Research › Search › Judgment

Madhya Pradesh High Court · body

2018 DIGILAW 1046 (MP)

Diwan Singh v. Saudan Singh

2018-12-20

SHEEL NAGU

body2018
ORDER 1. Challenge in this petition by invoking supervisory jurisdiction of this Court under Article 227 of the Constitution of India is made to the order dated 5.10.2018 passed by the Additional Commissioner, Bhopal (Annexure P-1) by which first appeal preferred by the petitioner assailing the order dated 20.7.2017 of Additional Collector, Vidisha rejecting an application under section 107 of Madhya Pradesh Land Revenue Code, 1959 ( for brevity ' the Code of 1959) is called in question. 2. Learned counsel for the petitioner is heard on the question of admission. 3. In view of provision of section 44(3) of the Code of 1959 providing for remedy of second appeal, on a query made by this Court, the learned counsel for the petitioner contends that the said remedy of second appeal is not available as per section 44(3) of the Code of 1959, which for ready reference and convenience is reproduced below : 44. Appeal and appellate authorities- “(1) XXXX----XXXX----XXXX (2) XXXX----XXXX----XXXX (3) The second appeal shall lie only - (a) if the original order has in the first appeal been varied or reversed otherwise than in a matter of cost; or (b) on any of the following grounds and no other, namely : (i) that the order is contrary to law or, usage having the force of law; or (ii) that the order has failed to determine some material issue of law, or usage having force of law; or (iii) that there has been a substantial error or defect in the procedure as prescribed by this Code, which may have produced error or defect in the decision of the case upon merits.” 4. After having heard learned counsel for petitioner on admission, this Court is the firm view that terminology employed by section 44(3) of the 1959 Code makes the remedy of second appeal available to the petitioner against the order impugned herein. 5. The reason for this finding is not far to see. Section 44(3) of the 1959 restricts the availability of second appeal on the happening of two contingencies, the first being that the order in first appeal is an order of reversal or varying of the impugned order therein and the second contingency being that the second appellant can make out any of the grounds enumerated in clause (i), (ii) and (iii) of section 44(3) (b) of the 1959 Code. 5.1 Evidently, the second appeal is available only when either of the two contingencies or both enumerated in a clause (a) and (b) of section 44(3) of the Code of 1959 are satisfied. The clause (a) and (b) of section 44(3) of the Code of 1959 are joint by the expression “or” which means that if either of two contingencies in clause (a) or (b) of section 44(3) of the Code of 1959 is satisfied, second appeal shall lie to the second appellate authority which shall be the Board of Revenue in the present case. 6. Learned counsel for the petitioner submits that unless and until both the contingencies enumerated in clause (a) and (b) of section 44(3) of the Code of 1959 are co-existent, a second appeal would not lie. This interpretation runs contrary to the meaning derived from the mere reading of the words contained in section 44(3) of the Code of 1959. Moreso, if the interpretation proposed by the learned counsel for the petitioner is accepted, then the use of the expression “or” conjuncting clause (a) and (b) of section 44(3) shall render otiose which would do violence to the language employed. 7. One of the fundamental principles of interpretation of statute is that if the text of the statute is unambiguous, then the need for contextual interpretation gets obviated. 8. In view of above, this Court declines interference in the present case by holding that the second appeal lies under sectino 44(3) of the 1959 Code to the Board of Revenue against the order of the Additional Commissioner, Bhopal passed in first appeal, provided the petitioner is able to make out any of the three grounds enumerated in section 44(3)(b) of the Code of 1959. 9. Accordingly, this Court declines interference on merits and relegates the petitioner to file second appeal, if so advised under section 44(3) of the M.P. Land Revenue Code, 1959 which if filed within the period of 40 (fourty) days from today along with copy of this order, shall be entertained and decided on its own merits without being dismissed on limitation alone. 10. With the aforesaid observation and direction, the present petition stands disposed of, sans cost.