AMAR NATH Vs. SPECIAL JUDGE E O

JUDGEMENT

(1.) SUIT for arrears of rent and eviction from the shop in dispute instituted in Court of Munsif in 1968 was transferred to Judge Small Causes Court after enactment of Act XXXVII of 1972. It was decreed on 6 -1 -1973. And the order was maintained in first revision by District Judge and second revision by this Court on 24 -8 -1977. When decree was put in execution an objection Under Section 47 Code of Civil Procedure was filed claiming that it did not relate to shop in dispute. It was rejected on 3 -12 -1981. Revision against this order was dismissed on 10 -2 -1982 as not pressed. But time was granted till 30 -4 -82, to vacate the premises. Just before expiry of this time Petitioner filed review application that his Counsel was not instructed to state that Petitioner shall vacate the shop. As it involved the Counsel the Court called him and on his statement that he did not press the revision and prayed time for vacating on instructions from Petitioner the Court dismissed the review application on 1 -8 -1982. Thus another two and half months elapsed. Petitioner, however, did not give way. He filed another application claiming that decree being without jurisdiction was nullity. It was rejected by prescribed authority as the decree having merged with order of this Court it could not be declared without jurisdiction. Same reasoning appealed to revising authority as well.

(2.) CORRECTNESS of these orders have been assailed by the learned Counsel for Petitioner who urged that as evidence in this case had commenced in the Court of Munsif prior to enforcement of Act XXXVII of 1972 it could not be transferred to Judge Small Causes Court. True but it had to be established. Except bald averment in paragraph .4 of the writ petition there is no material to substantiate it. Although denial in counter -affidavit is not very specific yet Petitioner cannot succeed in absence of evidence in this regard ast his objection was not raised either in revision against orders passed on merits or in first execution application. Argument of learned Counsel that the revising authority did not record any finding on it even though he noticed the argument and decided the revision on legal question established that on fact there was no dispute, cannot be accepted. These authorities did not go into the question, presumably because there was a fire in Civil Court destroying large number of files inducing files of this case. This possibly must have persuaded the Petitioner to take up this objection. But the objection cannot be sustained as normally there is a presumption that official acts must have been performed in accordance with law and procedure. If, there would have been any truth Petitioner would have awakened much earlier. His silence is against him. It is true that objection of jurisdiction can be raised even in execution Kiran Singh v. Utaman Paswan : AIR 1954 SC 340 -but not without basic facts. Burden was and still is on Petitioner to establish that recording of evidence had started in the Court of Munsif to render the transfer of the case to Judge Small Causes Court invalid and his order without jurisdiction. But he has not only failed to prove it but there is no material on record from which even an inference could be derived in favour of Petitioner. On the other hand the District Judge while deciding the revision on merits had referred to Petitioners oral testimony recorded before Judge Small Causes Court. It cuts against Petitioner argument. And the burden was heavier to prove that recording of opposite party's evidence had commenced earlier to enforcement of Act XXXVII of 1972.

(3.) IN the result this petition fails and is dismissed with costs.