Research › Search › Judgment

Uttarakhand High Court · body

2013 DIGILAW 539 (UTT)

SARLA DEVI v. DISTRICT JUDGE, RUDRAPRAYAG

2013-08-20

B.S.VERMA

body2013
JUDGMENT Hon’ble B.S. Verma, J. (Oral) By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the judgment and order dated 17.10.2005 and order dated 12.10.2001 passed by District Judge, Rudraprayag respondent no.l. 2. Brief facts of the case are that respondent no.3 filed misc. appeal under Order 43 Rule l(r) of C.P.C. being misc. appeal no.2 of 2001 before the District Judge challenging the order dated 3l.3.200 1 passed by the trial court by which the application for granting ad-interim injunction was allowed and parties were directed to maintain status quo. It is alleged that during the pendency of appeal, both the parties entered into compromise on 12.10.2001 and an affidavit to this effect was filed before the appellate court which was also verified by counsel for the parties. On the same day, on the basis of compromise, the appeal as well as the suit was decided. Aggrieved by the said order dated 12.10.2001, the petitioner moved an application u/s 151 of C.P.C. to recall the order on the grounds mentioned in the application. Before the District Judge, the petitioner alleged that he has not signed on the said compromise. Her husband has put his signature on the compromise under some pressure. Learned District did not find favour to the petitioner and dismissed the application by a detailed order dated 17.10.2005. Feeling aggrieved, this writ petition has been filed by the petitioner before this Court. 3. Learned senior counsel appearing for petitioner has contended that apart from other grounds the appellate court while exercising jurisdiction under Order 43 Rule 1(r) in misc. appeal cannot pass an order to decide the suit finally. In support of his contention, learned senior counsel has placed reliance upon the following judgments of the Hon’ble Allahabad High Court:- i) Kailash Nath Singh vs. District Judge, Mirzapur and others, 1993 (1) ARC 165. ii) Rajendra Kumar Bajpai vs. Shailesh Kumar Shukla and another, 2013 (2) ARC 633. 4. In reply thereto, learned counsel appearing for private respondent has submitted that in view of Section 107(2) and Order 43 sub-rule 2 of C.P.C., the appellate court while hearing the misc. appeal holds same power as that of a regular court. There is no distinction as far as C.P.C. is concerned. 5. I have heard learned counsel for the parties and perused the entire material available on file. 6. appeal holds same power as that of a regular court. There is no distinction as far as C.P.C. is concerned. 5. I have heard learned counsel for the parties and perused the entire material available on file. 6. The only controversy to be decided by this Court is whether the appellate court while exercising power under Order 43 Rule l(r) of C.P.C. is having limited jurisdiction to examine the veracity and correctness of the order impugned or is it a continuation of proceeding as has been mentioned under Section 107 sub-rule 2 of C.P.C. and whether the appellate court is having power to pass an order to decide the suit. 7. In KaiIash Nath Singh’s case (supra), Allahabad High Court has observed in para-9 as follows:- “9. The powers of Appellate Courts are the same as are conferred by this Code to the trial court. By virtue of Order XLIII, Rule 2 C.P.C. the provisions of Order XLI, CPC shall apply to the appeals from orders. In spite of this the scope of theh appeal under Order XLIII, Rule 1 (r) is restricted as has already been stated above. The distinction must be kept in mind regarding the scope of a regular appeal and miscellaneous one. In the case of a regular appeal, the same is continuation of a suit. Power to allow or reject the amendment in the pleadings is always there; but in an appeal of miscellaneous nature, it will be the jurisdiction of Appellate Court to decide the correctness or otherwise in the matter of interim injunction. As such, the powers of miscellaneous Appellate Court appears to be quite different than an Appellate Court as the miscellaneous Court has no concern with the suit but it is only an Appellate Authority to decide the correctness of the grant of refusal of injunction application. Accordingly, I hold that the view taken by the District Judge In the present case refusing to permit an amendment In the plaint, is absolutely correct. The contention of the learned counsel for the petitioner, that unless there is a specific bar restricting a Court not to permit an amendment, there will always be a presumption of jurisdiction, is not tenable in the eye of law. A perusal of Section 107 and 108 CPC read with Order XLIII, Rule 1 CPC reveals that there is implied bar on such an exercise of jurisdiction.” 8. A perusal of Section 107 and 108 CPC read with Order XLIII, Rule 1 CPC reveals that there is implied bar on such an exercise of jurisdiction.” 8. In subsequent judgment of Rajendra Kumar Bajpai (supra), Allahabad High Court has followed the previous judgment passed in Satyabhan Singh’s case and has observed in para-S as follows:- “8. His Lordships of this in Kailash Nath Singh vs. The District Judge, Mirzapur and another AIR 1993 Alld. 67; 1993 (1) ARC 165, held that the appellate court while hearing an appeal arising out of misc. proceedings is not supposed to entertain an application for the amendment of the plaint and the only course open is to direct moving of the amendment application before the trial court or for its consideration by the trial court on disposal of the appeal on merits.” 9. This fact is not disputed that this misc. appeal has been filed challenging the order passed under Order 39 Rule 1 and 2 of C.P.C on interim relief application. It is also not disputed that the compromise application was filed during the pendency of appeal to decide the appeal as well as the original suit in terms of compromise. 10. In both the case laws referred above, the said High Court has held that the appellate court while exercising the power in misc. appeal is limited to the extent of examining the correctness of the order. In the case at hand, learned District Judge by accepting the compromise, has committed manifest error of law in not considering the distinction between the scope of a regular appeal and miscellaneous one. A regular appeal would lie against the final judgment and decree; whereas the miscellaneous appeal would lie against the orders nention in order 43 C.P.C. in the case of regular appeal, the appellate court is power as has been mention in Section 107 C.P.C. 11. Other part of the compromise is related to the order of interim injunction. Since ad-interim injunction order was assailed, while hearing the misc. appeal, the misc. appellate court had only jurisdiction to decide the correctness of the grant or refusal of injunction application on the basis of compromise. So far as part of compromise, relating to the interim injunction, has been accepted by the appellate court, the appellate court while exercising misc. Since ad-interim injunction order was assailed, while hearing the misc. appeal, the misc. appellate court had only jurisdiction to decide the correctness of the grant or refusal of injunction application on the basis of compromise. So far as part of compromise, relating to the interim injunction, has been accepted by the appellate court, the appellate court while exercising misc. jurisdiction cannot pass an order to decide the suit on the basis of compromise.The only course open to the appellate court was to direct the parties to move compromise application before the trial court so far as it relates to dismissal of suit. Learned District Judge has not considered this aspect of the matter whether the appellate court was having jurisdiction to decide the suit on the basis of compromise when the suit was pending for disposal before the trial court. 12. In the light of aforesaid and in view of judgments referred above, this Court is of the considered view that since misc. appeal is not continuation of a suit, the appellate court while hearing the miscellaneous appeal is having limited jurisdicn to deicide the correctness of the order challenged before it. Learned District Judge has exceeded its jurisdiction by dismissing the suit on the basis of alleged compromise. 13. For the reasons recorded above, the writ petition is partly allowed. Impugned order dated 17.10.2005 passed by District Judge, rejecting the application moved u/s 151 of C.P.C., and the part of order dated 12.10.2001, whereby suit has been dismissed, are set aside. So far as interim injunction part of the order under compromise is concerned, the party would abide by that order till the decision of the suit. The trial court is directed to decide the suit on merit after hearing both the parties.