P L D 1955 Lahore 629 (PLP)

KAIKAUS, J.-‑‑These four Civil Revisions, Nos. 20 to 23 of 1955, arise out of four suits filed before a Psnchayat, and illustrate, if the allegations of the petitioner be true, the extent to which powers granted to Panchayats can be abused. Barkat Ali respondent filed four suits against Hafiz Ahmad petitioner before the Panchayat of Kot Pindi Dass, Tahsil Shahdara, each suit being for a sum of Rs.

200. The allegations in each plaint were that the respondent had advanced the petitioner Rs. 200 for purchase of paddy which bad not been paid back. The reason why the Panchayat had jurisdiction was stated to be that dealings between the parties at the time of filing the suits were in Kot Pindi Dass. The words used are " ab choonke lain dain andar hadud raqba Kot Pindi Dass hai, is liay panchayat haza ko qabil‑i‑da'wa sama'at hasal hai." These suits were filed at intervals of a few days. The dates on which the amounts were alleged to have been borrowed by the petitioner were also separated from one another by a few days. The files of these cases show that in every case a summons was ordered to be issued to the petitioner, it was returned with a report that the petitioner refused service, and on this, without any further proceedings, a decree was passed. The case of the petitioner is that the whole of these proceedings are fraudulent. He points out that neither he nor the respondent belongs to Kot Pindi Dass, and in fact this is not contested by learned counsel for the respondent. He alleges that these decrees are the result of a conspiracy between the members of the Panchayat and the respondent, that even the plaints are in the handwriting of a member of the Panchayat anti that no evidence has been recorded. Even the respondent himself was not examined by the Panchayat. The transactions which are the basis of the suits, he says are fictitious, as there is no reason why there should be any dealings between him and the respondent at Kot Pindi Dass. Neither of them belongs to or lives at Kot Pindi Dass. 1n fact the plaints do not allege that the borrowing had taken place at Kot Pindi Dass. The vague words quoted above would mean that the dealings between the parties at the time of the suit were at Kat Pindi Dass. The petitioner explains that he and the respondent had carried on a business as partners at Shahdara which as wound up arid which led to disputes and the respondent instead of filing a suit in a straightforward manner has managed to get decrees in collusion with the Panchayat. 'The petitioner allegs further that he never came to know of these decrees till execution of the decrees was sought against him in the Court of the Senior Civil Judge. He then filed petitions for revision against these decrees. A date was fixed for hearing the parties having been required to produce evidence. He had summoned a clerk of the Panchayat to produce the records and had paid the process -fee and expenses, but that the learned Senior Civil Jugde without any adequate reason refused to adjourn the proceed ings and dismissed his petitions for want of proof. Against these orders of the learned Senior Civil Judge, the present petitions for revisions have been filed. Learned counsel for the respondent takes a preliminary ob jection that no revision lies to the High Court. Learned counsel refers to section 65 of the Punjab Village Panchayat Act 1939 under which decrees passed by the Panchayats are to be final except that they, are subject to the revisional jurisdiction of the District Judge under section 53 of the Act. Learned counsel urges further that the Panchayat is not a subordinate Court within the meaning of meaning of section 115 of the Civil Procedure Code. On a full consideration of the matter I have reached the conclusion that the High Court has no jurisdiction under section 115 Civil P. C. to inferfere with a decree passed by a Panchayat. Section 65 of the Punjab Village Panchayat Act runs as under :‑ " 65. (1) A Panchayat shall not be competent to cancel, revise or alter any sentence, decree or final order passed by it in any judicial proceedings, except ex‑pane decrees or orders ; and subject to the provisions of sections 39 and 53 no sentence, decree or other order passed by a Panchayat in judicial proceedings shall be subject to appeal, revision or review by any other Court or authority. (2) The provisions of sections 10 and 11 of the Code of Civil Procedure and section 403 of the Code of Criminal Procedure shall apply to all civil and criminal proceedings before a Panchayat." Section 53 to which reference is made runs: " 53. (1) The District judge may of his own motion or on an application of the party aggrieved set aside or modify any decree or order made by a Panchayat in a civil suit, or direct the re‑trial of the suit by the same or any Panchayat or by any other Court subordinate to him if he is satisfied that there has been a failure of justice. (2) . . . ." Section 39 is similar to section 53 and provides for the revisional power of the District Magistrate in criminal cases. It will be clear from a perusal of section 65 of the Act that a decree passed by a Panchayat is not liable to be inter fered with by any appellate or revisional authority excepting the District Judge. (I may explain here that the powers of the District judge have been delegated under section 70 of the Punjab Village Panchayat Act to the Senior Civil Judge). If we keep in mind the scope and object of the Punjab Village Panchayat Act no doubt can be entertained on the point. The object of this Act was to provide a speedy method of settling petty disputes. If every case was liable to be carried to the High Court, the very object of the Act would be defeated. Reading sections 65, 53 and 39 together it is apparent that the order of the Panchayat was intended to be subject only to the revisional powers of the District Magistrate and the District Judge. As regards the argument that a Panchayat is a " subordinate Court " within the meaning of section 115 Civil P. C., in the first place it is not correct to c say that it is ` subordinate '. Every inferior special Court created by the legislature is not necessarily subordinate to High Court. At the same time, section 65 of the Panchayat Act would have the effect of excluding the case from the operation of section 115 Civil P. C. even if it was