Orissa High Court
Lokanath Bhoi vs Gaya Prasad Bhoi And Two Ors. on 17 June, 2004
Equivalent citations: AIR2004ORI176, 98(2004)CLT328, AIR 2004 ORISSA 176, (2004) 2 CLR 108 (ORI), 2004 (2) CLR 108, (2004) 23 ALLINDCAS 663 (ORI), 2004 (23) ALLINDCAS 663, (2004) 98 CUT LT 328
Author: P.K. Tripathy
Bench: P.K. Tripathy
JUDGMENT P.K. Tripathy, J.
1. This Civil Revision has been filed challenging to the order passed by the District Judge, Sambalpur in Misc. Appeal No. 40 of 2000. The opposite party Nos. 1 and 2 filed Misc. Succession Case No. 60 of 1994 under Section 383 of the Indian Succession Act, 1925 (in short, 'the Succession Act') for revocation of the succession certificate granted by the Civil Judge (Senior Division), Sambalpur in Misc. Case No. 25 of 1993. That succession certificate was granted in favour of the present petitioner. After considering the contention of the parties, learned Civil Judge, as per the order passed by him on 28.11.2000, dismissed the application for revocation of the succession certificate. As against that, opposite party Nos. 1 and 2 preferred Misc. Appeal No. 40 of 2000. On 17.4.2001, learned District Judge allowed that appeal and consequentially revoked the succession certificate granted in Misc. Case No. 25 of 1993 with a direction to grant the succession certificate in favour of the opposite parties 1 and 2. That order is under challenge in this Civil Revision.
2. The impugned order is challenged by the petitioner precisely on two grounds, viz.
(i) valuation of the property involved in the case being Rs. 1,50,000/- (rupees one lakh fifty thousand), learned District Judge, Sambalpur had no pecuniary jurisdiction to entertain an appeal in view of the provision in Section 16 of the Orissa Civil Courts Act, 1984 (in short, 'the Act, 1984') and Section 384 of the Succession Act; and
(ii) the lower appellate Court committed material irregularity in recording the finding that petitioner is not the son of late Kailash Chandra Bhoi and in that respect relied on evidence adduced by the opposite parties though such evidence was not true on its face value.
3. The opposite party members raised a preliminary objection on the maintainability of the Civil Revision in view of amendment of Section 115 of the Code of Civil Procedure, 1908 (in short, 'the Code') by Act 46 of 1999 and argued that if the impugned order is set aside, then that would not dispose of the proceeding, i.e., the proceeding under the Succession Act. They, however, defended to the factum of maintainability of the appeal in the Court of District Judge and alternatively argued that in the event appeal before the District Judge is found not maintainable, then because of the order of remand passed by this Court in Civil Revision No. 109 of 1995 and the conduct of acquisence of that jurisdiction by the petitioner he is estopped to raise such a ground for the first time in this Civil Revision. They further argued on merit justifying to the factual finding recorded by the appellate Court.
4. So far as the contention against maintainability of the Civil Revision is concerned, this Court finds no merit in as much as it is the settled principle of law that as against the appeal preferred under Section 384 of the Succession Act there is no provision for filing a second appeal and therefore, a Civil Revision lies. A decision by the Revisional Court is on the merit of the contention of the parties and by exercise of such jurisdiction, Revisional Court, in appropriate cases, may set aside the order of the appellate Court and dispose of the application for succession certificate by appropriate order. Therefore, the embargo put in Section 115 of the Code are not satisfied as against the maintainability of the Civil Revision.
5. When, admittedly valuation of the property, as stated at the Bar is at Rs. 1,50,000/-, therefore, under the normal procedure as provided in the Code and the Act, 1984 appeal should lie to the High Court but the provision in the Succession Act being a special statute having effect of over-riding the general provision as provided in the Act, 1984 and the Code, therefore, it is appropriate to refer to the relevant statutory provisions in the aforesaid enactments to consider the question of jurisdiction of the District Judge to entertain an appeal under Section 384 of the Succession Act.
6. Sections 16, 18 and 20 of the Act, 1984 reads as hereunder :
"16. Appeals : (1) Save as otherwise provided by any enactment for the time being in force :
(a) an appeal from a decree or order of a District Judge or Additional District Judge shall lie to the High Court;
(b) an appeal shall not lie to the High Court from a decree or order of an Additional District Judge in any case, in which if the same had been made by the District Judge and appeal would not lie to the High Court.
(2) Save as aforesaid, an appeal from the decree or order of a Civil Judge (senior division) shall lie :
(a) to a District Judge, where the value of the original suit in which or in any proceeding arising out of which the decree or order was made, did not exceed one lakh rupees; and
(b) to the High Court, in any other case.
(3) Save as aforesaid, an appeal from the decree or order of a Civil Judge (junior division) shall lie to the District Judge.
(4) Where the function of receiving any appeals which lie to the District Judge under Sub-section (2) or Sub-section (3) has been assigned to an Additional District Judge, the appeals may be preferred in the Court of such Additional District Judge.
