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Petitioner: LAND ACQUISITION (B & R), HYDERABAD VS Respondent: Seth ALLAINO
Court Name: Sindh High Court Judge(s): Naimuddin Ahmed Title: LAND ACQUISITION (B & R), HYDERABAD vs Seth ALLAINO Case No.: First Civil Appeals Nos, 18 and 19 of 1981 Date of Judgment:1982-11-10 Reported As: 1983 CLC 865 Result: decree dismiss
JUDGMENT
JUDGMENT ' These three First Appeals filed by the Land Acquisition Officer, Hyderabad, are directed against a common judgment and decree dated 12-1-1980, passed by the First Additional District Judge, Hyderabad, in Suits Nos. 93 of 1965, 93-A of 1965 and 94 of 1965. The first two suits were filed by Allandino and third suit was filed by Mst. Malika Sultana. 2. The facts giving rise to these appeals so far as relevant, are as follows : 3. By separate notifications dated 23-2-1962, under section 4 of the Land Acquisition Act (hereinafter called the Act) and 23-3-1962, issued under section 6 of the Act the lands of Haji Rahmatullah, who has been succeeded by Allandino in Appeals Nos. 17 of 1981 and 18 of 1981, bearing Survey No, 396/398/399 and measuring 4.37, 4.18 and 4.25 Acres situated at Deh Patar, Taluka Matli, District Hyderabad, were acquired. Similarly, the lands of Mst. Malika Sultana, the respondent in First Appeal No, 19 of 1981, bearing Survey Nos. 395, 400 and 401, in all measuring 12.17 acres were acquired. The lands of both the respondents except Survey No, 398, measuring 4.18 acres belonging to respondent Allandino are agricultural lands and the land bearing Survey No, 398 is Sakni land. It is agreed at the bar by the learned counsel for the parties that these lands are almost contiguous, and are situated two Furlongs away from the Municipal limits of Tando Muhammad Khan Town. 4. After necessary proceedings the Land Acquisition Officer, Hyderabad, by an award granted to the respondents compensation for agricultural lands at the rate of Rs, 1,000 per acre and for Sakni land at Re. 0.25 per square foot.
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5. Dissatisfied with the award the respondents required the Collector to refer the matter under section 18 of the Act to the District Judge, Hyderabad. The applications were first heard by Mr. Ali Nawaz Budhani, the then 1st Additional District Judge, Hyderabad, who by the judgment and decree dated 27-4-1971 increased the amount of compensation for agricultural lands from Rs, 1,000 to Rs, 3,000 per acre and for Sakni lands from Re. 0.25 per square foot to Re. 1.00 per square foot with due allowances under section 23 of the Act and statutory interest. 6. Being aggrieved by this judgment and decree the Land Acquisition Officer, Hyderabad filed separate appeals being 1st Appeal No, 44 of 1971, Ist Appeal No, 45 of 1971 and Ist Appeal No, 46 of 1971. These appeals finally came up for hearing before a Division Bench of this Court on 26-8-1975, when the parties filed a compromise application under Order XXIII, rule 3, C. P. C. Praying for setting aside the judgment and decree and remand of the cases to the District Judge, Hyderabad for re- hearing after giving the parties opportunity to lead evidence. These appeals were accordingly, disposed of in terms of the compromise. 7. Accordingly, the cases were heard afresh by the District Judge, Hyderabad, who by a common judgment and decree dated 12-1-1980, awarded compensation for agricultural lands at Rs, 5,000 plus statutory allowance and interest, and for Sakni land at Rs, 2 per square foot with statutory allowance and interest. 8. Aggrieved by the judgment and decree dated 12-1-1980, separate appeals, as stated hereinbafore, have been filed. These appeals were filed on 15-2-1981 alongwith applications under section 5 of the Limitation Act and were admitted by the order dated 5-4-1981, with the observation that the question of condonation of the delay will be decided at the time of final hearing of the appeals. 9. I have heard Mr. Riaz Ahmed Syed, Advocate holding brief for the learned Advocate-General, Sind for the appellant and Mr. Nasim Faruqui, Advocate for the respondents in all the three appeals. 10. Mr. Riaz Ahmed Syed has pointed out that applications under Order XLI, rule 27, C. P. C. (Civil Miscellaneous Appeals documentary evidence mentioned therein which have remained undisposed of uptil now. I propose to deal with these applications towards the end of this judgment. 11. Mr. Riaz Ahmed Syed, learned counsel for the appellants on the question of limitation submitted that the appeals are within time and in support of his submission he relied on Sm. Soudamini Das v. Nabalak Mia Bhuiya and others. In the alternative he submitted that the appellant has filed applications under section 5 of the Limitation Act for condonation of the delay mainly on the grounds (1) that the decree was void, unexecutable, inoperative, ineffective being in violation of the mandatory provisions of the Act and the Code of Civil Procedure ; (2) that the appeal could not be filed Assistant Government Pleader who was conducting the matter before the lower Court, and (3) that there was no negligence, the appellant but the delay if any, has been caused due to mishandling of the matter by the Advocate and lengthy procedural formalities of the department. 