Remanded¶50

Nainsingh v. Koonwarjee and Others

Supreme Court2 Apr 19701970 INSC 84 · [1971] 1 S.C.R. 2071970 INSC 84

Case brief

AI extract

What is this about?

s. 151 CPC inherent jurisdiction limits; s. 105(2) bar on disputing unappealed remand order; Order 41 Rule 23 remand appealable under Order 43; Jagir Abolition Act 1951 vesting in State; Jagirdar compensation rights on vesting-date ownership; impleading State of Madhya Pradesh; Himatrao v. Jaikishandas followed; Civil Appeal No. 1460 of 1966; decision April 2, 1970; Hegde, J.; Shah and Hegde bench.

What did the court decide?

Decree of the High Court set aside; case remanded to the High Court with a direction that the State of Madhya Pradesh be impleaded and the rights of all parties decided in accordance with law; no order as to costs of the appeal. ¶50

Nainsingh versus Koonwarjee and Others — Supreme Court (1971) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether a remand order (made under rule 23, Order 41 CPC) whose correctness was not challenged by appeal can be re-examined by the High Court through its inherent power under s. 151 CPC, notwithstanding s. 105(2) CPC. +1 more

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Court's answer

The High Court erred in holding that the correctness of the remand order was open to review by it: the order was made under rule 23, Order 41 CPC, was appealable under Order 43, and having not been appealed against, its correctness was foreclosed by s. 105(2) CPC.

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Ratio / Principle

Under the inherent power recognised by s. 151 CPC a court has no power to do what is prohibited by the Code; inherent jurisdiction must not be invoked where the Code contains specific provisions meeting the necessity, i.e., where a party neglected a remedy provided elsewhere in the Code.

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Key takeaways

The power under s. 151 of the Code cannot be exercised as an appellate power.ratio¶22
The appellant-Jagirdar had not lost all rights in the suit properties: though the properties vested in the State under the Jagir Abolition Act, if proved owner on the date the Act came into force he would be entitled to the compensation provided by that Act, and is therefore interested in establishing full ownership at that date.ratio¶24
The interests of justice required that the State of Madhya Pradesh be impleaded in the appeal before the High Court and the rights of all parties determined; accordingly the High Court's decree was set aside and the case remanded with that direction.

Detailed headnote1 paragraphs

Remand order under rule 23, Order 41 CPC was appealable under Order 43; not having been appealed against, its correctness could not be re-examined by the High Court in second appeal, s. 105(2) CPC precluding dispute with its correctness. Section 151 CPC inherent power cannot be used to do what the Code prohibits, cannot substitute for a remedy available elsewhere in the Code which a party neglected, and cannot be exercised as an appellate power. Although the suit properties vested in the State under the Jagir Abolition Act, 1951, the appellant-Jagirdar had not lost all rights: ownership on the date the Act came into force entitled him to compensation. Following Himatrao v. Jaikishandas ([1931] 3 S.C.R. 815, as printed), the Supreme Court set aside the High Court's decree and remanded the case for determination of the rights of all parties after impleading the State of Madhya Pradesh.

207

NAINSINGH

KOONWARJEE AND OTHERS

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April 2, 1970

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[J. C. SHAH AND K. S. HEGDE, JJ.]

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Code of Civil Procedure (5 of 1908) s. 151 -No appeGI againSl uder vf re111and-Scope of r.ppellate Court's power on appeal on findi11r;5 efter ren1<vnf.

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Jagir Abolition Act. 1951-Rights of Jagirdar to property in •cpect C of 1Vhic!1 suit filed before enactn1ent of rhe Act.

