Patna High Court
Dewani Choudhary And Ors. vs Chaturi Manjhi And Ors. on 3 September, 1970
Equivalent citations: 1972CRILJ134
JUDGMENT G.N. Prasad, J.
1. This Bench of five Judges has been constituted for the purpose of deciding whether the view taken by this Court in Raja Singh v. Mahendra Singh (FB) is correct. In that case the Full Bench has held, by a majority of 2 to 1, that in exercise of its revisional cowers under Sections 435 and 439 of the Code of Criminal Procedure (hereinafter referred to as the Code), the High Court can. in suitable cases, interfere with the decision of the Civil Court given by it under Sub-section (1-A) upon a reference made to it under Sub-section (1) of Section 146 of the Code after the referring Magistrate has disposed of the proceeding under Section 145 under Sub-section (1-B). and that the bar as to appeal, review and revision imposed by Sub-section (1-D) operates only so long as the Magistrate has not passed his order under Sub-section (1-B) of Section 146. But the bar is lifted when the finding of the Civil Court has been "adopted by the Magistrate and order passed upon its basis", because it is only such a finding that "becomes a part of the order of the Magistrate and is integrated into it that it becomes operative and binding upon the parties". The minority view expressed by Sahai, J... on the other hand, is that the bar of Sub-section (1-D) continues even after the Magistrate has disposed of the proceeding under Sub-section (1-B). All the three learned Judges constituting the Full Bench are. however, agreed that nothing in Sub-section (1-D) affects the power of Superintendence which the High Court enjoys under Article 227 of the Constitution, and that despite the provision contained in Sub-section (1-D), it is open to this Court in exercise of its constitutional jurisdiction to strike down the finding of the Civil Court where "a flagrant violation of legal principles, or principles of natural Justice" is disclosed,
2. In my judgment. the correctness of this unanimous view taken in Raja Singh's case. (FB) cannot be called in Question. It is well-settled that the power of superintendence which has been conferred upon the High Court over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction under Article 227 of the Constitution is not confined to administrative matters only. but also includes the power of judicial revision. It is also well settled that this power cannot be curtailed or whittled down by any enactment short of a constitutional amendment. In my Judgment the law on the subject has been correctly expounded in Jodhey v. State . In re Annamalal Mudaliar and Israil Khan v. The State AIR 1951 Assam 106.
3. In Jodhev's case . the Lucknow Bench of the Allahabad High Court had occasion to consider the impact of Section 85 of the U. P. Panchayat Raj Act (26 of 1947) upon the High Court's power of superintendence under Article 227 of the Constitution. Sub-section (1) of Section 85 gave power to the Sub-Divisional Magistrate, inter alia, to quash any decree or order passed by a Panchayati Adalat if in his opinion there was a miscarriage of Justice or apprehension of miscarriage of Justice in any case, and Sub-section (5) provided that:
Except as aforesaid, a decree or order passed by a Panchavati Adalat in any suit, case or proceeding under this Act shall be final and shall not be open to appeal or revision in any Court.
Nasir Ullah Bea, J. traced the history of the constitutional legislation leading up, to the enactment of Article 227 of the Constitution, and observed at case 729 as follows:
A reading of the entire Article 227 of the Constitution of India in the light of the antecedent law on the subject leads one to the irresistible conclusion that the purpose of the constitution makers-was to make the High Court responsible for the entire administration of Justice and to vest in the High Court an unlimited reserve of Judicial power which could be brought into play at any time that the High Court considered it necessary to draw upon the same. Springing as it does from the Constitution, which is the-parent of all Acts and Statutes in India the fact that the judgment or order of a Court or that tribunal has been made final by an Act or the fact the body performing Judicial functions is a special tribunal constituted under a Statute cannot be set up as a bar to the exercise of this power by the High Court. The prohibited area is to be found within the four corners of the constitution itself and nowhere else.
But his Lordship also indicated the limits within which the High Court would exercise this power, in the following terms:
The fact that these unlimited powers are vested in the High Court should, however, make the High Court more cautious in its exercise. The self-imposed limits of these powers are established and laid down by the High Courts themselves. It seems to me that these powers cannot be exercised unless there has been an unwarranted assumption of jurisdiction not possessed by Courts or a gross abuse of Jurisdiction possessed by them or an unjustifiable refusal to exercise a jurisdiction vested in them by law. Apart from matters relating to jurisdiction. the High Court may be moved to act under it when there has been a flagrant abuse of the elementary principles of Justice or a manifest error of law patent on the face of the record or an outrageous miscarriage of Justice which calls for remedy. Under this power the High Court will not be Justified in converting itself into a Court of appeal and subverting findings of fact by a minute scrutiny of evidence or interfering with the discretionary orders of Court. Further, this power should not be exercised, if there is some other remedy open to a party. Above all. it should be remembered that this is a Dower possessed by the Court and is to be exercised at its discretion and cannot be claimed as a matter of right by any Party.
4. In Mudaliar's case . the identical question arose in the context of Section 51 (6) (a) of the Madras Co-operative Societies Act. 1932. which provided that any decision given by the Deputy Registrar under Sub-section (2) (a) or Sub-section (5) of Section 51 "shall be final and shall not be called in question in any Civil or Revenue Court". Section 57 provided for a revision to the State Government or to the Registrar from such a decision. The petitioner did not pursue the remedy under Section 57 but invoked the High Court's jurisdiction under Article 227 of the Constitution. Dealing with the Question whether the High Court could entertain the petition or not, Ramaswami. J. referred to numerous authorities, and held as follows:
(a) The restrictions sought to be imposed upon the scope of Article 227 of the Constitution as well as confining the superintendence to administrative superintendence are untenable. Under Section 107, Government of India Act. 1915, "superintendence" was interpreted to include judicial as well as administrative superintendence and the High Court was intervening by revision in proper case under Section 107. Government of India Act, 1919, in cases where Section 115. Civil Procedure Code or Section 439, Criminal Procedure Code did not apply. This power of judicial interference was expressly barred by Section 224 (2). Government of India Act, 1935. But under Article 227 of the Constitution of India, the power of Judicial interference which the High Court had under the Government of India Act, 1919 was restored, and power was conferred upon the High Court of supervision over all judicial matters decided by any Court or Tribunal within the State.
(b) But superintendence thus conferred on the High Court does not mean an unlimited prerogative to correct all species of hardship. Interference under Article 227 is intended to deal with cases where there has been a denial of fair trial or a flagrant abuse of fundamental principles of natural Justice or miscarriage of Justice due to grave error of law or procedure; and not for correcting inconsequential errors or for interfering in case of mere failure to appreciate the evidence.
5. In Israil Khan's case AIR 1951 Assam 100. a Division Bench had to deal with a Criminal revision application against an externment order passed by a Magistrate under Section 17 (1) as modified by the Sessions Judge under Section 17 (3), Assam Opium Prohibition Act (23 of 1947). A preliminary objection was raised that the High Court could not interfere with the order in exercise of its revisional or inherent jurisdiction having regard to the language of Section 17 (3) which reads:
Anv person against whom an order has been made under Sub-section (1) may appeal to the Court of Session whose decision shall be final.
It was held that the effect of the provision was to exclude the revisional jurisdiction of the High Court at least by necessary implication, if not in express terms, for otherwise Section 17 (3) would lose all significance and meaning. The order of the Sessions Judge was therefore not revisable under the Criminal Procedure Code. But Section 17 (3) could not control the powers of the High Court under Article 227 (1) of the Constitution and its powers of superintendence under that Article remained in spite of Section 17 (3). But as to the conditions under Which the High Court would exercise its power of superintendence, it was observed at page 112 of the report as follows:
It is apparent from the examination of the authorities discussed above that no inflexible rule of universal application may be laid down as to the conditions under which the H. C's Power of superintendence may be exercised. The power now vesting in the H. Cs. by virtue of Article 227. Constind is the same which the H. Cs. exercised Under Section 15 of the Charter Act and then Under Section 107 Government of India Act. Speaking generally this power of superintendence places at the disposal of the H. C, an extraordinary reserve of power in order that there should be no species of injustice which the H. C. may not be able to cure. Since the Jurisdiction is extraordinary it should not serve ordinarily as a substitute for revisional jurisdiction in cases where the revisional jurisdiction has been taken away from the H. C. by a competent Legislature, though even in such cases absence, excess or abuse of jurisdiction will no doubt justify interference. The H. C. may also draw on its powers of superintendence, to avoid or prevent obvious miscarriage of Justice. It shall not. however, be justified in getting round any express provision of statute depriving it of its revisional jurisdiction by restoring to its extraordinary jurisdiction except in cases mentioned above. It will not also be justified in constituting itself a Ct. of appeal and substitute its own view on findings of fact after a minute scrutiny of the evidence, though the extraordinary jurisdiction may be utilised for correcting miscarriages of Justice which have been occasioned by patent errors of law or procedure which cannot be corrected otherwise.
6. With respect, I am in complete agreement with the views expressed in these three decisions. It is true that in all these decisions the finality attaching to the impugned orders was by virtue of laws of the State Legislatures concerned. But the same considerations must govern where the finality attaches under a provision in an Act of Parliament, because an Act of Parliament cannot be out on a higher footing in relation to an Article of the Constitution. I am therefore, of the opinion that the unanimous view of the Full Bench in Raia Singh's case. to the effect that Sub-section (1-D) does not take away the power of Judicial interference which the High Court possesses under Article 227 of the Constitution with the decision of the Civil Court given under Sub-section (1-A) of Section 146 of the Code, in cases involving a flagrant violation of legal principles or principles of natural Justice is correct.
7. The fact that this is the correct view to take is apparent even upon the language of Sub-section (1-A) of Section 146 of the Code. That sub-section enjoins upon the Civil Court to which the reference under Sub-section (1) has been made, (i) "peruse the evidence on record"; (ii) to "take such further evidence as may be produced by the parties respectively"; (iii) to "consider the effect of all such evidence" and (iv) to hear the parties and then (v) to decide the Question of possession so referred to it. If, in any case, the Civil Court omits to perform all or any of these duties imposed upon it by the statute, it must undoubtedly be corrected by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution, it is impossible to suggest that even in face of such gross or flagrant violation of canons of Justice and fair play the High Court would be powerless, in spite of having its power of superintendence over "all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction". I have not come across any decision in which a contrary view has been taken. But if there be any. I must express my dissent with it.
8. The real controversy, however, centres round the competence of the High Court to interfere with the finding recorded by the Civil Court under Sub-section (1-A) of Section 146 in exercise of its ordinary powers of revision, since on this point the judicial opinion is sharply divided.
9. I have already referred to the view on the point taken by the majority in Raja Singh's case . In fact, that is the view of my Lord the Chief Justice (Misra. J. as he then was), concurred in by S. P. Singh. J. In support of his view, my Lord has given the following grounds:
(i) If the intention of the Parliament in enacting Sub-section (1-D) had been to curtail the revisional powers of the High Court under Sections 435 and 439 of the Code then there would have been an amendment of these two sections side by side.
(ii) In view of the well-settled rule of construction embodied in the maxim ex visceribus actus. the provision made in Sub-section (1-D) must be construed in a narrow sense in order to harmonise it with the larger and more extensive expressions contained in Sections 435 and 439.
(iii) The decision which the Civil Court gives under Sub-section (i) is interlocutory in nature. It is not operative and binding upon the parties standing by itself. It is no more than an opinion expressed about certain matters referred to the Civil Court by the Magistrate. Yet as a decision, of the Civil Court it might be open to appeal, review or revision, like any other decision of the Civil Court, under the Code of Civil Procedure, and so it was considered necessary and even desirable to make a provision like Sub-section (1-D).
(iv) As soon as the referring Magistrate adopts the decision of the Civil Court and passes an order, as he is bound to do, in conformity with it, the said decision becomes a part of or becomes integrated with the order of the Magistrate, and then it becomes amenable to the revision jurisdiction of the High Court under Sections 435 and 439 of the Code, like any other order passed by the Magistrate.
As to the bar imposed by Sub-section (1-D) my Lord has referred with approval to the following observation made by Ramaswami, J. in Rensammal v. Rama Subbaravalu Reddair :
This restriction is but proper because the findings get merged in the decision of the Magistrate and all the grounds that can be urged against the findings can be urged against the finalised decision and if there is no such restriction there will be multiplicity of proceedings and possible conflicting revisional orders reducing the whole thing to an absurdity. This wise restriction has been conceived in the best public interests and involves no invasion of the fundamental right or diminution of the paternal and supervisory jurisdiction of this Court.
With regard to the opinion expressed in certain quarters that the adoption of such a view would amount to doing indirectly something that cannot be done directly, my Lord has said that it will be an unsound application of the aforesaid principle in the present context.
10. In his dissenting judgment. Sahai, J. has held as follows:
(i) Even after the Civil Court records its finding and transmits it to the Magistrate under Sub-section (1-B). it remains the finding of the Civil Court and does not become the finding of the Magistrate who has merely to dispose of the proceeding under Section 145 in conformity with the decision of the Civil Court. The Magistrate does pass the final order : but he does not give any finding of his own. There is no question of merger of findings.
(ii) Even after the reference made under Sub-section (1). the proceeding before the Civil Court retains its nature as a criminal proceeding. No appeal, review or revision under the Code of Civil Procedure could, therefore, be entertained against the finding of the Civil Court, even if Sub-section (1-D) had not existed. No appeal against that finding could also lie under the Code of Criminal Procedure in view of Section 404 of the Code which lays down that:
No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code, or any other law for the time being in force.
There is no provision in the Code for review of judgment. A revision could also not lie under Secs. 435 and 439 of the Code, because at the stage when the Civil Court arrives at its finding and before the Magistrate passes his final order, the record is not before an inferior Criminal Court as envisaged in these two sections of the Code. Therefore, Sub-section (1-D) is designed to bar a Criminal revision against the finding of the Civil Court, after the Magistrate passes his final order.
(iii) A revision undoubtedly lies against the final order of the Magistrate. But the scope of such a revision would be limited and the High Court would only interfere if the Magistrate's order is not in conformity with the finding of the Civil Court.
(iv) The restriction contained in Sub-section (1--D) is a special provision, and is a well-established principle that a special provision controls a general provision. Hence it, was not necessary to amend Sections 435 and 439 of the Code.
(v) The amendment of Sections 145 and 146 made by Act 26 of 1955 were made with the object of expediting disposal of proceedings under Section 145. That is why the Civil Court also has been enjoined to conclude its inquiry, as far as practicable within a period of three months. But no finality attaches to the finding of the Civil Court because Sub-section (1-E) provides that the order passed under Section 146 would be subject to a subsequent decision of a Court of competent jurisdiction. That being so. there can be hardship to any party if the provisions of Sub-section (1-D) are construed to mean that the finding of the Civil Court cannot be challenged in Criminal revision at any stage.
11. I may also notice two Bench decisions of this Court on the point; viz. Shreedhar Thakur v. Kesho Sao and Mst. Sudamawati Kuer v. Ram Chandra Singh .
12. In Shreedhar Thakur's case . Sahai. J... sitting with Untwalia, J., held that if there is a Proper reference under Sub-section (1), then the High Court cannot interfere with the Magistrate's order in a revision directed against it. except on the limited point that it is not in accordance with the decision of the Civil Court. The finding of the Civil Court cannot be challenged either directly, in view of Sub-section (1-D), or indirectly in view of the dictum of the Lord Chancellor of England in Madden v. Nelson and Fort Sheppard Rly Co. 1399 AC 626. that "it is a very familiar principle that you cannot do that indirectly which you are prohibited from doing directly". Reference was made to Muthu Sethurayar v. Louduswami Odayar where also this principle was invoked by Somasundaram. J. and it was held, that no appeal or review or revision lies in the Civil side against the finding of the Civil Court, but a revision does lie under Sections 435 and 439 of the Code "at least to show that the order of the Magistrate is not in conformity with the decision of the Civil Court". It was noticed that similar views have been expressed by N. K. Sen. J. in Ram Naravan Goswami v. Biswanath Goswami and by M. C. Desai. J. in Tashuq Hussain v. State .
13. As against this in Mst. Sudamawati's case my Lord, sitting with S. P. Singh, J. reiterated his view that although the finding of the Civil Court, on a reference under Section 146 cannot be challenged by way of appeal, review or revision, the finding of that Court:
is still open to challenge if the finding has been acted upon by the Magistrate and an order passed in conformity with it. i.e... when the finding of Civil Court has been integrated into the order of the Magistrate.
14. The law reports abound with numerous other decisions dealing with the scope and extent of the High Court's revisional jurisdiction in the context of Sub-section (1-D) of Section 146. But I do not consider it profitable to refer to them, since I do not propose to base my decision on mere preponderance of judicial opinion which, undoubtedly, is in favour of the view of Sahai. J. which I have set out above, I will, however. deal with the Bench decision of the Allahabad High Court in Chandi Prasad v. Chandra Pratap Singh . because I find that this decision has not done proper justice to the majority view of this Court in Raja Singh's case. (FB) (supra). In this case an argument was put forward that after the finding of the Civil Court has merged in the order of the Magistrate, it is no longer the decision of the Civil Court but, in fact, an order of the Criminal Court, and as such, subject to the revisional jurisdiction of the Sessions Judge and the High Court. Rejecting this argument as fallacious. Unival. J. expressed himself thus:
The Magistrate while acting in pursuance of Sub-section (1-B) of Sec-ton 146 does not exercise his own judgment, but rather accepts and adopts the finding given by the Civil Court as final and conclusive, so that the finding of the Civil Court is an integral part of the order of the Magistrate with the result that the order of the Magistrate cannot be set aside without disturbing the finding of Civil Court. Indeed, the finding of the Civil Court is inseparable from the order of the Magistrate. Take away the finding and the order of the Magistrate ceases to exist. How can it then be argued with any show of reason that although the finding of the Civil Court is immune from attack, the order of the Magistrate based on such finding is liable to be set aside by way of revision.
Dealing with the view of my Lord the Chief Justice that Sub-section (1-D) must be given a narrow interpretation Unival. J. observed:
With great respect, the reasoning adopted by the learned Judges of the Patna High Court seems to us to be based on a misconception. The learned Judges seemed to think that the bar created by Sub-section (1-D) was in respect of the finding of the Civil Court only. The provisions of the Code of the Criminal Procedure relate to procedure in respect of Criminal matters, such as, investigation inquiry, trial or right of appeal or revision etc. The Code does not and cannot make provision for a right of appeal or revision against a finding or order of the Civil Court. That is a matter which falls within the exclusive province of the Code of Civil Procedure. The learned Judges were misled into thinking that the Civil Court recording a finding in terms of Section 146, Criminal Procedure Code was exercising a Criminal jurisdiction and not a Civil jurisdiction.
