# Evacce Evuee v. The District Mllgistrttte, Thana, and Others

- **Citation:** [1952] 1 S.C.R. 696
- **Court:** Supreme Court of India
- **Decided:** 1951-05-24
- **Case number:** Civil Appeal No. 4 of 1952
- **Bench:** Patanjali Sastri C.J, Mehr Chand Mahajan, MuKHERJEA, DAs, VIVIAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/evacce-evuee-v-the-district-mllgistrttte-thana-and-others-60
- **Pages:** 15

## Headnote

Bomba)' Evacuees (Admi11istratio11 of Property) Act, 19490rdinance No. XXVII of 1949, ss. 7, 24-0rder refusing to declare
person evacuee-Whether appea/able-lnformant,
whether "person
aggrieved"-Right to appeal-CoHrts
with
limited juristliction--
Pau1er to decide facts upon which iurisdiction depends-Powers of
an appellate court-Grant of writ of certiorari-Guiding principles.
A writ of certiorari cannot be granted to quash the decision
of an inferior court within its
jurisdiction on the ground that
the decision is wrong.
It must be shown before such writ is
issued that the authority which passed the order acted without
jurisdiction or in excess of it, or in violation of the
principle~
of natural justice.
Want of jurisdiction may arise
from
the
nature
of the subject-matter, so that the inferior court might
not have authority to enter on the inquiry or upon some part of
'
•
.
,~
S.C.R.
SUPREME COURT REPORTS
6<Jl
it.
It may also arise from the absence of some essential preli·
minary or upon the existence of some particular facts collateral 1
to. the actual matter which the court has to try and which are
conditions precedent to the assumption of
jurisdiction
by it.
But
once it is held that the court has jurisdiction but while
exercising it, it made a mistake, the wronged party can only take
the course prescribed by law for setting
matters right
inasmuch
as a court has jurisdiction to decide rightly as well as wrongly.
When an inferior court or tribunal which has the power of
deciding facts is established
by the legislatur,e, it may in effect
say
that, if a certain state of facts exists and is sho\Vn to such
tribunal or body before it proceeds to do certain things, it shall
have jurisdiction to do such things but not otherwise.
There, it
is not for them
conclusively to decide whether that state of facts
exists, and, if they exercise the
jurisdiction without its existence,
what they do may be questioned, and it will be held that they
have acted without jurisdiction.
But the legislature may entrust
the court or tribunal itself with a jurisdiction which includes the
jurisdiction to determine
whether the preliminary state of facts
exists and on finding that it does exist, to proceed further or do
something more.
In the second case the rule that a tribunal
cannot give
itself jurisdiction by wrongly deciding certain facts
to exist does not apply.
Ordinarily, a c~urt of appeal has not only
jurisdiction to
determine the soundness of the decision of the inferior court as
a court of error, but by the very nature of things it has also
jurisdiction to determine any points raised before it in the
nature of prelimenary
issues by the parties. Such jurisdiction
is
inherent in its
very
constitution as a court
of
appeal.
Whether an
appeal is
competent,
whether a
party has
locus
standi to prefer it, whether the appeal in substance is from one
or another order and whether it has been preferred in proper
form and within the time prescrribed, are all matters for the
decision of the appellate court so constituted.
An order by an Additional Custodian in a proceeding under
Ordinance No. XXVII of 1949 refusing to declare a person an
evacuee and his property evacuee property is an order under
s. 7 of the Ordinance and is appealable under s. 24.
A person claiming
to
be
interested in an enquiry as to
whether a person is an evacuee and his property evacuee property,
who has filed a written statement and adduced
evidence,
is a "person aggrieved" by an order that the latter is not an
~vacuee and has a locus standi to prefer an appeal from the
order.
CML
APPELLATE
JuRISDICTION :
Civil
Appeal
No. 4 of 1952.
Appeal from the judgment and order
of the High Court of Judicature for the Punjab at
2-8 S.C. India/71
1952 -
Ebrahim
Aboobak_ar
and Another
v.
Custodian
General of
Evacuee
Property •
1952
Evacuee
Aboobakar
end Aneiher
v.
Custodian
General of
Evacuee
Property.
MRhajan
}.
