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Chuttan Lal vs Kanhaya Lal

High Court Of Judicature at Allahabad|30 October, 1912


1. This appeal has arisen out of the following circumstances. The plaintiff-respondent brought a suit for profits as assignee of the right of a co-sharer against the lambardar in the Court of an Assistant Collector of the first class. The suit, was first of all dismissed for default of appearance and was, subsequently, reinstated on the application of the plaintiff. Various dates were fixed and issues were framed. The 4th of April was finally fixed for the taking of the evidence of the parties and the decision of the suit. The plaintiff's mukhtar, though he had filed an application for summoning the witnesses, apparently had delayed in paying in the necessary diet money. The summonses to witnesses had, therefore, not been served. The patwari, one of the witnesses, had apparently attended at a previous day and was again present on the 4th of April. The plaintiff's mukhtar on that date wished to examine him as a witness. As, however, the patwari had been present for several days at the Court, the Assistant Collector ordered the mukhtar to pay him a certain amount of extra diet money. This the mukhtar refused to do, whereupon the Court refused to allow him to examine the witness. The rest of the plaintiff's evidence was not forthcoming. The Court accordingly adjourned the case so the 13th of April, for the purpose of delivering judgment. As the Assistant Collector's order on the back of the application shows, after the case had been closed, the mukhtar put in an application for adjournment to enable him to again summon his witnesses. This the Assistant Collector, for reasons given by him good, bad, or indifferent, refused to allow, and on the 13th of April, the Judge delivered a judgment dismissing the plaintiff's claim. That judgment ends as follows: "The plaintiff is the vendee of the profits of Hoti Lal, co-sharer. The sale-deed is an unregistered one. Even the necessary witnesses to prove the deed were not summoned. As the plaintiff has failed to prove his claim and has failed to prosecute the case, it is ordered that the plaintiff's claim be dismissed for default and that he should pay the defendant's costs." The judgment was written in vernacular, and the word which has been translated as default is the word adam-pairawi. From the decision of the Assistant Collector an appeal was preferred to the District Judge who remanded the case to the Court of first instance for decision on its merits. The defendant has brought this appeal against this order of remand, and in the commencement it is admitted that no appeal lies to this Court from an order of remand, and an application has been filed asking this Court to treat the appeal as a revision. The point taken is that the decision of the first Court is not a decree but an order of dismissal for default, and, therefore, no appeal lay to the District Judge. On behalf of the respondent, the opposite party, a plea is taken that there is no machinery in the Tenancy Act which enables this Court to revise an order of remand passed by the District Judge, that Section 115 of the Code of Civil Procedure does not apply, and that even under that section, this Court has no power to revise the order in question. It is unnecessary to decide the points raised on behalf of the respondent, because we are clearly of opinion that the Court of first instance did not take action under Rule 2 of Order XVII, but that it took action under Rule 3 of that same Order and that it simply dismissed the plaintiff's suit as he had failed to prove his case. In this view, it is quite clear that an appeal did lie to the District Judge. There is, therefore, no reason whatsoever for interference on revision even if we had power to entertain such an application. In this view, the appeal fails and the application is disallowed. The opposite party will have his costs.
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Chuttan Lal vs Kanhaya Lal


High Court Of Judicature at Allahabad

30 October, 1912
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