Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1196 (HP)

Sukh Dev v. Geeta Devi

2018-07-02

TARLOK SINGH CHAUHAN

body2018
JUDGMENT : Tarlok Singh Chauhan, J. This judgment shall dispose of the reference made by the learned Senior Civil Judge, Court No.1, Sarkaghat, District Mandi, H.P. in Civil Suit No. 167/2004, without there being any specific question formulated/framed for adjudication. 2. The facts of the case appear to be that one Jindi Devi, wife of Sant Ram (since deceased) inherited the suit land from her father Gangu Ram in Villages Rehari and Ghori, Illaqua Hatli, the then Tehsil Sarkaghat (now Baldwara), District Mandi. She was having three sons and one daughter, namely, Sukh Dev, Khazana Ram, Sunder Ram and Vidya Devi, who were living with her in Village Ajmerpur, Tehsil Ghumarwin, District Bilaspur, H.P. The suit land, which was inherited by her from her father, was bequeathed by her to one Son Sukh Dev vide registered will dated 24.3.2001, Ext.PW2/A. However, she thereafter executed another will, dated 13.5.2002, Ext.DW3/A in favour of Geeta Devi, who was wife of another son Sunder Ram. Sukh Dev challenged the subsequent will, Ext.DW3/A by filing a suit, which was dismissed by the learned trial court vide judgment and decree dated 9.10.2012. However, aggrieved by the judgment and decree dated 9.10.2012, the plaintiff Sukh Dev filed an appeal before the learned first appellate court, who allowed the same vide judgment and decree dated 19.2.2016 and remanded the case to the learned trial court with a direction to implead all legal heirs of Jindi Devi, testator and thereafter, hold the trial de novo after taking written statements or defence of these legal heirs. It is in this background, the present reference petition has been made by the learned trial court by observing as under:- “Reasonable doubt felt by this Court is that in case all heirs of Jindi Devi are summoned & arrayed as defendants & written-statements of defence are taken on record, the cause-of-action pleaded by the plaintiff at that very moment, would fail, because when there is no plaint, no written-statements of defence can be taken on record. Admittedly, Jindi Devi inherited the suit land from her father. In case both Wills are not proved, law ill take its own course i.e. the suit land would revert back to the heirs of her father. The dispute was between Sukh Dev & Geeta Devi. Decree could have been passed, which could be executed. Admittedly, Jindi Devi inherited the suit land from her father. In case both Wills are not proved, law ill take its own course i.e. the suit land would revert back to the heirs of her father. The dispute was between Sukh Dev & Geeta Devi. Decree could have been passed, which could be executed. The natural heirs of Jindi Devi are unnecessary parties and in case they are allowed to contest, in that event, there would be manifest injustice to the parties. The necessary parties under Order 1, Rule 10 of the Code of Civil Procedure is that in whose absence, no effective & executable decree can be passed. Jindi Devi was not having any bar to bequeath the suit land in any manner whatsoever, and, in both the Wills, she has recited & disclosed everything debarring the heirs. In case other natural heirs were having any grievance, they could have filed separate suit. This civil suit has been pending since 2004, and in case, de novo trial is held, it would take long time for decision in the present civil suit. The parties are present. Notice has been given to them to approach the Hon’ble High Court of Himachal Pradesh within one month from today in case they desired. Record is being sent to Hon’ble High Court for passing directions having regard to the provisions of Order 46 of Code of Civil Procedure.” 3. Section 113 of the Code of Civil Procedure (in short, “CPC”) empowers a Court to stay a case and refer the same for opinion of the High Court subject to the conditions and limitations prescribed and in the event such a reference is made, the High Court is empowered to make such order as it deems fit. 4. Section 113 CPC reads as under:- “113. 4. Section 113 CPC reads as under:- “113. Reference to High Court— Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit: Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons there for, and refer the same for the opinion of the High Court. Explanation.—In this section "Regulation" means any Re Explanation.—In this section "Regulation" means any Regulation of the Bengal, Bombay or Madras Code or Regulation as defined in the General Clauses Act, 1897, (10 of 1897) or in the General Clauses Act of a State.” 5. Order XLVI Rule 1 CPC reads as under: “1. Reference of question of High Court.- Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises, on which the court trying the suitor appeal, or executing the decree, entertains reasonable doubt, the court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court.” 6. An earlier part of the reference would indicate that the reference has also been made under Section 113 CPC, however, I am at complete loss to understand as to how provisions of Section 113 CPC are attracted. 