Again, referring to the view of my Lord with regard to the role of the Civil Court that in adjudicating a reference made to it under Sub-section (1) it does not act as a Civil Court independently but only records a finding as a tribunal which by itself is not operative or binding between the parties. Unival, J. observed that the above view was "clearly untenable" in view of the decision of the Supreme Court, in Ram Chandra Aggarwal v. State of U.P. where Mudholkar. J. stated as follows:
No doubt, the Magistrate, while discharging his function under the Code of Criminal Procedure under Section 145 (1) would be exercising his Criminal jurisdiction because that is the only kind of jurisdiction which the Code confers upon the Magistrate but when the Magistrate refers the question to a Civil Court he does not confer a part of his jurisdiction upon the Civil Court. There is no provision under which he can clothe a Court or a tribunal which is not specified in the Criminal Procedure Code with Criminal jurisdiction.
Finally, the learned Judge has summed UP his conclusion as follows:
There can. therefore, be no doubt that the finding given by the Civil Court in pursuance of the provision of Sub-section (1-B) of Section 146 is a finding of a Court of Civil Jurisdiction, and as such, it is not subject to the jurisdiction of the Criminal Court. In so far as Sub-section (1-D) bars appeal from such finding and prohibits review or revision of such finding, it clearly envisages that in so far as the order of the Magistrate is based on the finding of the Civil Court, the same cannot be interferred with in any way. The order being an integral part of that finding cannot be set aside in revision.
15. With great respect, it seems plain to me that in this judgment their Lordships of the Allahabad High Court have fallen into error in more ways than one. In the first place, their Lordships have not correctly comprehended the viewpoint of my Lord the Chief Justice who has nowhere suggested in the majority view of this Court that the Civil Court in recording its finding on a reference under Section 146 exercises a Criminal Jurisdiction. That is really the minority view held by Sahai. J., which of course stands overruled by the decision of the Supreme Court in Ram Chandra Aegarwal's case. (supra). What my Lord has said is that the Civil Court records its finding as a kind of a tribunal and not in exercise of its ordinary Civil jurisdiction and, as such, its decision standing by itself is not operative or binding between the parties, but interlocutory in nature : The Civil Court records its finding as a referee or amicus curiae or an arbitrator called upon to adjudicate upon certain matters referred to it by the Magistrate who ultimately adopts the said finding in his final order. According to this view, the ultimate decision is that of the Magistrate however arrived at and therefore it is amenable to the ordinary Criminal revisional jurisdiction of the High Court. Whether this view is right or wrong will be seen hereafter. At the moment I am merely indicating how the judgment of my Lord the Chief Justice has been misread by the Allahabad Bench. Secondly, their Lordships there have taken an inconsistent view. At one stage, they have said that while acting under Sub-section (1-B) the Magistrate does not exercise his own judgment but accepts and adopts the finding of the Civil Court as final and conclusive, and at the very next stage they have said that the Magistrate passes an order of which the finding of the Civil Court is an integral part. Once it is held that the Magistrate does not exercise his own judgment. there can be no question of adoption of that finding by the Magistrate or of its integration with the Magistrate's order. It would amount to merely disposing of the proceeding in the light of the finding of the Civil Court or in conformity therewith. In fact, that is exactly the duty enjoined upon the Magistrate under the concluding part of Sub-section (1-B). which reads:
...and the Magistrate shall on receipt thereof, proceed to dispose of the proceeding under Section 145 in conformity with the decision of the Civil Court.
16. Incidentally. I may point out that there is a typographic or printing error in the Allahabad Bench decision under consideration, in that Section 146 instead of Section 145 has been mentioned while quoting Sub-section (1-B) at page 120 of the report. There is another such error in the passage from the Supreme Court decision quoted at Page 122 of the report where in the second line of the right-hand column "the Court" has been printed instead of "the Code". That really constitutes another inconsistency arising out of the Allahabad view. If. As ruled by the Supreme Court, the Magistrate cannot confer a part of his Criminal Jurisdiction upon the Civil Court, it must equally follow that the Civil Court cannot confer a part of its Civil Jurisdiction upon the Magistrate. That being so. I cannot imagine how any finding of the Civil Court can merge in. or become integrated with, an order of the Magistrate, 1 will presently give further reasons in support of my view that it is not a case of merger or integration of findings or decisions of the Civil and the Criminal Courts, but only a material is put in possession of the Magistrate to enable him to "dispose of" the proceeding (which he was so long unable to do) in a particular way.
16. A provision, like the one that we find in Section 146 of the Code, whereby one Court can make a reference of some question arising in a case before it to another Court for decision and for ultimate decision of the case in conformity with the decision of the latter Court is not unknown to law. Nor was it introduced in the Code for the first time by the Amending Act of 1955. In the Code itself there is a similar provision in Sections 432 and 433 which deal with a reference that can be made to the High Court where any subordinate Court is satisfied that a case pending before it involves a question as to the validity of any Act. Ordinance or Regulation or of any provision thereof, the determination of which is necessary for the disposal of the case, and the Court is of opinion that such Act, Ordinance. Regulation or a provision contained therein is invalid or inoperative, but has not been so declared by the High Court or by the Supreme Court. Section 432 provides that in such a situation, the subordinate Court "shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court" : and under Section 433. "the High Court shall pass such order thereon as it thinks fit. and shall cause a copy of such order to be sent to the Magistrate by whom the reference was made, who shall dispose of the case conformably to the said order". It cannot reasonably be maintained that when a reference is made to it under Section 432. the High Court deals with it either as a referee or amicus curiae or as a tribunal or that its order made under Section 433 is interlocutory in nature, or not binding upon the parties until acted upon by the referring Magistrate. Nor can it reasonably be maintained that when the Magistrate proceeds to dispose of the case in conformity with the order passed by the High Court under Section 433. then the order of the High Court gets merged in or integrated with the final order of the referring Magistrate. There is a parallel provision also in Section 113 of the Code of Civil Procedure, read with Order XLVI. Rule 3 of which is in the following terms:
The High Court, after hearing the parties if they appear and desire to be heard, shall decide the point so referred, and shall transmit a copy of its judgement. under the signature of the Registrar, to the Court by which the reference was made; and such Court shall, on receipt thereof, proceed to dispose of the case in conformity with the decision of the High Court.
Even in Article 228 of the Constitution of India, it has been provided as follows:
If the High Court is satisfied that a case pending in a Court subordinate to it involves a substantial Question of law as to the interpretation of the Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may -
(a) either dispose of the case itself, or
(b) determine the said question of law and return the case to the Court from which the case has been so withdrawn together with a copy of its Judgment on such question, and the said Court shall on receipt thereof proceed to dispose of the case in conformity with such judgment.
In none of these cases. High Court can be said to be acting as a referee or amicus curiae; nor its decision can be said to get merged in or integrated with the final order of the Subordinate Court when the latter proceeds to dispose of the case in conformity therewith. I cannot, therefore, persuade myself to think that the decision of the Civil Court given by it on a reference under Sub-section (1) of Section 146 merges in or gets integrated with the final order of the referring Magistrate when he proceeds to dispose of the proceeding under Section 145 in conformity therewith.
17. In my judgment, the Civil Court can also not be equated with an arbitrator called upon to five his decision on certain matters referred to him. because an arbitrator is a persona designate, which the Civil Court dealing with a reference under Section 146 of the Code is not. This has been made clear by the Supreme Court in Ram Chandra Aggarwal's case (supra), where it has been observed at page 1889 of the report as follows:
The power is not to refer the matter to the presiding Judge of a particular Civil Court but to a Court. When a special or local law provides for an adjudication to be made by a constituted Court - that is. by a Court not created by a special or local law but to an existing Court - it in fact enlarges the ordinary jurisdiction of such a Court. Thus where a special or local statute refers to a constituted Court as a Court and does not refer to the presiding officer of that Court the reference cannot be said to be to a persona designata. This question is well settled.
Section 17 of the Arbitration Act 1940, which provides for the award of the arbitrator being made a rule of the Court, should be read in the light of Sections 15 and 16. Section 15 lays down when the Court may modify or correct an award, and Section 16 lays down the circumstances under which the Court may remit the award to the arbitrator or umpire for re-consideration. But if the Court sees no cause to remit the award or to set it aside, then under Section 17 "the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of. or not otherwise in accordance with the award". It will thus be seen that the Arbitration Act contains special provision for making a valid award a rule of the Court, evidently because the arbitrator who gives an award is not a constituted Court but a persona designata. Therefore, there can be no analogy between an award of an arbitrator and the decision of Civil Court of competent jurisdiction, as envisaged in Section 146 of the Code. Under Sub-section (1-B). the Magistrate does not give any decision of his own, but merely disposes of the proceeding under Section 145 in conformity with the decision on the question of possession already arrived at by the Civil Court.
18. For appreciating the true legal consequence of the referring Magistrate's action in disposing of the proceeding under Section 145 in conformity with the decision of the Civil Court. I consider it necessary to examine the scheme of Section 145 in the light of Section 14C. Under Sub-section (4) of Section 145. the Magistrate has to decide the question of possession which is in dispute before him. This has to be done after perusing the statements, documents and affidavits, if any put in by the rival claimants and after hearing the parties and concluding the inquiry. After the Magistrate has come to his decision as aforesaid, he has to issue an order under Sub-section (6) declaring the party whom he has found to be in possession "to be entitled to possession thereof until evicted therefrom in due course of law" and forbidding "all disturbance of such possession until such eviction". In other words under Section 145 the Magistrate has to perform a dual function, one of deciding the disputed question of possession, and the other of passing an effective order in accordance with his decision. The former is akin to passing a decree; the latter is akin to executing it. It is only when the Magistrate finds himself unable to perform the duty enjoined noon him under Sub-section (4) that he is obliged to transfer that duty to the Civil Court by making an appropriate reference under Section 146 (1). while still retaining to himself the other duty enjoined upon him under Sub-section (6) of Section 145. For performing this second duty of his, the Magistrate awaits the decision of the Civil Court to which he has made the reference under Sub-section (1) of Section 146. The Civil Court in its turn acts under Sub-section (1-A) and decides "the question of possession so referred to it" and then under Sub-section (1-B) transmits its "finding" together with the record of the proceeding to the Magistrate by whom the reference was made. Thereafter, the Magistrate is enabled to perform his second duty -- the duty enjoined upon him under Sub-section (6) of Section 145 - and so he proceeds to do it by passing an appropriate order in conformity with the decision of the Civil Court, as enjoined by the latter part of Sub-section (1-B) of Section 146. At that stage the Magistrate has no more to perform his first duty - the duty enjoined upon him by Sub-section (4) of Section 145 - since that duty has already been performed for him by the Civil Court, and he merely disposes of the proceeding in accordance with the decisions of the Civil Court, passing the requisite order envisaged in Sub-section (6) of Section 145. This he does only by way of executing the decision of the Civil Court. In this view of the matter also, the decision or finding of the Civil Court does not merge in or become integrated with the final order which the Magistrate passes under Sub-section (6) of Section 145 on receipt of that finding. I am, therefore, definitely of the opinion that the decision or finding of the Civil Court retains its character as a decision or finding of a Civil Court of competent jurisdiction even after the Magistrate disposes of the proceeding under Section 145 by his final order.
19. I am aware that both my Lord in this Court and Unival, J. in the Allahabad High Court have proceeded on the footing that in recording his final order on the basis of the finding of the Civil Court, the Magistrate adopts it as his own finding. But upon the scheme of the law which I have set out above, this is, I say so with respect, not the correct legal position. In my judgment, the law neither contemplates nor enjoins that before disposing of the proceeding, the Magistrate first must record his own finding or adopt as his own the finding of the Civil Court on the Question of possession. That is the reason why in the latter part of Sub-section (1-B) of Section 146. the Parliament has advisedly used the expression "to dispose of", instead of "to decide". In law. therefore, the Magistrate has no authority even to adopt the finding of the Civil Court as his own. but has merely to dispose of the proceeding in conformity with the decision of the Civil Court. In actual practice however cases do arise where the Magistrate passes his final order in such a way as to indicate that he adopts the decision of the Civil Court as his own. The present case is an instance in point. Here the Magistrate has referred to the finding of the Munsif of Banka on the factum of possession over the disputed land and then proceeded to say "I, therefore, hold that members of the 2nd party and also the members of the F. P. as named above are in respective possession of the disputed land as detailed by the learned Munsif and also in my order above". Having said so, the learned Magistrate proceeds:
Accordingly I declare the 2nd party and the F. P. as mentioned above entitled to retain such possession thereof until evicted therefrom in due course of law. I also forbid all disturbances of such possession until such eviction.
Thereafter the learned Magistrate concludes:
The finding of learned Munsif Banka, forms part of my judgment. The land in dispute is released from attachment.
But a final order in these terms has no legal sanction, and in so far as the Magistrate purports to adopt the finding of the Civil Court as his own, his order has to be ignored as non-existent in the eve of law.
20. The legal implications of the view that I take are obvious. As a decision of the Civil Court, it is not open to interference in appeal, review or revision, in view of the express provision contained in Sub-section (1-D) of Section 146, which is analogous to the provision contained in Section 9 of the Specific Relief Act, 1877. In terms Sub-section (1-D) bars the appellate and the revisional jurisdiction of this Court under the Code of Civil Procedure. I do not accept the view taken in some of the decisions that Sub-section (1-D). also operates as a bar to the exercise of the criminal revisional jurisdiction of the High Court, because Section 435 contemplates that the criminal revisional jurisdiction of the High Court can be exercised only in respect of an order or proceeding of an inferior Criminal Court situated within the limits of its jurisdiction, and, it has now been settled by the decision of the Supreme Court in Ram Chandra Aggarwal's case. (supra) that the proceeding before the Civil Court on a reference made under Sub-section (1) of Section 146 of the Code is a Civil proceeding. Therefore, in the view which I have taken, there can be no scone for interference with the finding of the Civil Court in exercise of the criminal revisional jurisdiction of the High Court, not by reason of the bar enacted in Sub-section (1-D) of Section 146, but upon the express terms of Sections 435 and 439 of the Code. The exercise of the ordinary criminal revisional jurisdiction of the High Court must, therefore, be confined against the final order which the Magistrate is enjoined to pass in conformity with the decision of the Civil Court. In other words, all that the High Court can do in exercise of its ordinary criminal revisional jurisdiction is to satisfy itself as to the legality or propriety of the Magistrate's final order. But in such a case the scope of interference is bound to be limited and all that the High Court can examine is whether the Magistrate has passed the final order in conformity with the decision of the Civil Court or not. It cannot embark upon an inquiry as to the legality or propriety 9f the decision of the Civil Court which is the basis of the Magistrate's final order. The reason for a limited power of interference of this kind is obvious. In the exercise of its jurisdiction, the appellate or the revisional Court cannot do something which the original or the subordinate Court cannot itself do. An appellate or a revisional Court is, after all only "a Court of error." I may refer in this connection to Jagat Bahadur v. State of Madhya Pradesh where the Supreme Court had occasion to consider the power of the High Court to pass a sentence in an appeal from a judgment of acquittal recorded by the trying Magistrate. The High Court had set aside the acquittal and upon conviction it had awarded a sentence of rigorous imprisonment for four years for an offence under Section 392, Indian Penal Code. This was in excess of the power of the trying Magistrate who could pass a maximum sentence of rigorous imprisonment for two years. Their Lordships referred to several decisions, including a decision of the Madras High Court in Paramasiva Pillai v. Emperor (1907) ILR 30 Mad 48, where it was held:
We think that the power given to an Appellate Court to make an order under this section is not an unlimited power to make such an order in any circumstances, but is to be taken as giving the Appellate Court power to do only that which the lower Court could and should have done.
Then their Lordships observed:
It seems to us that these cases lay down the correct law. An appeal court is after all 'a court of error', that is, a court established for correcting an error. If, while purporting to correct an error, the Court were to do something which was beyond the competence of the trying Court, how could it be said to be correcting an error of the trying Court. No case has been cited before us in which it has been held that the High Court, after setting aside an acquittal, can pass a sentence beyond the competence of the trying Court. Therefore, both on principle and authority it is clear that the power of the appellate court to pass a sentence must be measured by the power of the court from whose judgment an appeal has been brought before it. The High Court was thus in error in sentencing the appellant to undergo imprisonment in respect of the offence under Section 392 for a period exceeding two years.
In my judgment, what is true of an appellate court is true also of a revisional Court. Therefore, in exercise of its revisional jurisdiction under Sections 435 and 439 of the Code, the High Court can do no more than what the trial Court could and should have done. It is beyond question that a Magistrate who is required to pass the final order in a proceeding under Section 145 in conformity with the decision of the Civil Court cannot go behind or against the said decision. And if the Magistrate cannot sit in judgment over the decision of the Civil Court, it must follow that it is not open to the High Court in exercise of its revisional jurisdiction to examine the correctness, legality or propriety of the finding of the Civil Court on a reference under Section 146 of the Code.