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The tenant of the appellant-a Jagirdar, died without leaving any CHale issues. His distant relations-the respondents, took possession of his ;'ro· perties. Thereupon the appellant brought a suit claiming posscssicn of the properties as he \vas the O\ ner. The trial court dismissed the suit holding that the civil court has no jurisdiction to entertain the suit, <.nd that in view of the Jagir Abolition Act, 1951 which was enacted <luring the pendency of the suit and with the vesting of the suit properties i the State, the appellant was not entitled to claim. The first appellate court reversed these findings and held that though the suit properties had w<!ed in the State. it \'as for the State to get itself impleaded, and as the State had not got itself implcaued. it was open to the appellant to press the rnit. In Yicw of these conclusions, the appellilte court remanded the sui! to .lecidc the other undecided issues. After the remand, the trial court f"ga .. tivcJ the rcspondents-c..lefcnJants contention and decreed the suit. Jn appeal that decree was affirme<l. In second appeal, the High Court apeed \Vith the courts belo''' on all i!'sues except that relating to the effect of "bolition of Jagirs. It held that under the Jagir Abolition Act, the .crpel· lant lost his title to the' suit properties. In its view that issue \:3S not concluded by the decision of the appellate court made before remand as the same had not been appealed against, since the court had inhtrent power to consider the correctness of that order. In appeal. this Court :

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HELD : The case must be remanded for determination of the right of all the parties afte'r impleading the State as a party.

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The correctness of the rcn1and orde!' \'as not open to revie\v l'y the High Court. The order in question was made under rule 23, Orde; 41, Civil Procedure Code. That order was appealable under Orde'r 43 of that Code. As the same \·a5 not appealed r:igainsti its correctness was no more open to examination in view of s. 105 ( 2) of the Code which lays down that where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom he shall thereafter be precluded lrom disputing its correctness. The High Court has misconceived the soore of its inherent po\vers. Under the inherent power of courts recognise<i bv s. 151. Civil Procedure Code. a court has no power to do that which is prohibited by the Code. Inherent jurisdiction of court must be exerri,ed subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case. such provisions should be folkwed and inherent jurisdiction should not he involved. In other words the c our! cannot make use of the special provisions of s. 151 of the Code .... here a party had his remedy provided ehewhere in the Code and he nerlected

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208 SUPREME COURT REPORTS

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[1971] 1 S.C.R.

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to av;lt-hiinself of the same. Further the power under s. 151 of the Code cannot be exercised as an appellate power.

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The appellant-Jagirdar had not lost all rights in the suit properties. The suit properties vested in the State in view of the Jagir Abolition Act. -But it was conceded at the bar that if the appellant was proved to have 'beeu. the owner of the suit properties on the day the Jagir Abolition Act cani'(! into fo:rce, he was entitled to the compensation provided in that Act. Therefore the appellant was interested in establishing that on the date J agir Abolition Act came into force, he was the full owner _ _of the suit ··properties. [210 CJ Himatrao v. Jaikishandas and Ors. [1931] 3 S.C.R .. 815; followed.

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CIVIL APPELLATE JurusoicnoN: Civil Appeal No. 1460 of 1966.

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Appeal by special leave from the judgment !illd decree dated April 30, 1965 of the Madhya High Court, Indore Bench in Second Appeal No. 209 of 1962.

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G. L, Sanghi, P. C. Bhartari, for the appellants.

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Rameshwar Nath, for respondents Nos. 1 to 4. The Judgment of the Court was delivered by Hegde, J. _The only question that falls for decision in this appeal by special leave is as to the application of s. 151, Civil Procedure Code to a remand order falling within s. 105 ( 2) of that Code.

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The facts leading upto the point under consideration may now be stated. The appellant was the Jagirdar of the suit properties. One Bhagirath was his tenant. The said Bhagirath died in the year 1947 leaving behind no male issues. His wife had predeceased him. Re had two daughters who were living at the time of his death. After his death, defendants Nos. 1 to 5 who are his distant relations took possession of the suit properties and got the reveriue records changed in their names. Thereafter the appellant brought the suit under appeal seeking the following reliefs:·

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(1 ) to declare that he is the owner . of the suit properties; ( 2) to quash the order of the Tehsildar dated November 8, 1949 transferring the khata relating to the suit properties to the names of Defendants 1 to 5; ( 3) to grant possession of those properties to him and ( 4) other usual incidental reliefs.

