Full Judgment Text
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PETITIONER:
NAINSINGH
Vs.
RESPONDENT:
KOONWARJEE AND OTHERS
DATE OF JUDGMENT:
02/04/1970
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
SHAH, J.C.
CITATION:
1970 AIR 997 1971 SCR (1) 207
1970 SCC (1) 749
ACT:
Code of Civil Procedure (5 of 1908) s. 151-No appeal against
order of remand-Scope of Appellate Court’s power on appeal
on findings after remand.
Jagir Abolition. Act, 1951-Rights of Jagirdar to property
in respect of which suit filed before enactment of the Act.
HEADNOTE:
The tenant of the appellant-a Jagirdar, died without leaving
any male issues. His distant relations-the respondents,
took possession of his properties. Thereupon the appellant
brought a suit claiming possession. of the properties as he
was the owner. The trial court dismissed the suit holding
that the civil court has no jurisdiction to entertain the
suit, and that in view of the Jagir Abolition Act, 1951
which was enacted during the pendency of the sit and with
the vesting of the suit properties in the State, the
appellant was not entitled to claim. The first appellate
court reversed these findings and held that though the suit
properties had vested in the State, it was for the State to
get itself impleaded, and as the State had not got itself
impleaded, it was open to the appellant to press the suit.
In view of these conclusions, the appellate court demanded
the suit to decide the other undecided issues. After the
remand, the trial court negatived the respondents-defendants
contention and decreed the suit. In appeal that decree was
affirmed. In second appeal, the High Court agreed with the
courts below on all issues except that relating to the
effect of abolition of Jagirs. It held that under the Jagir
Abolition Act, the appellant lost his title to the suit
properties. In its view that issue was not concluded by the
decision of the appellate court made before remand as the
same had not been appealed against, since the court had
inherent power to consider the correctness of that order.
In appeal, this Court:
HELD : The case must be remanded for determination of the
right of all the parties after impleading the State as a
party.
The correctness of the remand order was not open to review
by the High Court. The order in question was made under
rule 23, Order 41, Civil Procedure Code. That order was
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appealable under Order 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. Under the inherent power of courts recognised by s.
151, Civil Procedure Code, a court has no power to do that
which is prohibited by the Code. Inherent jurisdiction of
court must be exercised subject to the rule that if the Code
does contain specific provisions which would meet the
necessities of the case, such provisions should be followed
and inherent jurisdiction should not be involved. In other
words the court cannot make-use of the special provisions of
s. 151 of the Code where a party bad his remedy provided
elsewhere in the Code and be neglected
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to avail himself of the same. Further the power under s.
151 of the Code cannot be exercised as an appellate power.
The appellant-Jagirdar had not lost all rights in the suit
properties. The suit properties vested in the State in view
of the Jagir Abolition Act. But it was conceded at the bar
that if the appellant was proved to have been the owner of
the suit properties on the day the Jagir Abolition Act came
into force, he was entitled to the compensation provided in
that Act. Therefore the appellant was interested in
establishing that on the date Jagir Abolition Act came into
force, he was the full owner of the suit properties. [210 C]
Himatrao v. Jaikishandas and Ors. [1931] 3 S.C.R. 815;
followed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1460 of 1966.
Appeal by special leave from the judgment and decree dated
April 30, 1965 of the Madhya High Court, Indore Bench in
Second Appeal No. 209 of 1962.
G. L. Sanghi, P. C. Bhartari, for the appellants.
Rameshwar Nath, for respondents Nos. 1 to 4.
The Judgment of the Court was delivered by
Hegde, J. The only question, that falls for decision in this
appeal by special leave is as to the application of s. 151,
Civil Procedure Code to a remand order falling within s.
105(2) of that Code.
The facts leading upto the point under consideration may now
be stated. The appellant was the Jagirdar of the suit pro-
perties. One Bhagirath was his tenant. The said Bhagirath
died in the year 1947 leaving behind no male issues. His
wife had predeceased him. He had two daughters who were
living at the time of his death. After his death,
defendants Nos. 1 to 5 who are his distant relations took
possession of the suit properties and I got the revenue
records changed in their names. Thereafter the appellant
brought the suit under -appeal seeking the following
reliefs
(1) to declare that he is the owner of the suit properties;
(2) to quash the order of the Tehsildar dated November 8,
1949 transferring the khata relating to the suit properties
to the names of Defendants 1 to 5; (3) to grant possession
of those properties to him and (4) other usual incidental
reliefs.
