RAFI Vs. IST ADDITIONAL DISTRICT JUDGE GORAKHPUR

JUDGEMENT

(1.) HEARD Sri M. A. Qadeer, learned counsel for the petitioners. None appears for the respondents.

(2.) THE petitioners filed Suit No. 1179 of 1970 for declaration in respect of agricultural land and injunction restraining the defendants from interfering with the possession of the plaintiffs (petitioners) over the disputed land. It appears that during the pendency of the suit a compromise (Annexure 1 to the writ petition) was filed before the trial court which was verified before In charge Munsif on 22.12.1972. Before the compromise could be accepted by the trial court, objections were filed by the defendants. THE trial court overruled the objections vide order dated 1st March, 1975 and recorded the compromise. A Civil Misc. Appeal No. 232 of 1975 was preferred by the defendant Abdul Ghafoor respondent No. 4 in the present writ petition. THE appeal appears to have been transferred by the District Judge to the court of Additional Civil Judge (J. S. C. C.) who allowed the appeal holding that the Court had no Jurisdiction to pass the decree and further ,that the compromise involved transfer of Sirdari rights in agricultural land and was thus against the public policy and was vitiated. THE appeal was allowed by the Additional Civil Judge, Gorakhpur on 28.1.1976. Civil revision against the judgment and order of the appellate court was filed before the High Court and was returned on 13.2.1976 for proper presentation before the District Judge, Gorakhpur and consequently the revision was filed before the District Judge. Gorakhpur on 25.2.1976. THE District Judge. Gorakhpur dismissed the revision as not maintainable vide order dated 3.3.1976 (Annexure 6 to the writ petition). Against order dated 3.3.1976 the petitioners filed revision before the High Court which was allowed vide judgment and order dated 30.3.1979 (Annexure 7 to the writ petition) wherein the High Court held that the revision was maintainable before the District Judge and consequently, remitted the case back to the District Judge for disposing of the revision filed earlier on merit. Again an objection was raised before the District Judge regarding maintainability of the revision which was sustained by the District Judge vide judgment and order dated 4th December, 1980 (Annexure 8 to the writ petition).

(3.) BEFORE considering the legality or otherwise of the Impugned order dated 4th December, 1980, it would be relevant to consider the amendments made in Section 115, C. P. C. from time to time. As already pointed out above, the District Judge while passing the order dated 3.3.1976 had relied upon a Full Bench decision of this Court in Har Prasad Singh's case (supra). That was the case decided by the High Court prior to the amendment made in Section 115, C. P. C. by the Central Amending Act No. 104 of 1976 which came into force on 1st February, 1977. Prior to the amendment of Act No. 104 of 1976, the original Section 115, C. P. C. reads as follows : 'The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto and if such subordinate court appears : (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 and with material irregularity, the High Court or the District Court may make such order in the case as it thinks fit."