Sheopujan Missir vs Birna Pandey

Dhavle, J.—This application in revision is directed against a decision of the District Judge of Shahabad setting aside a decree passed by the first Mun-sif of Buxar and dismissing the plaintiff''s suit.

The suit was for recovery of Rs. 450 principal plus interest due on a hand-note executed by the defendant in favour of the plaintiff. The stamps on the hand-note not having been cancelled, the Munsif held that the document could not be admitted in evidence. Acting, however, on the authority of Brahma Deo Rai v. Ram Kishun AIR 1921 Pat. 318 the learned Munsif found that the plaintiff''s case was established by the oral evidence adduced. He accordingly decreed the suit.

In appeal the learned District Judge came to the conclusion that u/s 91, Evidence Act, parol evidence of the transaction was not admissible. As regards the ruling from 2 P.L.T. on which the learned Munsif had proceeded the learned District Judge observed that it did not decide any such general proposition as that failing the hand-note, the plaintiff was entitled to prove the transaction by means of oral evidence. He referred to a later ruling of this High Court: Chotalal Sahu v. Gumani Chaudhury AIR 1926 Pat. 432, in which he said that the point in issue was decided more precisely. He examined the matter from that point of view and said:

The evidence makes it clear that the execution of the hand-note was the only contract between the parties. In my opinion, therefore, parol evidence is not admissible and the suit must fail.

The suit was accordingly dismissed.

It has been contended before me that the learned District Judge was in error in ruling out parol evidence regarding the loan. The learned advocate for the petitioner has cited a yet later decision of this High Court Dhaneshwar Sahu v. Ramrup Gir AIR 1928 Pat. 426, in which several previous decisions were referred to, including those from 2 P.L.T. and 7 P.L.T. Learned Counsel for the respondent has contended that whether the learned District Judge was right or wrong in holding that the hand-note failing, parol evidence was not admissible, the matter is entirely outside Section 115, Civil P.C.; the District Judge clearly had jurisdiction to hear the appeal, and if in disposing of the appeal in the exercise of his jurisdiction, he came to a wrong conclusion on a point of law, that, it was urged, would not amount to acting in the exercise of his jurisdiction "illegally or with material irregularity." As long ago as Amir Hasan Khan v. Sheo Baksh Singh [1885] 11 Cal. 6, it was laid down by their Lordships of the Judical Committee that the expression acting illegally or with material irregularity in the exercise of jurisdiction does not mean merely erroneous decisions on questions which the Court had jurisdiction to determine. In Balkrishna v. Vasudeva AIR 1917 P.C. 71, their Lordships pointedly observed that Section 115 applies to jurisdiction alone, the irregular exercise of it or the illegal assumption of it, and not to conclusions of law or fact in which the question of jurisdiction is not involved. What is more, it seems strange that a Court of first appeal should be charged with having acted illegally or with material irregularity in the exercise of its jurisdiction merely because out of two decisions of this High Court placed before it, it had chosen to follow the later on the ground that it was more precise. The decision that the District Judge has followed may or possibly may not, be right, but the matter is before me in revision only, and it seems to me impossible to say that there was any illegal exercise of jurisdiction by the District Judge or that he acted with material irregularity in holding on the authority of the case from Chotalal Sahu v. Gumani AIR 1926 Pat. 432 that parol evidence was inadmissible.

In the case of Madhavrao v. Gulabbhai [1889] 23 Bom. 177, it was held that the exclusion of evidence by a subordinate Court is not a matter for interference u/s 115, Civil P.C. In yet another case cited by learned Counsel for the respondent, Janki Kuer v. Kukur Dusadh [1918] P.H.C.C. 347 it was held that the admission of inadmissible evidence was also not a matter for interference u/s 115. The learned advocate for the petitioner has endeavoured to meet this objection to the application of Clause (c), Section 115, by urging that the District Judge''s action comes under Clause (b) of the section in that he failed to exercise a jurisdiction vested in him by law. It is not as if the District Judge refused to entertain the appeal, but, says the learned advocate, what the learned District Judge has done is to say that the suit is not maintainable, i.e., that it cannot be entertained, as the hand-note which, according to the learned District Judge, was the only contract between the parties, has to be excluded from evidence. I do not think that that is the correct way of looking at the matter at all. Petitioner came to Court with his claim on the hand-note; in the first prayer in his plaint he referred to the hand-note as the basis of his claim. The hand-note was subsequently found inadmissible in evidence and its exclusion from evidence was not assailed before the District Judge and has not been assailed here. Parol evidence was adduced in support of the transaction, and what the learned District Judge has done is to hold that having regard to Section 91, Evidence Act, and to the decision from 7 P.L.T. such evidence was inadmissible This is vastly different from failing to exercise of jurisdiction vested by law in the Court of first appeal.

The application before me purports to be not only u/s 115, Civil P.C. but also u/s 107, Government of India Act. It has not, however, been urged before me that for the purposes of the present case my powers of interference u/s 107, Government of India Act, are materially different from those u/s 115, Civil P.C. I have already shown that the contention of the respondent that Section 115, Civil P.C. bars the application must be accepted. There will accordingly be no room for interference under the other section either.

Having regard to the fact that the application in revision does not lie, I have not thought it worthwhile to refer to the law dealt with by the learned District Judge. There is a good deal of opinion on the point, and besides the cases referred to in Dhaneshwar Sahu v. Ramrup Gir AIR 1928 Pat. 426 , one very recent case, Kundan Lal and Another Vs. Sahu Bhikhari Das-Ishwar Das and Another, has been brought to my notice. Bucknill J''s view in Chotalal Sahu v. Ghumani AIR 1926 Pat. 432 is in accordance with the view taken in Madras of what was laid down in the leading case of Sheik Akbar v. Sheik Khan [1881] 7 Cal. 256, but it seems to conflict with the view taken by several learned Judges of this Court and two or three other High Courts. The correctness of Bucknill, J''s view does not, however, arise on the present occasion in view of the fact that the application before me is merely revisional.

The application fails and is dismissed with costs hearing fee two gold mohurs.