(5) The High Court may, by notification, direct that any or all appeals referred to in Sub-section (3) shall be preferred in the Court of any Civil Judge (senior division) mentioned in the notification, and the appeals shall thereupon, be preferred accordingly."
"18. Proceedings under Indian Succession Act, 1925 :
(1) The High Court may, by general or special order, authorise any Civil Judge (senior division) to take cognizance of or any District Judge to transfer to a Civil Judge (senior division) under his administrative control, any proceedings or class of proceedings under the Indian Succession Act, 1925 (39 of 1925) which cannot be disposed by a District Delegate.
Explanation : "District Delegate" means a District Delegate within the meaning of Section 265 of the Indian Succession Act, 1925 (39 of 1925).
(2) The District Judge may withdraw any proceedings referred to in Sub-section (1) to his own file and may dispose of them himself or may transfer them to a competent Court under his administrative control.
(3) Proceedings taken cognizance of by or transferred to a Civil Judge (senior division) shall be disposed of by him according to the rules applicable to like proceedings when dealt with by the District Judge."
"20. Investing Civil Judge (senior division) with powers under certain Acts : (1) The High Court may, by notification, invest any Civil Judge (senior division) within such local limits and subject to such pecuniary limitations as it may deem fit, with all or any of the powers of a District Judge under any of the following Acts, namely ;
(i) Indian Divorce Act, 1869 (4 of 1869);
(ii) The Guardians and Wards Act, 1890 (8 of 1890);
(iii) The Hindu Minority and Guardinaship Act, 1956 (32 of 1956); and
(iv) The Indian Lunacy Act, 1912 (4 of 1912).
(2) An appeal against every order made by Civil Judge (senior division) by virtue of the powers conferred upon him under Sub-section (1) shall lie to :
(i) the District Court when the amount or value of the subject matter is less than twenty-five thousand rupees; and
(ii) the High Court in other cases.
(3) An appeal against every order of the District Judge passed in an appeal under Sub-section (2) shall He to the High Court under the rules contained in the Code of Civil Procedure, 1908 (5 of 1908) applicable to appeals from appellate decrees.
7. Sections 384 and 388 of the Succession Act reads as hereunder :
"384. Appeal : (1) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under these Part, and High Court may, if it thinks fit, by its order on the appeal, declared the person to whom the certificate should be granted and direct the District Judge, on application being made therefore, to grant it accordingly, in-supersession of the certificate, if any, already granted.
(2) An appeal under Sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908. (V of 1908) (3) Subject to the provisions of Sub-section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, (V of 1908) as applied by Section 141 of that Code, an order of a District Judge under this Part shall be final."
"388. Investiture of inferior Courts with jurisdiction of District Court for purposes of this Act : (1) The State Government may, by notification in the Official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part.
(2) Any inferior Court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge, and the provisions of this Part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge ;
Provided that an appeal from any such order of an inferior Court as is mentioned in Sub-section (1) of Section 384 shall lie to the District Judge, and not to the High Court, and that the District Judge may, if he thinks fit, by his order on the appeal, make any such declaration and direction as that Sub-section authorises the High Court to make by its order on an appeal from an order of a District Judge.
(3) An order of a District Judge on an appeal from an order of an inferior Court under the last foregoing Sub-sections shall, subject to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, (V of 1908) as applied by Section 141 of that Code, be final.
(4) The District Judge may withdraw any proceedings under this Part from an inferior Court, and may either himself dispose of them or transfer them to another such Court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings.
(5) A notification under Sub-section (1) may specify any inferior Court specially or any class of Courts in any local area.
(6) Any Civil Court which for any of the purposes of any enactment is subordinate to, or subject to the control of, a District Judge shall, for the purposes of this section, be deemed to be a Court inferior in grade to a District Judge."
8. The State Government, as per the Law Department's Notification No. IIJ-93/60/7658-Judl., dated 14.11.1961, have invested the power under Chapter-X of the Succession Act, in favour of Civil Judges (Principal Subordinate Judges and Munsifs) within the local limits of their respective jurisdiction. Civil Judges (Junior Divisions), i.e., the Munsifs have been authorised to entertain such applications within the limits of their respective pecuniary jurisdiction. But Section 18 of the Act, 1984 provides that High Court may by general or special Order authorise any Civil Judge (Senior Division) to take cognizance of any proceeding or class of proceedings under the Succession Act or the District Judge may transfer such cases to a Civil Judge (Senior Division) under his administrative control when such cases cannot be disposed of by a District Delegate. Section 265 of the Succession Act provides that the High Court may appoint such judicial officers within any district within such local limits as may be prescribed by the High Court, to act for the District Judge as deligates to grant probate and letters of administration in non-contentious cases. When such High Court is not established by Royal Charter, then such appointment be made by the High Court with the previous sanction of the State Government. Therefore, as per Notification No. 159 of November, 1961 of the High Court of Orissa such authorisation has been made in favour of all Principal Subordinate Judges (Civil Judges, Senior Division) to try and dispose of proceedings for grant of probates and letters of administration under the Succession Act, transferred to their files by the District Judge. It thus appears that there is no inconsistency in the authorisation of the State Government in the above noted Notification dated 14.11.1961 and provisions under Section 18 of the Act, 1984 inasmuch as contentious applications under the Succession Act, as per the aforesaid authorisations are to be considered and disposed of by the Civil Judge (Senior Division).
