Thursday, 19 October 2017

When appeal will lay before district Judge from order passed by civil judge senior division in probate proceeding?

255. (i) Under Section 265 of the Indian Succession Act, 1925 the High Court has appointed all Civil Judges to act for the District Judge as delegates to grant probate and letters of administration in non-continuous cases arising within the local limits of their respective jurisdiction.

(ii) In exercise of the powers conferred by Section 28-A(1) of the Bombay Civil Courts Act (XIV of 1869), the High Court has invested all Civil Judges (Senior Division), with all the powers of a District Judge to take cognizance of any contested proceeding Indian Succession Act 1925, within the local limits of their respective jurisdiction that may be transferred to them by their respective District Judges."

6. A bare at the aforesaid paragraphs would make it clear that in case of the contested proceedings, arising under the Indian Succession Act, 1925, the said matters may be adjudicated by the District Judge or the Civil Judge, Senior Division to whom the such proceedings have been transferred. Once the Civil Judge, Senior Division has exercised the jurisdiction over the application field by the petitioner for grant of probate of the will having valuation of Rs. 10,000/-, in view of the provisions contained in Section 28-A of the Bombay Civil Courts Act, 1869, the appeal lay against such order passed by the Civil Judge, Senior Division to the Court of the District Judge. Section 28-A of the Bombay Civil Courts Act, 1869 reads as under:--

"28-A (1) The High Court may by general or special order invest any Civil Judge within such local limits and subject to such pecuniary limitation as may be prescribed in such order with all or any of the powers of a District Judge or a District Court as the case may be under the Indian Succession Act, 1865, the Probate and Administration Act, 1881 or paragraph 5 of Schedule III to the Code of Civil Procedure, 1908.

(2) Every order made by a Civil Judge by virtue of the powers conferred upon him under sub-section (1) shall be subject to appeal to the High Court or the District Court according to the amount or value of the subject-matter exceeds or does not exceed fifty thousand rupees.

(3) Every order of the District Judge passed on appeal under sub-section (2) from the order of a Civil Judge shall be subject to an appeal to the High Court under the rules contained in the Code of Civil Procedure applicable to appeal form the appellate decrees."

7. No doubt is left on careful perusal of the said section that the order passed by the Civil Judge, Senior Division on application under Section 276 of the Indian Succession Act having a valuation of Rs. 10,000/- i.e. less than Rs. 50,000/-, the appeal against the said order lay before the District Court and the appeal filed by the respondents before the Additional District Judge was maintainable and it cannot be said that no appeal lay before him.
IN THE HIGH COURT OF BOMBAY

Civil Rev. Application No. 925 of 1989

Decided On: 08.03.1995

Manohar son of Bapurao Sapre Vs. Bhaurao son of Tukaramji Shirbhate and another

Hon'ble Judges/Coram:
R.M. Lodha, J.

Citation:1995 (2) Mh.L.J. 336, 

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Whether a party can be permitted to amend grounds of appeal or writ petition after its disposal?

No doubt, when there existed no ground of challenge on merits in the writ petition, High Court could not have adverted to it. We are also conscious of the fact that if a party is allowed to seek amendment in the grounds of appeal or writ petition after its disposal, it can lead to abuse of process of law, and the parties would not let the proceedings come to an end. As such, we are not inclined to allow the Appellants to add grounds in writ petition by way of amendment, after its disposal. However, considering the peculiar facts and circumstances of the present case, we are of the view that to do complete justice between the parties, the matter needs to be remitted to the appellate court, as the reasons given by said court reversing the findings of the trial court, are not sufficient, and do not answer properly the issues raised in the appeals.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 9190-9191 of 2015 (Arising out of S.L.P. (C) Nos. 21952-53 of 2014)

Decided On: 16.11.2015

Vishwanath Dadu Gurav and Ors. Vs. Dattatray Ganapati Gurav

Hon'ble Judges/Coram:
Dipak Misra and Prafulla C. Pant, JJ.
Citation: (2016) 15 SCC 671.
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Whether single judge of high court can grant certificate of fitness to appeal to Supreme Court?

 Before we consider the merits of the case, it is apposite to deal with one question which though arises, was not argued by pointing out the relevant provisions governing the question.

17. As mentioned above, this appeal is filed on a certificate granted by the High Court (Single Judge) on the oral application made by the Appellant immediately after the pronouncement of the impugned judgment as provided Under Article 134-A of the Constitution. The order granting certificate is a part of the impugned judgment in its concluding Para which reads thus:

Learned Counsel for the Respondent seeks leave of this Court to prefer an appeal against this judgment.

Accordingly, leave is granted."

18. What is the true interpretation of Articles 133 and 134-A of the Constitution and who can grant the certificate of fitness to appeal to the Supreme Court remains no more res integra. It is settled by the decision of this Court in State Bank of India and Anr. v. S.B.I. Employees' Union and Anr. MANU/SC/0146/1987 : 1987 (4) SCC 370.