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The defendants resisted the plaintiff's claim. They contended inter alia that ( 1) the civil court had no jurisdiction to entertain the suit; (2) the plaintiff had lost right over the suit properties in view of the Jagir Abolition Act, 1951 which came into force on December 4, 1952 during the pendency of the suit and (3) the 1st defendant being the adopted son of Bhagirath is entitled to

F -~ .~~.\ ' ~

NAINSINGH v. KOONWARJEE (Hegde, I.)

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209

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A the possession of the suit properties. In the suit several issues were raised. It is not necessary to refer to them in view of the limited scope of th~ appeal. The trial court dismissed the suit upholding the contention of the defendants on two issues viz. ( 1) that the civil court had no jurisdiction to entertain the suit and (2) that in view of the Abolition of Jagirs and the vesting of the suit B properties in the State, the plaintiff can claim no relief. The first appellate court reversed the findings of the trial court on those issues. It came to the conclusion that the civil court had jurisdiction to entertain the suit. It further held that though in 'view of the abolition of the jagirs, the suit properties had vested in the State, it was for the State to get itself impleaded if it is interested c in this litigation and as the State had not chosen to get itself impleaded, it was open to the plaintiff to press the suit. In view of those conclusions, the appellate court set aside the d.ecree of the trial court and remanded the suit to the trial court for deciding the other issues left undecided. After the remand, the trial court negatived every one of the contentions taken by the defendants and decreed the suit as prayed for. In appeal that D decree was confirmed. In second appeal the High Court of Madhya Pradesh agreed with the trial court and the appellate court on the findings given on all issues excepting the issue relating to the effect of abolition of the jagirs on the suit. On that issue, it came to the conclusion that in view of the abolition of jagirs under the Jagir Abolition Act, the plaintiff had lost his title to the E suit properties and therefore he could not get a decree for possession of the suit properties. Ii rejected the contention of ihe plaintiff that that issue is concluded by the decision of the appeilate court made before remand as the same had, not been appealed against. , It opined that the court had inherent power to consider the correctness of that order. It accordingly allowed the appeal and dis• missed the suit.

The High Court, in our opinion, erred in holding that the correctness of the remand order was open to review by it. The ord.er in question was made under rule 23, Order 41, Civil Procedure Code. That order was appealable under Order 43 of that Code. As the same was not appealed against, its correctness was no more open to examination in view of s. 105 (2) of the Code which lays down that where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom he shall thereafter be precluded from disputing its correctness. The High Court has misconceived the scope of its inherent powers. Under the inherent power of courts recognised by s. 151, Civil Procedure Code, a court has no power to do that •vbich is prohibited by the Code. Inherent jurisdiction of the court must be exercised subject to the rule that if the Code does contain specific provi-

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210

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SUPREME COURT REPORTS

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[1971] 1 S.C.R.

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sicns which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words the court cannot make use of the special provisions ·Of s. 151 ?f the Code where a party had his remedy provided elsewhere m the Code and he neglected to avail himself of the same. Further the power under s. 151 of the Code cannot be exercised as an appellate power.

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We are also of the opinion that the High Court is not right in holding that in view of the abolition of the Jagirs, the pfaintiff. bad lost all rights in the suit properties. It is true that in view of the provisions of the Jagir Abolition Act, the suit properties vested in the State. But it was conceded at the bar that if Pie plaintiff is provd to have been the owner of the suit properties on the day the Jagir Abolition Act came into force, he is entitled to the ccm· pensation provided in that Act. Therefore the plaintiff is interest· ed in establishing that on the date Jagir Abolition Act came into force, he was the full owner· of the suit properties. The facts of this case fall within the rule laid down by this Court in Himatrao v. Jaikishandas and Ors.('). On the facts of this case the interests of justice would have been better served if the High Court had ordered the impleading of the State of Madhya Pradesh in· the appeal before it and determined the rights of all the parties finally. Hence we set aside the dcree of the High Court and remand the cas~ to that Court with a direction that the State of Madhya Pradesh should be impleaded and the rights of all the patties decided in accordance with law. In the cirnumstances of the case we make no order as to costs of this appeal.

Y.P.

Case remanded.

/;}1 ) (19631 3 S.C..L BIS.