KEWAL RAM Vs. BHAGWAN DASS

JUDGEMENT

(1.) This is adeft.'s application in revision against the judgment & decree of the Senior Subordinate Judge of Jubbal dated 26-10-1950, dismissing hia appeal & affirming the judgment & decree of the Subordinate Judge of Jubbal, dated 276-1950, whereby the pltfs. resps. were granted a decree for possession of three biswas & fourteen biswansis of land & for a mandatory injunction to the deft. applicant to demolish a wall. The revision has been filed under para. 35 (1) (a), Himachal Pradesh (Courts) Order, 1948.

(2.) A preliminary objection was taken on behalf of the plfs.-resps. that the provisions of the Himachal Pradesh (Courts) Order are not applicable, but those of the Code of Civil Procedure, & that under Section 115 of the Code the present revision is not maintainable. It is necessary to dispose of this preliminary objection since provisions relating to appeals & revisions in the said Order are different from those in the Code.

(3.) Before proceeding further, it would be as well to set forth here in brief the salient points of difference with regard to She above provisions. Provisions relating to first appeals are contained in para. 31 in the Himachal Pradesh (Courts) Order. It deals not only with the right of appeal but also with the question of jurisdiction of Courts to entertain appeals & is thus a composite of Section 96, C. P. Code, & such provisions as Sections 20 & 21, Bengal, Agra & Assam Civil Courts Act, (XII [12] of 1887) & Sections 38 & 39, Punjab Courts Act, (VI [6] of 1918). Second appeals are dealt with in para. 32 of the said Order. Besides providing for the jurisdiction of the Court of the Judicial Commissioner to entertain appeals in certain classes of cases, having regard to their nature & valuation, it lays down that a second appeal shall lie to the Judicial Commissioner on any ground which would be a good ground of appeal if the decree had been passed in an original suit. In other words, a second appeal can be heard by the Judicial Commissioner on any ground on which a first appeal would lie. It is not necessary, therefore, that a second appeal to the Judicial Commissioner of this State should be on any of the grounds mentioned in Section 100, C. P. Code. The provisions of Order 41, C. P. Code, other than Rule 35, have also been made applicable. As regards revisions, besides the grounds mentioned in Clauses (a) to (c) of Section 115, C. P. Code, except that in Clause (c) the word illegally has been omitted, a revision to the Judicial Commissioner would lie on the additional ground that there is an important question of law & custom involved which requires further consideration. With regard to this additional ground a number of provisos have been laid down relating to limitation, valuation etc. It is further specifically provided that Section 115, C. P. Code, shall not apply to Himachal Pradesh. A comparison of the provisions in the Himachal Pradeah (Courts) Order with the corresponding provisions in the Civil P. C. will show that wider powers of second appeal & revision have been conferred upon the Judicial Commissioner of this State than would have been possible under the Civil. P. C. The reason for this conferment of wider powers is patent, namely, that there may be greater scope for the Judicial Commissioner to rectify the mistakes of subordinate Courts in this newly formed State.