CHHAKKAN Vs. ZAHEER HASAN

JUDGEMENT

(1.) THIS is a plaintiff's application in revision directed against an order passed by the learned District Judge, Fatehpur dated 12-3-1976 allowing a revision filed by the defendant-opposite parties and setting aside the order passed by the learned Munsif, Fatehpur dated 30th January 1976. The relevant facts giving rise to this revision are as follows : It appears that the plaintiff-applicants filed a suit against the defen dants-opposite parties, being original suit No. 367 of 1967. In the suit, the plaintiffs-applicants filed a document which purports to be a sale-deed in respect of the property in suit. An objection was raised on behalf of the defend ants- opposite parties to the effect that the sale-deed dated 27th January 1967 (paper No. 47A-1) was inadmissible in evidence being not registered. THIS objection of the defendants opposite parties was upheld by the learned Munsif. Aggrieved by the order passed by the learned Munsif holding this document to be inadmissible, the plaintiffs applicants filed a review applica tion which was also dismissed by the same learned Munsif. Thereafter the plaintiff-applicants filed a revision which was dismissed similarly. Subse quently the plaintiffs-applicants field another application No. 66-C purporting to be under Section 151 of the Code of Civil Procedure for recalling the order dated 4-9-19/4 by which the learned Munsif had rejected paper no. 47 A-1 holding it to be inadmissible. The grounds on which application No 1 66-C was filed were that the transfer of the property being only for Rs. 70 i. e. less than Rs. 100/-, the document did not require registration and that, in any case, the document was admissible in evidence for collateral purpose even if the document was unregistered. THIS application was allowed by the learned Munsif, Fatehpur, by an order dated 30th January J976. The learned Munsif this time took the view that the document was admissible at least for collateral purposes if not for proving the transfer of title there under and consequently the document was admissible in evidence for that purpose, even though it was not registered. The learned Munsif while pass ing this order, took note of the amendment made in Section 49 of the Regis tration Act by Act No. 21 of 1929. The learned Munsif held that the decision reported in A. I. R. 1928 Madras on which the court had earlier held this document to be inadmissible was not applicable in view of the amendment made under Section 49 of the Registration Act in the year 1929, i. e., subsequent to the date of the decision of the case reported in AIR ]928 Madras, Against the decision of the learned Munsif the opposite parties filed a revision under Section 115 of the Code of Civil Procedure before the learned District Judge, Fatehpur. The learned District Judge has allowed the revision on the ground that the learned Munsif had no jurisdiction to recall an order which has been passed by his predecessor on 4-11-1974. According to the learned District Judge the error, if any, committed by the learned Munsif in passing the order dated 4-11-1974 was not an error apparent on the face of the record such as to warrant the recall of the order by the successor-in-office of the previous learned Mnnsif for obvious reasons. The learned District Judge allowed the revision and set aside the order passed by the learned Munsif dated 30th January 1976. THIS revision is directed against the aforesaid order passed by the learned District Judge. Learned Counsel for the applicants has urged that the learned District Judge has acted without jurisdiction in setting aside the order passed by the learned Munsif. Learned counsel argued that the learned Munsif bad jurisdiction to recall the previous order passed by his predecessor. The learned Munsif recalled the order dated 4-11-1974 on the ground that there was an error apparent on the face of the record and that being so the learned District Judge had no jurisdiction to set aside the order passed by the learned Munsif. Learned counsel for the applicants also urged that, in any case, by the order dated 30th January 1976 the leaned Munsif had not decided any case within the meaning of Section 115 of the Code of Civil Procedure as it stood prior to the amendment of Section 115 by the Code of Civil Procedure (Amendment) Act, 1976 which came into force on 1st February, 1977 and consequently the learned District Judge had no jurisdiction to entertain the revision Sled by the defendants-opposite-parties. Having heard the learned counsel for the parties, I am of the view that the learned District Judge had no jurisdiction to set aside the order, passed by the trial court and that, at any rate, the learned District Judge has acted with illegality in setting aside the order passed by the learned Munsif. It may be recalled that by the order dated 4-11-1974 all that the learned Munsif had held was that the document was inadmissible in evidence as the sale-deed was not registered. By the impugned order the learned Munsif has upheld that