Gian Chand Des Raj vs Davinder Singh

R.S. Pathak, C.J.—This petition, although described as a revision petition, must be treated as a petition under Article 227 of the Constitution. It is directed against an order dated April 21, 1973, of Shri Raja Ram, Subordinate Judge, Rohru.

The Petitioner filed a suit for money against the Respondent. The Petitioner made a statement that if the Respondent stated on oath in a certain temple in Rohru that he had not given any writing concerning the money in dispute and that no money was due from him the Petitioner would abandon the claim made in the suit. The Respondent stated that he accepted the proposal of the Petitioner and was prepared to take oath in the temple if the Petitioner also took oath that the money was in fact due to him from the Respondent. Accordingly, on April 21, 1973, the learned Subordinate Judge made an order accordingly. It seems, however, that the Petitioner did not go to the temple and the oath was not taken by the parties. When the case came up again for hearing before the learned Subordinate Judge, a statement was made on behalf of the Petitioner that the Petitioner had decided to apply to this Court for transfer of the case. The case was adjourned on that ground on April 23, 1973, and was adjourned again on June 5, 1973. On July 6, 1973, time was granted once more to the Petitioner to obtain an order transferring the case. Subsequently, when the Petitioner did not obtain any such order the case was put up before the learned Subordinate Judge on July 31, 1973. On that date he passed the following judgment:

No order of the Appellate court has been produced by the Plaintiff yet in spite of several dates given for this purpose. No intimation about stay has also been received by this Court officially from the Appellate court. Hence this suit is dismissed. No order as to costs. Announced in open court today.

The present petition was filed apparently in May 1973, before the dismissal of the suit and therefore the Petitioner has challenged the order of April 21, 1973, only.

When this petition was taken up for hearing, it was urged on behalf of the Respondent that as the suit had been dismissed no relief should be granted to the Petitioner against the order of April 21, 1973. It seems to me from what has happened in this case that this Court should examine the validity of the entire proceeding terminating in the dismissal of the suit, and not restrict itself to the order of April 21, 1973. It is plain that the learned Subordinate Judge has totally misconceived his powers and has acted improperly in disposing of the suit in the manner in which he has done. Had he passed a proper order dismissing the suit, some weight could have been given to the objection of the Respondent. It seems to me necessary not only that the validity of the order dated April 21, 1973, should be examined but that the legality of the decree dated July 31, 1973, disposing of the suit should also be considered.

Sections 9, 10, 11 and 12 of the Indian Oaths Act, 1873, formulate a procedure which may be adopted for proving a matter in dispute. A party to a judicial proceeding may offer to be bound by an oath or solemn affirmation if such oath or solemn affirmation is made by the other party to, or by any witness in, such proceeding and if such party or witness agrees to make such oath or affirmation, the court is empowered to administer it or where it can be more conveniently made out of court to have it administered by a person appointed on commission for the purpose. The evidence so given is, as against the person who offered to be bound by it, conclusive proof of the matter stated. If the party or witness refuses to make the oath or solemn affirmation, he cannot be compelled to make it but the court must record, as part of the proceeding, the nature of the oath or affirmation proposed, the fact that he was asked whether he would make it and that he refused it together with any reason which he may assign to it. It is evident that the scheme contemplated here is essentially procedural in character. The Indian Oaths Act, 1873, was repealed and replaced by the Oaths Act, 1969. In the Oaths Act, 1969, there is no provision for a matter being proved in the aforesaid manner. Now, it is settled law that an enactment which deals with procedure is retrospective in the sense that its provision will apply to proceedings already commenced at the time of its enactment. There is nothing in the Oaths Act, 19695, which indicates that it is prospective in operation and permits the operation of Sections 9 to 12 of the Indian Oaths Act, 1873, in a pending suit. In my opinion, when the Oaths Act of 1969 came into force the procedure envisaged in Sections 9 to 12 of the Indian Oaths Act, 1873, was no longer available. In this view of the matter the learned Subordinate Judge proceeded in ignorance of the law and erred in making the order dated April 21, 1973.

Not only did the learned Subordinate Judge err in applying the law when he passed the order dated April 21, 1973, but it appears that he acted perversely in his manner of disposing of the suit. The only ground upon which the suit has been dismissed is that the Plaintiff was unable to obtain an order from this Court staying the proceedings in the suit pursuant to a transfer application which he said he would make in this Court. That can hardly be a ground for dismissing a suit. It is impossible to see any justification for taking such action, and indeed the attitude adopted by the learned Subordinate Judge can fined no support whatever from any consideration of either law or justice. If the Petitioner was unable to obtain a transfer of the case, or an order staying the proceedings, from the High Court the plain duty of the learned Subordinate Judge was to proceed with the case on the merits. There is no conceivable reason justifying the course which he adopted. In the circumstances, I see good ground for setting aside the judgment and decree dated July 31, 1973, dismissing the suit.

It is urged by the Respondent that an appeal lay against the decree dismissing the suit and as no appeal was filed and the limitation for doing so has expired this Court should not interfere with the decree. Ordinarily, the High Court will be reluctant to interfere under Article 227 of the Constitution where an alternative remedy is available to the Petitioner against an impugned order or decree. But it is always open to the High Court in a proper case to interfere under Article 227 of the Constitution. The rule that it will not interfere because of the existence of an alternative remedy is only one of the considerations which will weigh with the High Court in deciding whether or not it should interfere. The mere availability of an alternative remedy does not debar the High Court from exercising its jurisdiction under Article 227 of the Constitution. That proposition is as applicable to a proceeding under Article 227 as it is to a proceeding under Article 226.

A large number of cases have been cited before me in support of the principal that the High Court should interfere under Article 226 and Article 227 of the Constitution only where the interests of justice require it to do so. In my opinion, if there is a case in which the High Court should interfere it is this case. It is in the interests of justice that invalid and perverse orders of subordinate authorities should not be permitted to remain on the record.

The petition is allowed. The order dated April 21, 1973, and the judgment and decree dated July 31, 1973, are set aside. The case is remanded to the learned Subordinate Judge for a fresh decision in accordance with law. The Petitioner is entitled to his costs, which I assess at Rs. 100/-