21. It is, however, contended be-fore us by Mr. Balbhadra Prasad Singh appearing for the petitioners that the ordinary criminal revisional jurisdiction of this Court in respect of the decision of the Civil Court is saved under Sub-section (1-E) of Section 146, which is in the following terms:
An order under this section shall be subject to any subsequent decision of a Court of competent jurisdiction." The argument of learned Counsel is that the expression "a Court of competent jurisdiction" is wide enough to take in its ambit the High Court with its usual revisional jurisdiction. Counsel says that the preceding words in the same subsection, namely, "any subsequent decision" are also wide enough to include a decision in the same proceeding which might be rendered by Court of appellate or revisional jurisdiction In persuading us to give such on extended meaning to the words that occur in Sub-section (1-E), counsel reminds us that previously, in Section 146, the legislature had used the expression "a competent Civil Court", but by the Amendment of 1955, the word "Civil" has been dropped and an expression of wider connotation has been used, viz., "a Court of competent jurisdiction." and do not; however, feel impressed by this argument. As I know the legislative practice in India, the legislature invariably uses the expression "a Court of competent jurisdiction" to denote a Court of original jurisdiction which has competence to entertain the Us. It never uses such an expression to refer to any appellate or revisional Court. The appellate or re-visional Court does not derive its jurisdiction except where jurisdiction has been conferred upon a Court subordinate to it, Whenever the legislature in India intends to confer a jurisdiction, original or other-wise, upon the High Court, it invariably refers to it as the High Court. Thus, in Section 6 of the Code itself, the High Court has been separately referred to while providing for the different classes of Criminal Courts in India. Through out in Code, this distinctive position of the High Court has been maintained. -Even while providing for Courts of orjetttol trial in Sec 28, the legislature has put the High Court in a separate category. ''Like-wise in Chapter XXIII which is headed of trials before the High Courts and Courts of Session", separate provisions have been made of original trials before a High Court. I have, therefore, no doubt in rare mind that the expression, ''a Court of competent jurisdiction", as used in Sub-section (1-E), refers to an original or a trial Court and hot to the High Court in the very first instance. If a lis originates in-any subordinate Court, then alone the High Court may have competence to deal with it as all appellate or revisional Court. If the expression a Courts of competent jurisdiction" were construed as referring even to the appellate or the revisional Court , then the Sessions Court would also fall within its ambit. But nobody has ever suggested that the Sessions Court is competent to entertain an appeal or revision against the decision of the Civil Court under the provisions of Section 146 of the Code. Besides, Sub-section (1-E) cannot be read in isolation from Sub-section (1-D). It is difficult to imagine that having provided for a bar to appeals and revisions in Sub-section (1-D), the Parliament intended to lift the bar in the very next sub-section, and thereby render Sub-section (1-D) wholly nugatory. That brines out the significance of the expression subsequent decision", Sub-section (1-E) obviously contemplates a decision of a competent Court in some subsequent procedure and not the decision of an appellate or revisional Court in the same proceeding. The reason why the word "Civil", has been dropped in Sub-section (1-E) will become clear if it is borne in mind that in several states. revenue Courts or Collector have been invested with power to determine the rights of the patties to possession under special laws. For examine the order of the Collector under Section 41 of the Bengal Survey Act (5 of 1875) or the competent authority under Section 40 of of U.P. land Revenue Act (3 of 1901), or the decision of the Religious Endowment Board under the Madras Hindu Religious Endowments Act (2 of 1927) had been held to be an order or decision of a competent Court determining the lights of the parties to possession within the meaning of Section 146 of the Code. It seems to me that the Parliament did not like to-curtail the powers of these special authorities by conferring jurisdiction under Sub-section (1-E) upon Civil Court alone. I do not therefore, feel persuade to hold that Sub-section (1-E) saves the revisional jurisdiction of the High Court in respect of the finding of the Civil Court under Section 146.
22. Mr. Singh has also relied in this context upon the decision of the House of Lords in National Telephane Company Ltd. v. Postmaster General (1913) AC 546, where Lord Haldane. L. C. observed at D. 552 that:
When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches.
Concurring with decision of the Lord Chancellor, another noble Lord (Lord Parker of Waddington) made a similar observation at p. 562 in these words:
Where by statute matters are referred to the determination of a Court 6f record with no further provision the necessary implication is, I think, that the Courts will determine the matters, as a Court. Its jurisdiction is enlarged. but all the incidents of such jurisdiction. including the right of appeal from its decision, remain the same.
To appreciate the true force of these observations weighty as they undoubtedly are it is necessary to knew the context in which they were made. There a statutory Commission was to function as a Court to record and its decisions appealable to the Court of Appeal except upon questions of fact and locus standi By another statute, it was provided that disputes relating to, telephones arising between the Postmaster General and any other person could be referred to the said Commission who was pound to determine it in accordance, with its, normal procedure. A dispute between the Tele-phone Company find the Postmaster General having been referred to and decided by the Commission, a question arose whether it, could be taken in appeal to the Court of Appeal. The contention of the Telephone, Company was. that, under its agreement with the Postmaster General, the reference to the Commission was for arbitration and the decision of the Commission being one. of an arbitrator was non-appealable. The Court of Appeal overruled the contention and entertained the appeal. Upholding the view of the Court of Appeal, the House of Lords made the aforesaid Observations upon which Mr. Singh relies. But I do not think that they can be applied here. No doubt, lender Sub-section (1) of Section 146 the reference is to an established Court, but unlike in the English, statute, there is a clear provision in Sub-section (1-D) to preclude any appeal, review or revision against its decision. The High Court is no doubt an established Court as well as a Court of record. But there is no specific mention of it in Sub-section (1-E). where a Court of competent jurisdiction has been mentioned, and such a Court must. in; the first instance, be an original ox the trial Court. The High Court can come in the picture only at the appellate or revisional stage of the dispute taken to the original or the trial Court. The decision of the House of Lords, is therefore, of no avail to the learned Counsel.
23. Mr. Singh then; invoices another principle in support of his viewpoint, namely, that a change in the established law of the land is not to be inferred by implication, but can only be made by a clear and positive enactment. This principle is illustrated in Leach v. Rex. 1912 AC 305, where the house of Lewis dealt with the question whether a wife could be compelled, despite her objection, to depose against her husband indicated for a criminal offence. Section 4 of the Criminal Evidence Act, 1898 (61 and 62 Victoria. C. 36) provided that:
The wife, or husband of a person charged with an offence under any enact-meat mentioned in the Schedule to this Act may of called as a witness either for the prosecution or defence and without the consent of the person charged.
At the Assizes the wife was not merely called, but even compelled, to give evidence against her husband. This was disapproved by the House of Lords, Lord Loreburn. L. C. pointed out that Section 4 said in effect that the wife could be allowed to give evidence even if her husband objected; it did not say that she must give evidence against her own will. Lord Halsbury referred to the law which has lasted for centuries-and which is almost ingrained in the English Constitution" that "to call a wife against her husband is a thins that cannot be heard of", and said that "to suggest that that is to be dealt with by inference, and that you should introduce a new system o£ law without any specific enactment of it. seems to me to be perfectly monstrous." And Lord Atkinson said:
The principle, that a wife is not to be compelled to give evidence against her husband is deep seated in the common law of this country and I think if it is to be overturned, it must be overturned by a clear, definite and positive enactment, not by an ambiguous one such as the section relied upon in this case.
The principles so forcefully laid down is beyond question. But before seeking to apply it we must know, what was the state of the law prior to the Amending Act of 1955 and what ambiguity, if any, was introduced therein by it. Where the Magistrate himself decides the question of possession, the law is still the same as it was before the Amendment, and in such an event the final order is revisable by the High Court as before. But where the Magistrate decides that names of the parties was "then in such possession" or fails or is unable to come to a decision on this matter, a change hal no doubts been introduced; by the Amendment. Formerly, in such an event, the Magistrate had merely power to attach the subject of dispute. "until a competent Court has determined the rights of the parties there-to, or the person entitled to possession thereof ". Against such an order of attachment, a revision lay to the High Court where only a limited question could be gone into namely, whether the Magistrate had or had not made an honest endeavour to come to a decision in favour of one party or the other. But now in such a contingency, he cannot merely attach the subject of dispute, but also "draw up a statement of the facts of the case and forward the record of the proceeding to a Civil Court of competent jurisdiction" for a Proper decision upeta the question of possession and to await the decision of the Civil Court to enable him to dispose of the Proceeding in accordance therewith. In such a contingency also, it is even now open to the aggrieved party to move the High Court in revision and show that the reference to the Civil Court is not called for or that the Magistrate has not made an honest effort to come to his own decision in favour of one party or the other. Here also the revisional jurisdiction of the High Court regains intact. But where the High Court is not moved against, or declines to interfere with, the order of reference made to the Civil Court under Sub-section; (1) of Section 146. a new provision has , been made which was not there before the Amendment. This is incorporated, in Sub-sections (1A), (1B), (1C) and (1D). But the power of attachment, which the Magistrate had before the Amendment, has been maintained in a modified form in the proviso to Sub-section (1). Thus the change which has been made in the law is riot of something which was "deep-seated in, the existing, law of the land, but by way of conferring a new but limited jurisdiction upon the Civil Court while still preserving in Sub-section (1E) the remedy of the aggrieved party of getting his rights determined in a "sub-sequent decision of a Court of competent jurisdiction". The change is not in derogation of the then existing, law but by way of supplementing it, Formerly, the Civil Court did not come in the picture during the pendency of the proceeding under Section 145, and so there was no occasion for the High Court to exercise its appellate or revisional jurisdiction against a decision of such a Court. Formerly, the Magistrate had not to pass arty final order in the proceeding after he attached the subject of dispute until the decision of a competent Court and so there was no occasion for the High Court to exercise its revisional jurisdiction in respect of such a final order based upon the decision of the Civil Court.... So the Amending Act has in no way curtailed or restricted the original revisional jurisdiction of the High Court in respect of such a matter; In other words, the change made in the law is not in conflict with the then existing law; nor is there any ambiguity in the new law. so as to attract the principle enshrined in 1912 AC 305 (supra). If, at all the revisional power of the High Court has been restricted. as I hold, in respect of something that did not exist before. As Maxwell says in his Interpretation of Statutes, Eleventh Edition, at page 126 "where, indeed, a new duty or cause o action is created by statute, and a special jurisdiction out of the course of the common law is prescribed, there is ho ouster of the jurisdiction of the ordinary courts, for they never had any". This, I think, is sufficient also to dispose of the argument of Mr. Singh as to the ouster of the jurisdiction of a superior Court except by express words or necessary implication.
24. This also explains why there was not a simultaneous amendment in Sections 435 and 439 of the Code. Evidently, the Parliament intended that after the question of possession has been decided by a competent Civil Court, the aggrieved party should not be allowed to re-agitate that question in the criminal side of the High Court's jurisdiction, but must seek his remedy directly as a civil remedy in the ordinary court of competent jurisdiction. It was not necessary to make any amendment in Sections 485 and 439 because that could never apply in relation to a decision of a Civil Court from the mere fact that such a decision has bear acted upon for thee limited purpose of disposing of the proceeding under Section 145. Yet it was necessary to keep that jurisdiction of the High Court intact with a view to ensure that the Magistrate complied with the law by disposing of the proceeding in conformity within the decision of the Civil Court.
25. A question has, however, been raised as to what would happen if the parties to the dispute come to terms and desire the proceeding to be decided in a particular way which might be contrary to or inconsistent with the decision of the Civil Court. In my judgment, that should present no difficulty. If such a compromise is arrived at while the matter is still pending before the Civil Court, then the Civil Court would undoubtedly record the compromise and gives its decision in the light of Rule 3 of Order 23 of the Code of Civil Procedure. If. however, such a compromise is arrived at subsequent to the decision of the Civil Court envisaged in Sub-section (1A) of Section 146, then the Magistrate would be .justified in proceeding upon the footing that the dispute which had necessitated the initiation of the proceeding under Section 145 no longer exists and he would then pass an appropriate order under Sub-section (5) of Section 145. In such a contingency, he would not be required to pass a final order in conformity with the decision of the Civil Court as contemplated in Sub-section (6) of that section.
26. It was also suggested in course of the argumentts, before us that to preclude all interference by the High Court with the decision of the Civil Court, howsoever erroneous, would amount to conferring a power upon the Civil Court which might be exercised arbitrarily and it would be putting an aggrieved party to, unnecessary hardship if in spite of a patent illegality or error in the decision of the Civil Court, he cannot bring the matter to the High Court, but must be driven to seek his remedy by way of a suit in another Court of competent jurisdiction. By way of illustration, it has been brought to our notice that on the instant case, where the dispute related to 20 plots spread over three different Khstas, the second party, who we opposite parties in this Court. had claimed Sikmi rights in respect of only 14 out of the 16 of plots in dispute in Khata No. 46. In other words, the second party had raised no dispute in respect of the remaining two plots in the proceeding, namely, plot Nos. 691 and 698, both, appertaining to Khata No. 46. But third aspect of the matter has not been clarified in the decision of the Civil Court where it has been stated in general terms that the second party Nos. 1 to 5 are in possession of Sikmi Khata No. 41 under raiyati Khata No. 46 and of the lands of Khatfi No. 204 which are in dispute, while the second party No. 6 is in Possession of Sikmi Khata No. 39 under raiyati Khata No. 46, which is in dispute. So far as the present case is concerned no difficulty can be said to have arisen by the decision of the Civil Court which has merely upheld the claim of possession put forward by the second party over only 14 out of the 16 plots of Khata No. 46 in dispute. Therefore there is nothing in the decision of the Civil Court which could have prevented the Magistrate from passing his finals order in favour of the second party in respect of those 14 plots of Khata No. 46, besides in respect of three plots of Khata Nos. 204. With respect to the remaining two plots of Khata No. 46, which the second party did not claim the Magistrate would still be acting in conformity with the decision of the Civil Court if he were to hold that there is no dispute between the parties with regard to these two plots so that the proceeding in respect of those two plots could be dropped without in any way affecting the decision of the Civil Court : with respect to the remaining lands comprised in the proceeding. If the Magistrate did not pass a clear order to this effect in respect of those two plots. then he could be directed to do so in exercise of our revisional powers, but that would not in any way involve any interference with the decision of the Civil Court as it stands, In fact there is no decision of the Civil Court with respect to the said two plots to Khata No. 46, and extent it is open to this Court to interfere with the, final order of the Magistrate and to direct him to exclude those two plots from the proceeding on the ground that in respect of them no dispute exists between the parties. If, however, any error of a fundamental character is found to have crept in the decision of the Civil Court, then the High Court would not be entirely powerless, but would act in exercise of its writ jurisdiction under Article 227 of the Constitution, so that no undue hardship -might arise to any party by reason of a fundamentally. erroneous decision of the Civil Court. But if the Civil Court has acted properly and in accordance with the known principles of law and procedure or where there is no error apparent. On the face of the record in the decision of the Civil Court, them no hardship can be said to arise to any party which might justify interference by the High Court No hard-ship to any party arises merely because an adverse decision has been reached against him. If in such a case the aggrieved party is made to seek his remedy by way of a suit in a competent Court he cannot legitimately complain of any hardship on the ground that he has been precluded from invoking the revisional or extraordinary writ jurisdiction of the High Court. Therefore the argument on the basis of hardship is more Imaginary than real. Such an imagined hardship cannot support a view in favour of the exercise of the criminal revisional jurisdiction of the High Court in respect of the decision of the Civil Court or of the order of the Criminal Court passed in conformity with it
27. To hold otherwise, would, in my judgment, lead to an anomalous position . Suppose, for example hat in a particular case the High Court thinks that the decision of the Civil Court in favour of a particular-party should have been otherwise. In that case it would not set aside the decision of the Civil Court straightway an record a contrary finding on the question of possession of its own. It would then have to set aside the order of the Magistrate based upon the decision of the Civil Court and remand the proceeding to him with some direction. Now what direction can the High Court give to the Magistrate in such a case? Can the High Court ask the Magistrate not to pass his final order in conformity with the decision of the Civil Court? Obviously, the High Court cannot make any such direction to the Magistrate, for the simple reason that it would amount to asking the Magistrate to disregard that part of the provision of Sub-section (1B) of Section 146 which enjoins upon him a duty to dispose of the proceeding under Sections 145 in conformity with the decision of the Civil Court. Nor can the High Court in such a case direct the Magistrate to make another, reference of the Civil Court for a fresh decision, as there is no provision knows to law to justify such a course. The again fortifies me in my view that in the exercise of its revisional jurisdiction, against the final order of the Magistrate it is not open to the wish Court to examine the legality or propriety of the decision of the Civil Court of a reference made to it, under Sub-section (1) of Section 146. The revisional power of the High Court has got to be confined to the consideration of the limited question as to whether the final order of the Magistrate is or is not in conformity with the decision of the Civil Court.
28. Thus, upon a very careful consideration of the law, on the subject. I have come to the conclusion that the view with regard to the revisional power of the High Court taken by the Full Bench of this Court in , FB is not correct, and it must accordingly, be overruled.
29. In the present case, therefore, the petitioners before us are not entitled to assail the correctness of the decision of the Munsif of Banka dated the 11th September, 1969, upon which the impugned order of the learned Magistrate is based. Since, however, the learned Magistrate does not seem to have passed a clear Order with regard to plots Nos. 691 and 698 of Khata No. 46, I would direct him to dispose of the proceeding, so far as those two plots are concerned to accordance with law. Only to this limited extent, the rule will be made absolute.
S.C. Misra, C.J.
30. I have perused the judgments prepared by my learned brethren and I agree with the unanimous view expressed by them that an order under Section 146 (1) (B) may be challenged in a fit case under Article 227 of the Constitution. The decisions holding to the contrary do not appear 40 lay down the law correctly as any provision of the Code of Criminal Procedure cannot affect the supervisory jurisdiction of the High Court conferred on it under the Constitution. The point is well settled. Even before the promulgation of the Constitution when upto 1923 amendment of the Code there was prohibitions of the exercise of revisional jurisdiction in respect of a proceeding under certain pro-visions of the Code including Section 145 the High Court interfered under Section 10? d the Governments of India Act 1915 which, it is well settled corresponds to Article 227 of the Constitution. If this was so when there was a direct prohibition of the exercise of such revisional powers in Section 435 itself, that such a proceeding will not be treated as a Criminal Proceeding at all. much less to can it be said that such jurisdiction cannot be exercised when there is only, indirect prohibition if at all in Clause 146 (ID) of fee Code. The view that there is re-duplication of work in the High Court exercising its supervisory jurisdiction also does not take into account the fact that the scope of a suit in a Civil Court is much wider than that of a proceeding under Section 145 before a Magistrate. The former deals with title apart from possession and the latter is concerned with the narrow question of possession only which by itself is a valuable right. This is the reason why High Court interfered before 1923 under Section 107 of the Government of India Act. As to the consideration of the scope of Section 435 and 439. I adhere, to my opinion expressed in Raja Singh's case (FB) and it will not serve any useful purpose to repeat the reasoning. I may only clarify that seems to have caused some difficulty as to whether I stated the the Civil Court is an amicus curiae of the Magistrate or is a mere tribunal, I said nothing of the kind. My words were as follows:
It is true no doubt that against a finding of the Civil Court no appeal, review or revision will lie under the Code of Civil Procedure inasmuch as the Civil Court, while adjudicating the reference made by the Magistrate, does not act as a Civil Court independence but only records a finding as a tribunal which in itself will not be operative artless it is adopted by the Magistrate, although the latter is bound to act in conformity with it. It is only when such a finding becomes a part of the order of the Magistrate and is integrated into it that it becomes operative and binding upon the parties. The reference to prohibition of appeal review or revision of the finding of the Civil Court is based on the principle that it is not a final order and not binding upon any party being only an intermediate stage in the proceeding and as such no appeal review or revision will lie, against it, majority. under the Cede of Civil Procedure, and even under the Code of Criminal Procedure, for the obvious reason that it is the opinion expressed about certain Mattel referred to the Civil Court by the Magistrate. To infer from this, how-even that the Legislature also prohibited the consideration of the propriety or otherwise of the finding by the High Court when it has been adopted by the Magistrate and an order passed on it against which an application in revision has been filed by the party aggrieved will amount to laying down that the Legislature by prohibiting an appeal, review or revision under Sub-section (1-D) has also by implication included under it Sections 435 and 439 of the Code of Criminal Procedure.
