Sukhdeo vs Gendalal

P. K. Tare J.

This revision u/s 25 of the Provincial Small Cause Courts Act is by the plaintiff against the decree, dated, 30-4-1962, passed by Shri M. L. Gupta. Small Cause Judge, Dhar, in Small Cause Suit No. 4 of 1962.

The petitioner''s case was that the first respondent, who is the manager of the joint Hindu family of the respondents and in charge of management of the joint Hindu family firm, known as ''Kantilal Sardarmal'', had taken the furnished shop of the petitioner on rent at Rs. 50/- per month with effect from 20-11-1959. The rent for the earlier period had been paid, but it was due with effect from 20-6-1961 to 20-12-1961. The electric charges had been settled at the rate of Rs. 5/- per month. Therefore, the petitioner claimed rent and electric charges for six months amounting to Rs. 330/- along with interest on the amount at the rate of Rs. 9/- per cent per annum.

The respondents in their defence alleged that no arrears of rent or electric charges were due. According to them they had taken the premises, on rent at Rs. 10/- per month from 18-11-1959. The petitioner''s son, Shantilal was a partner and a Munim in the firm of the respondents. When he made wrong entires in the account-books of the respondents regarding rent and electric charges, the respondents protested. They further alleged that they were liable to pay the charges for the actual electricity consumed, and not at a fixed rate. The amount of rent due for 19-months was Rs. 190/- and the electric charges Rs. 57/-. Thus the total amount due was Rs. 247/-, while the petitioner had recovered excess amount of Rs. 855/-. The said excess amount was therefore, liable to be treated as advance rent for the future. It was also alleged that the petitoner''s son, Shantilal had embezzled large amounts of the respondents'' firm and had made wrong entires in the account books. In order to counter the criminal cases started against Shantilal, the petitioner falsely filed the present suit for rent.

The learned Small Cause Judge, inspite of the fact that it was no party''s case came to the conclusion that as no rent of the premises was settled, the civil suit was not tenable and the remedy of the parties was to approach the Rent Controlling Authority for fixation of fair rent. In that view, the suit in its entirety was dismissed. The learned Judge held that the rent was not settled at Rs 50/- per month. However, he did not decide whether the rent was settled at Rs. 10/- per month. Moreover, it was observed that even if it were to be assumed that the rent had been fixed at Rs. 10/- per month, the plaintiff had received more amount than was already due.

This Court while admitting the present revision restricted the admission as follows:-

Admit only on whether the Small Cause Court should, having disbelieved the plaintiff on the value of the monthly rent, have decreed according to defendants admission.

The learned counsel for the petitioner urged that this restricted admission of the revision confining the petitioner to certain ground only would not be in accordance with the provisions of order 41 rules 11 and 12 of the CPC and, therefore, the petitioner could not be precluded from arguing the entire case on merits. It was pointed out that at the most an appeal or a revision could be admitted partially with respect to the subject-matter of the suit, and not regarding any particular grounds. Once the appeal or the revision is admitted on any ground, all the grounds of attack are open at the final hearing.

In this connection, attention was invited to the observations of Sir Asutosh Mookerjee J. in the Division Bench case of Lukhi Narain Serowji and others Vs. Sri Ram Chandra Bhuiya and others (15 CWN 921). The learned Judge observed as follows:

But in so far as the objection is taken that the appellants should be restricted to the one ground for the consideration of which the appeals were admitted, we are of opinion that it ought not to pre(sic). It is not competent to a Court of Appeal under R. 12 of Order XLI of the Code to restrict the ground or grounds upon which.........the appeal admitted under that Rule is to be heard finally; in other words, the restrictive order of this Court made at the time when the cases were heard under rule 11 of Order XLI was ultra vires. Rule 11 provides ''that the Appellate Court after sending for the record, if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismssed the appeal without sending notice of the appeal to the Court against whose decree the appeal is made and without serving notice on the respondent or his pleader, ''Rule 12 than provides that unless the Appellate Court dismisses the appeal under rule 1 lit shall fix a day for hearing the appeal.'' It is worthy of note that a day is to be fixed for hearing the appeal, that is to say the whole appeal and not any selected ground out of those specified in the memorandum of appeal. Counsequently all the grounds taken in the open for consideration at this final hearing, and we now proceed to examine them.

This case has been followed by all Indian High Courts with slight variations. The learned Judge unmbiguousuly expressed the opinion that such a partial admission of an appeal would be illegal.

The question was subsequently considernd by the same learned Judge sitting in Division Bench along with Rao. J. in Janki Nath Hore Vs. Prabhasini Dasee ILR. 43 Cal 478, when the learned Judge observed that after an appeal was allowed under Order 41 rule 12 after review, the appellants could not be restricted to the single ground for appeal which was the basis for review, but the whole of the appeal would be before the Court at the final hearing.

A Full Bench of the Bombay High Court consisting of Beaumont, C. J. and Tyabji and Wadia JJ. in Krishanji Shrinivas Jalvadi and others Vs. Madhusa Appansa Ladaba and others ILR. 58 Bom 406, held that an appeal could not be admitted in part and dismissed in part regarding grounds of attack. However, the learned Judges further held that if the subject-matter of the appeal be severable, it could be admitted in part and dismissed in part regarding such severable subject-matter.