12. Now, taking up the first submission that the appeal is within time, it is necessary to state certain relevant facts. The judgment and decree under appeal was passed on 12-1-1980, and the present appeals were filed on 15-2-1981. The time for filing appeal provided in Article 156 of the Limitation Act, 1908, is 90 days from the date of the decree. It is, therefore, obvious that the appeals were barred by time by about 10 months and 3 days. However, the submission of Mr. Riaz Ahmed Syed is that the judgment and decree did not mention the period within which the decree was required to be satisfied as required by section 82 of the Code of Civil Procedure. Section 82, C. P. C. Reads as follows :-1
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' Section 82.-(1) Where the decree is against the Government or against a public Officer in respect of any such act as aforesaid, a time shall be specified in the decree within which it shall be satisfied, and, if the decree is not satisfied within the time so specified, the Court shall report the case for the orders of the Provincial Government. (2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of such report." ' However, the omission was supplied by the learned Ist Additional District Judge, Hyderabad by the order dated 17-11-1980. Mr. Riaz Ahmed Syed, therefore, submitted that since before 17-11-1981, the decree was not executable and the omission was supplied on 17-11-981, the time for filing the appeals has to run from that date and, if time is counted therefrom, the appeals filed on 15-2-1982, are within 90 days. 13. I do not agree. In my opinion where a decree or judgment is corrected subsequent to its passing, under section recognised by the judgment and decree and corresponding liability or duty imposed by it remains unaltered or unaffected. But where a judgment and/or decree is amended or varied in material respect time runs from the date of such amendment or variation. ' I am fortified in my view by immediately refer to here : (1) Wor Lone v. G. Rainey AIR 1917 L B 162. (2) Golab and others v. Janki Kuer AIR 1920 Pat. 622. ' In the Lower Burma case the appeal was directed against a decree which was not substantially altered by an amendment made in it at the appellant's instance and which was wholly in the appellant's favour. It was held that the appellant could not claim to compute the time for his appeal from the date of the amendment. In this case reliance was placed upon Parameshraya v. Seshagiriappa and another, to which reference has been made by Mr. Riaz Ahmed and which I propose to deal with a little later. ' In Patna case which is a Full Bench decision it was held that limitation for appeal in proceeding under section 105-A of Bengal Tenancy Act, 1885 begins from date of decision and not from date on which memorandum stating the amount of costs incurred in the case was added to the decision. 14. In support of the submission, Mr. Riaz Ahmed Syed however, relied on Parameshraya v. Seshagiriappa and another. In this case facts were that in a suit for a declaration of title to land and for possession, which was based upon a will alleged to have been made in plaintiff's favour, the Subordinate Judge, finding the document to be a forgery, dismissed the suit. The fourth defendant had been made a party inasmuch as he claimed a portion of the land as alienee. Though the case for the plaintiff failed, the Subordinate Judge, on the above finding, dealt in his judgment with an issue which had been framed regarding the validity or otherwise of the alleged alienation to the fourth defendant. He held that it had been made for no consideration and found the issue against the fourth defendant. The ing the suit, which bore date the 22nd of June, 1896, contained no reference to the finding against the fourth defendant on that issue. The fourth defendant applied for a review of the judgment, complaining that as the suit had been dismissed, the reference in the judgment to the alleged alienation in his favour was unnecessary, and might, if permitted to stand, operate against him as res judicata in any subsequent suit that might be brought and praying that the finding might be either expunged or modified in his favour. Upon this being refused, fourth defendant applied under section 206 of the old Code of Civil Procedure, that the decree might be brought into conformity with the judgment, and an order was made on 27th October, 1896, adding to the decree a clause to the effect that the issue referred to had been found against the fourth defendant. On 12th December, 1896, fourth defendant preferred an appeal against the decree of the Subordinate Judge, but the District Judge rejected it as being out of time.2
