GANESH BALKRISHNA BHIDE Vs. VITHAL TRIMBAK BHIDE

JUDGEMENT

(1.) This is an application for a review of our judgment delivered on the 9 January 1920 in First Appeal No. 57 of 1918. The application is based on the ground that a certified copy of the relevant extract from the record of rights was not produced with the plaint in the case as required by Section 135 H of the Bombay Land Revenue Code, that, therefore, the plaint should have been rejected, and that all the subsequent proceedings taken in the absence of such certified copy must be treated as having been taken without jurisdiction. It may be mentioned that in the trial Court apparently this omission was not noted until the arguments were heard. At that stage, time was allowed to the plaintiff to put in the necessary certified copy. It is not clear as to what happened after that; but for one reason or other no copy was put in, and the trial Court proceeded to decide the case. In the memorandum of appeal here no point with reference to the omission to file the certified copy was taken; but at the hearing of the appeal, in the course of the arguments, it was mentioned, but ultimately abandoned. Though there is no record of it, apparently it was dropped as certain facts with regard to the production of the revenue records before the trial Court were pointed out by the pleader for the plaintiff. We did not refer to this point in the judgment probably because it was abandoned. Whatever the reason for the point not having been pressed at the hearing of the appeal may be, and whether in fact it was abandoned or not, what we have now to consider is whether the review based on this ground should be allowed.

(2.) After a careful consideration of the provisions of Section 135H of the Bombay Land Revenue Code and the history of the litigation, I am clearly of opinion that it is not necessary in the interests of justice to grant this application, and that there is really no sufficient reason for reviewing our decision. Whatever the merits of the point may be, it could have been and should have been taken at the trial. It was not effectively taken at the trial or at the hearing of the appeal. Though I fully recognize that the consequence of the omission on the part of the plaintiff to put in the necessary certified copy is as laid down in Sub-section 2 of Section 135H, I do not think that the consequence must necessarily be given effect to at any stage of the litigation. Having regard to the stage of the litigation which is now reached, I do not think that it is obligatory upon this Court to allow a review of the decree on the ground of non- compliance with the provisions of Section 135H. Even assuming that it is necessary to see that the omission is made good, when our attention is drawn to it, we can allow Mr. Shingne to cure the defect by letting him put in a certified copy of the extract. Mr. Shingne is ready to do so; and as the production of the certified copy is insisted upon by defendant No. 2, we allow the plaintiff to do so. I quite admit that if the omission is brought to the notice of the Court at the proper time, the plaint ought to be rejected unless the Court sees reason to give the plaintiff time to produce it. But I am unable to accept the contention now urged on behalf of the applicant that because this copy was not put in at the proper time, the necessary consequence of it must be that the plaint should be rejected and that the litigation should start afresh. That is a contention, which, unless it is expressly or by necessary implication demanded by the provisions of the section, I am wholly unwilling to allow. The whole object of this section is to see that the trial shall not proceed in the absence of the necessary extract from the record of rights, so that the Courts may be in a position to know what the entry in the record of rights is and to see how far its correctness can be successfully impugned by the party concerned. But there is no reason to hold that the proceedings taken in the absence of this extract are null and void. The very fact that the omission was not minded by any party shows that under the circumstances of the case, the omission was more formal than substantial. Whatever the true view about the consequence of the non-compliance with the requirements of a 135H, Sub-section 1, may be, it is clear on the facts of this case, that there is no substance or merit whatever in the application, and that it is merely an attempt based on a technical ground to get rid of the result of the litigation, which has practically ended against the present applicant.

(3.) I would discharge the rule with costs. Two sets of costs are allowed. Crump, J.