SATTAR LOHAR Vs. JABAR HAJAM

JUDGEMENT

(1.) BY an agreement -deed dated 11 -7 -1955, the petitioner and respondents 4 to 6 (hereinafter called the Vendors), agreed to sell a water mill (Gharat) owned by them to the father of respondents 1 to 3 (hereinafter called the vendees). In terms of the agreement the vendors transferred the possession of the Gharat to the vendees on receipt of Rs. 600 as consideration. Pursuant to the agreement the vendees did not care to obtain a sale deed from the vendors. They, however, continued in possession of the Gharat. Meanwhile the vendors brought a suit for the recovery of the possession of the Gharat which was decreed. The vendors actually got back the possession. Subsequently the vendees brought a suit for the recovery of Rs. 600/ - due on the agreement. The suit was originally filed in the court of Munsiff, Uri. Before the learned Munsiff, the vendors pleaded that they were agriculturists and the suit was triable under the Agriculturists Relief Act. The plea found favour with the learned Munsiff who held accordingly. Ordinarily the learned Munsiff should have returned the plaint for presentation to the proper court. He did not however do so. Instead he forwarded the file to the learned District Judge, Baramulla, who transferred it to the court of Sub -Judge, Baramulla, which was the court competent to try the suit under the Agriculturists Relief Act. The court tried the suit and eventually decreed it and directed that the decretal amount shall be paid in installments of Rs. 100/ - per year adding that the parties will bear their own costs. On appeal, the learned District Judge Baramulla upheld the decree but directed that the decretal amount shall be paid in lump adding that the vendees shall be entitled to recover the costs incurred by them in the trial court as also in his court. Aggrieved by the decision of the learned District Judge, the vendors have come up in appeal to this court. Before me, the learned counsel for the appellants urged the following two points: 1. That the order of the learned District Judge directing the payment of the decretal amount in lump was unjustifiable in law;

(2.) THAT the learned District Judge had no power to award the costs incurred by the vendees in the trial court without any appeal or cross -objection having been filed by them, and, in any case, costs incurred by the vendees in the trial court as also in the District Court could not be justifiably awarded to them. 2. Dealing with the first point the learned District Judge has observed that, in his opinion, the Agriculturists Relief Act was not applicable to the present case because, as he said, "the money was not borrowed but has been advanced as consideration for execution of the contract". In this he has over looked the fact that the decision on this point was given by the learned Munsiff, Uri which was not agitated by the aggrieved party who abided by it and went to trial before the learned Sub -Judge, Baramulla on the assumption that Agriculturists Relief Act was applicable to the case. That decision had become final and was no longer open to challenge. Accordingly the decision to the contrary given by the learned District Judge and the consequential order directing payment of the decretal amount in lump is not sustainable. The first point must prevail. O.41 R. 33 C. P. C. reads : "The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. Provided that the Appellate Court shall not make any order under section 35 -A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."

(3.) THIS rule empowers the appellate court to pass an order which ought to have been passed by the trial court. The trial court held that the vendees were entitled to decree for the amount claimed by them. On this finding the vendees were entitled to costs incurred by them in the trial court. The court however, disallowed the costs without giving any reason. Clearly the "District Judge had power to decree costs incurred by the vendees in the trial court if it was otherwise just and proper to do so. It is true that the vendees did not file an appeal or cross -objection before him to challenge the order of the trial court disallowing the costs. But rule 33 is wide enough to enable the appellate authority to decree costs incurred by the successful party in the trial court even without such party filing an appeal or cross objection". The argument to the contrary of the learned counsel for the appellant must fail.