SHRI PARSA Vs. SHRI KANSHI RAM
HIGH COURT OF HIMACHAL PRADESH
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C.B. Capoor, J.C. -
(1.) This application in revision by Shri Parsa is directed against the judgment and decree of the learned Judge Small Cause Court, Theog, whereby a suit filed by the respondent against the petitioner for recovery, of a sum of Rs. 180/- was decreed for a sum of Rs. 142/- with proportionate cost. The office objection is that the application was not maintainable in view of the 2nd proviso to paragraph 35(1)(b) of the Himachal Pradesh Courts Order 1948 hereinafter to be referred as the Order 1948.
(2.) The application was admitted subject to the aforesaid objection. The same objection has been put forward on behalf of the respondent.
(3.) The question that arises for consideration is as to whether the application in revision is maintainable. Para 35 (1) of the Order 1948 reads as below:
"The Court of the Judicial Commissioner may call for the record of any case which has been decided by a Civil Court subordinate to it and in which no appeal lies to it, and (a) if the Civil Court by which the case was decided appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction with material irregularity, or (b) if on an application made to it the Court of the Judicial Commissioner is of opinion that there is an important question of law or custom involved and that such question requires further consideration, the Court of the Judicial Commissioner may make such order in the case as it thinks fit. Provided that (1) no application under sub-paragraph (b) shall be admitted after the expiration of ninety days from the date of the Order in respect of which the application is made, unless the applicant satisfies the Court of the Judicial Commissioner that he had sufficient cause for not making the application within that period; (2) no such application shall be admitted in a small cause suit under the value of one thousand rupees or in an unclass-ed suit under the value of two hundred rupees; (3) on any such application the Court of the Judicial Commissioner shall not revise the decision of the Court below except in so far as such decision involves the question of law or custom in respect of which the application has been admitted; and (4) when any such application has been admitted, the Court of the Judicial Commissioner shall, subject to proviso (3) treat the matter of the application as if it were an appeal. Explanation.-- A question of procedure is not a question of law or custom within the meaning of sub-paragraph (b).";
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