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On these facts it was held by a Full Bench of Madras High Court that the decree being in conformity with the judgment the Subordinate Judge had no power to vary it ; and that the words which had been added must be expunged and the decree restored to the original state, and also, that the finding on the issue against the fourth defendant was in fact, no finding except with regard to the question of consideration. ' It was observed by Subramania Ayyar. J. "that where a decree which is at variance with the judgment is brought into conformity with the latter under section 206 of the Code of Civil Procedure then efforced, the date of rectification is immaterial with reference to the calculation of the time in which any appeal may be preferred against such decree. But where a decree is wongly varied, a party affected by such variation should be entitled to calculate the time during which an appeal may be preferred as commencing from the date of the variation." ' Therefore, the view of Subramania Ayyar, J., in this case was that if the decree is varied in material respect, then the time will run from the date of the amendment of the decree. The view of Subramania Ayyar, J. Supports the view which I have taken. ' Further, this case is distinguishable on facts for the present case is not one of variation of the decree in material respect but one of addition of time within which the decree was to be satisfied. 15. Now, I would deal with the following cases cited by Mr. Nasim A. Faruqui, Advocate:-Mt. Gopi Bibi v. Chanu Prasad Singh and others Deep Singh v. Raghunath Singh, Pakkiri Muhammad Rowthers v. L. Swaminatha Mudaliar, Governor-General-in-Council v. Piramal Marwari and Thanuvan Appuknttan P. N. Gopala Piliai and another. ' In AIR 1930 Pat. 142, the Division Bench ruled that where a decree is amended in very material particular, which particular is also the subject-matter of appeal the period of limitation should be calculated from the date of the amendment. ' It has already been noticed that in the present case the decree was not varied in any material particular and the amendment is not the subject-matter of appeal and therefore, this case fully applies to the facts of the present appeals. ' I would deal with AIR 1930 Oudh 463, while dealing with the question of condonation of the delay in filing appeal under section 5 of the Limitation Act. ' In AIR 1938 Mad. 538, an application for review was made by the plaintiff on two grounds ; first that subsequent to the trial Court's judgment but prior to that of the appellate judgment, there was a decision given in a certain suit which negatived the defence put forward by the defendants and second, that there was an error apparent on the face of the record. The Appellate Court rectified the error which was apparent on the face of the record probably purporting to act under section 152 of Civil P. C. (no notice having been served on the party affected by the order as required by law), but refused to grant review on the first ground, holding that the new evidence was available to the plaintiff prior to the passing of the appellate judgment and that it should have been produced by him. In this case Venkatasubba Rao, J. Observed as follows :- "That the mere rectification of the error by the appellant did not bring into existence a fresh decree superseding the old one. The order rejecting the application had been passed in the second stage and not in the third stage and that being so, no fresh decree could be said to have been passed superseding the old one and that second appeal by the plaintiff from the decree could not be rejected on preliminary ground that it had been superseded by a fresh decree." ' This case is therefore, not on the point under consideration. ' In A I P. 1969 Ker. 183, a suit for recovery of the plaint building with arrears of rent the claim of the plaintiff for recovery of the building was disallowed because of the finding that the defendant was a Kudikidappukaran within the meaning of the Kerala Tenants and Kudikidappukara Protection Act, 1963 but his claim for arrears of rent was decreed. The mistake in the judgment was that the Court allowed the recovery of possession of the lands attached to plaint building also regarding which3 4 5 6 7
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the plaintiff had only prayed for declaration of title. The petition for correction was therefore, allowed by deleting the words in the judgment, that the plaintiff is entitled to recover possession of the plaint property. ' The defendant challenges the correctness of the decree for rent in the second appeal. A memorandum of cross-objection was filed by the plaintiff objecting to the finding that the defendant is a Kudikidappukaran within the meaning of Act VII of 1963. The counsel for the respondent filed an application in the second appeal stating that the appeal was barred by limitation and should be dismissed on that ground. The High Court office proceeded to register the appeal under the belief that it was filed in time. In view of the