Natesa Naicker vs Sambanda Chettiar

Wadsworth, J.—These two matters arise out of an application for the filing of a complaint u/s 206 of the Indian Penal Code in respect of the

cutting of trees alleged to be under an attachment at the instance of the District Munsif ''s Court, Poonamallee. The application was rejected by the

District Munsif mainly on the ground that the attachment covered trees described as Palavrukshangal which the learned District, Munsif interpreted

as fruit bearing trees, not including casuarina trees such as were cut. The applicant appealed to the District Judge of Chingleput who differed from

the, District Munsif as to the interpretation of the phrase he translating it as ''various trees'' not as ""fruit bearing trees"" and considering that the

attachment was intended to cover all the trees on the land and not merely fruit bearing trees. But the learned District Judge came to the conclusion

that the materials on the record of the District Munsif ''s inquiry were not sufficient to justify the filing of a complaint by the appellate Court and he

also came to the conclusion that he had no power u/s 476-A of the Code of Criminal Procedure to remand the petition for the taking of additional

evidence; nor had he the power to take additional evidence in appeal. The appeal was therefore dismissed with the observation that it was open to

the decree-holder to move the High Court in revision. After the disposal of this appeal it was brought to the notice of the District Judge that there

was ample authority for the view that the Court hearing the appeal against an order of a Civil Court declining to file a complaint under the powers

conferred by Section 476-A of the Code of Criminal Procedure acted as a Civil Court and could employ all the powers conferred by the CPC on

a Court of Appeal, and the attention of the learned District Judge was also drawn to E.P. Kumaravel Nadar Vs. T.P. Shanmuga Nadar and

Others, , the Full Bench decision pronounced subsequent to the District Judge''s original judgment and establishing the correctness of the view that

the appellate Court in such a case was a Civil Court and not a Criminal Court. The learned District Judge therefore reviewed his previous order

and remanded the matter to the trial Court for further evidence and a specific finding on the facts. It is against this order of review that the present

appeal has been preferred. After the remand under the order of review there was a finding and a further hearing before the District Judge as a

result of which the District Judge directed a complaint to be filed. Against the order for the filing of a complaint the Civil Revision Petition, has been

preferred.

Dealing with the latter first, it seems to me that there are no grounds upon which this Court''s revisional jurisdiction can be invoked in this case.

The question of the precise scope of the attachment is one upon which two views were taken by the two Civil Courts which had to deal with the

matter and one upon which the decision of the Criminal Courts will be final. But certainly the learned District Judge on the view which he took of

the order of attachment had ample jurisdiction to direct the filing of the complaint and it is not possible for this Court sitting in revision to reverse the

District Judge''s order merely on a consideration of the comparative merits of the two interpretations which have been given of the order of

attachment.

The appeal against the review order deserves more serious consideration. It was held in Mudlapur Murari Rao and Others Vs. Balavanth

Dikshit and Another, that an error apparent on the face of the record under Order 47, Rule 1, CPC might be an error of law and in that particular

case the error of law which was the ground for review was the failure to take note of an established authority reported in the Indian Law Reports

finally deciding a matter of succession. That is to say, the Bench recognised the power of the Court in an appropriate case to review its order

because it had overlooked a leading authority on a clear matter of law. So far as I am aware, this decision is still good law. I have followed it

myself in a case, Sri Rajah Bommadevara Venkatarayulu Naidu Bahadur Zamindar Garu Vs. Sri Rajah Lanka Venkata Rattamma Garu, and

though it has been criticised by a single Judge of this Court in a case, Opporti Padhi Vs. Paila Ujjulla and Another, it has not, so far as I am aware,

been dissented from by any subsequent Bench. Certainly the decision in Mudlapur Murari Rao and Others Vs. Balavanth Dikshit and Another,

should not be taken any further than it goes. It is not authority for the view that whenever a Judge has overlooked a ruling he has a power to review

his decision; nor is it authority for the view that whenever, after a judgment has been pronounced, a subsequent ruling changes the accepted view

of the law, that subsequent ruling can be a ground for review. But when there is a legal position clearly established by a well-known authority and

by some unfortunate oversight the Judge has gone palpably wrong by the omission of those concerned to draw his attention to the authority, it may

in a proper case, in the light of Mudlapur Murari Rao and Others Vs. Balavanth Dikshit and Another, be a ground coming within the category of an

error apparent on the face of the record. That seems to me to be the position, so far as this Court is concerned, in the light of Mudlapur Murari

Rao and Others Vs. Balavanth Dikshit and Another, .