698
SUPREME COURT REPORTS
(1952 J
Simla dated 24th May, 1951, in Civil Writ No. 15
of 1951.

## Text

1952
Evacce
Evuee
v.
The District
Mllgistrttte,
Thana,
and Others.
Bose /.
1952
May 26.
696
SUPREME COURT REPORTS
[1952}
orders; and among the lesser instances given to illustrate the exercise of parallel governmental
authority
are the ones set out in the first ground, namely the
mfliction of fines with the sanction of excommunication and boycott to ensure their payment and due
obedience to his orders. This point has no force and
is decided against the petitioner.
It will not be open
to him to re-agitate this afresh when his case is
reheard on the remaining issues.
All the four cases will now be set down
for hearing
on the remaining points which arise in them. As they
do not involve constitutional issues they need not go
before a Constitution Bench.
Agent for the petitioner m Petition No. 155 : M.SK.
Sastri for P. G. Goklzale.
Agent for the respondents and Intervener : P. A.
Mehta.
EBRAHIM ABOOBAKAR AND ANOTHER
v.
CUSTODIAN GENERAL OF
EVACUEE PROPERTY.
[PATANJALI SASTRI C.J., MEHR CHAND MAHAJAN,
MuKHERJEA, DAs and VIVIAN BosE JJ.]
Bomba)' Evacuees (Admi11istratio11 of Property) Act, 19490rdinance No. XXVII of 1949, ss. 7, 24-0rder refusing to declare
person evacuee-Whether appea/able-lnformant,
whether "person
aggrieved"-Right to appeal-CoHrts
with
limited juristliction--
Pau1er to decide facts upon which iurisdiction depends-Powers of
an appellate court-Grant of writ of certiorari-Guiding principles.
A writ of certiorari cannot be granted to quash the decision
of an inferior court within its
jurisdiction on the ground that
the decision is wrong.
It must be shown before such writ is
issued that the authority which passed the order acted without
jurisdiction or in excess of it, or in violation of the
principle~
of natural justice.
Want of jurisdiction may arise
from
the
nature
of the subject-matter, so that the inferior court might
not have authority to enter on the inquiry or upon some part of
'
•
.
,~
S.C.R.
SUPREME COURT REPORTS
6<Jl
it.
It may also arise from the absence of some essential preli·
minary or upon the existence of some particular facts collateral 1
to. the actual matter which the court has to try and which are
conditions precedent to the assumption of
jurisdiction
by it.
But
once it is held that the court has jurisdiction but while
exercising it, it made a mistake, the wronged party can only take
the course prescribed by law for setting
matters right
inasmuch
as a court has jurisdiction to decide rightly as well as wrongly.
When an inferior court or tribunal which has the power of
deciding facts is established
by the legislatur,e, it may in effect
say
that, if a certain state of facts exists and is sho\Vn to such
tribunal or body before it proceeds to do certain things, it shall
have jurisdiction to do such things but not otherwise.
There, it
is not for them
conclusively to decide whether that state of facts
exists, and, if they exercise the
jurisdiction without its existence,
what they do may be questioned, and it will be held that they
have acted without jurisdiction.
But the legislature may entrust
the court or tribunal itself with a jurisdiction which includes the
jurisdiction to determine
whether the preliminary state of facts
exists and on finding that it does exist, to proceed further or do
something more.
In the second case the rule that a tribunal
cannot give
itself jurisdiction by wrongly deciding certain facts
to exist does not apply.
Ordinarily, a c~urt of appeal has not only
jurisdiction to
determine the soundness of the decision of the inferior court as
a court of error, but by the very nature of things it has also
jurisdiction to determine any points raised before it in the
nature of prelimenary
issues by the parties. Such jurisdiction
is
inherent in its
very
constitution as a court
of
appeal.
Whether an
appeal is
competent,
whether a
party has
locus
standi to prefer it, whether the appeal in substance is from one
or another order and whether it has been preferred in proper
form and within the time prescrribed, are all matters for the
decision of the appellate court so constituted.
An order by an Additional Custodian in a proceeding under
Ordinance No. XXVII of 1949 refusing to declare a person an
evacuee and his property evacuee property is an order under
s. 7 of the Ordinance and is appealable under s. 24.
