1988 PLP 249 (CLC)

Batchu Venakatrao v. Surneedi Satthiraju and others AIR 1946 Mad. 291 rel. (b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑

0. XLI, R. 19 & S. 115‑‑Revisional jurisdiction, exercise of‑‑Appeal against amended decree where previous appeal against original decree had been dismissed‑‑Finding of Appellate Court, whereby such Court declined to consider points already determined in original decree and restricting itself to new points available against amended decree‑‑Such finding being in consonance with law, and not open to any valid exception, held, would not render it open to exercise of revisional jurisdiction by High Court‑‑Revision being devoid of merit was dismissed in circumstances. Iqbal Mahmood Awan for Petitioner T‑he petitioner Mst. Amtul Saboor Raana was sued out by her mother Mst. Amtul Ghafoor, the respondent herein, for revocation of a gift‑deed registered on 11‑5‑1973 with regard to a house bearing No.137, New Shalimar Colony, Nawankot, Multan Road, Lahore for the reason that being married and living with her husband alongwith the plaintiff in this house, she had become arrogant and even insolent towards her for the reason of her being a widow left at her mercy. She claimed that the gift was never completed in accordance with the Muslim Law inasmuch as it was neither accompanied by offer and acceptance nor was possession of any kind delivered there-under to her. Petitioner contested the suit by denying all the allegations made by the plaintiff and also raising the pleas of limitation and estoppel. However, she did not raise any objection to the form of the relief claimed in the suit as being improper and therein impliedly admitted that possession of the suit property was not with her. The suit was consequently set down to be tried on a total of four issues, including that of the relief. Parties led the evidence of their choice. Learned trial Judge concluded on the basis of overwhelming evidence that the gift‑deed was a mere paper‑transaction which was neither accompanied by offer and acceptance nor had possession be transferred to the defendant under the impugned gift which was, therefore, held as invalid, and more particularly so because of the evidence of P.W.7 Mr. Ghulam Haider Alghazali, Advocate appointed as Local Commissioner to find out the actual state about the occupation of the property in dispute wherefrom plaintiff was held to have been dispossessed after the suit, only a little before his report dated 20‑7‑1979. The defendant did not stop at making a clumsy effort to pass off that the gift in dispute had been perfected by delivery of possession but she also subsequently appended her signatures on the gift‑deed with a view to asserting offer and acceptance of the gift. In result, learned trial Judge decreed the suit against the defendant‑petitioner by his judgment dated 1‑3‑1982 on the basis of the authorities reported respectively as Shamshad Ali Shah and others v. Syed Hassan Shah and others P L D 1964 S C 143; Malik Mahram Khan v. Baz Khan and two others P L D 1955 Lah. 516 and Anjuman Islamia, Muzaffargarh v. Ashiq Hussain and another P L D 1967 Lah. 336.

2. Defendant challenged the decree in an appeal filed in the District Court which was admitted to regular hearing on 13‑4‑1982 but for a period of almost six months she did not pay the process‑fee for service of the respondent and finding that there was no reasonable explanation with regard to her contumacious conduct, learned Additional District Judge dismissed her appeal on 9‑10‑1982 under Order XLI, Rule 17 of the C.P.C. Defendant maintained a review petition there against on 10‑11‑1982 wherein again no plausible explanation was given about the default. This application was still pending when the plaintiff moved a petition in the trial Court under Section 152 of the C.P. C. for a decree of possession also being passed in her favour due to her dispossession by the defendant during the pendency of the suit and an amended decree for possession was accordingly passed in her favour on 7‑11‑1982 by the trial Court. Defendant filed a fresh appeal on 28‑11‑1982 against the amended decree and also put in an application dated 17‑4‑1985 for her aforementioned review petition being treated as an application under Order XLI, Rule 19 of the C.P.C. Learned Additional District Judge was, however, not persuaded to accept the prayer for conversion and he dismissed the petition accordingly by his order dated 24‑2‑1986.

3. The subsequent appeal against the amended decree was then heard by the learned Additional District Judge who found himself constrained to hold on the authority of Batchu Venakatarao v. Surneedi Sathiraju and others A I R 1946 Mad. 291 that the right of appeal available against such a decree has to be treated as restricted to the new grounds available on account of amendment and the points covered by the original decree cannot come up to be considered if the subsequent appeal is out of time reckoned from the date of the original decree. This view appears to also be sound because otherwise the law of limitation will get defeated. The same consequence would also follow from the provision made in rule 19 of Order XLI of they C . P. C . and the points already determined in the original decree can be argued in the appeal filed against the amended decree only if the subsequent appeal is within time from the date of the passing of the original decree. Petitioner's Advocate has not pointed out any other precedent case which may have taken a different view.

4. No other point has been argued before me.

5. Decrees passed by the two Courts below are not open to an valid exception and are eminently justified on the record. Thus there does not emerge any case at all for exercise of revisional jurisdiction. Hence, dismissed in limine. A.A./A‑215/L Revision dismissed.