Shankar Lal Kalu vs Nandlal Gendalal and Others

Kaul, C.J.—Though the parties in these appeals are different, the same common question of law arises in both of them and hence it be convenient to dispose them of by one common judgment.

The material facts in these two appear are as follows: Appeal No. 29 of 1949 arises of a suit for redemption of a possessory mortgage created by Shankarlal (Appellant) in favour the Respondent''s father Gendalal on 19-4-1926. The property mortgaged was an agricultural holding whereof Shankarlal was a tenant under a (sic) from the Jagirdar. Among other pleas it was contended on behalf of the mortgagee that period of Shankarlal''s Patta had expired and, Jagirdar thereupon granted a fresh Patta original mortgagee Gendalal and that according Shankarlal had no right to maintain a suit redemption. In reply to this plea it was contended on behalf of the mortgagor that the (sic) obtained by the mortgagee must in law be deed to be a renewal of the lease for the benefit of the original tenant. The learned Addition Munsif before whom the case came up for sideration gave effect to the Defendant''s plea dismissed Shankarlal''s suit.

Appeal No. 30 of 1949 similarly arises, of a suit for redemption brought by Deokish who had mortgaged his agricultural holding (sic) Poonaji Respondent for a consideration of 200/-. As in the previous case the mortgage (sic) with possession. Among other pleas it was used in his defence by Poonaji that Deokishan (sic) the mortgaged lands on a Patta for a term years. On the expiry of the term of Deokish Patta the Jagirdar granted a fresh Pat Poonaji. In reply to this plea it was contend on behalf of Deokishan that the fresh patta required by Poonaji must , in the eye of law, be (sic) to be for the benefit of the original tenant Mr. Bhatnagar Munsiff Indore City who (sic) the suit gave effect to Deokishan''s contended and decreed the claim for redemption.

An appeal was preferred in each of these cases against the decision of the trial Court, in one by Shankarlal whose suit, had been dismissed in the other by Poonaji the mortgagee, both these appeals came up for consideration before Mr. A.P. Tayal, Additional District Judge indore. It appears to have been contended before him on behalf of the mortgagees that on the leadings as they stood in the two suits the Courts below should not have allowed the mortgagors to raise the plea that the fresh Patta obtained by the mortgagee in each case accrued for the benefit of the original tenant. This contention found favour with Mr. Tayal who set aside the decrees passed by the Courts below in the two suits and remanded them to the trial Court with to direction that they should be re-entered at their original numbers and disposed of in accordance with the law after the Plaintiff in each of the two cases amended his plaint by pleading specifically that he relied on Section 90, Trusts Act and Section 84. T. P. Act. The two present appeals have been preferred by Shankarlal and Deokishan respectively against the remand order passed by Mr. Tayal.

Having heard the learned Counsel for the parties I am clearly of the opinion that the learned Additional District Judge was in error in remanding the two canes to the trial Court. It was before me by the Appellant''s learned Counsel Mr. Newaskar that his clients did not want remand. Nor did they want to amend their (sic). Nor was any such wish expressed by them before the learned Additional District Judge, these circumstances the only course open to learned Additional District Judge was to determine whether the contention put forward by mortgagor in each case, that the fresh lease accrued for his benefit could or could not be entertained. In case he was of opinion that such Contention could not be raised on the pleadings (sic) should have decided each case on that basis, Plaintiff can against his wish be compelled, amend his plaint. There may be cases in which the Court may give a Plaintiff an opportunity to do so, but if the party concerned does not himself of the opportunity the case must decided on the pleadings as they stand.

The result therefore is that these appeals allowed. The remand orders passed by the learned Additional District Judge in each of the appeals before him is set aside. Both the (sic) shall go back to the lower Court with the section that they may be disposed of in accord-with the law in the light of the observation (sic) above. The Appellant in each of these his shall get his costs from the Respondent.

Before bringing this judgment to close I did like to say a few, words about a plea raised by (sic) learned Counsel for the Respondents, invited my attention to the wording of Section 23 of the High Court of Judicature Act No. 8 of under which the present appeals purported have been preferred. The relevant portion of 23 reads thus:

Save as otherwise provided by any law for the some being in force, an appeal shall lie to the High Court from:

(a) a decree or an order appealable under the CPC or any other law for time being in force, passed by a District Judge in exercise of his original or appellate Civil jurisdiction.

He contended that the section provides for an appeal from a decree or order passed by a District Judge. There is no provision in this section for an appeal from a similar decree or an order passed by the Additional District Judge. Reference was also made by the learned Counsel to Section 4, Madhya Bharat Civil Courts Act which enumerates the classes of Civil Courts besides the High Court which exist in this State. The Court of the Additional District Judge there is mentioned as a Court distinct from that of the District Judge. Mr. Pande''s argument though ingenious is in my opinion not sound. Section 15, Madhya Bharat Civil Courts Act provides that the Government may appoint in any District one or more Additional District Judge or Judges who shall be invested with co-extensive powers with the District Judge, and who shall sit at such place or places in the District and transact such business any may be determined by the Government. It further lays down that the seal of the Additional District Judge shall be the same as that of the District Judge.

It is thus clear that the law contemplated that the Additional District Judges shall be invested with ''co-extensive powers with the District Judges''. It would be extraordinary if an appeal were allowed from the decision passed by the District Judges while the decisions of Additional Judges in similar cases be final and not open to appeal to the High Court. I am therefore of opinion that the expression ''District Judge'' used in Section 23(a) of the High Court of Judicature Act includes an ''Additional District Judge''. The objection raised by Mr. Pande must therefore be overruled.