A person claiming
to
be
interested in an enquiry as to
whether a person is an evacuee and his property evacuee property,
who has filed a written statement and adduced
evidence,
is a "person aggrieved" by an order that the latter is not an
~vacuee and has a locus standi to prefer an appeal from the
order.
CML
APPELLATE
JuRISDICTION :
Civil
Appeal
No. 4 of 1952.
Appeal from the judgment and order
of the High Court of Judicature for the Punjab at
2-8 S.C. India/71
1952 -
Ebrahim
Aboobak_ar
and Another
v.
Custodian
General of
Evacuee
Property •
1952
Evacuee
Aboobakar
end Aneiher
v.
Custodian
General of
Evacuee
Property.
MRhajan
}.
698
SUPREME COURT REPORTS
(1952 J
Simla dated 24th May, 1951, in Civil Writ No. 15
of 1951.
M. L. Manekshatv (P. N. Bhagwati, with him) for
the appellant.
M. C. Setaluad, Attorney-General for India ( G. N.
foshi, with him) for the respondent.
1952. May 26. The Judgment of the Court was
delivered by
MAHAJAN J.- This is an appeal from the judgment
of the High Court of Judicature of the State of Punjab
· dated the 24th May, 1951, dismissing the petition filed
by the appellants for writs of certiorari, prohibition
and mandamus against the respondent ..
Aboobaker Abdul Rahman_, the father. of the appellants, was possessed of considerable movable as well
as immovable properties including a cinema theatre,
known as the Imperial Cinema, situate at Bombay.
Soon after the partition of India, he went to Pakistan
and was in Karachi in the month of September, 1947,
where he purchased certain properties in that month.
On informatjon supplied by one Tek Chand Dolwani
to the Additional Custodian of Evacuee Property, the
Additional Custodian started proceedings under the
Bombay Evacuees (Administration of Property) Act,
1949, against Aboobaker in or about the month of
July, 1949.
During the pendency of the said proceed ..
ings, the Government ·-of India Ordinance XXVII of
1949 came into force.
Thereupon, on the 16th December, 1949, the Additional Custodian issued a notice to
the said Aboobaker under section 7 of the Ordinanc{
and a further notice on the 11th January, 1950, to shov.
cause why his property should not be declared to be
evac_uee
property. Pursuant to
the said notices an
enquiry was held by the Additional Custodian of
Evacuee Property who after recording the statement
of the said Aboobaker and examining some other evidence produced by the said Tekchand Dolwani and
takino- into consideration the written starement filed
"
by him, adjudicated on the 8th February, 1950, that
-
;
-
'
-
S.C.R.
SUPREME COURT REPORTS
the said Aboobaker was not an evacuee. He, however,
issued another notice to Aboobaker on the same day
calling upon Htm to show cause why he should not be
declared an intending evacuee under section 19 of the
said Ordinance.
On the 9th February, 1950, he adjudicated him as an intending evacuee.
On the 31st March, 1950, Tekchand Dolwani being
the informant and interested in the adjudication of the
said Aboobaker as an evacuee, filed an appeal against
the order of the 9th February to the respondent (The
Custodian General of India) praying for an order
declanng the said Aboobaker an evacuee and that he
being the first informant should be allotted the said
cinema.
On the 18th April, 1950, the Ordinance was
replaced by Act XXXI of 1950.
The appeal was heard by the respondent in New
Delhi on the 13th May, 1950.
At the hearing it was
urged on behalf of Aboobaker that he having been
declared an intending evacuee and he having accepted
that order, no appeal lay therefrom and that the said
Tekchand Dolwani was not a person aggrieved by any
order passed by the Additional Custodian and therefore had no locus standi to appeal under the provisions
of section 24 of Ordinance XXVII of 1949.
The hearing of the appeal was concluded on the 13th
May, 1950, and it is alleged in the written. statement of
the respondent that the order was dictated by him on
the same day after the conclusion of the hearing and
was also signed by him and it bore that date.
