- (1.) THIS application in revision against an appellate order of the Revenue Appellate Authority Udaipur dated 16. 1. 62 upholding that of the Assistant Collector, Udaipur dated 16. 1. 61 has been filed by Maganlal who was defendant in a suit for declaration and possession.
(2.) THE revision raises a question of law. THE question simply stated is whether Rule 1 of Order 16 would apply in this case as it stands in the Civil Procedure Code i. e. , Central Act V of 1908 or it would apply as amended by the Rajasthan High Court. THE learned counsel for the petitioner argued that the powers of the High Courts in this regard are regulatory and their extent is confined to the regulating of their own procedure and the procedure of the civil courts subject to their superintendence. THE court in which the instant suit was pending was the court of Assistant Collector, Udaipur and it is not a civil court within the meaning of the terms of sec. 122 of the C. P. C. He further invited our attention to sec. 208 of the Rajasthan Tenancy Act by virtue of which the provisions of C. P. C. apply to the suits and proceedings arising under Rajasthan Tenancy Act. In its terms sec. 208 of the Rajasthan Tenancy Act is clear and unambiguous and speaks only of the Central Act. According to the learned counsel's contention therefore the amendments made by the High Court in exercise of regulatory powers cannot be extended to revenue courts THE learned counsel for the non-petitioners argued before us that the revenue courts were also civil courts and were subject to superintendence of High Court inasmuch as the High Court is the highest court of the law in the land and entertains writ petitions from the decisions of the revenue courts. We find no substance in this contention of the learned counsel for the non-petitioner. Merely because the High Court has the jurisdiction to entertain writs against the decisions of the revenue courts it cannot be said that the revenue courts are subject to superintendence of the High Court. All courts subordinate to Board of Revenue are subject to superintendence of the Board of Revenue and the Board of Revenue cannot be said to be subject to the superintendence of the High Court. But even if we leave aside this question the terms of sec. 208 R. T. Act do not permit the applicability of the rules of the first schedule amended by the High Court, to the R. T. Act. THEse powers of amendment were not unknown to the legislature and if the intention was to apply also those provisions of C. P. C. to suits arising under Rajasthan Tenancy Act which find place in the first schedule through the powers of High Court under sec. 122 C. P. C. there was nothing to stop the legislature to plainly say so. Since nothing of the kind has been said the plain and unmistakable language of sec. 208 of Rajasthan Tenancy Act permits only conclusion to be drawn i. e. the amendments made by the Rajasthan High Court in the rules in exercise of powers under sec. 122 do not apply to suits arising under the Rajasthan Tenancy Act. In this view of the law we have no hesitation in holding that both the courts below have committed a serious error of law and were wrong in directing the closing of the petitioners evidence for not filing a list of witnesses as required by the amended rule 1 of order 16 C. P. G. We therefore set aside the orders of both the courts below and remand the case back to the trial court to allow the defendant-petitioner to continue his evidence upon such terms and conditions as it deems fit and permissible under the law. Per Shri R. N. Madhok - I respectfully agree with my learned colleague that R. 1 of O. 16 of the C. P. C. as amended by the Rajasthan High Court does not apply to revenue courts functioning under the Rajasthan Tenancy Act 1955. However I have' come to this conclusion on a reasoning somewhat different from that adopted by my learned colleague. Sec. 122 of the Code authorises the High Court to make rules for regulating the "procedure of the civil courts subject to its superintendence". Therefore the amendment made by the Rajasthan High Court in Rule 1 of Order 16 of the Code would apply only if two conditions are met, namely, that the court is subject to the superintendence of the High Court and, secondly, that it is a civil court. I am of the opinion that the revenue courts in the State of Rajasthan are subject to the superintendence of the Rajasthan High Court in view of the clear provision of Art. 227 (1) of the Constitution of India which says that "every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. " Thus I respectfully differ from the observation made by my learned colleague that the revenue courts are not subject to the superintendence of the High Court. Nonetheless, the amendment made in Rule 1 of Order 16 of the Code is still not applicable to the revenue courts for the reason that they are not "civil courts". The revenue courts are an entity quite distinct from civil courts and this distinction has been clearly brought out by their inclusion in two separate sections of the Code. The expression "civil courts" has been defined in sec. 3 of the Code while the expression "revenue courts" figures in sec. 5, and the juxta position of these sections of the Code makes it quite clear that these two types of courts are separate and distinct. Therefore, the power of the High Court to make rules of procedure for the civil courts in terms of sec. 122 of the Code does not extend to revenue courts. Sec. 208 of the Rajasthan Tenancy Act makes the provisions of the Code applicable to the Revenue Courts but the Code within the meaning of this provision means the Code enacted by the Central Legislature and not the amendment made in its provisions by the High Court. With the above observations I concur in the order proposed to be passed by my learned colleague in this case. .;