GANGA DIN Vs. DISTRICT JUDGE PRATAPGARH

JUDGEMENT

(1.) The order passed by the District Judge setting aside the judgment and order passed by the II Additional Munsif, Pratapgarh, dismissing the suit filed by the opposite parties against the peti tioner under Section 6 of the Specific Relief Act, 1963 is subject-matter of challenge in this petition. The opposite parties filed a suit under Section 6 of the Specific Relief Act alleging that they have been illegally dispossessed by the petitioners within six months of the date of the presentation of the plaint on 19-4- 1969. Prior to the filing of the said proceedings under Section 145, Cr. P. C. had taken place between the parties. The Court of Munsif came to the conclusion that the plaintiffs have failed to prove that they have been in possession over the property in dispute after attachment under Section 145, Cr. P. C. and thus they also failed to prove that they have been in possession within a period of six months from the date of filing of the suit. Against the said judgment and decree the opposite parties filed a revision application which came up for hearing before the District Judge. Before the District Judge a preliminary objection regarding maintainability of the revision application under Section 115, C. P. C. was taken, but the same was overruled and the District Judge took the view that in exercise of his jurisdiction he can look into the question of fact. Section 6 of the Specific Relief Act reads as follows :- "section 6. If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought- (a) after the expiry of six months from the date of dispossession, or (b) against the Government, (3) No appeal shall lie from any order or decree passed in any suit instituted under this section nor shall review of such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. " No appeal lies against an order passed under Section 6 of the Specific Relief Act as is clear from the said section itself though the aggrieved party has been given a right to file a suit for establishing his title to such property and to recover possession thereof. The question then arises notwithstanding the fact that the Legislature has specifically provided that the order passed under Section 6 of the Specific Relief Act cannot be appealed against. Whether a revision application against the same is maintainable or not. So far revision application under Section 115 C. P. C. is concerned, the same lies provided there is some jurisdictional or procedural error. Section 115 Civil Procedure Code reads as follows :- "115. The High Court, in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above including such suits or other proceedings instituted before August 1, 1978 and the District Court in any other case, including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been decided by any Court subordinate to such High Court or District Court as the case may be, and in which no appeal lies thereto and if such subordinate Court appear;- (a) To have exercised a jurisdiction not vested in it by law; or (b) to have failed to exercise a jurisdiction so vested; or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity : The High Court or the District Court, as the case may be may make such order in the case as it thinks fit; Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Court, the High Court alone shall be competent to make an order under this section. Provided further that the High Court or the District Court shall not under this section, vary on reverse any order including an order deciding an issue made in the course of a suit or other proceedings. " The revision lies only if the High Court is satisfied that the subordinate Court has acted within its jurisdiction or that it has declined to exercise the jurisdiction or in exercise of jurisdiction acted illegally that is prejudiced with or with no material irregularity and that is why committed some procedural irregularity which has affected the ultimate decision. The Court below in this case as interfered with the order passed by the trial Court. It seems the plaintiff's suit on the ground that the question of limitation is a question of jurisdiction and the same having been wrongly decided by the trial Court the revisional Court has a jurisdiction to interfering with the said order and while interfering with it, it can look into evidence to find out as to whether this question has been wrongly decided or not. By holding this question of limit ation that the petitioner has not been in possession within a period of six months from the date of alleged dispossession the Court below dismissed the petitioner's suit though the same was decreed by the trial Court. Thus the only question which arises in this case is as to whether the finding on the point whether a particular person has been in possession within a period of six months or not can be interfered in exercise of revisional jurisdiction on the ground that a wrong finding on the said point will be a question of jurisdiction. In this connection while deciding this question the Court below made reference to certain Supreme Court decision and the decision of various High Courts and Allahabad High Court and Orissa High Court in this behalf. The five decisions which have been referred to by the Court below on the question of scop2 of Section 115 C. P. C. while the High Court decisions which have been referred to by the Court below are also on the question of scope of Section 115 C. P. C. in which the question of limitation was involved. While on behalf of the opposite parties reliance was placed on two decisions of Orissa High Court that too in respect of scope of Section 115 C. P. C. In M. L. Sethi v. Shri R. P. Kapur (1972 S. C. 2379.), at page 2384. Paragraph 10, it has been observed : "the word 'jurisdiction' is a verbal cast of many colours. Jurisdiction originally seems to have had the meaning which Lord Baid ascribed to it in Anisminic Ltd. v. F. Foreign Compensation Commission ( (1969)2 A. C. 147.) namely, the entitlement "to enter upon the enquiry in question. If there was an entitlement to enter upon an inquiry into the question, then any subsequent error could only be regarded as an error within the jurisdiction. " Thus the observations made by Lord Demom, R. V. Bolton ( (1811) 1 Q. B. 66.) In the said Anisminic Ltd. , case (supra) the case was also noted but there are many cases where although the tribunal had jurisdiction to enter on the enquiry it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with-the requirements of natural justice. It may in perfect good faith have misconstrued the provi sions giving it power to act on that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account, or it may have based its decision on some matter which under the provisions setting it up, it had no right to take into account, I do not intend this list to be exhaustive. '' Thus so far as the jurisdiction of a Court is concerned that concerned itself with the entitlement to enter into an enquiry. The word 'entitlement' to enter into an inquiry is not a word of very limited meaning as Dr. Reid has observed as quoted above, in which it has been said that the list is not exhaus tive. If the jurisdiction question has been wrongly decided whereby the Court has assumed jurisdiction or has refused to exercise its jurisdiction then such cases are clearly covered by the provisions of Section 115 C. P. C. In this connection