Aboobakcr suddenly died on the 14th May, 1950, which was
a Sunday and the respondent pronounced the order
written on the 13th to the counsel of Aboobaker on the
15th May, 1950. By this order the respondent held that
the appeal purpodng to be from the order passed by
the Additional Custodian on the 9th February, 1950,
declaring the said Aboobaker an intending evacuee in
effect and in substance was directed against the Qrder
made on the 8th February in the proceedings started
under section 7 of the Ordinance declining to declare
the said Aboobaker's ,property as evacuee property.
1952
Ebrahim
Aboobakar
and Another
v.
Custodian
General o/
Evacuee
Property.
Mahajan
/.
1952
Ebrahim
Aboobakar
and Another
v.
Custodia11
General of
Evacuee
Property.
Mahaian
/.
700
SUPREME COURT REPORTS
[1952]
He further held that the said Tekchand Dolwani was
interested in the appeal and had locus standi to prefer
it.
Having
overruled
the
preliminary
objections
raised by the appellants, the hearing of the appeal
was adjourned and further inquiry was directed to be
made in the matter. Notices of the adjourned hearing
of the appeal were given from time to time to the two
appellants. On the 30th February, 1951, they were
informed that the appeal would be heard on the 7th
March, 1951.
The two appellants allege that they are
some of the heirs entitled to the estate of the said
Aboobaker. Two of his sons migrated to Pakistan
and one of the appellants is his third son and the
other appellant is his only daughter.
Being aggrieved by the order of the respondent
dated the 13th May, 1950, the appellants filed a petition in the High Court of the State of Punjab at Simla
on the 26th February, 1951, under article 226 of the
Constitution, praying for a writ of certiorari for quashing and setting aside that order and for a writ of prohibition or mandamus directing the said respondent io
forbear from proceeding with the heating of the said
appeal on the 7th March, 1951, or on any other date
or dates.
The appellants raised the following contentions in
the petition :
1. That the appeal preferred by Tekchand Dolwani before the respondent was in terms an appeal
against tl1e order of the 9th February, 1950, and not an
appeal against the conclusion reached on the 8th
February, 1950, and inasmuch as the said order was
made against Aboobaker and not in his favour, Tekchand had no right of appeal against the same and the
respondent had no jurisdiction to entertain it or make
any order therein.
2. That Tekchand was not a person aggrieved by
the order dated the 8th February, 1950, within the
meaning of section 24 of the Ordinance and was not
entitled to appeal against the said order and inasmuch
as no appeal lay at his instance, the respondent had
no jurisdiction to entertain it or make any order therein.
\ •..
t
-
'
7
-~
-
_.,
•
•y
S.C.R.
SUPREME COURT REPORTS
701
3. That after the death of Aboobaker on the 14th
May, 1950, the respondent ceased to have jurisdiction
to proceed with the hearing of the appeal or make any
order therein.
The High Court held that the order of the respondent pronounced on the 15th May, 1950, was not a
nullity and_ the appeal preferred by Tekchand was in
effect and in substance an appeal from the order passed
by the Additional Custodian on the 8th February, 1950,
and that Tekchand was ·a preson aggrieved within
the meaning of section · 24 of the Ordinance. It
accordingly dismissed the petition with costs but on
the 27th June, 1950, granted him leave to apr.eal to
this Court under article 133 of the Constitution.
On
the 30th July, 1951, during the pendency of the appeal
in this Court, the respondent finally pronounced orders
on the appeal of Tekchand and held that Aboobaker
was an evacuee and his property was declared evacuee
property.
A petition under article 226 for quashing
this order is pending in the High Court of the State of
Bombay.
The learned counsel for the appellants canvassed the
following points before us :
1. That the appeal to the respondent was against
the order of the 9th and not against the order of the
8th, and as no appeal lay against the order of the Sith
the respondent had no jurisdiction to hear it.
2. That assuming that the appeal was preferred
against the order of the 8th, that order was not an
appcalable order inasmuch as
section
24
allows
an
appeal agaimt an order declaring properties evacuee
properties and not against any conclusion that a certain person is or is not an evacuee, and thus no appeal
was competent at all which could he heard by the
respondent.
3. That Tekchand was not a person aggrieved
within the - meaning of section 24 of the Ordinance
and had no locus standi to prefer the appeal and the
respondent had no jurisdiction to entertain it at his
instance.
1952
Ebrahim
Aboobakar
and Another
v.
Custodian
General of
Evacuee
Property.
