them on merits. 12. In the result the writ petition succeeds and the impugned judgment of the learned Member, Board of Revenue, contained in Annexure ' 3 attached with the writ petition is hereby quashed and a direction is issued that the references dismissed through the impugned judgment be restored to their original numbers and they be decided on merits strictly in accordance with law. Parties are directed to bear their own costs.