it will be relivant to note, Lord Ishar M. R. W. Queen v. Commis sioner for Special Purpose of the Income Tax ( (1888) I QBD. 313, 319.), it was observed when an inferior Court or tribunal or body which was to exercise the power of deciding facts is first established by Act of parliament, the Legislature has to consider that power it will give that tribunal or body. It may in effect say that if a certain State of facts exists and as shown to file tribunal a bar before it proceeds to do certain things it shall have jurisdiction to do certain things but not otherwise. There it is not for them conclusively to decide whether that state of facts exists and if they exercise the jurisdiction without its existence what they do may be questioned and it will be held that they have acted with out jurisdiction. But there is another state of things which may exist. The Legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction as finding that it does exist to proceed further to do something more when the Legislature are establishing such a tribunal or body with limited jurisdiction they give them whether there shall be any appeal from their decision, for there will be none. In the second of two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist because the Legislature gave them jurisdiction to determine all the facts includ ing the existence of preliminary facts on which the further exercise of their jurisdiction depends, and if they were given jurisdiction. So, to decide without any appeal being given there is no appeal from such exercise of their juris diction. It cannot be disputed or denied so far as the question of limitation is concerned. It is on question of jurisdiction if the Court wrongly decides the question of limitation and assumes jurisdiction to proceed with a particular case or by wrongly deciding the question of limitation refuses to proceed with the particular case, then the power under Section 115 C. P. C. can be invoked as now even it is the question of jurisdiction of the Court itself to proceed or not to proceed with the trial of the case or the suit. On this point it will suffice to make a reference to the Privy Council Decision in Jai Chand Lal Babu v. Kamalesh Babu Chaudhari (76 LA. (13) = (1949) P. C. 239), In that case the subordinate Court gave an erroneous decision that the loan was a commercial loan and thereafter refused to exercise jurisdiction vested in it. (Sir John Beaument observed at page 142 ). There have been a very large number of decisions of Indian High Courts on Section 115 C. P. C. to many of which their Lordships have been referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate Court has acted illegally and with material irregularity so as to justify interference in revision under sub-section (c) nevertheless if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law or failing to exercise a jurisdiction so vested, a case for revision arises under sub- section (a) or sub-section (b) and sub-section (c) can be ignored. The case of Babu Ram v. Munna Lal (49 Alld. 454 = A. I. R. 1927 Alld. 358.), and Hari Bhikaji v. Naro Viswanath (I. L. R. 9 Bom. 432), may be mentioned as cases in which a subordinate Court by its own erroneous decision (erroneous that is in view of the High Court) in one case on a point of limitation and in the other on a question of resjudicata invested itself with a jurisdiction which in law it did not possess and the High Court held wrongly that it had no power to interfere in revision to prevent such a result. In the present case their Lordships are of opinion that the High Court on the view which it took that the loan was a commercial loan, had power to interfere in revision under sub-section (b) of Section 115 C. P. C. Thus the Privy Council in the said case did not accept the view expressed by this Court in Jai Chand Babu, (supra), in which it was held that a decision of erroneous question of limitation does not involve the question of jurisdiction. The Privy Council held that it does lay down a question of limitation. Ram Ladan Singh v. Krishna Kunwar (1957 A. L. J. 222. ). A single Judge of this Court relying on the aforementioned case of Privy Council also held that a wrong view on the point of limitation can be taken and the very same view was taken in Lakshman Prasad v. Ghasi Ram and others (1965 A. L. J. 1050), in which the cases were observed, a refer ence to which case has been made by the Court below in its judgment. A question then arise in this case whether the finding which was recorded by the trial Court that the plaintiff was is possession within a period of six months could have been reversed by the revisional Court in exercise of powers under Section 115 C. P. C. on the ground that this finding that the plaintiff was in possession within a period, of six months was not a correct finding and it being against the record involved a question of jurisdiction. In substance the Court below had held that by wrongly deciding this question of fact the trial Court has decreed the plaintiff's suit. This amounts to an erroneous decision in exercise of its jurisdiction i. e. by wrongly appreciating the evidence the Court had recorded an incorrect finding. The finding may be incorrect as has been contended by the learned counsel but that will not involve a question of limitation as such, it may involve the question of jurisdiction. In the case of Mst. Thagni (supra) the question for consideration was as to whether Article 97 of the Indian Li mittation Act applied to the date from which the limitation will start running. The Court was of the view that the date of the decree was starting point of limitation as the failure of consideration was on that date and neither the date of appellate decree nor the date of obtaining possession was the starting date of possession on filing the suit for three years. Similarly. Lakshman Prasad v. Ghasi Ram and others, (supra) the question was as to whether Article 88 of the Indian Limitation Act was applicable to the facts of the case or not and the Court was of the view that it was that very article which was applicable to the facts of the case and the limitation of three years was to start from the date of last entry made into accounts and the Court below wrongly applied Article 52 of the Indian Limitation Act to the facts of the case. In the instant case there was no dispute that the limitation in filing the suit for the dispossession complained of was six months and the complaint is that the finding which has been so recorded is patently incorrect finding but so far as the entitlement of the Court, there is no dipute to decide the question and in exercise of its jurisdiction the Court has recorded and erroneous finding which could have been set aside by the appellate Court, that does not involve a question of jurisdiction. If the opposite parties have any grievance in the matter they can take a recourse of setting the matter right or in getting finding in their favour which could not have been reversed by the revisional Court in exercise of Section 115 C. P. C. on the ground that involved the question of limitation but as a matter of fact it involved the question of fact and not only a mixed question of law and fact. In these circumstances the writ petition deserves to be allowed. The writ petition is allowed. The order dated 1-2-1978. (Annexure 6) passed by the District Judge, is quashed. There will be no order as to costs. .