Mahajan
/.
1952
Ebrahim
Aboobakar
ind Another
v.
Custodian
General oj
Evacuee
Property,
Mahajan
/,
702
SUPREME COURT REPORTS
[1952}
4. That the order pronounced on the 15th after
the death of Aboobaker was a uullity.
It is mentioned in the judgment of the High Court
that Shri M. L. Manekshah conceded that the death of
Aboobaker docs not in any way affect the validity of
the order pronounced by the Custodian General on the
15th May, 1950.
The learned counsel adopted practically the same attitude before us in view of the affidavit of the respondent in which it was affirmed that
the order in question was dictated on the 13th
May,
1950, and -was signed
011 the same date.
The High
Court on the principle of Order XXII, Rule 6, Code
of Civil Procedure, held that an order written but not
pronounced could be pronounced even after the death
of the party affected.
'
In these circumstances the last contention of the
learned counsel docs not require any further consideration and is rejected.
The larger question that has been raised in the petition pending before the High Court of the State oi
Bombay that the properties of Aboobaker could
not
be declared evacuee properties after his death as they
had devolved on his heirs
was not raised
in these
proceedings and we have not been invited to decide it.
That being so, the question is lefo open.
The remaining three questions canvassed before us,
unless they are of such a nature as would make the
decision of the respondent dated the 13th May, 1950, a
nullity, cannot be the subject-matter of a writ of
certiorari. It is plain that such a writ cannot be
granted to quash the decision of an inferior court
within its jurisdiction on the ground that the decision
is wrong. Indeed, it must be shown before such a
writ is - issued that the authority which passed the
order acted without jurisdiction or in ·excess of it or in
violation of the principles of natural justice. Want of
jurisdiction may arise from the nature of the subjectmatter, so that the inferior court might not have
authority to enter on the inquiry or upon some part
of it.
It may also arise from the absence of some
essential preliminary or upon the existence of some
"
'
~-
,_
•
Y'
-
.
/
•
S.C.R.
SUPREME q)URT REPORTS
703
particular facts collateral to the actual matter which
the court has to try and which are conditions prrce ..
dent to the assumption of jurisdiction . by it. But once
it is held that the court has jurisdiction but while
exercisiing 'jr, it made a mistake, rhe '.Vronged party
can only take the course prescribed by law for setting
matters right inasmuch . as a court has jurisdiction to
decide rightly as well as wrongly. The three ques-
•ions agitated before us do not seem to be questions
which bear upon the jurisdiction of
the court of
appeal, 0r its authority to entertain them.
It was contended that no court of limited jurisdiction can give itself jurisdiction by a wrong decision 011
a point collateral to the merits of the case upon v1hich
tbe limit of its jurisdiction depends and that the questions involved in the appeal before the respondent
were collateral to the merits of the case. As pointed
out by Lord Esher, M. R., in Reg. v. Commissioner of
fncome T ax(1), the formula enunciated above is quite
plain but
its
application is often misleading. The
learned Master of the Rolls classified the cases under
two categories thus :
"'Vhen an inferior court or tribunal
or
body
which has to exercise the power of deciding facts, is
first established by Act of Parliament, the legislature
· has to consider what powers it will give that tribunal
or body.
It may in effect say that, if a certain statr.
of facts exists and is shown to sucb. tribunal or body
before it proceeds to do certain things, it shall have
iurl.sdiction to do such things bur not otherwise. There
it is not for them conclusive] 1 to drcide whether that
•tate of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be ques.
ti1:med, and it will be held that they have acted without
iurisdiction.
But there is anotl!r:r state of things which
may exist. The legislature may entrust tl1e tribunal or
body wit!t i.I jurisdiction which include-! the jurisdiction
to determine wliethcl' the preliminary state of facts exists.
as well as the jurisdiction, and on finding that it does
exist, to proceed further or do something more.
When
(1) 21 Q.B.D. 313.
1952
Ebrahim
Aboobakar
and Another
y,
Custodian
General of
Evacuee
Property,
Vfahairm
f.
1952
Ebrahim
Aboobakar
11nd Another
v.
Custodian
General of
Evacuee
Property.
Mahajan
f.
