MT JAIMALA KUNWAR Vs. COLLECTOR OF SAHARANPUR

JUDGEMENT

(1.) This is an application in revision and arises under the following circumstances : A suit was instituted by the Collector of Saharanpur on behalf of the estate of Lala Janeshwar Das, the owners of the estate, for the time being, Janeshwar Das's two widows, Mts. Jai Mala Kunwar and Ohando Kunwar. The suit was No. 6 of 1932 in the Court of the First Subordinate Judge of Saharanpur. It was alleged that the last male owner of the property in suit was one Deep Chand and on the death of his widow Mt. Dhani Kunwar the property devolved on Janeshwar Das and Badri Das, two brothers, in equal shares. The suit was directed inter alia to obtaining a declaration that one of the Jat defendants, Atma Ram who professed to have been adopted by Dhani Kunwar, was not at all adopted and that Janeshar Das and Badri Das were entitled to the property, and on the death of Janeshwar Das and Badri Das their widows were entitled to recover the property. The widow of Badri Das, Mt. Phulwanti, was made a defendant in the case.

(2.) The defendants to the suit were besides Atma Ram, his brother Abheynandan Lal. We have already stated that Mt. Phulwanti was made a defendant. A fourth person, Abdul Majid Khan, was made a party as a transferee from Lala Atma Ram and Abheynandan. The Collector of Saharanpur, who was the plaintiff in the suit, made an application to the Court on 19 April 1932 withdrawing the suit. This application was opposed by the widows, Jai Mala Kunwar and Chando Kunwar, and one BeniPrasad. Beni Prasad according to the allegations of the widows and himself, and according to the pedigree stated in the plaint, was along with his brothers the next reversioner to the estate of Janeshwar Das and Badri Das. Their application was dated 19 May 1932 and was to the effect that they should be made parties to the suit and the conduct of the suit should be given to all or any one of them. In support of their application they filed an affidavit, which is on the record as document No. 650. Various allegations were made in this affidavit, the important allegations being that Beni Prasad was a reversioner to the estate of Janeshwar Das and Badri Das and was therefore interested in the litigation. On behalf of the Collector it was urged that he was the sole plaintiff and ha was entitled to withdraw the suit at his pleasure and that under Section 53, Court of Wards Act of 1912, his discretion could not be questioned by the Civil Court.

(3.) The learned Subordinate Judge considered the application and held that the applicants could not be made parties, and having allowed the Collector to withdraw the suit, dismissed it with half the costs. The application in revision is by Jai Mala Kunwar alone. Beni Prasad was made a pro forma respondent. On 10th April 1933 Beni Prasad applied that he may be transposed to the array of the applicants as applicant No. 3. No order has yet been passed on this application and it is therefore before us for disposal. On behalf of the respondents a preliminary objection has been taken that the revision is not maintainable because the learned Subordinate Judge had jurisdiction to hear the application of the Collector and as he applied his mind to the application and to the petitions of the applicants and Beni Prasad, the decision of the learned Subordinate Judge is final and is not open to revision by this Court. It appears to us that so far as the petition of the two ladies, Jai Mala Kunwar and Chando Kunwar is concerned the learned Judge did apply his mind and wrote a judgment which whether it be right or wrong, cannot properly be revised by this Court under the provisions of Section 115, Civil P.C. We cannot interfere with an order simply because it is wrong in law. We must be satisfied that the lower Court had acted illegally or with material irregularity in the exercise of its jurisdiction. The preliminary objection therefore must hold good as regards the applications of the two ladies. So far as the application of Beni Prasad is concerned we fear that it has not received a proper hearing and consideration from the learned Judge in the Court below. He has totally misapprehended the nature of Beni Prasad's application and dealt with it summarily. We shall deal with it at length in the course of his judgment. It was next contended that Beni Prasad filed no petition in revision, and his application of 10 April 1933 being a belated one it could not be granted. We are not prepared to accept this contention. Beni Prasad was already a party to the revision filed by Jai Mala Kunwar and Chando Kunwar and was therefore already before the Court. Where out of three petitioners two filed a revision against the order passed against their application the third may very well expect that justice would be done towards the joint petition and the third need not file a separate application in revision. In this view we cannot reject Beni Prasad's application on the sole and simple ground that it is a "belated" one. The revisional jurisdiction of the High Court need not be invoked by a party and it may be exercised by the High Court of its own accord. We accordingly direct that the application of Beni Prasad for being put into the array of the applicants be granted and that the application in revision be amended accordingly.