7. An earlier part of the reference would indicate that the reference has also been made under Section 113 CPC, however, I am at complete loss to understand as to how provisions of Section 113 CPC are attracted. 7. The proviso appended to Section 113 CPC postulates that where there is a question before the civil court relating to the validity of any Act, ordinance or regulation or any provision of an Act, which in its opinion is invalid or becomes inoperative, but has not been declared by the High Court as such, then only the civil court may stay the case and refer the matter for the opinion of the High Court. 8. The power under Section 113 CPC is subject to the prescribed conditions, that is, laid down in Order XLVI CPC. The object of these provisions is to enable questions as to the validity of an Act, ordinance or regulation or of any provision therein, to be decided speedily by the highest court of the State, however, before a reference can be made under this Section, the conditions laid down in the proviso must be strictly complied with. The question must relate to the vires of an Act, ordinance or regulation or of any provision therein. This section has no application when the question raised is as to the validity of a notification or a rule or bye-law or order issued under an enactment or of a right or custom of pre-emption not turning on any provision of statute. Where no issue is involved in the case relating to the validity of any ordinance, regulation or any Act or any provision of any Act, then obviously no reference under Section 113 CPC can be made. 9. The primary object of making reference is to enable a subordinate court to obtain in non-appealable cases the opinion of the High Court on a question of law where the Court making reference entertains a reasonable doubt, and thereby avoid commission of any error, which cannot be remedied at a later stage. 9. The primary object of making reference is to enable a subordinate court to obtain in non-appealable cases the opinion of the High Court on a question of law where the Court making reference entertains a reasonable doubt, and thereby avoid commission of any error, which cannot be remedied at a later stage. Therefore, the following conditions must be satisfied before a subordinate court makes a reference: (i) There must be a pending suit or appeal, in which the decree is not subject to appeal or a pending proceeding in execution of such decree; (ii) The decree should not be subject to appeal; (iii) A question of law or usage having the force of law must arise in the course of such suit, appeal or proceeding; and (iv) The court trying the suit or appeal or executing the decree must entertain a reasonable doubt on such question. 10. The questions of law, on which a subordinate Court may entertain a doubt, can be divided into two categories: (i) Those which relate to the validity of any Act, ordinance or regulation; and (ii) Other questions. 11. In the latter class of cases, the reference is optional, but in the former class of cases, it is obligatory if the following conditions are fulfilled: (i) It is necessary to decide such question in order to dispose of the case; (ii) The subordinate court is of the view that the impugned Act, ordinance or regulation is ultra vires; and (iii) There is no determination either by the Hon’ble Supreme Court or by the High Court to which such court is subordinate that such Act, ordinance or regulation is ultra vires. 12. However, no reference can be made by the learned trial court when it thinks that the direction passed by the learned first appellate court like in the instant case is wrong. 13. Now, as would be noticed above Rule 1 of Order XLVI allows a reference to the High Court only when no appeal lies against a decree that may be passed in a suit or appeal. Obviously, rationale behind such rule is that where an appeal lies, possible error can be corrected and a remedy is thus provided by the law itself. 14. Obviously, rationale behind such rule is that where an appeal lies, possible error can be corrected and a remedy is thus provided by the law itself. 14. Indubitably, it cannot be disputed that the order as passed by the learned first appellate court is appealable and, therefore, a reference itself is not maintainable as it is not the object of the aforesaid Rule that wherever a subordinate court is unable to relieve itself of the necessity of deciding difficult questions arising before it that it makes a reference to the High Court calling upon the latter to do what the former was under legal obligation to do. 15. Apart from above, it would be noticed that the order of reference virtually lays challenge to the order passed by the learned first appellate court. This is not permissible because even as a matter of propriety, the learned trial court is otherwise bound by the judgment and decree passed by the superior courts. 16. In view of the aforesaid discussions, this Court has no hesitation in concluding that the instant reference petition is in fact not maintainable and the same is accordingly dismissed.