BHUSAN LAL TAPLOO Vs. RADHA KRISHEN TAPLOO

JUDGEMENT

(1.) SHRI Jia Lal Taploo, the father of Shri Bhusan Lal Taploo (Appellant herein), sold a house and the land underneath and appurtenant thereto situate in Chandapora, Kralkhud, Srinagar, in favour of Sarvshri Shridhar Joo and Vidh Lal for a consideration of Rs. 2000/vide sale deed dated Sawan 23, 2001 (samvat ).

(2.) A title suit, being suit No. 72 of 1958, for declaration to the effect that the aforesaid alienation of the entire house which was the joint property of the appellant and his father Shri Tia Lal Taploo, was void and ineffectual as also for possession of one-half of the house and for permanent injunction restraining the aforesaid vendees from changing the condition of the house was brought by the appellant against the vendees and his father in the court of the Sub-Judge (ADM), Srinagar which was dismissed on November 19, 1962, Aggrieved by this judgment and decree the appellant preferred an appeal in forma pauperis in the court of the District Judge, Srinagar. In connection with the proceedings for permission to file the appeal in forma pauperis the appellant made two contradictory statements on oath as his own witness one on August 23, 1965, and the other on February 27, 1967, In his first statement the appellant deposed that he had no movable or immovable property, that he had no means of livelihood and that he had not got the capacity to pay the court fee, In his later deposition the appellant stated that he was employed in the Control Department for the last one year and a half i. e. since August 1965 in the grade of Rs. 65-5-EB-120 and was drawing Rs. 100/- as his salary and allowance from the said department and that even in June and July 1965 when he was under training he drew some allowance. The application for permission to appeal in forma pauperis was eventually rejected by the District and Sessions Judge, Srinagar, vide his order dated August 3, 1968, whereupon the appellant paid up the requisite court fees. Thereafter the appeal was heard on merits and allowed by the District Judge by his judgment dated April 18, 1969, Meanwhile an application under Section 195 Criminal P. C. was filed by the respondent in the court of the District Judge, Srinagar, on August 13, 1968, praying that as the appellant intentionally made a false statement as his own witness on August 23, 1965, in connection with the aforesaid application for permission to appeal in forma pauperis proceedings for perjury under Section 193 R. P. C. be initiated against tie appellant, After allowing an opportunity to the appellant to show cause why the application made by the respondent be not allowed and considering the material before him the learned District Judge came to the conclusion that the appellant had intentionally made a falser statement on August 23, 1965, and that it was expedient in the interests of justice that he should be prosecuted under the aforesaid section of the Penal Code. Accordingly he passed an order on September 16, 1972, for launching a complaint against the appellant under Section 193 of the Penal Code in the court of the Chief Judicial Magistrate, Srinagar, which was complied with. It is against this order that the present appeal has been preferred by the appellant. 2a. Shri J. L. Choudhry appearing on behalf of the respondent has raised a preliminary objection to the maintainability of the appeal and has urged that the impugned order is not appealable. In support of his objection he has invited my attention to Sub-section (3) of Section 479-A of the Code of Criminal Procedure. This objection, in my opinion, is well founded and must prevail in view of the said provision of law which clearly bars an appeal.

(3.) NOW although an appeal against the aforesaid order of the District Judge is not competent, there is nothing in the Code to restrict the power of this Court to revise the impugned order. Accordingly I would treat the appeal as a revision and proceed to dispose of the matter. Let me now advert to the two contentious raised on behalf of Shri Bhushan Lal Taploo by Shri K. N. Raina, that (1) it was Section 479-A of the Code of Criminal Procedure which applied to the present case and (2) that the impugned order could not be passed by the learned District Judge, on September 16, 1972.