My learned brother G.N. Prasad, J. has pointed this out in detail. I may re-emphasise that since there is no finality by itself in the finding of the Civil Court which is a mere adjudication it his no more value than the advice of a friend although when it is accepted as it has to be accepted under Section 146 (1-B) it becomes operative. Every Court has the power to deliver a definitive decision on matters within its jurisdiction as the Civil Court can" do in suits or other proceeding instituted before it, but that is not the position in regard to a finding returned by the Civil Court to a Criminal Court under Action 146 (1-B). Any-way this is a matter of terminology sand it is never suggested that, the Civil Court is the amicus curiae or a mere tribunal which taken too literally is patently meaningless, It is a case of illustrating a point by analogy and nothing more.
31. As to f the merit of the matter. I should only take a few illustrations to show the hardship which may be caused if a different, view is taken that a finding by a Civil Court even when it is returned to the Magistrate can never be challenged in the High Court in revision. Let us take a case when fifteen documents are filed but the Munsif refers only to five documents under misconception and -ten are left out which are pi vital character and non-consideration of which would render the; finding unsupportable. The Magistrate cannot «o against it. But will the game apply, or should the same apply when the matter is before the High Court, particularly when the High Court is the superior tribunal exercising both Civil and Criminal jurisdiction? Take another case where the Civil Court appears to have referred to the document; but commits a a clear error, in failing to notice the most vital passage which will throw light on the right of the parties and probability oil the claim, to possession of the parties? Then again, the Munsif patently misreads the names of persons having a right to possession of the land; in question. .The matter is brought to the notice of the High Court Judge in revision,; Is it to be taken that the Judge will be impotent to do anything in the matter and uphold an;-act of patent in justice. Let us take a case where the Munsif has based his finding on hearsay evidence or inadmissible evidence? Is the High Court in face of it a helpless looks on? It is not that a Civil Court is incapable, of an error in giving a finding in many cases 'resulting in palpably unsupportable findings. The amendment of Sections 10 and; 146 was made in 1S55 to shorten the proceeding- under Section 145 and try to obtain a better considered finding of fact in Section 146 and not merely a formal order of attachment of property, as was the legal position prior to the amendment of 1955. If anything, the prohibition of an appeal, review or revision of the finding of a Civil Court as a Civil Court is also justifiable on the ground that the same matter is open in revision before the High Court in the exercise of its criminal revisional jurisdiction. If the other point of .view is accepted, it is tantamount to saying that the parliament has proceeded on the View that a Munsif can be trusted to be just but the High Court cannot be trusted to rectify a clear error. The reference to the Civil Court is not to perpetuate an error so far as proceeding under Section 146 is concerned, but to have a wore reliable finding by more experienced Court, but not presuming such a : person to be infallible depriving the High Court of its power in a suitable case to rectify it.
32. The jurisdiction of the High Court in revision is rib doubt the same as that of the trial Magistrate But if the Civil Court's finding has merged in the order of the Magistrate without which it has no basis, no meaning and coherence. it seems to me to be poor logic to say that the legality of the Magistrate's order otherwise can be examined by the High Court but in so far as it is based on the finding of the Civil Court. the High Court cannot even look at that finding to see whether it is even generally correct when it is attacked as being wholly perverse or illegal or totally perfunctory depriving the party affected of possession and driving him to a Civil Court when he may already have spent a good deal of time and energy in looking after the proceeding before the court of Magistrate and a Civil Court. These appear to me to be weighty considerations for the view that jurisdiction under Sections 435 and 439 is not circumscribed in an indirect manner. This is apart from the well-established principle that jurisdiction is not taken away in an indirect manner as is sought to be construed in this case, and much less the Jurisdiction of a superior Court for which a clear provision should have been made in Section 435 itself as was the case prior to 1923, vide Craies on Statute Law Sixth Edition pp. 122-123 and Cases cited, therein. Even assuming that the deprivation of jurisdiction of the High Court under Section 435 could be brought about by making a provision in Section 146. then the language of Section 146 (1D) should have been more explicit referring both civil and criminal courts, so as to avoid the inference that such prohibition was intended only to be confined to a Civil Court as the Supreme Court has indirectly held and as the Madras High Court has held in several decisions quoted by my learned brethren, particularly M. P. Verma. J.
33. Apart from all this, this discussion appears to .me to be substantially of an academic character. Flagrant violation of legal principle or such perversity alone justifying interference under Sections 435 and 439 practically equates it with the supervisory jurisdiction of the Court under Article 237 of the Constitution, vide Provincial.... Transport Services v. State Industrial Court . The only material difference in approach will be when the restrictive view of the scope of Article 227 may result in circumscribing the power of the High Court and in a few marginal cases, the view that Sections 435 and 439 may be invoked may lead to justice being done in those cases. It is not that the High Court will start interfering in all cases the moment some fault is found with the finding of the Munsif and. the High Court will proceed to set it aside and more so when there is an alternative remedy in a Civil Court of competent jurisdiction. The margin of difference between the scope of Article 227 and Sections 435 and 439 in a case under Section 145 or for the matter of that under Section 146 is very narrow. But nevertheless it is clean that Parliament never intended the curtailment of the bower of the High Court in its revisional jurisdiction or else different drafting procedure and different terminology would have been adopted.
K.B.N. Singh, J.
34. I have had the advantage of spine through the judgment of my learned, Brother G. N. Prasad, J. I agree that the unanimous view of the Full Bench of this Court in the case of to the effect that the High Court has power to interfere with the finding of, the Civil Court under Article 227 of the Constitution and Sub-section (1D) of Section 146 of the Code of Criminal Procedure (herein after referred to as, the Code) does not and cannot take away the power of the High Court which it possesses under Article 227 of the Constitution, if the finding is in flagrant violation of the legal principles or the principles of natural Justice, is correct. However. I do not agree with the view of my learned Brother that the majority view in Raja Singh's case is incorrect.
35. This revision application, which has been filed against an order of the Magistrate, after he has declared the possession under Section 145 on receipt of the findings of the Civil Court under Section 146 of the Code, was heard by a learned single Judge of this Court, who, in view of certain observations made in the ease of , to the effect that an "order of a Magistrate under Section 146 (1B) cannot be set aside in a revision " and the decision of the Full Bench of this Court in the case of Raja Singh. was held to be impliedly overruled by the Supreme Court in the case of . referred the matter to the Chief Justice for being placed before a larger Bench. Thereafter the case was referred to this Bench of five Judges.
36. The question that arises for consideration is, whether the majority decision of the Full Bench of this Court in Raja Singh's case () has been impliedly overruled by the Supreme Court in the decision . Linked with it is the question of power of the High Court to interfere with the findings of the Civil Court in exercise of the revisions jurisdiction of the High Court after the Magistrate has passed orders in Pursuance of the findings of the Civil Court in a proceeding; under Section 145 of the Code in appropriate cases.
37. The majority decision to which my Lord the Chief Justice and S. P. Singh, J. were parties, is to the effect that the High Court, in exercise of its re-visional jurisdiction under Sections 435 and 439 of the Code can interfere with the findings 6f the Civil Court given under Sub-section (1-A) of Section 146, after the referring Magistrate has passed orders in the proceeding under Section 145. in accordance with the findings as required under Sub-section (1-B) of Section 146; Sub-section (1-D) of Section 146 bars an appeal, review or revision against that finding under the Code of Civil Procedure and it will not even lie under the Code of Criminal Procedure, for the obvious reason that the findings are opinion, expressed by the Civil Court in respect of certain matters referred to it by the Magistrate. This bar is lifted when the finding of the Civil Court has been adopted by the Magistrate and orders passed on; its basis. It is only when such a finding becomes part of the order of the Magistrate and is integrated with it that it becomes operative and binding on the parties and in a revision against the order of the Magistrate that finding of the Civil Court can be interfered with in appropriate cases, The minority decision of Sahai, J. oil this question was to the effect that the finding of the Civil Court could hot be interfered with in a revision filed against an order of the Magistrate under Sections 435 and 439 of the Code and that the order of the Magistrate could only be interfered with if it was hot in conformity with the finding of the Civil Court. All the three learned Judges of the Full Bench were, however unanimous that the finding of the Civil Court can be interfered with in exercise, of the powers of superintendence under Article 227 of the Constitution in appropriate cases, in case of flagrant violation of legal principles or principles of natural justice, and this power could be taken away or abridged , by legislative enactments and Sub-section (1-D) of Section 146 of the Code has not and can-not have that effect.
38. Section 145 of the Code lays down that in a case where thesis a dispute likely to cause apprehension of bleach of the peace concerning any land or water etc. a combent Magistrate will have jurisdiction to draw up a proceeding under this section and can require the parties to put in written statements, documents and affidavit in support of their claim to possession. The Magistrate is then required to peruse the statements, documents and affidavits put in by the parties and decide the auction of possession, without inference to the title or claim of the parties to right to possession of the subject of dispute as far as practicable, within a period of two months from the date the parties appear before him as required under subsection (4). He may treat a party dis-possessed within two months next be-fore the preliminary order to be in possession on such date under the second proviso to that sub-section and has power of summoning witnesses under the first proviso and of attachment under the third proviso. If he finds possible to decide, he has to pass necessary orders and declare possession as required under Sub-section (6). If on an inquiry under Sub-section (4) of Section 145 of the Code the Magistrate is unable to decide as to which of the parses was in possession, he will refer the matter to the Civil Court for deciding question of possession, as required under Sub-section (1) of Section 146, which Section is corrolary to Section 145 of the Code.
39. Before the amendment of the Code in the year 1955, the Magistrate under Section 146 could only attach the subject matter of dispute, when he was unable to decide as to which of the parties was in possession, leaving the parties to set their title decided by a competent Court.
40. It would thus appear that after the amendment of the Code, in cases where the Magistrate is unable to decide the question of possession, he has to draw up a statement of the facts of the case and forward it to the Civil Court of competent jurisdiction to decide the question whether any and which of the comes was in possession of the subject of dispute at the date of the order as explained under Section 145(4), and direct the parties to appear before the Civil Court. Under Sub-section (1-A) of Section 146, the Civil Court shall per-use the evidence on record and take such further evidence as may be produced by the parties consider the effect of all such evidence and after hearing the parties, decide the question of possession so referred to it. Then comes Sub-section (1-B), which lays down that the Civil Court will transmit its 'finding' together with the record of the proceeding to the Magistrate by whom the reference was made and the Magistrate shall one receipt of the same "proceed to dispose or the proceeding under Section 145, in conformity with the decision of the Civil Court" Sub-section (1-C) lays down that the costs, if any conseqent on a reference for the decision of the Civil Court, shall be costs in the proceeding under this section. Then comes the controversial provision of subsection (1-D), which, as quoted above, lays down that "No appeal shall lie from any finding of the Civil Court given on a reference under this section nor shall any review or revision of any such finding be allowed." Sub-section (1-E) provides that art order under this section shall be subject to any subsequent decision of a Court of competent jurisdiction.
4l. The question that fell for consideration before me earlier Full Bench was, whether the High Court has powers under Sections 435 and 439 of the Code to revise the findings of the Civil Court, after the Magistrate has disposed of a proceeding, as required under Section 146 (1-B) of the Code, in confirmity with the same. The majority decision of the Full Bench, as already mentioned, held that the power of revision was not taken away in appropriate cases, but was postponed till the Magistrate passes order under Sub-section (1-B) of Section 146 and the bar contained in Sub-section (1-D) applied to appeal, review or revision to the Civil Court,
42. The first question for consideration is, whether the majority decision has been impliedly overruled by the decision of the Supreme Court in Ramachandra Aggarwal's case AIR 1966 SC 1888.
43. The only question that arose for decision before their Lordships of the Supreme Court was whether the District , Judge had jurisdiction, under Section 24 of the Code of Civil Procedure. to transfer a reference made by a Magistrate to a Civil Court under Section 146 of the Code from a particular Civil Court to another Civil Court. In that case the question of possession in a proceeding under Section 145 was referred to a Civil Court under Section 146 (1) of the Code for decision. On reference. the case went to the Court of a Munsif within whose territorial jurisdiction the property was situate. Thereafter, one of the parties to the proceeding. Brajgopal Binani (who was respondent No. 2 be-fore the Supreme Court) filed an application under Section 24 of the Code of Civil Procedure for transferring the case from the Court of that Munsif to some other Court, on the ground which is not necessary to recite here. The District Judge thereafter transferred the case to another Munsif. The other side did not move against that order and the Civil Court recorded its finding in favour of Brijgopal Binani. On receipt of that finding, the Magistrate passed orders declaring Brijgopal Binani to be in possession on the date of the proceeding Under Section 145, of the Code, in pursuance of the fining of the Civil Court. Thereafter, the unsuccessful party filed a revision application before the Sessions Judge, which was rejected and then a revision application was filed before the Allahabad High Court, which was also dismissed. On a certificate being granted by the High Court, the unsucessful party filed an appeal before the Supreme Court. The main contention raised on behalf of the appellants before the Supreme Court was that the reference made by the Magistrate under Section 146 (1) of the Code was not a civil proceeding and, therefore. District Judge had no jurisdiction to transfer the case under Section 24 of the Code of Civil Procedure. The contention which was urged before the High Court that the reference to the Civil Court under Sub-section (1) of Section 146 of the Code was to a persona designata, was not pressed before the Supreme Court, although their Lordships of the Supreme Court considered that question and held that the reference was not to a persona designata.
44. In support of the argument that the reference under Section 146 (1) of the Code of Civil Court was not a civil proceeding, reliance was placed by learned Counsel for the appellants before the Supreme Court on certain observations of Jagdish Sahai, J., in the case of Sheonath Prasad v. City Magistrate, Varanasi AIR 1959 All 467, that "a proceedings even on reference made to a Civil Court retains its old moorings and does not chance its character from Criminal proceeding to a Civil proceeding and does not became a proceeding in the suit". Negativing the argument and disproving the aforesaid observation of Jagdish Sahai, J. their Lordships of the Supreme Court observed as follows:---
The decision ignores the vast body of authority which is to the effect that when a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable to them. Two of the decisions are Adaikappa Chettiar v. Chandrashekhara Theyar 74 Ind App 264 : AIR 1948 PC 12 and Maune Ba Thaw v. Ma Pin. 61 Ind APP 158 : AIR 1934 PC 81, and also a decision of this Court which proceeds upon the same view. Then in South Asia Industries (P) Ltd. v. S. B. Sarup Singh AIR 1965 SC 1442. it was held that where a statute confers a right of appeal from the order of a tribunal to the High Court without any limitation thereon, the appeal to the High Court will be regulated by the practice and procedure obtaining in the High Court. We would also like to refer to the decision of this Court in Narayan Row v. Ishwar Lal AIR 1965 SC 1818, in which it was held that there is no reason for restricting the expression Civil Proceeding billy to those proceedings which arise out of civil suits to proceedings which are tried as civil suits. Though this decision was concerned with the meaning of the words 'civil proceeding used in Article 133 (1) (c) of the Constitution, the reasoning behind it sufficiently repels the extreme contention of Mr. Goyal that a proceeding stemming from a criminal matter must always bear the stamp of a criminal proceeding. Then, according to Mr. Goyal when a Magistrate refers a question as to which party was in possession, at the relevant date, what he does is to delegate that duty, initially resting upon him to the Civil Court. In performing that duty the Civil Court would, therefore, be acting as a Criminal Court just as the Magistrate would be doing where he has to decide the question himself. The two Privy Council decisions we have referred to sufficiently answer this contention. No doubt of the Magistrate, while discharging his function under the Code of Criminal Procedure, under Section 145 (1). would be exercising his criminal jurisdiction, because that is the only kind of jurisdiction which the Code confers upon the Magistrate, but when the Magistrate refers the question to a Civil Court he does not confer a part of his criminal jurisdiction upon the Civil Court. There is no provision under which he can clothe a Court of a Tribunal which is not specified in the Criminal Procedure Code with Criminal jurisdiction. We are therefore, unable to accept the contention of Mr. Goyal.
45. Referring to the argument of Mr. Iyengar, appearing on behalf of the State, that the proceeding was not a civil proceeding, their Lordships of the Supreme Court held as follows:
In the first place, according to him, if we hold that the proceeding before the Civil Court is a civil proceeding then all the rules of procedure contained in the Civil Procedure Code including those relating to appeals or revision would apply to the proceeding. This he points out would be contrary to the provisions of Section 146 (1-D) of the Code of Criminal Procedure which bar an appeal, review or revision from any finding of the Civil Court. From this he wants us to infer that the proceeding does not take the character of a civil proceeding even though it takes place before a Civil Court. We are not impressed by this argument. If Sub-section (1-D) had not been enacted (and this is really a new provision) an appeal or revision application would have been maintainable. Now that it is there, the only effect of it is that neither an appeal nor a revision is any longer maintainable. This consequence ensues, because of the express provision and not because the proceeding before the Civil Court is not a civil proceeding.