Now turning to the legal question which caused the difficulty of the learned District Judge in the present case, there was before the matter was

settled by the Full Bench in E.P. Kumaravel Nadar Vs. T.P. Shanmuga Nadar and Others, a considerable divergence 6f judicial opinion, not only

in other Courts but in this Court, on the question whether proceedings taken by a Civil Court u/s 476 of the Code of Criminal Procedure and the

following sections were properly to be regarded as civil proceedings governed for the purposes of appeal and revision by the Code; of Civil

Procedure or as criminal proceedings in respect of which the Criminal Procedure Code would decide the powers of the Court of Appeal or

Revision. It is not necessary to discuss the cases in which the two rival views were adopted. They are set forth in the decision of the Full Bench to

which I have just referred. It is sufficient to say that there was very considerable doubt on this matter. The decision actually quoted before the

District Judge was a decision of 1916 in a case in which two Judges of a Bench differed and the matter came before three Judges who decided by

a majority that the proceeding in revision against the sanction order u/s 476 of the old Criminal Procedure Code was a civil proceeding. But other

Judges have taken other views since that case was reported and I doubt whether it can be said that at the time of the District Judge''s review order

there was a clearly established rule laying it down finally and with authority that a. Court sitting in appeal against a decision of a civil Court u/s 476

of the Code of Criminal Procedure was governed by the CPC and not by the Code of Criminal Procedure. There is in fact a Full Bench decision

of 1933, Koduru Janardana Rao Vs. Prattipaty Lakshmi Narasamma, , which assumes that the procedure is covered by the Code of Criminal

Procedure. But the point to notice is that at the time when the learned District Judge reviewed his order, whichever Code applied to the

proceedings, the authority of this Court was clear that he had the power of remand which he thought that he had not. The Full Bench decision in

Koduru Janardana Rao Vs. Prattipaty Lakshmi Narasamma, , decides that a Court acting u/s 476 (b) of the Code of Criminal Procedure has the

power by the application of Section 423 of the Code to remand the matter for fresh disposal. It seems to follow that at the time when the District

Judge dismissed the appeal, thinking that he had no power of remand, that order was quite definitely and obviously wrong on the established

authorities whichever view might be taken as to the Code applicable to the proceedings. No doubt the learned District Judge in reviewing his order

does not rely upon the Full Bench decision in Koduru Janardana Rao Vs. Prattipaty Lakshmi Narasamma, , but founds himself on the decision that

the proceedings are civil and fortifies that view by the subsequent Full Bench ruling. If the matter rested solely on the existence of the power of the

appellate Court under the CPC to remand, I should have had some hesitation in upholding the order in review which to some extent depends upon

a subsequent ruling of this Court. But as the order which the District Judge reviewed was clearly and demonstrably wrong on the established

authorities of this Court, whichever Procedure Code was applicable, I do not think that I should be justified in reversing the review order and

restoring the wrong decision merely because the reasoning of the review order is open to criticism. The District Judge ought to have remanded the

case on the view he took of the attachment order and had he been fully appraised of the authorities he would certainly have done so. He reviewed

the order on the basis of a decision which was perhaps at that time not as authoritative as he thought it to be and he fortified himself by quoting a

decision pronounced subsequent to his original order, which in my opinion he had no power to rely upon for the purpose of review. But as the

original order was demonstrably wrong, even though the decision upon which he relied in review, was not at the time of the original order

unchallenged, I decline to interfere with that review order in appeal.

The appeal and the revision petition are therefore dismissed with costs in the civil revision petition.