19. The facts of this case and the one involved in the SBI case (supra) are somewhat similar wherein Their Lordships examined the issue as to whether the certificate granted by the High Court (Single Judge) satisfied the requirements contained in Articles 133 and 134-A. Justice Venkataramiah (as His Lordship then was and later became CJI) speaking for the Bench held thus:

2. The certificate contemplated Under Article 134-A of the Constitution can only be a certificate which is referred to in Clause (1) of Article 132 or in Clause (1) of Article 133 or in Sub-clause (c) of Clause (1) of Article 134 of the Constitution. This is quite obvious from the language of Article 134-A of the Constitution. This case does not fall either Under Article 132(1) or under Sub-clause (c) of Article 134(1) as it neither involves a substantial question of law as to the interpretation of the Constitution nor it is a criminal proceeding. It can only fall, if at all, Under Article 133(1) of the Constitution. Article 133 of the Constitution reads thus:

133. (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies Under Article 134-A--

(a) that the case involves a substantial question of law of general importance; and

(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.

(2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under Clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided.

(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one judge of a High Court.

3. Clause (3) of Article 133 says that notwithstanding anything in that Article no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one judge of the High Court. Before the introduction of Article 134-A of the Constitution by the Forty-fourth Amendment of the Constitution there was no express provision in Articles 132, 133 and 134 of the Constitution regarding the time and manner in which an application for a certificate under any of those articles could be made before the High Court. There was also a doubt as to the power of the High Court to issue a certificate suo motu under any of those articles. Article 134-A was enacted to make good the said deficiencies. Article 134-A does not constitute an independent provision under which a certificate can be issued. It is ancillary to Article 132(1), Article 133(1) and Article 134(1)(c) of the Constitution. That is the reason for the use of words "if the High Court certifies Under Article 134-A" in Article 132(1) and Article 133(1) and for the use of the words certifies Under Article 134-A in Article 134(1)(c). The High Court can issue a certificate only when it is satisfied that the conditions in Article 132 or Article 133 or Article 134 of the Constitution as the case may be are satisfied. In the instant case such a certificate could not have been issued by reason of Clause (3) of Article 133 of the Constitution by the learned Single Judge.

4. The fact that in a similar case a certificate had been issued by a Division Bench of the High Court consisting of two judges in a case decided by the Division Bench did not empower the Single Judge to issue the certificate Under Article 133(1) of the Constitution in a case decided by him. The restriction placed by Clause (3) of Article 133 of the Constitution could not be got over by relying upon the order of the Division Bench.

5. We, therefore, revoke the certificate. This petition of appeal may, however, be treated as a special leave petition Under Article 136 of the Constitution and posted for preliminary hearing.
20. In our considered opinion, the law laid down in S.B.I. case (supra) would squarely apply to the case at hand because in the instant case also, the impugned judgment and the certificate of fitness to file an appeal was passed by the Single Judge of the High Court.

21. As held in S.B.I. case, such certificate/leave could not have been issued/granted by the Single Judge by reason of Clause (3) of Article 133 of the Constitution. In other words, the Single Judge of the High Court had no jurisdiction to grant certificate in the light of restrictions contained in Clause (3) of Article 133 of the Constitution.

22. We, therefore, revoke the certificate granted by the Single Judge of the High Court. However, this appeal is treated as a special leave petition Under Article 136 of the Constitution as was done by this Court in S.B.I. case (supra). Leave is accordingly granted.
IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5817 of 2012

Decided On: 13.04.2017

 Agnigundala Venkata Ranga Rao Vs.  Indukuru Ramachandra Reddy (dead) by L.Rs. and Ors.
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Whether person who is not in lawful possession of suit property can claim injunction?

It is a settled principle of law that in order to claim prohibitory (temporary or permanent) injunction, it is necessary for the Plaintiff to prima facie prove apart from establishing other two ingredients, namely, irreparable loss and injury that his possession over the suit land is "legal". In this case, it was not so and nor it could be for the simple reason that as far back on 21.08.1976, the Tribunal had already declared the land held by the Plaintiff to be in excess of the ceiling limits prescribed under the Act. In these circumstances, the Plaintiff was neither holding the land nor could he be held to be in its lawful possession so as to enable him to exercise any ownership rights against any other private party over the suit land. The Appellant had then very limited rights left to exercise under the Act in relation to the suit land and such rights were available to him only against the State. Such is not the case here.

38. Lastly, this being a simple suit for grant of permanent injunction between the two private parties in relation to the land which was subject matter of the State Ceiling Laws, was liable to be dismissed on the short ground apart from many others as detailed above that any order that may be passed by the Civil Court would adversely affect and interfere in the rights of the State under the Act, which had not been impleaded as party Defendant.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5817 of 2012

Decided On: 13.04.2017

 Agnigundala Venkata Ranga Rao Vs.  Indukuru Ramachandra Reddy (dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:
Abhay Manohar Sapre and Navin Sinha, JJ.
Citation:(2017) 7 SCC 694.
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