46. It was also contended before their Lordships of the Supreme Court that the reference under Section 146 (1) of the Code not being an original Proceeding. the provisions of Section 24 of the Code of Civil Procedure were not attracted and therefore the provisions of the Civil Procedure Code : relating to suits are not applicable to a proceeding taken to a Civil Court on reference under Section 146 of the Code. Repelling this contention. Lordships referred to the relevant provisions of Section 24 of the Code of Civil Procedure and observed as follows:
Thus though we say that it is not 'necessary to consider in this case, whether the proceeding before the Civil Court is a civil proceeding as contemplated by Section 141 or not, there is good authority for saving that is a Civil Proceeding. All that we are concerned with in ' this case is whether the provisions of Section 24 '(1) (b) of the Code of Civil Procedure are available with respect to a proceeding arising but of a reference and under Section 146 (1). Criminal Procedure Code.
and held that it came under the expression "other proceeding" in Section 24 (1) (b) of the Code of Civil Procedure, and referred with approval, to the decision of the Madras High Court in the case of Kochadai Naiau v. Nasavsami Naidu and dismissed the appeal,
47. I have preferred, to the Supreme Court decision ;in extenso for bringing out that the "above decision of the Supreme Court in no way affects the majority decision of this Court in the case of Raja Singh. The majority decision does not say that the proceeding before the Civil Court was a criminal proceeding, although the minority decision of the Patna Full Bench case gets support from the decision of the Supreme Court as to the true import of the provisions of Sub-section (1-D) of Section 146 of the Code, In Paragraph 5 of their judgment, which has been quoted in full their Lordships have clearly observed that but for Sub-section (1-D). an appeal or revision or review would have been maintainable under the Code of Civil Procedure. land now that this provision is there, neither an appeal nor a revision is any longer maintainable against the findings of a Civil Court. It is thus abundantly clear that what is barred under Sub-section (1-D) is an appeal, review or revision against the 'Civil Court's finding under the Code of Civil Procedure. The presence of the expression 'review' also lends support to the same view, inasmuch as the question of review does not arise under the Criminal Procedure Code. The Legislature, while mentioning the word 'review'' must be deemed to have been aware of this position. There has never been any provision for an appeal against an order under' Section 145 and the insertion of the word 'appeal' in Sub-section (1-D) of Section 146 also leads to the same conclusion, that the true import of the provisions of Sub-section (1-D) of Section 146 was to bar appeal review or revision before a civil court.
48. If the "only effect" of , the provisions of Sub-section (1-D) of Section 146 is to bar an appeal, review or revision under the Code of Criminal Procedure against a finding of the Civil Court, in a proceeding under Section 146 as observed by their Lordships of the Supreme Court, this provision cannot be read as a limitation on the power of the High Court under Sections 435 and 439 of the Code to interfere with the findings, after the Magistrate, has passed necessary orders on receipt pi the findings of the Civil Court under Sub-section (1-B) of Section 146 of the Code.
49. The order of the Magistrate, though required to be in conformity with the findings of the Civil Court as provided under Sub-section (1-B) of Section 146, has to be under Sub-section (6) of Section 145. as in cases where no reference is made to the Civil Court. in one case the necessary reasoning, for the order is of the Magistrate himself and in the other the reasoning is supplied by the findings of the Civil Court. The finding of the Civil Court becomes a part of the order. It will be idle to contend that in a revision against an order under Section 145. this Court, under Sections 435 and 439 of the Code, has power to interfere with the findings of the Magistrate but when he adopts the finding of the Civil Court as apart of his order it is not so amenable to the revisional jurisdiction of the High Court. The only provision .relied upon for the purpose is the provision under Sub-section ' (1-D). which, for the reasons stated by me cannot : be read as a limitation on the power of the High Court in an order under Section 145 of the Code, where reasoning for the order is the finding of a Civil Court.
50. The decisions taking a contrary view have relied upon the maxim that a party cannot be allowed to do indirectly what he is prohibited from doing, directly, laid down in the well-known decision in of (1899 AC 626). The application of that principle is based on a misconcept, as to what is barred under Sub-section (1-D) of Section 146. I have already held that what is barred by Sub-section (1-D) is an appeal review or revision against a finding of a Civil Court under the Civil Procedure Code. From that no inference necessarily follows that the immunity; provided under Sub-section (1-D) also bars a revision of that finding after; it is adopted by the Magistrate, in a revision against the Magistrate's order with great respect. Even these decisions delivered after the decision of the Supreme Court' in the case of Ramehandra Agarwalla ignore the true import of the provisions of the bar contained in Sub-section (l-D). They proceed on the footing that the bar applies to revision of the finding also under the Code of Criminal Procedure. If that were so, then the Supreme Court would have dismissed the appeal before it on the simple around that the revision under Sections 435 and 439 of the Code before the. Allahabad High Court was not maintainable, as in that also the finding of the civil court was challenged, though on the ground of jurisdiction. No direct revision against the finding of the Civil Court is maintainable, as observed by my Lord the Chief justice in Raja Singh's case, as the finding of the civil court is an opinion expressed, about masters referred to the civil .court by the Magistrate, and as a mere finding it is not operative unless adopted by the Magistrate although the Magistrate is bound fey it and not on the ground that it is barred under Sub-section (1-D) of Section 146 of the Code.
51. The legislative history of the provisions of Section 435 of the Code also shows that only judicial proceedings were subject to revision under the Code of 1861 and 1872. Under Section 520 of the Code of 1872 it was specially provided that orders under Sections 518 and 519 of that Code, which corresponded to Sections 144 and 143 of the present Code. were not considered to be judicial proceedings and so not revisable. It may be mentioned that orders under Section 530, corresponding to the present Section 145. however, were revisable under the Code of 1882. In the Code of 1882. no provision corresponding to Section 520 of the older Code was inserted, but a paragraph was added to Section 435 to the effect that orders under Sections 143 and 144 and proceedings under Section 176 were not judicial proceedings and, 'therefore, proceedings under those sections were not revisable. Proceedings under Chapter XII of the Code, which contained Section 145 continued to be revisable and were not excluded. In the Code of 1898 however, before; its amendment of 1923. proceedings under Chapter XII (which included Section 145) were also added to the list of orders and proceedings which were declared not revisable under Section 435. Thus, proceedings under Section 145 for the first time, were made non-revisable in that Code. By amendment of 1923. Sub-section (3) of Section 435 was deleted with the result that the proceedings under Section 145 again became revisable besides proceedings under Sections 143. 144 and 176. No change has been made in this regard in Section 435 by the amendment of the Code in 1955. It is thus apparent that the legislative practice in this regard has been that whenever it was intended to exclude orders in proceedings under Section 145 from the revisional jurisdiction. it was done so by making suitable provisions to that 'effect under' Section 435 itself, which does, not seem to have been done with regard, to the orders under Section 145 of the Code passed on receipt of the findings of the Civil Court. If the legislature had really intended to do so, as urged by the learned Counsel, if was expected that the legislature, following the earlier legislative Practice in this regard, would have done so by saving so in Section 435 of the Code itself. I do not mean to suggest that the legislature could not have done so by any other method, but as already pointed out. there is no provision under Section 145 or Section 146 making immune the findings of the Civil Court from the revisional jurisdiction of this Court under Section 435 of the Code after they are adopted by the Magistrate and orders passed in pursuance thereof,
52. It is the well, established principle of construction of statutes deal-ins with jurisdiction of Courts and Tribunals that ouster of jurisdiction should not be readily implied or inferred by mere implication. It should be excluded by express words or by necessary implication. A distinct and unequivocal, enactment is required for the purpose. It would, be useful to refer to a passage from Craies on Statute Law (Sixth Edition) page 123 on the point where a number of weighty decisions have been referred to:
Similarly as to ousting the jurisdiction of a superior court. The several rule undoubtedly is' said Tindal C. J. in Albon v. Pyke (1842) 4 M. & G. 421, 424, 'that the jurisdiction of superior courts is not taken away except by ex-press words or necessary implication'. In 1950 the court of appeal said; 'The jurisdiction of the King's courts must not be taken to be excluded unless there is clear language in the statute which is alleged to have that effect. [Goldsack v. Shore (1950) 1 All ER 276, 277 per Eyershed M. R.]. Therefore, inasmuch as the power of the court of Queen's Bench to change the venue is a common law power, 'words', said Lord Campbell in Southampton Bridge Co. v. Local Board of Health of Southampton (1858) 8 E & B. 801, 804, 'should be very strong which are relied upon to take away such power.' Lord Salyesen said:, 'A general rule applicable to the Construction of statutes is that, there is not to be presumed without express words: an authority to deprive the Supreme Court of a jurisdiction it had previously exercised or to extend the private jurisdiction of the, Supreme Court to the inferior courts. (Dunbar v. Scottish County Investment Co. 920 SC 210. 217). In London Hospital Governors v. Jacobs (1956-1) WLR 662 (CA). Lord Evershed M. R. said: 'Very clear, words will be required to oust altogether the jurisdiction of the Queen's, courts in matters of private rights.
53. A close analysis of the scheme of Sections 145 and 146 of the Code also supports the view that I have taken that the finding of the civil court has to be read as a part of the order passed by the Magistrate in the proceeding under Section 145. After the proceeding under Section 145 is drawn up and the parties are required to file written , statements, documents and affidavits in support of their respective claims, the Magistrate, under Sub-section (4) of Section 145, on perusing the written statements. documents and affidavits, and without reference to the merit of the claim of the parties to the right of possession, if possible, has to decide, which of the parties was in possession on the date of the preliminary order. Under the first proviso to that sub-section, the Magistrate may summon: for examination any person whose affidavit has been put in. Under the second proviso, if it appears to the Magistrate that the party has been wrongfully dispossessed within two months next before the date of the preliminary order, he may treat the person so dispossessed as to be in possession on the date of the preliminary order. Under the third proviso, in case of emergency. he has the power to attach the property under dispute, pending this decision. Under Sub-section (6), the Magistrate is required to decide that one of the parties was in possession or should be deemed to be in possession under the second, proviso to Sub-section (4). He is also retired to declare such party entitled to posession, until evicted in due course of law, and should forbid disturbance of possession until eviction. In case the Magistrate proceeds under the second proviso to Sub-section (4) he should restore possession to the party so dispossessed. It is thus apparent that when the Magistrate is in a position to decide as mentioned in Sub-section (4), about possession of a party then he has to pass orders in terms of Sub-section (6). In other words, in the proceeding under Section 145, the final order of the Magistrate as required under Sub-section (4), has to be passed under Sub-section (6). The section envisages one order, and not two orders - one under Sub-section (4) and another under Sub-section (6). When the Magistrate is in a position to decide the question of possession, on the consideration of the affidavits and documents, as required under Sub-section (4), that beanies the basis or the reason behind his order under Sub-section (6). In case the Magistrate is not in a position to decide as to which of the parties is in possession or if he is of the binding up that none of the parties is in possession in such a situation, he has to refer the matter to a Civil Court under Sub-section (1) of Section 146 of the Code, and the Civil Court is required under Sub-section (1-A) of Section 146, to persue the evidence on the record and to take such further evidence as may be adduced by the parties and then to decide the question of possession so referred, and transmit its finding with the record, under Sub-section (1-B) to the Magistrate by whom the reference was made, and then the Magistrate shall proceed to decide the matter in confirmity wife the finding of the Civil Court. The order that the Magistrate has to pass in confirmity with the finding of the Civil Court has to be an order under Sub-section (6) of Section 145 of the Code. Section 145 makes no distinction in that regard save that in one case the necessary finding of possession has to be that of the Magistrate himself, and in the other of the Civil Court. That being the position the finding of the civil court by itself has no binding force and cannot be considered to be art order under Section 145 of the Code. That strongly supports the view that I have taken that after the order of declaration by the Magistrate, the Civil Court's finding gets incorporated in the order of the Magistrate and becomes a part of it. It does not bear the analogy of a decree, inasmuch as me civil Court's finding cannot be executed as such. As already pointed out, the order in a proceeding under Section 145 of the Code, passed by a Magistrate, being one and not two, as urged before us the question of treating one as a decree and the other as execution of it does not arise for supporting the view that there cannot be any integration of the order. The position is not different, even if the matter has been referred to a Civil Court under Section 146 (1) of the Code.
54. It has also been urged by Mr. Chakradhar Jha, on behalf of the opposite party, that the Civil Count's finding does not merge or cannot be said to be a part of the Magistrate's order, and he has emphasised the expression that the matter is referred to the Civil Court to decide the question whether way and which of the parties was in possession, used in Sub-section (1) of Section 146. and the same expression, according to Mr. Jha, occurs in Sub-section (1-A) of Section 146 that the Civil Court shall "decide" the question of possession so referred to it. He has also emphasised that in Sub-section (1-C) also while referring to the cost, the expression used is decision of the Civil Court and the same expression - is also there in Sub-section (1-B) of this section. Therefore, it being a decision, is an order of the Civil Court, so the question, of its merging or being part of the order of the Magistrate does not arise.
55. The word 'decide' has not been defined in the Code. Black's Law Dictionary (Fourth Edition) says that "to 'decide' includes the power and fight to deliberate; to weigh the reasons for and against to see which preponderate and to be governed by that preponderance." According to this Dictionary, the word "decision" is "A popular rather than technical or legal word: a comprehensive term having no fixed, legal meaning. It may be employed as referring to ministerial acts as wall as to those that are judicial or of a judicial character". It may be even a judgment of a court. It also means. "The findings of fact and conclusions of law, which must be in writing and filed with the clerk" and, "A determination of a judicial or quasi judicial nature." It will be thus apparent that the word 'decide' or 'decision' does not necessarily mean an 'order' in the sense as urged by Mr. Jha. His submission is also based on a misconception and overlooks the basic fact that under Sub-section (1-B). the Legislature itself has made clear as to what it meant by use of the expression 'decide' or 'decision' of a Civil Court. Under this Sub-section, the Civil Court has to conclude its inquiry and transmit its 'finding' together with the record to the Magistrate; by whom the reference has been made and then the Magistrate has to proceed to dispose of the proceeding in conformity with the "decision" of the Civil Court. Sub-section (1-B) itself makes it clear that what the Civil Court is required to "decide" and its "decision" is a mere "finding" of the Civil Court. These expressions "decide" and "decision" have not to be read in isolation, but have to be read in the context in which they, are used. The Legislature itself has thus made, it abundantly clear that it is the "finding" of the Civil Court on the question of possession which is sent s to the Magistrate and not any order op the question of possession. This is consistent with the accepted position that the Civil Court's finding, has not got any binding force or is enforceable in law, unless the Magistrate passes an order under Sub-section (6) of Section 145, which is the real order under Section 145, of the Code. The order has to be of the Magistrate, although the reasoning part is supplied by the finding of the Civil Court, with one limitation that he has to act and pass orders in conformity with it. Nonetheless, the order is his, based on the Civil Court's finding, which is the order in the proceeding under Sub-section (6) of Section 145 of the Code.
56. It could not be the intention of r the Legislature that when the Magistrate decides the question of possession himself and passes orders under Section 145, it is fevisable and when the order is based on the finding supplied by the Civil Court, it will not be revisable, simply because the finding comes from a Civil Court. It could also not be the contention the Legislature that as between a Magistrate and a Munsif the matter should be final and the revisional jurisdiction of the High Court barred. It will be reading something more than what is meant by the provisions contained in Sub-section (1-D) of Section 146 of the Code, which is not there.
57. Even the Bench decision of the Allahabad High Court; reported in AIR 1970 All 119, on the basis of which the learned Single Judge has referred the matter for being placed before a larger Bench and which doubted the Full Bench decision in the case of Raja Singh, support the view that I have taken that the finding of the Civil Court becomes an interflral part of the order of the Magistrate and sets incorporated into the order of the Magistrate. The following observations of their Lordships may in this contentions be referred to in which I have underlined . the relevant portions of it:-
The Magistrate while acting in pursuance of Sub-section (1-B) of Section 146 does not exercise his own judgment but rather accepts and adopts the finding given by the Civil Court as final and conclusive, so that the finding of the Civil Court is_ an integral Part of the order of the Magistrate with the result that the order of the Magistrate cannot be set aside without disturbing the finding of the Civil, Court. Indeed. the finding of the Civil Court is inseparable from the order of the Magistrate. Take away the finding and the order of the Magistrate ceases to exist...
My learned Brother. G. N. Prasad, J, has dealt in detail with the said Bench decision of the Allahabad High Court and has noted as to in what respects it has not correctly appreciated the import of the majority decision of this Court. I wish to add that certain observations of Uhiyal. J. in paragraph 12 of the judgment a portion of which I have underlined) are not in conformity with the decision of the Supreme Court in Ramchandra Aggarwal's case AIR 1966 SC 1888:-
With great respect, the reasoning adopted by the learned judges of the Patna High Court seems to us to be based on a misconception. The learned Judges seems to think that the bar created by Sub-section (1-D) was in respect of the finding of the Civil Court only. The provisions of the Code of the Criminal Procedure relate for procedure in respect of criminal matters, such as, investigation, inquiry trial or right of appeal or revision etc. The Code "does not and cannot make provision for a right of appeal or revision against a finding or order of the Civil Court. That is a matter which falls within the exclusive province of the Code of Civil Procedure. The learned Judges were misled into thinking that the Civil Court recording a finding in terms of Section 146, Criminal Procedure Code, was exercising a; criminal jurisdiction and not a civil jurisdiction.
My learned Brother has elaborately shown as to how, the learned Judges of the Allahabad High Court have not correctly comprehended the view point of the majority decision of this Court in Raja Singh's case AIR 1963 Pat 243 (FB). The majority decision nowhere suggested that the Civil Court, in recording its finding on reference under Section, 146. exercises a criminal jurisdiction. On the other hand, my learned Broher has rightly pointed out, if I may say so with respect, that it was really the minority view of Sahai, J., which, of course, stands over-ruled by the decision of the Supreme Court in Ramchandra Aggarwal's case AIR 1966 SC 1888. Their Lordships of the Supreme Court, in Ramchandra Aggarwal's case AIR 1966 SC ,1888 have held that Sub-section (1-D) of Section, 146 bars the right to appeal, review or revision under the Civil Procedure Code against a finding of a Civil Court which, but for this bar would have lain. The observations of Uniyal, J. which I have underlined mean to suggest that no such provision barring the right to appeal, review or revision to a Civil Court could be made in the Code, which is against what the Supreme Court has decided.