704
SUPREME COURT REPORTS
[1952]
the legislature are establishing such a tribunal or body
with limited jurisdiction, they also have to consider·
whatever jurisdiction they give them, whether
there
shall be any appeal from their decision, for otherwise
there will be none. In the second of the two cases I have
mentioned it is erroneo11s application of the formula to
say that the tribunal cannot give themselves jnrisdiction
by wrongly deciding certain facts to exist, because the
legislature gave them jurisdiction to determine all the
facts including the existence of the preliminary facts on
which the further exercise of their jurisdiction depends;
and if they were given iuhsdiction so to decide, without any appeal being given, there is no appeal froni
such
exercise
of
their
jurisdiction."
The
tribunal
constituted to hear appeals under section 24 has been
constituted in these terms :
"Any person aggrieved by an order made under
section 7, section 16, section 19 or section 38 may
prefer an appeal in such manner and within such time
as may be prescribed-
( a) to the Custodian, where the origiml order
has been passed by a Deputy or As,,;stant Custodian;
(b) to the Custo(fon-Genernl, where the original
order has been passed by the Custodian, an Additional
Custodian or an Authorized Deputy Custodian."
Like all courts of appeal exercising general jurisdiction in civil cases, the respondent has been constituted
an appellate court in words of the widest amplitude
and the legislature has not limited his jurisdiction by
providing that such exercise will depend on the existence of any particular state of facts.
Ordinarily, a
court of appeal has not only jurisdidion to determine
the· soundness of the decision of the inferior court as a
court of error, but by the very nature of things it has
also jurisdiction to determine any points raised before
it in the nature of preliminary issues by the parties.
Such jurisdiction is inherent in its very constitution
as a court of appeal. Whether an appeal is competent,
whether a party has /oms standi to prefer it, whether
the appeal in substance is from one or another order
-
•
•
-
,/
-·
S.C.R.
SUPREME COURT REPORTS
705
and whether it has been preferred in proper form and
within the time prescribed, are all matters for
the
decision of the appellate court so constituted. Such
a tribunal falls within class 2 of the classification of
the Master of the Rolls. In these circumstances it
seems to us that the order of the High Court of Punjab
that a writ of certiorari could not issue to the respond~
ent quashing the order of the 13th May, 1950, was
right.
We are further of the opinion that none of the
contentions raised has any merit whatsoever.
For a proper appraisal of the contention that Tekchand Dolwani is not a "person aggrieved" within the
meaning of those words 'in section 24 of the Ordinance,
it is necessary to refer to the rules made under the
Ordinance. It is provided in rule 5 (5).. that
a~y
person or persons claiming to be interested in the
enquiry or in the property being declared as evacuee
property, may file a written statement in reply to the
written statement filed by the persons interested
in
the property claiming that the property should not be
declared evacuee property; the Custodian shall then
either on the same day or on any subsequent day to
which the hearing may be adjourned, proceed to hear
the evidence, if any, which the party appearing
to
show cause may produce and also evidence which the
part)' claiming to be interested as mentioned above may
adduce.
In the proceedings
before
the
Additional
Custodian, Tekchand Dolwani filed a reply to the
written statement of Aboobaker and adduced evidence:
in suoport of the stand taken by h
11m that the property of Aboobaker
was
evacuee
property.
Further
Tekchand
Dolwani
was
the
first
informant who
brought to the· notice of the Custodian concerned that
the property of Aboobaker was evacuee property
and
in view of the order of the Ministry of Rehabilitation
he was, as a
first informant, entitled to first consideration in
the
allotment of this
property,
the
Additional Custodian was bound to hear him on the
truth ahd validity of the information given by him.
When a person is given a right to raise a contest in a
certain matter and · his contention is negatived, then
1952
Ebrahim
Aboobakar
and A.notht:f
v ..
Custodian
General of
Evacuee
Property.
Mahajan
f.
1952
Ebrahim
Aboobakar
and AnotAer
v.
Custodian
General of
Evacuee
Property.
Mahajan
/.
7(X)
SUPREME COURT REPORTS
r19s21
to say that he is not a person aggrieved by the order
does not seem to us to be at all .right or proper. He is
certainly aggrieved by the order disallowing his contention.
Section 24 allows a right of appeal to any
person aggrieved by an order made under section 7.