otherwise within its scope. It is not contended that section 65 is Governor‑General. Also the Civil Procedure Code does not as provided in section 4 override any special or local law. In fact learned counsel for the petitioner has been forced to concede that in cases where the Panchayat acts with jurisdic tion, the High Court will have no jurisdiction to interfere under section 115 Civil P. C. He urges, however, two points. The first is that if the order of the Panchayat be entirely without jurisdiction, it will be liable to be set aside in revision because it will not be an order under the Punjab Village Panchayat Act at all. The second is that in each of these revisions it is the order of the Senior Civil judge and not the order of the Panchayat which is being attacked and that order, he says, is subject to the revisional jurisdiction of the High Court under section 115 of the Civil Procedure Code. As regards the first point, it should be apparent that the moment the inability of the High Court to interfere with a decree of the Panchayat passed with jurisdiction is conceded, the applicability of section 115 Civil P. C. is excluded. Under section 115 Civil P. C. the High Court has jurisdiction not only in a case where the order is passed without jurisdiction but even in cases where the Court acts with illegalicy or with material irregu larity in the exercise of its jurisdiction. If it be conceded that in cases of illegality or material irregularity, the High Court is unable to interfere, there is a necessary implication that section 115 Civil P. C. will not cover the case. The argument, that as the order is wholly without jurisdiction and, therefore, not within the Panchayat Act and as it is passed by a Civil Court it must be set aside by the High Court in revision, is unsound. By acting without jurisdiction a Court not other wise subject to the revisional jurisdiction of the High Court, does not become a subordinate Court. The second argument put forward is also without force. There is no doubt that it is an order of the learned Senior Civil Judge that is being attacked, but it will be observed from section 115 Civil P. C. that it only applies to cases where the High Court is capable of passing an order which the Court subordinate to it could have passed. The Senior Civil judge could have passed an order setting aside the decree of the Panchayat or confirming it or remanding the case for a re‑trial. The High Court cannot, in view of section 65 of the Punjab Village Panchayat Act, pass any of these orders. Section 115 enables the High Court to pass an order which the Court subordinate could have passed and the necessary result is that in cases where the High Court is incapable of passing an order which the Court subordinate could have passed, section 115 would not come into operation. Where a Court, which is otherwise subordinate to the High Court, has been clothed with a special revisional jurisdiction so that an order in the proceedings can be passed only by that Court, the revi sional jurisdiction of the High Court is not attracted with respect to those proceedings. Learned counsel for the petitioner relies on Sarbuland v. Emperor (A I R 1941 Lah. 5) in which it was held that the High Court exercises its jurisdiction under sections 439 and 561‑A of the Criminal Procedure Code in respect of orders passed by Panchayats in criminal cases. Another case relied upon by him is Kundan Lal and others v. Ram Chand (A I R 1934 Lah. 156) wherein Agha Haider J. held that where a village Panchayat has exceeded its jurisdiction the High Court could interfere under section 107 of the Government of India Act or in the exercise of its inherent powers. As regards the last‑mentioned case, it is to be observed that section 107 of the Government of India Act 1915 is no longer available and section 224 of the Government of India Act 1935, which is the provision now applicable, does not, as has been held in Sarbuland v. Emperor, apply to cases which are not otherwise subject to appeal or revision. So far as the inherent powers of the Court are concerned, I am of the opinion that they cannot be invoked so as to make up for lack of revisional powers. They are appropriate in cases where some pro ceedings with jurisdiction are already pending and cannot be the basis of a new jurisdiction. So far as the case Sarbuland v. Emperor is concerned, it is sufficient to say that the reason on which it is based does not apply to a civil suit or a decree. It may be stated here that both these cases were under the Punjab Village Panchayat Act 1922, but the relevant pro visions in the Act of 1939 are similar and the fact that those cases were decided under the old Act would not make any difference to the argument. The result is that these revision petitions have to be dismissed. However, that does not mean that the only remedy in a case, where the village Panchayat acts without jurisdiction or fraudulently, is the filing of a regular suit by the aggrieved partyin order to challenge the decree. Under section 52 of the Punjab Village Panchayat Act a decree passed by a Panchayat has to be executed in a Civil Court and when the decree‑holder applies to the Civil Court for execution of the decree, it is always open to the judgment‑debtor to object that the decree was passed without jurisdiction. The peti tioner can, therefore, take this objection before the Senior Civil judge, who is executing these decrees. I might have acted in this matter suo motu (on account of some prima‑facie defects in the proceedings) and directed the executing Court to go into the question as to whether these decrees had been passed without any jurisdiction and to stay the execution pro ceedings till the matter was decided. However, I think, the petitioner will not in any way suffer if he has to file objections to executions before the Senior Civil Judge, or whatever Court may be the executing Court. That Court will, on such objections being filed, then go into the question whether the decrees are vitiated because of fraud or lack of jurisdiction. If it is found that the decrees are void, it will refuse to execute them, and if there is any money which has already been paid or realised, it will be within its jurisdiction to‑order refund of the same. These revision petitions are dismissed but there is no order as to costs. A.H. Petitions dismissed.