58. The Magistrate, while passing orders under Sub-section (6) of Section 145 incorporates the finding of the Civil Court as a part of his orders. No exception can be taken to it, simply be-cause the finding has been sent by a Civil Court to the Magistrate, that such a finding cannot toe treated as a part of the order of the Magistrate or incorporated in it. The combined effect of Sub-section (1-B) of Section 146, read with Sub-section (6) of Section 145, lends support to the view that I have taken and as was taken by the majority decision in Raja Singh's case AIR 1963 Pat 243 (FB) that the finding of the Civil Court which cannot be operative indepently becomes operative once it is integrated, with the order of the Magistrate. The declaration of the Magistrate, if it were to be read shorn from the findings of the Civil Court. Would appeal to be an order without reasons in support there-of. The disposal of the procedure under Section 145 or 146 of the Code has to be based on perusal of the evidence and documents. While disposing of the proceeding under Section 145 of the Code the Magistrate may either re-write all the reasons given by the Civil Court plus a few of his own, while incorporating the finding of the Civil Court under Section 146 (1-B) or he may in a summary way say that in view of the finding of the Civil Court, the party found to be in possession by the Civil Court is declared to be in possession. In the first case, of the learned Magistrate has incorporated all the reasonings sand findings of the Civil Court as his own findings and has added some of his own which of course is in confermity with the findings of the Civil Court it is difficult to see how that order is not subject to revision merely because it is in consonance with the findings of the Civil Court. There is no reasonable basis for holding that in the latter case, the findings of the Civil Court which support the order of the Magistrate, can-not be interfered with, simply because the Magistrate has passed a summary, order and not attempted to incorporate the whole of the findings of the Civil. Court as his own. There is no bar either under Section 145 or under Section 146 to the Magistrate taking either of these two courses mentioned above which have been mentioned as an illustration,
59. It will be relevant to mention at this stage that in support of the view that the Civil Court's finding cannot merge in the order of the Magistrate. My learned Brother has referred to the provisions of Sections 432 and 433 of the Code. Section 432 deals with a reference by a subordinate Court to the High Court in regard to a pending case. If it involves questions relating to validity of any Act. Ordinance or Regulation which it is necessary to decide, for disposal of the case pending before it, which has not so far been decided by the High Court or the Supreme Court, it may then make a reference to the High Court to which it is subordinate. Under Section 483, when such a reference is made, the High Court shall consider the question and pass orders in this connection and the Magistrate has to give his decision in conformity with such an order. That is not the position in the instant case. Under those provisions, when the validity of any Act. Ordinance or Regulation is under challenge before a subordinate Court, and disposal of which is necessary for deciding the case pending before it the subordinate. Court is required to send the case for the opinion of the High Court and not to decide the question of vires itself as that question has to be decided by the High Court, The decision of the High Court about the vires of those statute is a final decision on the vires of those statutes and there is no question of that decision merging in the orders of a subordinate Court. The decision as to the vires of statute is a decision of the High Court and it could not be reconsidered or reviewed when the matter goes to the High Court from final disposal of that case by the subordinate Court. The position in the instant case is not of a superior Court or of an inferior Court. The Magistrate, when he is, unable to decide the complicated questions of possession, on account of paucity, of time or otherwise refers the question to the Civil Court, which is not accustomed to dispose of complicated matters judicially. The reference under. Section 146 is not of the nature as contemplated under Section 432 or 433 of the Code. How can the order of the highest tribunal of the State under Section 433 merge with the order of a subordinate tribunal? The same applies to a reference sunder Section 133 read with Order XLI. Rule 34 of the Code of Civil Procedure. The withdrawal of as case also under Article 228 of the Constitution stands on a much higher and different footing and is not a case of a reference at all. The Supreme Court, clearly laid down, as already mentioned, that the reference to a Civil Court is not to a persona designate and, therefore, the question of a Civil Court acting as an arbitrator or as a Tribunal does not fall for our consideration.
60. It will not be necessary to re-for to the decisions on the point, already noticed in the earlier Full Bench decision of this Court. Mr. Jha. on behalf of the opposite party. has urged that the majority view in Raja Singh's case. AIR 1963 Pat 243 (FB) has not been followed by the Orissa and Calcutta High Courts, besides the Allahabad High Court. The Bench decision of the Allahabad High Court has already been dealt with. In the case of Bijoyananda Das v. Sirish Chandra Das AIR 1966 Orissa 119 the learned single Judge has accepted the reasoning given in the decisions reported in AIR 1959 All 568 and AIR 1959 Mad 111, and the minority view of Sahai, J. in Raja Singh's case, and has given no reason of his own. Thus, this decision does not throw any further light in the matter and is of no assistance to Mr. Jha. In the case of Chandi Kumar v. P.K. Biswas AIR 1968 Cal 216 Mukharji, J. relied on an unreported Bench decision of that High Court in Criminal Revn. No. 811 of 1963, disposed of on 10-9-1964 (Cal), which did not agree with the majority view of this Court in Raja Singh's case AIR 1968 Pat 243 (FB). It is also mentioned by Mukherji, J. that the Bench decision of the Calcutta High Court reviewed that decision in AIR 1959 All 568 and Muthu Sethuravat v. Louduawami Odayar AIR 1959 Mad 111 and single Judge decision of that Court in AIR 1959 Cal 366), The last two decisions have been fidly dealt with by the majority decision of the Full Bench. The decisions in AIR 1950) AIR 568 is on the same lines as the one reported in AIR 1959 Mad 111 The decision reported in AIR 1959 Cal 366 seems to have taken extreme view and proceeded on the footing that the only remedy to challange the finding of the Civil Court is by a suit overlooking also the power of the High Court under Article 227 of the Constitution to interfere with such findings of the Civil Court. The unreported decision of the Calcutta High Court was before the decision of the Supreme Court in the case of Ramchandra Agarwal. No additional reasoning has been furnished by these decisions of the three High Courts for holding that the majority view of the earlier Full Bench decisions of this Court is incorrect. Simply because the above High Courts have taken a different view, obviously, cannot be a ground for holding that the majority decision in Raja Singh's case is innocent, as urged by Mr. Jha. I may mention that the aforesaid Allahabad Madras and Calcutta decisions as also the decision of the Patna High Court in the case of AIR 1958 Pat 85 have been dissented from in the case of AIR 1964 Raj 81, and the Rajasthan High Court has taken the same view as taken by the mojority decision in Raja Singh's case, AIR 1963 Pat 243 (FB).
61. On a Careful consideration of the entire question. I am definitely of the view that the finding of the Civil Court, after it is incorporated by the Magistrate in his order, is revisable by the High Court in appropriate cases in exercise of the revisional jurisdiction of the High Court under Sections 435 and 439 of the Code, and the majority decision of the Full Bench in the case of Raja Singh is correct.
62. Coming to the merit. I find that 20 plots of land, plot No. 694 of Khata No. 193, plot Nos. 554, 555 and 559 of Khata No. 204 and 16 plots of Khata No. 46 were in dispute. The case of the petitioners (first party) was that Khata No. 46 was sold) in execution of rent decree find was purchased by one Darshan Singh, while the lands of Khata Nos. 193 and 204 were purchased by the land-lord in the execution of the rent decree. Subsequently the landlord settled the lands of Khata Nos. 193 and 204 with Darshan Singh, the auction purchaser of Khata No. 46. According to case of the Petitioners (first party). Darshan Singh gave the, land on Bhauli settlement to one. Tetru Singh (father of the first party-Petitioners Nos. 1 to 5) and divided produce with him. Subsequently, the descendant of Darshan Singh executed several Sudbharna bonds in respect of some of these lands in 1952 and 1962 and, thereafter they transferred the lands of the aforesaid Khatas to the members of the first party by several Kebala deeds and since the they claim to be in possession of the same and alleged that the second, party had no concern with the same.
63. The case of the opposite party (second party) on the other hand is that Khata No. 46 stood recorded in the name of one Jhumak Das and Lochan Das was recorded as Sikmi Bhoulidar in, respects of 12 plots Sikmi Bhouli Khata No. 41. under Khata No. 46. After the death of Lochan. his daughter Kumarwati, who was living with Lochan, came in possession of the Sikmi Bhouli Khata No. 41. Second Party No. 1 is the husband of Kumarwati and opposite Party Nos. 2 to 5 are their sons and grand-sons, and thus they claim to be in possession as Bhoulidars. Earlier they divided produce with Jhumak Das and after the Purchase of the Raiyati Khata No. 46 by Darshan Singh, they divided the produce with Darshan Singh also. They claimed to be in possession of the 12 plots of Sikmi Bhouli Khata No. 41. Their case further was that three plots of Khata No. 204 were in their possession as Sudbharnadars and they subsequently purchased those plots by Kebala dated 5th May, 1964. The case of the opposite party further was that there was another Sikmi Bhouli Khata No. 39 under Raiyati Khata No. 46, comprising of plot No. 694 on which possession was claimed by O. P. 1 to 5 as also by Opposite Party No. 6.
64. The learned Magistrate declared possession of the first party-petitioners in respect of the only plot of Khata No. 193 and that of the second party - Opposite, party Nos. 1 to 5 in respect of Sikmi Bhouli Khata No. 41, which is under Raiyati Khata No. 46, and of the lands of Khata No. 204 while that of Roshan Mapdal (second-party Opposite party No. 6) in respect of Sikmi Bhouli Khata No. 39 under Raiyati Khata No. 46, consisting of plot No. 694, in accordance with the findings of the Civil Court.
65. Mr. Balbhadra Prasad Singh on behalf of the petitioners has urged that although there were 16 plots in Khata No. 46, the learned Magistrate his declared possession of the parties in respect of only 14 plots, comprised in Sikmi Bhouli Khata Nos. 39 and 44, in favour of the opposite party. There is no declaration in respect of two plots namely, plot Nos. 691 and 698 of Khata No. 46 which were never claimed by the members of the second party at all. The other Point urgred by the learned Counsel is that the affidavits on behalf of the petitioners have been properly considered by the learned Munsif. He has also urged that a number of letters in support of Bhouli possession of petitioners have not been taken into accounts.
66. After going through the order of the learned Muhsif it is true that there is no detailed discussion of the evidence of the witnesses of the first Party. The learned Munsif seems to have been impressed by the fact that although the petitioners initially claimed to be Bhoulidars in respect of the disputed land, there is no mention that they were Bhoulidars or Bataidars of the lands either in their Sudbharna or in the sale deeds. That seems to have weighed with the learned . Munsif in rejecting the affidavits of the witnesses of the first party. It was for the learned Munsif to accept the evidence of the witnesses in the background of the documents. He cannot be said to have acted erroneously in taking the view that he has taken in the matter. He has fully considered the documents and I do not find any sufficient reason to interfere with his finding simply on the ground that there is no detailed discussion of the affidavits. As for the letters, Mr. Singh has taken us through the letters. Those letters do not mention payment of Bhouli rent in respect of the disputed lands or about its cultivation by petitioner and the learned Munsif cannot be said to have committed any error in not relying on those letters, which have not, been connected with the lands in question. Thus, there is no substance in these submissions of the learned Counsel.
67. There appears to be substance in the other submission of the learned Counsel for the petitioners. Mr. Jha, for the opposite party has fairly conceded that the Plot Nos. 691 and 698 of Khata No. 46 were not included in the Sikmi Bhouli Khata Nos. 39 or 41 and were not claimed by his clients. There being no dispute with regard to possession over these two plots (Nos. 691 and 698 of Khata No. 46), there cannot be said to be any bona fide dispute with regard to these plots which were claimed by the petitioners alone. The learned Magistrate has passed no orders in this regard. The order of the learned Magistrate suffers from this lacuna, and he is directed to pass appropriate orders in regard to these two plots of Khata No. 46. in accordance with law.
68. Subject to the above observations, the revision application is dismissed M.P. Verma, J.
69. I agree to the order which is going to be passed in this case; but I would like to add some of my own observations.
70. The main point for consideration in this case is. whether, in view of Section 146 (1-D) of the Code of Criminal Procedure (hereinafter referred to as "the Code"), the revisional jurisdiction of the High Court under Sections 435 and 439 of the Code has been restricted or left as wide as before.
71. It may be necessary to indicate the chances which have occurred from time to time in the Code by several Amending Acts. Under the Codes of 1861 and 1872. the High Court could revise only judicial proceedings. Under Section 520 of the Code of 1872, it was specifically provided that orders under Sections 318 and 519 of that Code (corresponding to Sections 144 and 143 of the present Code) were not to be considered as judicial proceedings. In that view of the matter, it was held that an order under Section 518 of that Code was not revisable by the High Court, but all other orders, such as orders in proceedings under Section 145. were open to revision. The Code of 1882 did not provide any provision corresponding to Section 520 of the Code of 1872; but in Section 435 it added a paragraph to the effect that orders made under Sections 143 and 144 and proceedings under Section 176 were not proceedings within the meaning of Section 435. .In other words, orders under such Proceedings could not be revised by the High Court. It may also be seen that proceedings under Chapter XII of the Code were not excluded from revision. By the Code of 1898. proceedings under Chapter XII were also added to the list of orders and proceedings which were not declared to be proceedings within the section. In other words, under that Code an order under Sections 143 and 144 and proceedings under Chapter XII or Section 117 could not be revised. The High Courts were not unanimous in their view whether the High Court could revise an order when the Magistrate had really acted without jurisdiction and not in conformity with the requirements of the sections. It was also expressed in some of the decisions that a Chartered High Court could interfere with an order under those sections by virtue of its power of superintendence under Section 107 of the Government of India Act. 1915. Then came the Amending Act XVIII of 1923 by which Sub-section (3) was omitted. In other words, it could be argued that, after 1923. orders under Chapter XII were revisable. We are then faced with the Criminal Procedure Code Amending Act of 1955 which has made drastic amendments by providing for a reference to the Civil Court for the limited purpose of deciding the question of possession. Before this amendment the procedure was rather simple. Under Section 146 (1) of the Code, if the Magistrate was of the opinion that none of the parties was in possession on the date of the preliminary order or two months before thereof, or was unable satisfy himself as to which of the parties was then in such possession of the subject of dispute, he could attach it until a competent Court had determined the rights of the parties thereto or the person entitled to possession thereof. Sub-section (2) further provided that a receiver could be appointed and he could be replaced by a receiver appointed by any Civil Court. by the amendment of 1955. Sub-sections (1) to (1-E) have been substituted for the old Sub-section (1). Under the amended section, the Magistrate, after attaching the properties, has to draw a statement of facts of the case and refer the matter to the Civil Court for decision. The Magistrate is required to direct the parties to appear before the Civil Court on a date to be fixed by him in order to avoid delay. Under Sub-section (1-A). the Civil Court, after the receipt of the reference, has to consider the evidence on record and such further evidence as may be produced by the parties, and. after hearing the parties, has to decide the question of possession. Then under Sub-section (1-B). the Civil Court has been directed, as far as practicable, to conclude the inquiry within a period of three months from the date of appearance of the parties before it and transmit its finding to the Magistrate who is now required to dispose of the proceedings in conformity with the decision of the Civil Court. I may further point out that even in Section 145 (4) some amendments were made by the Amending Act XXVI of 1955. The Magistrate has been required to conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him. It is thus clear that drastic amendments in Sections 145 and 146 were made in 1955 with a clear view to expedite the disposal of such matters by the Magistrate as found by the Civil Court. Under the old Section 146. when the Magistrate was unable to decide the question of possession, he was to attach the property and then there was inordinate delay in the disposal of the dispute because neither party readily showed its eagerness to go. to the Civil Court, pay some Court-fee and get the matter decided, but looked upon the other side to go to the Civil Court, and this resulted in the harassment of the rightful owner of the property. So. the legislature thought that in cases where the evidence was equally balanced and the Magistrate was unable to decide the question of possession one way or the other, he was to refer the dispute to the Civil Court and the Civil Court was to transmit its finding to the Magistrate who was required, on receipt of this finding, to dispose of the proceeding under Section 145 in conformity with the decision of the Civil Court (Sub-section (1-B)).
72. The question then arises about the finality or otherwise of the decision of the Civil Court Sub-section (1-D) lays down:
No appeal shall lie from any finding of the Civil Court given on a reference under this section nor shall any review or revision of any such finding be allowed.
73. An argument has been advanced on behalf of the opposite party that this provision has been made in the Code of Criminal Procedure, and so, in its Criminal jurisdiction. the High Court is not competent to revise this finding. On the other hand, it was argued that there is no question of review or appeal in such cases to the High Court on the Criminal side, and so the provision really meant that no review, revision or appeal on the Civil side shall lie. This matter has been set at rest by their Lordships of the Supreme Court in . It was observed in that case that a proceeding before a Civil Court on reference by a Magistrate under this section is a Civil proceeding. "If Sub-section (1-D) had not been enacted (and this is really a new provision), an appeal or revision application would have been maintainable. Now that it is there, the only effect of it is that neither an appeal nor a revision is any longer maintainable. This consequence ensues because of the express provision and not because the proceeding before the Civil Court is not a Civil proceeding." In my opinion, the expression "appeal, review or revision" has been used in a generic sense and so these terms may apply both to the civil side as well as to the Criminal side. There may not be review on the criminal side, but there could certainly be a revision on the criminal side. Sub-section (1-E) further lays down that "an order under this section shall be subject to any subsequent decision of a Court of competent jurisdiction." This provision clearly shows that the order of the learned Magistrate incorporating the finding of the Civil Court was to prevail subject to any subsequent decision of a Court of competent jurisdiction. In other words, after the finding of the Civil Court, the parties should seek their further remedy in the Civil Court by way of a regular suit.
74. An argument may be advanced on behalf of the petitioners that the finding of the Civil Court merges into the order of the Magistrate which he passes in order to dispose of the proceeding pending before him. and so the High Court is empowered to entertain revision petitions under Section 435 of the Code against the order of the Magistrate. In my opinion, this argument cannot be allowed to prevail, mainly because the Magistrate docs not pass any order of his own. but only accepts, adopts or implements the finding of the Civil Court in order to dispose of the proceeding.
75. Mr. Balabhadra Prasad Singh. learned Counsel for the petitioners, has advanced an argument that, if the legislature meant to curtail the revisional power of the High Court as given under Sections 435 and 439 of the Code, it must have said so in explicit words. In other words, where the jurisdiction of any Court has to be curtailed or taken away completely, it must be by explicit words, and not by implication. In my opinion there cannot be any hard and fast rule. Sometimes the powers are curtailed by explicit words and sometimes by necessary implication. It cannot be argued that the High Court, in its revisional jurisdiction, will interfere with any and all criminal matters. There are different stages and different procedures obtaining for different classes of cases. Section 561-A of the Code also gives very wide powers to the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. But this does not mean that the High Court shall exercise this power in any case or at any time even when there are prescribed procedures for attaining that end. At page 319 in "Craies on Statute Law." fifth edition, it is mentioned as follows:
Parliament, in the exercise of its supreme legislative capacity, can extend, modify, vary or repeal Acts passed in the same or previous sessions. It is. consequently a matter of daily business for the Courts to consider the exact effect of later upon earlier enactments, in order to see whether they can wholly or in part stand together. The rule of law on the subject is thus stated by North. J. in Re : Williams ((1887) 36 Ch. D. 573, 578). The provisions of an earlier Act may be revoked or abrogated in particular cases by a subsequent Act, either from the express language used being addressed to the particular point, or from implication or inference from the language used.
