Bombay High Court
Gopal Ghela vs Rajaram Amtha on 21 September, 1911
Equivalent citations: 13IND. CAS.851
JUDGMENT
1. Both the lower Courts have misunderstood the decisions of this Court on the question whether and when oral evidence is admissible to prove that what purports to be a deed of sale represents, according to the true intention of the parties, a transaction of mortgage. The effect of those decisions is that, where Section 10A. of the Dekkhan Agriculturists' Relif Act does not apply, such evidence admissible, under proviso 1 to Section 92 of the Indian Evidence Act, only when the element of fraud or other similar element mentioned in the proviso exists to invalidate the deed. The Subordinate Judge, First Class, who decided this case on appeal, has relied, is support of his view, on some dicta in one of the judgments in Sangira v. Ramappa 34 B. 59 : 4 Ind. Cas. 257 : 11 Bom. L.R. 1130 without carefully noticing their context; and the result of the Subordinate Judge's decision is that he has treated the deed of sale as one of mortgage on the evidence of a contemporaneous agreement between tie parties conuadiction the terms of the deed. That is not the law laid down in Sangira v. Ramappa 34 B. 59 : 4 Ind. Cas. 257 : 11 Bom. L.R. 1130.
2. The decree, therefore, would have to be reversed and the suit for redemption brought by the respondent dismissed, unless we allow the contention of his Pleader that he (sic) this stage entitled to rely on and invoke the aid of Section 10A of the Dekkhan Agriculturists' Relief Act. That section was not in force in the District from which this case comes, either when the suit was filed or when the appeal to the District Court was heard and decided. It has been applied to the District since the disposal of the appeal; and we are asked to confirm the decree on the ground of the section.
3. The question is, whether in second appeal we lave jurisdiction to give effect to the section, which in now part of the law of the District but which was not the law when the case was pending in either of the Courts below.
4. The Section provides that the Court shall have power to admit, evidence of the kind mentioned in if, "whenever it, is alleged at any stage of any suit, for proceeding to which an agriculturist, is a party that any transaction in issue id in reality other than what it is ostensibly." Is an appeal or a second appeal a stage of a suit or proceeding within the meaning of the sectin?
5. In Chinto Joshi v. Krishnaji Narayan 2 B. (sic) followed by Sargent, C.J. and Nababai Haridas, J., in Rustomji Burjorji v. Kessowji Naik 8 B. 287, West, J., said:
When judicial inquiry has reached its intended close in an adjudication, requiring then ceforward in theory only a ministerial coercive exercise of authority to give it practical effect, the party who strives by an appeal to unsettle again the legal relation, which in itself has by the act of the Court become settled, may fairly be regarded as instituting a new proceeding. St.ch has been the view of some eminent authorities. But even on that point there have been opinions to the contrary, which are supported by the consideration that the legal pursuit of a remedy, suit, appeal, and second appeal, are really but steps in a series of proceedings connected by an intrinsic unity.
6. This latter view has the sanction of some of the latest, decisions of the Courts in England. In Hoot Barrs v. Heriot (1897) A.C. 177 : 66 L.J.Q.B. 356 : 76 L.T. 299 45 W.R. 50 explained by Ridley, J., in Nuan & Co. v. Tyson (1901) 2 K.B. 487 : 70 L.J.K.B. 854 : 85 L.T. 123 : 50 W.R. 16 : 17 T.L.R. 624 was nothing but a step in an action or proceeding already instituted, and was not the institution of fresh proceedings." And Davey, L.J., in his judgment in the former case in the Court of Appeal, explained that an appeal is in reality in the nature of a defence by the person against whom an order has been made." See Hood Barrs v. Cathcart (1894) 3 Ch. 370 at p. 380 : 63 L.J. Ch 793.
7. Whichever view we adopt, whether an appeal or second appeal is regarded as a. fresh, proceeding, not a continuation of the suit, or the suit itself, the result is the same for the purposes of Section 10A of the Dekkhan Agriculturists' Relief Act. It is either a stage of a suit or it is a fresh proceeding; and if the section is in force when the appeal or second appeal is pending, the Court has power to act upon its terms in deciding the appeal. The law embodied in the section is one of procedure, and being retrospective in effect, applies to pending proceeding.
8. On these grounds, accepting the finding of fact of the Court below that the transaction in dispute, ostensibly a sale, represented a mortgage according to the true intention of the parties, we must confirm the decree with costs.