9. In between the Act, 1984 and the Succession Act, the later Act acquires the status as special statute to supersede on any matter if there is a conflict of any legal provision. It is clear from Section 384 of the Succession Act that a succession certificate granted or revoked under Chapter-X of the Succession Act is appealable to the High Court from an order of a District Judge. Section 388 in the proviso to Sub-section (2) clearly provides that "an appeal from any such order of an inferior Court as is mentioned in Sub-section (1) of Section 384 shall lie to the District Judge and not to the High Court" (underlined to put emphasis). Thus the provision in Section 16 is the general provision of procedure for prescribing the forum for appeal but that is superseded by the above noted proviso to Sub-section (2) of Section 388. For that reason perhaps in Section 20 of the Act, 1934 though it has been provided as to before whom an appeal shall lie against a judgment or order arising out of a proceeding under Indian Divorce Act, 1969, the Guardians and Wards Act, 1890, the Hindu Minority and Guardianship Act, 1956 and the Indian Lunacy Act, 1912 but in that list of Acts proceedings under Indian Succession Act, 1925 has not been added.
10. In the above context, petitioner has relied on the case of Doggupati Tirupalamma v. K.M. Subbamma, AIR 1992 Andhra Pradesh 222. In that case ratio laid down by the Andhra Pradesh High Court is that a District Munsif having the pecuniary jurisdiction upto Rs. 25,000/- and not beyond that can entertain application under Chapter-X and decide the same. That ratio of the Andhra Pradesh High Court has no relevancy because that decision does not deal with the forum of appeal which is in dispute in the present case. Similarly the ratio laid down by the apex Court in the case of R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vailabh Glass Works Ltd., AIR 1993 Supreme Court 2094 is relating to territorial jurisdiction in view of Bombay Relief Undertakings (Special Provisions) Act, (1958). Ratio in that case is also not at all applicable to the law and facts involved in the present case. On due analysis of the provision in Section 388 of the Succession Act, this Court is of the opinion that the appeal in question was maintainable in the Court of District Judge, Sambalpur. Similar decision has been rendered by the Patna High Court in the case of Mosamatt Parmeshwari Devi and Anr. v. Geeta Devi and Ors., AIR 2001 Patna 107.
11. In addition to the aforesaid position of law it emerges from the fact scenario, already noted, that parties to the present proceeding in self same matter were before this Court in Civil Revision No. 109 of 1995 when the District Judge declined to entertain the appeal. This Court while setting aside that order directed the District Judge, Sambalpur to entertain and decide the appeal on merit if the same was otherwise free from defect. That order of this Court is a reported decision in 1995 (II) OLR 307 (Gaya Prasad Bhoi and Anr. v. Loknath Budhia alias Bhoi and Anr.). At that stage present petitioner did not raise objection challenging to the jurisdiction of the District Judge on the ground which has been canvassed in this revision. Not only that petitioner participate in the appeal, contest the case on merit without raising issue of jurisdiction, in a similar circumstance of acquisance of jurisdiction, this Court in the case of K. Sankar Rao Dora v. T. Boishnab Dora and Ors., 63 (1987) CLT 46 held that :
"Objection as to the pecuniary jurisdiction of the Court shall not be entertained by the Appellate or Revisional Court unless, (a) objection was taken in the Court of first instance, (b) at the earliest opportunity (where issues are settled, at or before such settlement) and, (c) there has been consequent failure of justice. In Koopilan Uneen's daughter Pathumma and Ors. v. Koopilan Uneen's son Kuntalan Kutty, objection was raised to the decree on the ground of absence of territorial jurisdiction. The Supreme Court observed that three conditions were essential to be fulfilled in order that an objection to the place of suing might be entertained by an appellate or revisional Court, namely, (1) objection was taken in the Court of first instance, (2) it was taken at the earliest possible opportunity and in cases where issues were settled, at or before such settlement and (3) there had been a consequent failure of justice. These three conditions must co-exist......"
The present case is squarely covered by that ratio to not to entertain the objection on the ground of pecuniary jurisdiction of the District Judge in as much as petitioner does not satisfy existence of any of the above quoted circumstances including the ground of consequent failure of justice.
For the reasons indicated above, this Court finds no merit on the first contention of the petitioner.
12. So far as the second contention of the petitioner is concerned, he has argued on incorrectness of the factual finding by the District Judge. On a careful perusal of the materials on record and the finding recorded by the District Judge, this Court does not find any illegality or perversity having been committed by the lower appellate Court in support of the factual finding recorded by him. Therefore, while exercising jurisdiction under Section 115, CPC against the impugned order, this Court is not inclined to make detailed deliberation of such fact and evidence for recording affirming decision. In other words, this Court finds no reason to set aside the factual finding or the succession certificate revoked and the succession certificate granted as per the impugned judgment.
For the reasons indicated above, the Civil Revision bears no merit and accordingly the same is dismissed.