76. Similarly, in Maxwell on "The Interpretation of Statute", eleventh edition it is mentioned at p. 123. "There are three classes of cases in which a liability may be established founded upon a statute, one is. where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law : there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party using has his election to pursue either that or the statutory remedy." This, in other words, means that the orders under the statute may be express or its meaning may be taken by necessary implication.
77. The argument advanced on behalf of the petitioners to the effect that, if the legislature wanted to curtail the powers of the High Court because of Sub-section (1-D) of Section 146 of the Code, it ought to have made some suitable amendment in Section 435 also, cannot be accepted when I find that the same purpose is served by the language contained in Sub-section (1 D), and this is obvious by necessary implication. Herein comes into play the doctrine, of harmonious interpretation. As observed by their Lordships of the Privy Council in AIR 1949 P.C. 190 (The Attorney General of Saskatchewan v. The Attorney General of Canada), the substance of the enactment has to be seen, and not the form, so that you cannot do that indirectly which you are prohibited from doing directly.
78. This topic can be further elucidated by reference to the decisions of various High Courts in India which had occasions to decide this matter. As Section 146, which incorporates Sub-section (1-D), was enacted by the Amending Act of 1955. I would refer to the decisions subsequent to that period.
79. In . Somasundaram, J. was of the opinion that no appeal or review or revision lies on the civil side against the finding of the Civil Court, but a revision can lie against the order of the trial court under Sections 435 and 439 of the Code. He further observed that "for this Court to go into the correctness of the findings of the Civil Court would be to do a thing indirectly what is directly prohibited. What utmost this Court can do in revision is to ascertain whether the Criminal Court has implemented the decision of the Civil Court, To this limited extent only a revision can lie... the Criminal Court has followed the decision of the Civil Court. Therefore, there is no scope for interference, as it is a statutory duty imposed upon the Criminal Courts to follow the. findings of the Civil Court...." A reference in this case was also made to the decision of the Privy Council reported in AIR 1949 PC 190 (referred to above).
80. Again, in . Ramaswami. J. observed that the restriction placed on the revisional powers of the High Court by Section 146 (1-D) is wide restriction conceived in the best public interest and involves no invasion of the fundamental right or diminution of the paternal and supervisory jurisdiction of the High Court. He further observed:
This restriction is but proper because the findings get merged in the decision of the Magistrate and all the grounds that can be urged against the finding can be urged against the finalised decision, and if there is no such restriction there will be multiplicity of proceedings and possible conflicting revisional orders reducing the whole thing to an absurdity.
81. In , N.K. Sen. J. observed that the decision of the Civil Court on a reference under Section 146 of the Criminal Procedure Code cannot even be challenged, Sub-section (1-D) of Section 146 of the Code of Criminal Procedure being a bar. The only remedy left would be to go to a court of competent jurisdiction under Sub-section (1E) of Section 146 of the Code of Criminal Procedure.
82. In . T. P. Mukherji. J. observed that, in view of Sub-section (1D) of Section 146 of the Code, the High Court cannot, interfere with the findings of the Magistrate made under Section 146 (1-B) of the Code, on the ground that Civil Court's order is incorrect. It is so because the High Court will then be assuming jurisdiction in a matter in the fact of a statutory denial of that jurisdiction. The finding of the Civil Court can be challenged only in a regular suit.
83. In , G. K. Misra, J, considered the decisions of the various High Courts, either for or against the view of interference by the High Court in a criminal revision, and observed that the best exposition of the reasonings in support of the view of the bar of jurisdiction of the High Court is to be found in the minority judgment of Sahai, J. (of Patna High Court) in AIR 1968 Patna 243 PB. He then proceeded to say:
To sum up. the correct position of law is that the Civil Court's finding on a reference under Section 146 Criminal Procedure Code is not assailable in a criminal revision against the final order of the Magistrate passed in a proceeding under Section 145 Criminal Procedure Code in conformity with the decision of the Civil Court. A criminal revision is. however, maintainable against the final order, or the order can be assailed on other grounds as might arise in the facts and circumstances of a particular case. The finding of the Civil Court, however erroneous it may be, is final until it is set aside in a court of competent jurisdiction under Sub-section (1-E). The learned Sessions Judge has made the reference relying on the "majority view in (FB). As I prefer the minority view, the reference is discharged.
84. In Inder Singh v. State C.B. Bhargava, J. did not express any considered opinion on the scope of revision itself directed against an order Passed under Section 146 (1-B). But. in the case before him, the learned Magistrate had not disposed of the proceeding in conformity with the finding pi the Civil Court and so he thought it proper to intervene. He further observed : "To this extent the order of the learned Magistrate is wrong and must be set aside because no dispossession was alleged over these Qulla numbers."
85. In Chokhev Lal Moti Ram v. Babulal Behari Lal . V.D. Bhargava, J. observed:
The first ground on which this petition is not entertainable is that under Sub-section (1-E) of Section 146 an order under Section 146 is subject to any subsequent decision by a court of competent jurisdiction. The petitioners have an alternate remedy by way of a regular suit where the order of the Munsif can be challenged and it is only by that manner that the orders under Section 146 should be challenged. An order under Section 146 has been made final, subject to decision in a regular suit." His Lordship rather went a step further and observed-
It is clear that neither there can be an appeal nor a revision nor a review against orders passed under Section 146, Criminal Procedure Code which means that the legislature intended these orders to be final. If the legislature had made those orders final. I do not think that the petitioners are entitled to challenge them by means of a writ petition.
86. In Badri Nath Pandey v. U.P. State . D. S. Mathur. J. observed that the inherent power can be exercised in cases not covered by the law. i. e. to do justice in the case. He further observed that the finding of a Civil Court on a reference-made to it under Section 146. though erroneous, is not subject to appeal, review or revision, even when a party is challenging the final order of the Magistrate based, on the finding of the Civil Court. "When the law prohibits the parties from challenging the finding of the Civil Court in appeal, review or revision, the revisional court cannot go into the propriety of that finding on a revision made to challenge the final order of the Magistrate based on the finding of the Civil Court." He did not follow the Full Bench decision of this Court . According to his Lordship, when the legislature made the finding of the Civil Court final not subject to appeal, review or revision, the High Court cannot, by an indirect manner, adopt a different course. In his Lordship's opinion, the provisions of Section 146 (1-D) did not take away the extraordinary jurisdiction of the High Court under Article 226 or Article 227 of the Constitution, and in suitable cases the High Court may consider exercising that jurisdiction.
87. In a recent decision of the Allahabad High Court, in , a Division Bench consisting of D. P. Unival and C. B. Capoor. JJ... observed that the finding given by the Civil Court in pursuance of the provision of Sub-section (1-B) of Section 146 is a finding-of a court of civil jurisdiction and as such it is not subject to the jurisdiction of the criminal court. In so far as Sub-section (1-D) bars appeal from such finding and prohibits review or revision of such finding it clearly envisages that in so far as the order of the Magistrate is based on the finding of the Civil Court, the same cannot be interfered with in any way. The order being an integral part of that finding cannot be set aside in revision. Their Lordships further observed that the decision given by the Supreme Court in has impliedly overruled the majority decision in the Full Bench of the Patna High Court in .
88. I would then refer to the decisions of pur own High Court. In Rana Ramnarain Singh v. Mahatha Niranian Lal . Imam J. (as he then was) observed that Sub-clause (1-B) of Section 146 leaves no alternative to the Magistrate but to carry out the decision of the Civil Court. That being so. it cannot be said that the order of the Magistrate was illegal, even if it be supposed that the finding arrived at by the Civil Court is erroneous. It is not the function of the learned Magistrate to question the finding of the Civil Court. Once the Magistrate has done so. the order of the learned Magistrate cannot be said to be illegal, and if the order of the learned Magistrate is not illegal, it is not open to this Court to set that order aside in revision.
89. In , Sahai and Untwalia. JJ. held that, if there is a proper reference, the High .Court cannot interfere with the Magistrate's order in revision, except on the limited point that it is not in accordance with the decision of the Civil Court upon the reference. This is because there cannot be interference with the finding of the Civil Court even indirectly. Their Lordships declined to consider the merits of the decision given by the Subordinate Judge in that case for the simple reason that this Court cannot interfere with the decision or consider its Correctness. As. however, the decision was without jurisdiction on the ground that the reference was incompetent, neither that decision nor the learned Magistrate's final order could be upheld.
90. Then I come to the latest decision of our High Court in FB. The matter was decided by a Full Bench consisting of S. C. Misra, J. (as he then was). K. Sahai and S. P-Singh, JJ. In that case. Sahai, J. gave a dissenting view, and the majority of the two Hon'ble Judges held the view that the provisions of Sub-section (1-D) of Section 146 of the Code bar an appeal, review or revision under the Code of Civil Procedure, and even under the Code of Criminal Procedure, only so long as the Magistrate does not pass his order in conformity with the decision of the Civil Court. This provision does not impose any bar to any review or revision of the order of the Magistrate passed under Sub-section (1-B), and the High Court can interfere with the finding of the Civil Court under Sections 435 and 439 of the Code, after the finding is adopted by the Magistrate and the final order is passed. When a revision is preferred against the order of the Magistrate under Sub-section (1-B). not only the operative order of the Magistrate, but the entire proceeding, including the finding of the Civil Court, are before the court, and, therefore, the High Court can. in appropriate cases, interfere with the findings of the Civil Court, if they are in flagrant violation of the well recognised principles of law. This majority view apparently overruled the two earlier decisions of this Court and . The Full Bench further observed that the powers of the High Court under Article 227 of the Constitution cannot be taken away or abridged by a legislative enactment and. as such, Sub-section (1-D) of Section 146 of the Code cannot have that effect. There is no inflexible rule that the High Court cannot issue a writ or pass an order in exercise of its power under Article 227 simply because an alternative remedy is available. The High Court, however as a rule will not interfere with the finding of the Civil Court merely on the ground of non-consideration of some evidence or some irregularity found to have been committed by the Civil Court. It is only in exceptional cases in flagrant violation of legal principles, and that also after the Magistrate has passed final orders in .conformity with such finding that the High Court will interfere. Sahai, J. however, observed:
In my judgment, the only interpretation which can be put upon Sub-section (1-D) is that the finding of the Civil Court cannot be challenged in, that court or in a superior court at any stage.... There is thus no question of the finding of the Civil Court merging into the 'finding' of the Magistrate ... it is not possible for me to hold that the finding remains sacrosanct so long as the Magistrate does not pass his final order but becomes subject to revision by the High Court like any other order of an inferior Criminal Court as soon as he passes such order.... Though the finding of the Civil Court is, under Sub-section (1-D). not subject to appeal, review or revision, the constitutional power , of superintendence given to the High Court under Article 221,-cannot be held .to have been taken away.
91. In view of the various decisions of various High Courts, as referred to above, I think that the view expressed in the case , FB, in my humble opinion, cannot be accepted in its entire totality. Before corning to my own decision. I may further point out that Section 435 of the Code does not give power to call for the records of the inferior courts only to the High Court, but also to the Sessions Judge or the District Magistrate or any Sub-divisional Magistrate empowered by the State Government in this behalf. So. all these courts exercise concurrent jurisdiction in such matters. Of course, those courts cannot intervene in the matter actively, but they can only make a reference to the High Court under Section 438 of the Code. Section 439 deals with High Court's power of revision, and Sub-section (1) lays down "in the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise conies to its knowledge, the High Court may , in its discretion, exercise any of the powers conferred on a Court of appeal by Sections 423. 426. 427 and 428 or on a Court by Section 338...."
Under Section 423 (1) (c). an Appellate Court may in an appeal from any other order (that is, apart from the order of acquittal or conviction), alter or reverse such order. It is a different matter whether the High Court would intervene only when it finds that there has been a gross abuse of power or some colossal miscarriage or justice or some flagrant violation of the course of natural justice. But the real question is whether the High Court can be. given the discretion to exercise its power in such cases. If this power is once given to the High Court, then the matter will rest with the ideas of the individual Judges and what may be a colossal miscarriage of justice according to one may not be so according to another. To take a concrete example, if, under Section (1-A) of the Code, the Civil Court finds A to be in possession of the disputed property can a Sessions Judge, or the High Court, on an examination of the records and after discussion of the various points, come to a decision that not A. but B. was in possession of such property? If in my opinion a narrow interpretation is put upon the provisions of Sub-section (1-D) of Section 146 that the High Court has power to interfere, in its revisional Jurisdiction, with the cruder passed under Sub-section (1-B), then it may , with its observation, remand the case evidently to the Magistrate for a reconsideration of the whole thing in the light of the observations made by the High Court. The Magistrate may then decide the matter himself or send it again to the Civil Court. This will unnecessarily prolong the litigation which was not the intention of the legislature while making these amendments in Section 146 of the Code. This aspect of the matter was also considered earlier by Ramaswami, J. in the case . and his Lordship very aptly remarked "if there is no such restriction there will be multiplicity of proceedings and possible conflicting revisional orders reducing the whole thing to an absurdity." He further observed that "this wise discretion has been conceived in the best public interest and involves no invasion of the fundamental right or diminution of the paternal and supervisory jurisdiction of this Court." With all respect to the learned Judge I find myself in complete agreement with his views. So. from practical and procedural aspects also, there will be some appreciable difficulty if a restricted view is adopted concerning Sub-section (1-D) of Section 146 of the Code.
92. In view of the discussions made above and after giving my anxious consideration to the entire aspect of the matter. I come to the following conclusion:
(i). The power of the High Court, in its revisional jurisdiction, has not altogether been taken away by Sub-section (1-D) of Section 146 of the Code. No specific amendment has been made in Section 435 or 439 of the Code of Criminal Procedure : but by necessary implication, the general power under these two sections has been curtailed by special enactment, that is, by Sub-section (1-D) of Section 146. (ii). short of disturbing the finding of the Civil Court given under Sub-section (1-A). the High Court has power to look to other irregularities or illegalities committed by the Magistrate in incorporating the decision of the Civil Court. For example, if the Magistrate passes an order under Sub-section (1-B). which is not in conformity with the decision of the Civil Court, the High Court can intervene and set the matter right. This was exactly done in the Rajasthan case referred to above where the learned Magistrate had included more plots in his order than those which were decided to be in possession of the successful party by the Civil Court. To take another example, if the Civil Court has not heard one party and has passed its order, thus indicating that there has been a violation of principles of natural justice. the High Court can intervene and direct the Civil Court to hear that party also and then pass its order if it is found that the non hearing of that party was not occasioned by its own fault. In Sub-section (1-A). it has been clearly mentioned that the order is to be passed "after hearing the parties". So, if this illegality is committed because of the contravention of the express provision of law. the High Court can intervene.
(iii). The statutory powers conferred on the High Court under Articles 226 and 227 of the Constitution cannot be said to have been abridged or curtailed by Sub-section (1-D) of Section 146 of the Code, because, as stated earlier, any legislative enactment cannot override any provision in the Constitution : and unless the Constitution is amended, that power exists. So. in cases of glaring injustice being done to a party or where there is a flagrant violation of any recognised principle of law. The High Court, in its revisional jurisdiction, can set the matter right by taking recourse to its general power of superintendence etc. as given by Articles 226 and 227 of the Constitution.
(iv) Thus, it will not be proper for the High Court, under its revisional Rower under Sections 435 and 439 of the Code of Criminal Procedure, to discuss the merit of the finding of the Civil Court as given under Sub-section (1-A) of Section 146 of the Code so as to disturb that finding.
93. Coming to the merits of this case, it must be observed that, in my opinion, this Court cannot come to a decision, after discussing the merits, that the finding given by the Civil Court required reconsideration. If there had been some material irregularity in the procedure patent on the record, or colossal injustice had been done to the party, the High Court could have interfered with the matter under its general power of superintendence, as provided by Articles 226 and 227 of the Constitution. The salient portions of the decision of the Civil Court were read out to us. of course, there is no elaborate discussion of the affidavits which had been filed in this ease. But. reading the entire decision as a whole, it cannot be said that the Civil Court has given a perverse finding and has thereby occasioned failure of Justice. This revision application has. therefore, to be dismissed.
Wasiuddin, J.
94. I have had the advantage of perusing the judgements of my learned Brethren G. N. Prasad. M. P. Verma and K. B. N. Singh. JJ : I agree with the order proposed to be passed in this revision application as indicated in Paragraph 33 of the Judgment of learned Brother K. B. N. Singh. J. with great respect I agree with the views of my learned Brother G. N. Prasad and K. B. N. Singh. JJ about the applicability of Article 227 of the Constitution and that Section 146 (1-D) of the Code of Criminal Procedure cannot act as a bar in the exercise of such jurisdiction under the aforesaid article by the High Court.
95. But with great respect I am not in agreement with the views of my learned Brother G. N. Prasad. J. which is to the effect that the Full Bench decision in the case of with regard to the revisional power of the High Court is not correct, and with great respect I also do not agree with the views of my learned Brother M. P. Verma. J. (vide Paragraph 24 of his judgment) that the view expressed by the aforesaid Full Bench cannot be accepted in its entire totality. I may also mention here that with great respect I am in full agreement with the views of my learned Brother K. B. N. Singh. J. (vide Paragraph 27 of his judgment) that the majority decision of the Full Bench is correct.
96. My learned Brothers have fully and elaborately discussed all the points which are involved for decision, but I would just add in support of my views which I have expressed above. As the main controversy and my difference have been only on the question with regard to the interpretation of Sub-section (1-D) of Section 146 of the Code of Criminal Procedure, therefore. I need not enter into a discussion of other matters and will confine myself with regard to the interpretation of this sub-section.