The defendants resisted the plaintiff’s claim. They
contended inter alia that (1) the civil court had no
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jurisdiction to entertain ,the suit; (2) the plaintiff had
lost right over the suit properties in H view of the Jagir
Abolition-Act, 1951 which came into force on December 4,
1952 during the pendency of the suit and (3) the 1st
defendant being the adopted son of Bhagirath is entitled to
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the possession of the suit properties. In the suit several
issues. were raised. it is not necessary to refer to them in
view of the limited scope of this appeal. The trial court
dismissed the suit upholding the contention of the
defendants on two issues viz. (1) that the civil court had
no jurisdiction to entertain the suit and (2) that in view
of the Abolition of Jagirs and the vesting of the suit
properties in the State, the plaintiff can claim no relief.
The first appellate court reversed the findings of the trial
court on those issues. It came to the conclusion that the
civil court had jurisdiction to entertain the suit. It
further held that though in view of the abolition of the
jagirs, the suit properties had vested in the State, it was
for the State to get itself impleaded if it is interested in
this litigation and as the State had not chosen to get
itself impleaded, it was open to the plaintiff to press the
suit. In view of those conclusions, the appellate court set
aside the decree of the trial court and remanded the suit to
the trial court for deciding the other issues left
undecided. After the remand, the trial court negatived
every one of the contentions taken by the defendants and
decreed the suit as prayed for. In appeal that decree was
confirmed. In second appeal the High Court of Madhya
Pradesh agreed with the trial court and the appellate court
on the findings given on all issues excepting the issue
relating to the effect of abolition of the jagirs on the
suit. On that issue, it came to the conclusion that in view
of the abolition of jagirs under the Jagir Abolition Act,
the plaintiff had lost his title to the suit properties and
therefore he could not get a decree for possession of the
suit properties. It rejected the contention of the plain-
tiff that that issue is concluded by the decision of the
appellate court made before remand as the same had not been
appealed against. It opined that the court had inherent
power to consider the correctness of that order. It
accordingly allowed the appeal and dismissed the suit.
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 rule 23, Order 41,
Civil Procedure Code. That order was appealable under Order
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. Under the
inherent power of courts recognised by s. 151, Civil
Procedure Code, a court has no power to do that which is
prohibited by the Code. Inherent jurisdiction of the court
must be exercised subject to the rule that if the Code does’
contain specific provi-
210
sions which would meet the necessities of the case, such
provisions should be followed and inherent jurisdiction
should not be invoked. In other words the court cannot make
use of the special provisions of s. 151 of the Code where a
party had his remedy provided ,elsewhere in the Code and he
neglected to avail himself of the, same. Further the power
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under S. 151 of the Code cannot be exercised as an appellate
power.
We are also of the opinion that the High Court is not right
in holding that in view of the abolition of the Jagirs, the
plaintiff had lost all rights in the suit properties. It is
true that in view of the provisions of the Jagir Abolition
Act, the suit properties vested in the State. But it was
conceded at the bar that if the plaintiff is proved to have
been the owner of the suit properties on the day the Jagir
Abolition Act came into force, he is entitled to the com-
pensation provided in that Act. Therefore the plaintiff is
interested in establishing that on the date Jagir Abolition
Act came into force, he was the full owner of the suit
properties. The facts of this case fall within the rule
laid down by this Court in Himatrao v. Jaikishandas and Ors.
(1). On the facts of this case the interests of justice
would have been better served if the High Court had ordered
the impleading of the State of Madhya Pradesh in the appeal
before. it and determined the rights of all the parties
finally. Hence we set aside the decree of the High Court
and remand the case to that Court with a direction that the
State of Madhya Pradesh should be impleaded and the rights
of all the parties decided in accordance with law., In the
circumstances of the case we make no order as to costs of
this appeal.
Y.P. Case remanded.
(1) [1963] 3 S.C.R, 815
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