objection raised by the respondent it became necessary to consider the question whether the second appeal was presented before the Court within the period of limitation. In this case it was observed as follows :- "that the appeal by the defendant against the recovery of rent did not relate to the portion of the decree amended and it was directed against the decree which remained unaffected by the amendment. Therefore, it was not even a fit case for excusing delay under section 5 of the Limitation Act." ' The Judge further reasoned that in view of the principle, the amendment in a decree does not bring about any change in the date of the decree and the time for filing an appeal against the decree, therefore, runs from the date of the decree and not from the date on which it is amended. The learned Judge also reasoned that the decisions of the Madras High Court were not helpful in cases of amendment of decrees under section 151 or section 152 of the Code. The amendment of a decree under section 151 or section 152 does not alter its date and if so under the relevant article time runs from the date of the decree. 16. From the cases considered the following principles, in my opinion, appear to be well-established ;- (i) Time for filing an appeal runs from the date of the judgment and the decree in spite of correction, variation or amendment thereof, unless the amendment is of such a nature that it affects the original judgment and the decree in material respect. (ii) If a decree is amended in material respect so as the rights, privileges, liabilities or obligations thereunder are varied, then the time for filing appeal will run from the date of such amendment or variation provided such amendment or variation comes under attack by way of a ground in appeal. (iii) Amendment of the judgment and/or the decree under sections 151 and 152, C. P. C. By correction of particulars simpliciter or by supplying any omission under sections 151 and 152, C. P. C. At a later stage would not give fresh starting point of limitation. 17. Now, remains the question whether the amendment of a decree by providing time therein in compliance of section 82, C. P. C. Is such an amendment that it would give fresh start to the point of limitation. In my c opinion, such an amendment is only of procedural in nature as does not affect the rights and obligations of the parties recognized or imposed by the judgment, or the decree and, therefore, it would not give rise to fresh starting point of limitation. 18. This brings me to the question whether delay should be condoned under section 5 of the Limitation Act or not for such applications have been filed in all the appeals. The delay in filing the appeal it is claimed. Was inter alia due to the mistaken advice of the counsel that time for filing appeal will run from the date of amendment of the decree as the same was not executable because of non-mentioning of the time within which payment under the decree was to be made. I think that such an advice could possibly be given and since it is possible that the appellant might have remained under the impression that as the decree was not executable as it stood before the amendment, he could file appeal after the decree was amended. In these circumstances it could not be said that the appellant lacked in bona fide. Mr. Riaz Ahmed Syed has referred to me two
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decisions of Calcutta High Court and Oudh Chief Court namely Nandalal Ganguli v. Dasarathi Mukerjee and others and Muhammad Yasin Khan v. Mt. Hansa Bibi and others. ' In the first named case the Division Bench of Calcutta High Court held that even in a case in which the amendment of the decree, which is applied for by the decree-holder, has no relation to the grounds upon which the validity of the decree is sought to be challenged, circumstances may appear which may justly bring the case within the meaning of the expression "sufficient cause" in section 5. In considering whether "sufficient cause" has been made out or not within the meaning of section 5 the question of bona fides has got to be taken into account. It was observed "I am of opinion that even though the application for amendment of the decree in the present case related only to a certain item of costs, the petitioner is not precluded from saying that it was on account of the filing and pendency of that application that he thought that he was entitled to wait until it was disposed of before he could be called upon to prefer this appeal. This circumstance does not appear to me to suggest that the petitioner was either negligent or was guilty of any such conduct as would debar him from asking the Court to exercise in his favour the discretion which it has under the provisions of section 5, Limitation Act. In considering whether the "sufficient cause" has been made out or not within the meaning of that section, the question of bona fides has got to be taken into account and I am unable to find that the petitioner's conduct in not preferring the appeal earlier than he has done, was actuated by anything else than a bona fide belief that he was entitled to wait. In this view of the matter, I am of the opinion that the present Rule should be made absolute." 