part of the order of his predecessor, so far as the question of title is concerned. The learned Munsif has said that the document cannot be looked into as a sale-deed, not being registered as required by law. Learned Munsif has only held under the impugned order that the document in question is admissible for the limited purpose of proving the collateral fact which is now permissible under the provisions of Section 49 of the Registration Act. It stands subsequent to the amendment introduced therein by Act. No. 21 of 1929. The learned Munsif has made it clear that it is only for this limited purpose that the document can be looked into and be treated admissible in evidence. THIS view of the learned Munsif was based upon the amendment introduced in the relevant law by Act No. 21 of 1929 which amendment has escaped the notice of his predecessor who had placed reliance on a case reported in A. I. R. 1928, Madras i. e. on a case which had been decided before the amendment had been introduced. Under the circumstances, the learned Munsif did have jurisdiction to recall the previous order dated 4-11-1974. The learned District Judge has not consi dered that aspect of the case and has set aside the order passed by the learned Munsif on the ground that the learned Munsif had no jurisdiction on the facts and circumstances of the present case, to set aside the order passed by his predecessor. As already stated, on the ground on which the learned Munsif has recalled and set aside the earlier order passed on 4-11-1974, it was open to the learned Munsif to recall the order dated 4-11- 74 and the learned District Judge had no jurisdiction to set aside the order passed by the trial Court. I also agreed with the learned counsel for the applicants that by the impugned order dated 30th January 1976 the learned Munsif had noticed the case within the meaning of Section 115 of the Code of Civil Procedure as it stood prior to the amendment introduced by Act. No. 104 of 1976. The learned District Judge has passed the impugned order dated 22-3-1976 before the Central Act No. 104 of 1976 came into force. THIS Act came into force on 1st February J 977. In view, by the impugned order the Court had not adjudicated on any part of the case or disposed of the case so as to amount to a case decide within the meaning of Section 115. In Baldev das and others v. Filmistan Distributors (India) Pvt., Ltd., and others A. I. R. 1970 S. C. 406, it has been held that every order on the suit cannot be regarded as a 'case decided'. The expression 'case' is not unlimited in scope and that the word 'case' decided means adjudication of some right or obligation of the parties in controversy. In my view, by the mere decision that a certain document can be looked into for collateral purposes, the learned Munsif had not decided any case and, consequently, the learned District Judge had no jurisdiction to interfere with the order passed by the learned Munsif. Learned counsel for the opposite-parties vehemently argued that the explanation which has now been added to Section 115 of the Code of Civil Procedure as amended by the Central Act. No. 104 of 1977, brings within its purview any order and it is wide enough to cover an order of the nature with which we are concerned. Learned counsel also argued that the explanation to the new Section of the Code of Civil Procedure only clarifies the law as to the ambit of the words 'case decided' and it does not enlarge the scope of Sec. 115 of the Code of Civil Procedure beyond the limits which the Courts of law had placed upon these words prior to amendment of the Act. I find it difficult to accept this submission. In my view, the explanation which now finds place under Section 115 C. P. C. cannot be read for the purpose of determining the true scope of the words 'case decided' in cases which are not governed by the amended provision of Section 115 of the Code of Civil Procedure. Under Section 97 (2) (a) of the Code of Civil Procedure Amend ment Act, 1976, it has been laid down that the revisions pending on the date of the commencement of the new Act would continue to be governed by the provisions of Section 115 of the Code of Civil Procedure as they existed prior to the coming into force of the said Amendment Act. I find that the order passed by the learned Munsif dated 30th January 1976 was a legal and proper order and should not could not legally have been set aside by the learned District Judge. In the result, the revision succeeds and is allowed. The judgment and the order passed by the learned District Judge dated 12th March 1976 are set aside and those passed by the trial Court dated January 19/6 are restored. The parties will bear their own costs. I may make it clear that any observa tion made by me in this judgment should not be taken to mean that the documents in question can be looked also at a sale-deed or as evidence of passing of any title there under. The documents can be looked into only for the collateral purpose as pointed out by the learned Munsif in his order dated 30th January, 1976.