9 The said view of the Bombay Full Bench was followed by Rangilal J. in AIR 1935 34 (Lahore) . The said reasoning of the Full Bench of the Bombay High Court has also been adopted by a Division Bench of this Court consisting of V. R. Sen J. and Deo J. in Tukaram Vs. Radhabai ILR 1952 Nag 564, which was a case especially referred by Mudholkar J. (as he then was) in view of the importance of the question as Bose J. (as he then was) had admitted the appeal on some of the grounds only. Therefore, the question referred to the larger Bench was; ''whether it is open to a Court of appeal to admit an appeal in part and dismiss it as to the rest''. The learned Judges constituting the Division Bench answered the question referred to in the affirmative by stating that if the subject-matter be severable, the appeal can be admitted in part and dismissed in part. While if the subject-matter be not serverable, such a restricted order of admission could not be made. However, the Division Bench left open the question whether the appeal could be admitted on some of the grounds while dismissed on other grounds. Therefore, so far as the Nagpur High Court or the Madhya Pradesh High Court is concerned, the question is still at larger whether an appeal can be admitted on some grounds and dismissed on other grounds.

10 A Division Bench of the Patna High Court consisting of Fazl Ali and Luby JJ. in Rekha Thakur Vs. Ramnandan Rai, ILR 15 Pat 96 held that an appeal could not be admitted on some grounds only; and if admitted on any ground, the whole of the appeal would be open. However, if it at the time of admission the counsel gave up any particular ground, it would be open to the Court admitting the appeal to note this fact about certain ground being abandoned. But unless the grounds were abandoned, a party could not be restricted to any particular ground at the final hearing.

However, a Full Bench of the Madras High Court in Vattipalle Eswarish Vs. Vattipalle Rameswarayya and seven others, ILR 1940 Mad 785 went further and laid down that an admission of an appeal in part was illegal, altogether. The learned Judges did not accept the view of the Full Bench of the Bombay High Court that an appeal could be admitted in part with respect to the subject-matter. However, this view of the Madras Full Bench was specifically not followed by the Division Bench of the Nagpur High Court in Tukaram Vs. Radhabai ILR 1952 Nag 564.

Later, on, a Single Bench of the Travancore-Cochin High Court presided over by Subramonia Ayer J. in Ponnamma Pillai Lekshmikutty Pillai Vs. Padmanabha Pillai Velayudhan Pillai and others AIR 1953 TC 247, noting all the earlier cases, expressed the opinion that the Court could not on admission of an appeal restrict the ground on which the appeal was to be heard finally. (sic) he learned Judge followed the view of the Division Bench of the Patna High Court in Rekha Thakur Vs. Ramnandan Rai, ILR 15 Pat 96 regarding abandonment of the ground of appeal at the time of admission.

Therefore, the High Courts may differ whether an appeal can be admitted partly and dismissed partly with respect to the subject-matter, if the same be severable. But all High Courts are unamious on the point that an appeal cannot be admitted partly with respect to the grounds of attack. There is no difference of opinion on the point that once an appeal is admitted even on a single grounds, all the grounds of attack are open at the final hearing. So far as this Court is concerned, the point exactly may not have been decided by the Division Bench in Tukaram Vs. Radhabai ILR 1952 Nag. 564, but I am of the opinion that the unanimous view as expressed in the several cases mentioned above appears to be the only correct view and there is no scope for dissenting from that view in view of the provision of Order 41 rules 11 and 12, Civil Procedure Code. Therefore, I am of the opinion that the appellate or revisional Court, while admitting an appeal or a revision, cannot restrict a party to any particular grounds; and if the appeal or revision is once admitted on any grounds, all the grounds of attack can be urged at the final hearing. Of course, so far as the other proposition with respect to the severable subject-matter is concerned, I am bound by the reported Division Bench case of this Court. This principle applicable to an appeal as indicated by the several decisions of the different High Courts, would, in my opinion, be equally applicable to a revision, which is provided under law against a decree, such as u/s 25 of the Provincial Small Cause Courts Act or other enactments. It is not necessary for me to consider the case of an interlocutory order revisable u/s 115 of the Civil Procedure Code, where powers exercisable are of a different type. But if a reivision be provided against the final decree or order on merits by any of the statutes, the same principle, according to me, will apply, as is laid down by Sir Asutosh Mookerjee J., which has been accepted on all hands by All High Courts unanimously, of course, the position would be altogether different where a special leave under any of the statutory provisions is provided, such as, clause 10 of the Letters Patent, or such other special provisions. In that type of cases, it would always be open to the Court granting the leave to restrict leave to a particular question, as laid down by a Full Bench of this Court in S. Kanhaiyalal and another Vs. Jerome D''Costa and others, [(sic)] and the Division Bench case of D. N. Sethi Vs. Dr. Miss J. D. Sharma and others, 2]. But the case of a statutory provision providing for a special appeal with leave stands altogether on different footing and cannot be used to negative the proposition laid down by Sir Asutosh Mookerjee J. To conclude, regarding the preliminary question raised by the learned counsel for the petitioner, I am of opinion that he can urge all grounds of attack on merits against the decree of the small Cause Court. Therefore, I would hold that the petitioner is not restricted to the ground on which the revision was admitted, which has necessarily to be decided on merits with reference to all grounds of attack.