97. The Point which has come UP for reconsideration by this Full Bench is about the scope and interpretation of Sub-section (1-D) of Section 146 of the Code of Criminal Procedure. There has been a difference of opinion in the High Courts on the point whether a revision under Section 435 read with Section 439 of the Code of Criminal Procedure lies against an order passed by the Magistrate under Sub-section (1-B) of Section 146 of the Code of Criminal Procedure. There were drastic amendments in respect of a proceeding under Section 145 of the Code of Criminal Procedure in the year 1955. Under the old section, that is, before the amendment if the Magistrate could not come to any decision on the question of possession of the subject matter of dispute he had the power to attach the property till the matter was decided by a competent Court. Experience showed that although such proceeding should be disposed of at the earliest, but there were dilatory processes and took a long time in its disposal. The legislature, therefore. brought about considerable changes by incorporating new provisions specially in Section 146 of the Code of Criminal Procedure. Sub-section (1) of Section 146 of the Code of Criminal Procedure provides that if the Magistrate is of opinion that none of the parties was then in such possession, or is unable to decide as to which of them was then in such possession of the subject of dispute, he may attach it. and draw up a statement of the facts of the case and forward the record of the proceeding to a Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of order. Sub-section (1-A) provides that the Civil Court on receipt of any such reference, shall peruse the evidence on record and take such further evidence as may be produced by the parties respectively consider the effect of all such evidence, and after hearing the uarties. decide the question of possession so referred to it. Sub-section (1-B) provides that the Civil Court shall, as far as may be practicable, within a period of three months from the date of the appearance of the parties before it, conclude the, inquiry and transmit its finding together with the record of the proceeding to the Magistrate by whom the reference was made: and the Magistrate shall, on receipt thereof, proceed to dispose of the proceeding under Section 145 in conformity with the decision of the Civil Court. Sub-section (1-D) which has been a subject of controversy is as follows:
No appeal shall lie from any finding of the Civil Court given on a reference under this section nor shall any review or revision of any such finding be allowed.
Now as far as the interpretation of this section is concerned, there are two views holding the field. One view is that a revision can lie only against the order of the Magistrate and that also to a limited extent only to see whether the order of the Magistrate is or is not in conformity with the finding of the Civil Court, as laid down in Sub-section (1-B). referred to above.... In my opinion, there can be no controversy in this respect because Sub-section (1-D) does not impose any bar to a revision against the order of the Magistrate. Now on the question whether any revision can lie when the final order of the Magistrate is in conformity With the finding of the Civil Court, there has been a good deal of difference of opinion. The view which has been prevailing in most of the High Courts is that that no question relating to the finding Of the Civil Court can be permitted to be raised because under Sub-section (1-D) the finding of the Civil Court cannot be attacked either directly or collaterally and. therefore, no revision was permissible in view of Sub-section (1-D) against the order of a Magistrate if such order is in conformity with the finding of the Civil Court, this view was also on the basis of the well known principle that if the law prohibits anything to be done directly, it will not be permissible to do that indirectly. This was the view not only of our High Court, but of some of other High Courts and for the purposes of finding the correct intepretation of Sub-section (1-D) of Section 146 of the Code of Criminal Procedure the matter had been referred to a Full Bench of our High Court in the case of Raja Singh v. Mahendra Singh . It was held by majority decision of Full Bench that the provision does not impose any bar to any revision of the order of the Magistrate passed under Sub-section (1-B) and the High Court can interfere with the finding of the Civil Court under Sections 435 and 439 of the Code of Criminal Procedure after the finding is adopted by the Magistrate and the final order is passed and that when a revision is preferred against the order of the Magistrate passed under Sub-section (1-B). not only the operative order of the Magistrate but the entire proceeding including the findings of the Civil Court are before the High Court and therefore, the High Court can. in appropriate cases, interfere with the findings of the Civil Court, if these are in flagrant violation of the well recognised principles of law. According to this decision the matter was concluded so far as our High Court was concerned. But recently in a decision in the case reported, in certain observations were made which necessitated the reference of the matter for reconsideration by a larger Bench of this Court. In the aforesaid decision of the Allahabad High Court the Hon'ble Judges followed the view prevailing in the Allahabad High Court that a revision could lie only to a limited extent, that is only to see whether the order of the Magistrate is or is not in conformity with the finding of the Civil Court, and the Hon'ble Judges of the Allahabad High Court differed from the view taken by our Full Bench referred to above. It was also observed by the Hon'ble Judges of the Allahabad High Court that the view taken by the learned Judges of Patna High Court is clear-Iv untenable in view of the decision of the Supreme Court in the case of Ram Chandra Aggarwal v. The State of U.P. . This, as already stated above has been the main reason for deference to a larger Bench of this Court. In my opinion, it cannot be said that the opinion of the Full Bench of this Court has been overruled by the aforesaid decision of the Supreme Court. It is rather necessary here to give in short the facts of the case in the aforesaid Supreme Court decision. In that case there was a reference to the Civil Court by the Magistrate under Section 146 of the Code of Criminal Procedure. This reference was to a Munsif who had territorial jurisdiction over the subject matter of the property. The respondent of the appeal in the Supreme Court filed an application under Section 24 of the Code of Civil Procedure before the District Judge for the transfer of the case to some other Court on the around that the Munsif to whom the reference had been made had awarded costs against him in an execution case out of which the proceeding under Section 145 of the Code of Criminal Procedure had arisen. The learned District Judge transferred the case from the Court of that Munsif to another Court and the learned Munsif had naturally no objection to such a transfer. The appellants also acquiesced to the order. The learned Munsif to whom the case was transferred by the learned District Judge gave his finding and then the learned Magistrate disposed of the proceeding by passing a final order in conformity with the finding of the Civil Court. A revision application was filed by the appellants before the Sessions Judge in which objection was taken by the appellants for the first time that the decision of the Civil Court was a nullity because it had no territorial jurisdiction over the subject matter of the dispute and consequently the order of the Magistrate was a nullity. The application filed before the sessions Judge was dismissed and then an application in revision was filed in the High Court on the sole ground that Section 24 of the Code of Civil Procedure was not available in respect of the proceeding in which a reference has been made to a Civil Court by a Magistrate under Section 146 of the Code of Criminal Procedure. Two grounds were taken before the High Court, one of these was to the effect that the reference under Section 146 of the Code of Criminal Procedure was to a persona designata and secondly that it was not a Civil proceeding within the meaning of Section 141 of the Code of Civil Procedure and. therefore, the provisions of Section 24 of the Code of Civil Procedure could not apply. The Supreme Court was pleased to hold that it was not a reference to a persona designata, but on the question whether Section 24 of the Code of Civil Procedure was applicable or not to such a reference, it was that such a proceeding would come within the meaning of "other proceeding" as mentioned in Section 24 (1) (a) of the Code of Civil Procedure and. therefore, a District Judge could transfer such a proceeding. A perusal of the entire judgment of the Supreme Court shows, as mentioned in the beginning of the judgment also that the only point which fell to be decided was as to whether the District Judge had jurisdiction under Section 24 of the Code of Civil Procedure to transfer a reference made by a Magistrate to a particular Civil Court under Section 146 of the Code of Criminal Procedure to another Civil Court. Their Lordships were also pleased to observe.
Thus, though we say that it is not necessary to consider in this case whether the proceeding before the Civil Court is a Civil proceeding as contemplated by Section 141 or not there is good authority for saving that it is a Civil proceeding. All that we are concerned with in this case is whether the provisions of Section 24 (11)(b) of the Code of Civil Procedure are available with respect to a proceeding, arising out of a reference under Section 146 (1). Criminal Procedure Code.
In my opinion, it cannot be said either that the Full Bench decision in was overruled by the Supreme Court or that the view of the Full Bench was untenable as observed by the Hon'ble Judges of the Allahabad High Court. I am rather inclined to be of the view that impliedly it can be said that this position was not disputed in the Supreme Court also that that a revision without any restriction was maintainable even when an order has been passed by the Magistrate in conformity with the finding of the Civil Court. As already pointed above. in the aforesaid case in the Supreme Court, the learned Magistrate had passed an order in conformity with the finding of the Civil Court, and the attack was not against the order of the Magistrate, but directly and mainly against the Civil Court on the ground that the Civil Court had no territorial Jurisdiction to pass such an order because the learned District Judge could not transfer such a proceeding from one Court to the other and. therefore, it was nullity. As already stated above that a revision application was filed before the sessions judge. which was dismissed and the revision application under Section 435 read with Section 439 was filed in the High Court. If this view be taken that in no case the finding of the Civil Court directly or indirectly or collaterally can be attacked, then in this case also no such revision should have been maintainable. The attention of their Lordships had also been drawn to the provisions of Sub-section (1-D) of Section 146 of the Code of Criminal Procedure as would appear from the Paragraph 5 at cases 1890 and 1891 of the Judgment. Their Lordships were pleased to observe with regard to the provisions of Sub-section (1-D) of Section 146 of the Code of Criminal Procedure as follows:
If Sub-section (1-D) had not been enacted (and this is really a new provision) an appeal or revision application would have been maintainable. Now that it is there, the only effect of it is that neither an appeal nor a revision is any longer maintainable. This consequence ensues because of the express provision and not because the proceeding before the Civil Court is not a Civil proceeding.
This point does not seem to have been taken there that the Cri. revision under Section 433 read with Section 438 of the Code of Criminal Procedure itself was not maintainable because of the provisions of Section 146 (1-D) and rather it appears that the provisions of this section had been considered to be applicable only so far as the Code of Civil Procedure is concerned and not the Code of Criminal Procedure.
98. The report of the select committee which recommended the amendments as incorporated in Section 146 of the Code of Criminal Procedure is also worthy of consideration in this connection. It shows that the members of the select committee were of opinion that inquiries by Magistrates are often dilatory and unsatisfactory and in order to obviate this state of affairs new provisions under Section 146 were substituted and the Civil Court will only determine the question of possession and not the question of title. It also appears that when this amendment was being made it was regarded that the proceeding on reference to a Civil Court under Section 146 of the Code of Criminal Procedure will be analogous to a suit for possession under Section 9 of the Specific Relief Act, 1877, and that no appeal, review or revision shall lie against the finding of the Civil Court and that such a finding however will not debar any person from instituting a suit for a declaration of his title and for recovery of possession. A perusal of Section 9. of the Specific Relief Act prior to the amendment in 1963 shows that in that section there is a provision very similar to Section 146 (1D) of the Code of Criminal Procedure. This provision is as follows:
No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed." A comparison of the wordings of the aforesaid provisions of Section 9 of the Specific Relief Act with the provisions of Sub-section (1-D) of Section 146 of the Code of Criminal Procedure clearly shows that the legislature adopted the same kind of provision as mentioned in Section 9 of the Specific Relief Act with this difference only that in Section 9 there was no mention of revision, but in Section 146 (1-D) there is a mention of revision also. To me it appears in view of the facts stated above and also some of the grounds which I will be presently mentioning that the legislature adopted the provision of Section 9 and incorporated in Sub-section (1-D) obviously having in mind the provisions of the Code of Civil Procedure and not of the Code of Criminal Procedure. Revision was also added so that no revision under Section 115 of the Code of Civil Procedure may be also maintainable. It also appears that it was for obvious reasons firstly because the legislature thought that there should be an expeditious disposal of the reference pending before the Civil Court and the time limit which had been mentioned in the section is three months and secondly it would not have been desirable at all to allow any appeal review or revision against the finding of the Civil Court because such a finding had no foundation and no operative effect until the Magistrate passes an order in conformity with the finding of the Civil Court. The finding of the Civil Court, therefore, is at an intermediate stage and it would not have been desirable to allow any appeal, review or revision at that stage. Now under the Code of Criminal Procedure there is no provision for appeal or review in respect of an order under Section 145 or 146 of the Code of Criminal Procedure and the only remedy is by way of revision. So the legislature obviously when mentioning appeal or review had in its mind the provisions of the Code of Civil Procedure and not the provisions of the Code of Criminal Procedure, and the word "revision" was added to exclude the applicability of Section 115 of the Code of Civil Procedure which was wanting in Section 9 of the Specific Relief Act.
99. Section 146 (1-DV of the Code of Criminal Procedure does not impose any bar to any review or revision of the order of the Magistrate passed under Section 146 (1-B). but the bar is only in respect of the finding of the Civil Court. There has also been a difference of opinion on the Point whether the order of the Civil Court merges into the order of the Magistrate passed under Sub-section (1-B) of Section 146 of the Code of Criminal Procedure. The view prevailing in some of the High Courts is that such a manner was not possible and the finding of the Civil Court has its own independent identity specially when the Magistrate when passing an order under Sub-section (1-B) of Section 146 of the Code of Criminal Procedure does not exercise his own judgment but adopts the judgment and the finding of the Civil Court. In my opinion, without going into this nicety of this question whether there is a merger or not the practical aspect of the matter, cannot be lost sight of that the finding of the Civil Court on such a reference is practically of no value and not enforceable in law until the Magistrate passes an order in conformity with the finding of the Civil Court. The reference cannot be regarded as something independent and unrelated to the proceeding under Section 145 of the : Code of Criminal Procedure. It rather springs from a proceeding under Section 145 of the Code and under Section 146 of the Code of Criminal Procedure the Magistrate is vested with the power to make a reference to a Civil Court, The Code of Criminal Procedure provides for reference by a criminal court in other cases also, such as under Section 432 of the Code of Criminal Procedure. In my opinion, reference under that section cannot be treated on Par, as a reference by a Magistrate to a Civil Court under Section 146 of the Code of Criminal Procedure because a reference under Section 432 is to a superior court whereas a reference by a Magistrate to a Civil Court is not to a superior court but rather to a court which is equal in status to that of the Magistrate. The whole scheme under Sections 145 and 146 of the Code of Criminal Procedure clearly shows that it is the Magistrate only who has the season of the case and the Magistrate who has made the reference has to pass a final order and it is only after this order that there is a final disposal of the proceeding. This final order is based of course on the finding of the Civil Court when passed in conformity with the finding of the Civil Court, and I think it -will be rather stretching the matter too far if it is said that, howsoever, illegal, improper the order of the Civil Court may be, but once the learned Magistrate passes an order in conformity, with finding of the Civil Court, the finding of the Civil Court indirectly or directly cannot be challenged and that the High Court cannot exercise its jurisdiction under Sections 435 and 439 of the Code of Criminal Procedure. In my opinion, the foundation of the order Passed under Section 146 (1-B) is the finding of the Civil Court but when the order of the Magistrate can be attacked then the foundation on which that order has been based can also be attached. I am also of this view from this aspect of the matter that the legislature did not make any amendment in the provisions of Sections 435 and 439 of the Code of Criminal Procedure. It is worthy to note here that under Section 435 of the Code of Criminal Procedure prior to 1923 the High Court could not exercise its revisional jurisdiction in respect of proceedings under Section 145 of the Code of Criminal Procedure. The legislature obviously realised the necessity that the High Court should be vested with such power in respect of Proceedings under Section 145 of the Code of Criminal Procedure and, therefore, Sub-section (3V of Section 435. of the Code of Criminal Procedure as it stood prior to 1923 was deleted with the result that the High Court could and has been interfering in fit and proper cases, of course, in respect of final orders passed in a proceeding under Section 145 of the Code of Criminal Procedure. Now as pointed above, although there was an amendment by making a provision such as. Sub-section (1-D) in Section 146 of the Code of Criminal Procedure, but no corresponding amendment whatsoever was made in the provisions of Sections 435 and 439 with the result, in my opinion, the power of the High Court under these sections remains unaffected. If the legislature intended to curtail the power of the High Court, then one would have expected that the legislature fully cognisant of the entire law would have made simultaneous amendment in Sections 435 and 439 of the Code of Criminal Procedure, but this was not done. It also appears that the legislature advisedly in Sub-section (1-D) of Section 146 of the Code of Criminal Procedure did not make any mention of the word "Magistrate" but only "the finding of the Civil Court". If this view be taken that no revision lies against the order passed under Sub-section (1-B) of Section 146 of the Code of Criminal Procedure which directly or indirectly attacks the finding of the Civil Court, then it brings about rather ah anomalous situation. There cannot be. any controversy of this point that if the Magistrate without making any reference decides the question of possession himself, such as, one under Sub-section (4} of Section 145 of the Code of Criminal Procedure then a revision would lie under Section 435 read with Section 439 of the Code of Criminal Procedure. There seems to be no good ground for making a distinction in this respect that a revision in such a case can lie. but no revision can lie against the order under Section 146 (1-B) howsoever erroneous, illegal and improper the finding of the Civil Court may be. in the interpretation of the statutes there, should always be such an interpretation which would brine harmony and this harmony can be maintained only by interpreting Sub-section (1-D) of Section 146 of Code of Criminal Procedure in this manner that once an order is passed by the Magistrate under Sub-section (1-B) of Section 146 it is amenable to the revisional jurisdiction even if one has to so into the finding of the Civil Court and such a construction will not only harmonise the different provisions of Sections 145 and 146 of the Code of Criminal Procedure, but also dispense with the limitation sought to be imposed on the powers of the High Court under Sections 435 and 439 of the Code of Criminal Procedure. It may, however, be observed here that the High Court will not ordinarily interfere in all cases but will do so only in appropriate cases when it finds the findings of the Civil Court are in flagrant violation of the law. Another aspect of the matter which also arises for consideration in this respect is that by the provisions of Sections 435 and 439 of the Code of Criminal Procedure definite powers are vested on the High Court and if Sub-section (1-D) is given its limited scope then it means that powers vested under Sections 435 and 439 of the Code of Criminal Procedure are definitely curtailed. This brines about a clear contradiction to the provisions enabling the parties to seek relief and redress and if the legislature intended to oust this jurisdiction then there would have been an amendment of Sections 435 and 439 of the Code of Criminal Procedure.
100. The learned Counsel for the opposite party also based his arguments on this that the word used in Section 146 with regard to the finding of the Civil Court is "decision". This point has been elaborately discussed in the judgment of my learned Brother K. B. N. Singh. J. but I may just add a few words. In my opinion, a perusal of all the provisions of Sections 145 and 146 of the Code of Criminal Procedure will show that the code never contemplated to confer on the Civil Court the power to deliver judgment which may have a binding character- The word "decision" of the code has been used there, but it cannot be construed to mean a judgment which has finality and definite character because as pointed above, such finding of a Civil Court is of no value or importance until and unless a Magistrate passes an order under Sub-section (1-B) of Section 146 of the Code of Criminal Procedure. It may also be mentioned here that the word "decision" is also used in a popular sense and not in a technical sense and it does not mean a little more than a concluded opinion and it does not by itself amount to a judgment (vide Stroud's Judicial Dictionary. Volume 1. 1952 Edition, page 743) ORDER OF THE COURT:
101. In the result, therefore, it must be held that the majority decision in Raia Singh's case. is correct, both in regard to the power of the High Court under Article 227 of the constitution and under Sections 435 and 439 of the Code of Criminal Procedure to rectify any error in the finding of the Civil Court in the circumstances and to the extent mentioned in the majority judgment. The application fails except in regard to the two plots as mentioned in the judgment of G. N. Prasad. J.