19. I may mention that in this case the case of Brogo Lal Rai v. Tara Prosanna was referred, wherein the following propositions laid down were considered by the Division Bench. "(i) Every amendment made in a decree under section 206, Civil P. C., does not necessarily entitle a party, who prefers an appeal against the decree, to claim an extension of time under para. 2, section 5 Limitation Act ; whether there is sufficient cause for such extension must depend upon the circumstances of each individual case. (ii)If the grounds on which the appeal is based are intimately corrected with the amendment of the decree, or if the grounds are directed against the decree only in so far as it has been amended, the Court should exercise in his (that is to say, the applicant's) favour the discretion rested in it by para. 2, section 5, Limitation Act. (iii) If the amendment has no relation to the grounds upon which the validity of the decree is sought to be challenged in appeal, such appeal should not be admitted out of time." 20. The learned Judges agreed with the first two propositions but they did not agree with the third proposition. Mukerjee, J. Who wrote the opinion of the Court observed : "With this proposition I am afraid I cannot agree, because it means to circumscribe and limit the discretion which section 5 Limitation Act, confers upon a Court by the terms in which that section is expressed. In my opinion, even in a case in which the amendment has no relation to the grounds upon which the validity of the decree is sought to be chal- lenged in appeal, circumstances may appear which may justly bring the case within the meaning of the expression "sufficient cause" which appears in that section. In addition to the case cited above two other cases have also been referred to on behalf of the opposite party. One of them is the case of Gajadhar Singh v. Basant Lal AIR 1921 All. 60-61. In that case the case of Brojo Lal Rai Chowdhury v. Tara Prosanna Bhattacharji (1905) 3 C L J 188 was followed and it being found that the appeal which was sought to be preferred did not attack the amended decree or raise any question in connextion with it, the learned Judges held that the appellant could not call in his aid the provisions of section 5 Limitation Act." I respectfully agree with the above reasoning and observations.8 9 10
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21. In Muhammad Yasin Khan's case a Division Bench of the (1) (1906)3 C L J 188 Chief Court of Oudh consisting of King, C. J. And Smith, J. Following Calcutta case referred to above observed as follows :- "For the applicant it is contended that the Court below was wrong in thinking that no appeal would lie against the amended decree. As authority for this proposition the case of Alice Maud v. J. C. Galstaun AIR 1927 Cal. 114 has been cited. In that case it was held that the amended decree supersedes the original decree, and so an appeal would lie against the amended decree. We think it is unnecessary for us to decide that point, as good authority has been shown for the view that even if an appeal against the amended decree would ordinarily be barred by limitation, nevertheless time could reasonably be extended under section 5, Limitation Act, in view of the amendment. On this the rulings in Deep Singh v. Raghu Nath Singh AIR 1930 Oudh 463 and Nanda Lai v. Dasarathi AIR 1932 Cal. 534 are applicable. We think that limitation could, if necessary, be extended under section 5 so as to allow of an appeal by the defendants against the amended decree in consequence of the amendment." 22. I may also here refer to Deep Singh v. Raghu Nath Singh AIR 1930 Oudh 463. In this case it was held that it is not every amendment in a decree which has been made suo mow by the Court that entitles a party to claim an extension of time under section 5 of the Limitation Act ; whether there is sufficient cause for extension must depend on the circumstances of each G individual case. It was further held that if the amendment has no relation to the grounds upon which the validity of the decree has been challenged, such appeal should not be admitted out of time. I agree with the first proposition but I do not agree with the second proposition for the reasons stated in the case of Nanda Lal Ganguli v. Dasarathi Mukerjee and others. ' I may however, state the facts of this case. These are : `R' obtained decrees in two suits against `D' on 22nd December, 1928. Subsequently it was discovered that the decrees were not correct. There was absolutely no mistake in the preparation of the decree but the decree which should have been attached to the file of the first case was attached to the file of the second and vice versa. The decrees were amended by the Court on 28th February, 1929. D applied for…
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