NATESA NAICKER Vs. SAMBANDA CHETTIAR

JUDGEMENT

(1.) These two matters arise out of an application for the filing of a complaint under Section 206 of the Indian Penal Code in respect of the cutting of trees alleged to be under an attachment at the instance of the District Munsif's Court, Poonamallee. The application was rejected by the District Munsif mainly on the ground that the attachment covered trees described as Palavrukshangal which the learned District, Munsif interpreted as fruit bearing trees, not including casuarina trees such as were cut. The applicant appealed to the District Judge of Chingleput who differed from the, District Munsif as to the interpretation of the phrase he translating it as various trees not as "fruit bearing trees" and considering that the attachment was intended to cover all the trees on the land and not merely fruit bearing trees. But the learned District Judge came to the conclusion that the materials on the record of the District Munsif's inquiry were not sufficient to justify the filing of a complaint by the appellate Court and he also came to the conclusion that he had no power under Section 476-A of the Criminal P. C. to remand the petition for the taking of additional evidence; nor had he the power to take additional evidence in appeal. The appeal was therefore dismissed with the observation that it was open to the decree-holder to move the High Court in revision. After the disposal of this appeal it was brought to the notice of the District Judge that there was ample authority for the view that the Court hearing the appeal against an order of a Civil Court declining to file a complaint under the powers conferred by Section 476-A of the Criminal P. C. acted as a Civil Court and could employ all the powers conferred by the Code of Civil Procedure on a Court of Appeal, and the attention of the learned District Judge was also drawn to Kumaravel V/s. Shanmugha , the Full Bench decision pronounced subsequent to the District Judge's original judgment and establishing the correctness of the view that the appellate Court in such a case was a Civil Court and not a Criminal Court. The learned District Judge therefore reviewed his previous order and remanded the matter to the trial Court for further evidence and a specific finding on the facts. It is against this order of review that the present appeal has been preferred. After the remand under the order of review there was a finding and a further hearing before the District Judge as a result of which the District Judge directed a complaint to be filed. Against the order for the filing of a complaint the Civil Revision Petition, has been preferred.

(2.) Dealing with the latter first, it seems to me that there are no grounds upon which this Court's revisional jurisdiction can be invoked in this case. The question of the precise scope of the attachment is one upon which two views were taken by the two Civil Courts which had to deal with the matter and one upon which the decision of the Criminal Courts will be final. But certainly the learned District Judge on the view which he took of the order of attachment had ample jurisdiction to direct the filing of the complaint and it is not possible for this Court sitting in revision to reverse the District Judge's order merely on a consideration of the comparative merits of the two interpretations which have been given of the order of attachment.

(3.) The appeal against the review order deserves more serious consideration. It was held in Murari Rao V/s. Balavanth Dikshit that an error apparent on the face of the record under Order 47, Rule 1, Civil Procedure Code might be an error of law and in that particular case the error of law which was the ground for review was the failure to take note of an established authority reported in the Indian Law Reports finally deciding a matter of succession. That is to say, the Bench recognised the power of the Court in an appropriate case to review its order because it had overlooked a leading authority on a clear matter of law. So far as I am aware, this decision is still good law. I have followed it myself in a case, Venkatarayulu V/s. Rattamma and though it has been criticised by a single Judge of this Court in a case, Opporti Padhi V/s. Paila Ujjulla it has not, so far as I am aware, been dissented from by any subsequent Bench. Certainly the decision in Murari Rao V/s. Balavanth Dikshit should not be taken any further than it goes. It is not authority for the view that whenever a Judge has overlooked a ruling he has a power to review his decision; nor is it authority for the view that whenever, after a judgment has been pronounced, a subsequent ruling changes the accepted view of the law, that subsequent ruling can be a ground for review. But when there is a legal position clearly established by a well-known authority and by some unfortunate oversight the Judge has gone palpably wrong by the omission of those concerned to draw his attention to the authority, it may in a proper case, in the light of Murari Rao V/s. Balavanth Dikshit be a ground coming within the category of an error apparent on the face of the record. That seems to me to be the position, so far as this Court is concerned, in the light of Murari Rao V/s. Balavanth Dikshit .