SURYA NARAIN PRASAD Vs. SURYA MAN JHA

JUDGEMENT

(1.) THE petitioner was a defendant in a suit in which the plaintiff asked for recovery of possession of certain land. THE suit was decreed; and sometime after it was decreed, the petitioner made an application, to the trial Court asking that certain of the plaintiffs, who had given evidence in the suit, should be prosecuted for perjury. This application was dismissed and an appeal against the order of the learned Munsif was also dismissed. THE learned Munsif and the learned Additional District Judge who heard the appeal both awarded costs against the petitioner. It is now contended that this order for costs was an order made without jurisdiction and should, in consequence, be set aside. For this proposition, Mr. G.C. Das, for the petitioner, relies on the decision of Blacker J. of the Lahore High Court in Abdul Hamid V/s. Sayyed Ahmad Shah A.I.R 1943 Lah. 26. Blacker J. there observed that: Proceedings under Section 476B, Criminal P.C., whether they originate in a civil Court or a criminal Court or a revenue Court, are criminal proceedings.

(2.) THIS, Blacker J. thought, was a conclusion which necessarily followed from the decision of a Pull Bench of the Lahore High Court in Dhanpat Rai V/s. Balak Ram A.I.R. 1931 Lah. 761. What was there decided was that when an application in revision was made to the High Court against an appellate order of a civil or revenue Court made under Section 476B, Criminal P.C., the jurisdiction of the High Court to entertain and dispose of it was derived from Section 439, Criminal P.C., and not from Section 115, Civil P.C. THIS decision, however, is at variance with decisions of other High Courts, and particularly with decisions of the Calcutta High Court; see, for instance, Surendranath Maiti V/s. Sushilkumar . Lori-Williams J. there expressed the opinion that all applications under Secs.476, 476A and 476B originating in civil Courts must be dealt with according to the provisions of the Civil Procedure Code. The same view of the matter was taken by Dhavle J. of this Court in Jagannath Acharya V/s. Rajagopalachari A.I.R. 1931 Pat. 411 and by Agarwala J. in Sheopal Singh V/s. Mahendra Narain Singh A.I.R. 1934 Pat. 55. Apart from this, it seems to me quite clear that the Courts which made the orders now complained of were civil Courts and, therefore, had jurisdiction under Section 35, Civil P.C., to award costs. The costs which the petitioner was ordered to pay were, I think myself, costs incident to the suit in which he was a defendant, being the costs of interlocutory applications made to the Court after the suit had been decreed. The procedure which the learned Munsif had to follow in disposing of the application which was made to him by the petitioner may, to some extent, have been laid down in Section 476, Criminal P.C., but he was nevertheless sitting as a Civil and not as a Criminal Court, and had, in my opinion, jurisdiction to award costs. So also had the learned Additional District Judge who heard the appeal. I can see no reason to interfere with the orders of the Courts below and this application will accordingly be dismissed.