P. K. Jain, J. - (1.) HEARD Sri M. A. Qadeer, learned counsel for the petitioners. None appears for the respondents.
(2.) THE petitioners filed Suit No. 1179 of 1970 for declaration in respect of agricultural land and injunction restraining the defendants from interfering with the possession of the plaintiffs (petitioners) over the disputed land. It appears that during the pendency of the suit a compromise (Annexure 1 to the writ petition) was filed before the trial court which was verified before In charge Munsif on 22.12.1972. Before the compromise could be accepted by the trial court, objections were filed by the defendants. THE trial court overruled the objections vide order dated 1st March, 1975 and recorded the compromise. A Civil Misc. Appeal No. 232 of 1975 was preferred by the defendant Abdul Ghafoor respondent No. 4 in the present writ petition. THE appeal appears to have been transferred by the District Judge to the court of Additional Civil Judge (J. S. C. C.) who allowed the appeal holding that the Court had no Jurisdiction to pass the decree and further ,that the compromise involved transfer of Sirdari rights in agricultural land and was thus against the public policy and was vitiated. THE appeal was allowed by the Additional Civil Judge, Gorakhpur on 28.1.1976. Civil revision against the judgment and order of the appellate court was filed before the High Court and was returned on 13.2.1976 for proper presentation before the District Judge, Gorakhpur and consequently the revision was filed before the District Judge. Gorakhpur on 25.2.1976. THE District Judge. Gorakhpur dismissed the revision as not maintainable vide order dated 3.3.1976 (Annexure 6 to the writ petition). Against order dated 3.3.1976 the petitioners filed revision before the High Court which was allowed vide judgment and order dated 30.3.1979 (Annexure 7 to the writ petition) wherein the High Court held that the revision was maintainable before the District Judge and consequently, remitted the case back to the District Judge for disposing of the revision filed earlier on merit. Again an objection was raised before the District Judge regarding maintainability of the revision which was sustained by the District Judge vide judgment and order dated 4th December, 1980 (Annexure 8 to the writ petition). By the present writ petition, the petitioners challenge the Judgment and orders of the District Judge dated 4.12.1980 and of the appellate court dated 28.1.1976 on the ground that once the order dated 3.3.1976 passed by the District Judge holding that the revision against the appellate order was not maintainable was set aside by the High Court vide Annexure 7 to the writ petition, the District Judge had no option except to decide the same on merit. Order dated 30.3.1979 (Annexure 7 to the writ petition) operated as res judicata and the question of maintainability of the revision could not have been gone into by the learned District Judge and further that the appellate court acted without jurisdiction in holding that the compromise filed could not be recorded as it amounted to transfer of property not permissible by law. However, the learned counsel for the petitioners has pressed the present petition only on the ground that after the order of the High Court dated 30.3.1979 in Civil Revision No. 862 of 1976 the District Judge had no jurisdiction to question the maintainability of the revision. The learned counsel for the petitioners contends that since the learned District Judge has not decided the revision on merit, by quashing the impugned order dated 4th December, 1980 (Annexure 8 to the writ petition) the case may be remitted back to the District Judge for disposing of Civil Revision No. 862 of 1976 on merit. It appears from the perusal of Annexure 6 copy of the order dated 3.3.1976 that the learned District Judge while rejecting the revision as not maintainable took the view that the appeal was transferred by the District Judge to the Court of Additional Civil Judge under Section 22 (1) of the Bengal. Agra and Assam Civil Courts Act, 1887 and the Civil Judge shall be deemed to have acquired the appellate jurisdiction of the District Judge even though the Court of Civil Judge is subordinate court of the District Judge. The learned District Judge relied upon a Full Bench decision of this Court in Har Prasad Singh and others v. Ram Swarup and others, AIR 1973 All 390. In a subsequent decision vide Annexure 8 to the writ petition the maintainability of the revision was, however, challenged entirely on different grounds viz., no petition for revision under Section 115 of the C. P. C. lies from an appellate judgment and the District Judge while passing the impugned order dated December 4th, 1980 relied upon the cases of Har Prasad Singh and others v. Ram Swarup and others (supra) and subsequent Full Bench decision of this Court in M/s. Jupiter Chit Fund Pvt. Limited v. Dwarka Diesh Dayal and others, 1979 ALJ 685. Thus, the maintainability of the revision before the District Judge in the order dated 3.3.1976 (Annexure 6 to the writ petition) and Judgment and order dated 4.12.1980 (Annexure 8 to the writ petition) was challenged on different grounds. The High Court while remitting the case back to the District Judge vide judgment and order dated 30th March, 1979 (Annexure 7 to the writ petition) considered the maintainability of the revision only from the point of view on which the learned District Judge had held vide order dated 3.3.1976 that the revision before the District Judge was not maintainable. Therefore, in my view, the order of the High Court (Annexure 7 to the writ petition) dated 30th March, 1979 would not operate as res judicata.
(3.) BEFORE considering the legality or otherwise of the Impugned order dated 4th December, 1980, it would be relevant to consider the amendments made in Section 115, C. P. C. from time to time. As already pointed out above, the District Judge while passing the order dated 3.3.1976 had relied upon a Full Bench decision of this Court in Har Prasad Singh's case (supra). That was the case decided by the High Court prior to the amendment made in Section 115, C. P. C. by the Central Amending Act No. 104 of 1976 which came into force on 1st February, 1977. Prior to the amendment of Act No. 104 of 1976, the original Section 115, C. P. C. reads as follows : 'The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto and if such subordinate court appears : (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a Jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally and with material irregularity, the High Court or the District Court may make such order in the case as it thinks fit." In its application to the State of U. P., Section 115, C. P. C. was amended by U. P. Act No. 14 of 1970. Section 3 of which provided that for the word High Court wherever occurring in Section 115, the words "High Court or District Court" shall be substituted and that at the end the following proviso shall be inserted : "Provided that nothing in this section shall be construed to empower the District Court to call for the record of any case arising out of an original suit of the value of twenty thousand rupees or above." ;