The conclusion reached. by the Additional Custodian
on the 8th February, 1950, that Aboobaker was not
an evacuee amounted to an order under section 7 and
Tekchand therefore was a person aggi:ieved by that
order.
Section 43 bars the jurisdiction of the civil
court in matters which fall within the jurisdiction of
the Custodian. In clause 1 (a) it provides as follows :-
"no civil court shall have jurisdiction to entertain
or adjudicate upon any question whether any property
is or is not evacuee property or whether an evacuee
has or has not any right or interest in any evacuee
property."
It is clear therefore that the Additional Custodian
has to find and adjudicate on the question whether
a certain property is or is not evacuee property and
whether a certain person is or is not an evacuee and
such an adjudication falls within the ambit of section
7 of the Ordinance.
Lord Esher M. R. in In re Lamb, Ex parte Board of
Trade(') observed as follows :-
"The meaning
of the term 'person aggrieved'
was
explained
by this Court in Ex paru Official
Receiver(').
It was there determined that any person
who makes an application to a Court for a decision,
or any person who is brought before a Court to subnlit to a decision, is, if the decision goes against l:im,_
thereby a 'person aggrieved' by that <lecision."
Lord Justice Kay in the same judgment made the
following observations :-
"The preliminary objection to the appeal is twofold : (1) It is said
that the Board of Trade are not
'persons
aggrieved'.
They are
persons
whom
the
court was bound to hear, if they wished to be heard,.
on the validity of this objection, ·and the decision bas
( 1 ) [1894] 2 Q.B.D. 805.
(')° 19 Q.B.D. 174.
-
\,..._II
<.
•.
,..,
'
'
--- ·-·-'
---~
'· j
,.,,
S.C.R.
cSUPREME, COURT.:REPORTS
<707.
been against them .. How it can be said that they are
_ I9.5:Z
not 'persons aggrieved', by the . decision, passes my
Ebrahim
understanding. \Vhen two persons are in the position
Aboobakar
of litigants before the High Court, and the decision of .and Another
, the Court goes against one of them, how it can be said
v.
that .he is not a 'person aggrieved' by the decision,
Ouatoaian
I cannot understand: I am clearly of opinion that the
0;;:::,.:1
Board were 'persons aggrieved' by this decision. Then .. Property.
(2) it is said that the decision is not an 'order'. When
--. __ -
_the High . Court makes_ a declaration . of right, and · Mahajan J.
further orders the costs of the application to. be paid
(which is the common form. here used), and that_ is
dr_aw_n .up an.d sealed with_ the seal of the Court, an_d,
I suppose plac_e.d on record, as all orders of· the High
.Court are, it seems t? me thatitis.clearly an order of
the Court.'.'
,
0
,
In our opinion, Tekchand Dolwani is a person
aggrieved within the rule stated in the decision mentioned above and the respondent rightly held that he·
had locus standi to prefer the appeal.
The next point urged was that the appeal had been
. preferred against the order of the 9th February and
not against the order of. the 8th and that the respon-.
dent had no jurisdiction to hear it. 'Whether the
appeal in· substance had been preferred against the
order of the 8th or the order of the 9th was a matter
which was certainly within the competence· of the
respondent to decide and does not involve any question
·of jurisdiction whatsoever. Be that as it may, we have
examined .the memorandum of appeal presented by
Tekchand Dolwani to the respondent and it appears to_
.. us that the High Court was right when it held that the-.
. appeal was in effect and in substance an ·appeal from
the order passed by the Additional Custodian oil the
8th February. The relief claimed in appeal concerns
the order of the. 8th and the grounds of appeal only
relate to this matter. The only defect poillted out was
in the description of the order attacked in appeal. .. It
· is well settled that such errors of description cannot
be a!lowed to prejudice the ri~ht of a party. The two
2~
_f
----F-·
I
(
f '
l,~
I
708
SUPREME' COURT REPORTS
[1952]
. 19.51
orders of the 8th and 9th made on consecutive days,
.
though under different provisions of , the Ordinance,
, J,,~"/:.~:,
were interlinked and the latter order was merely conseand Another 'quential on the conclusion·reached on the 8th and the
v.
•description in the memorandum of appeal that the
aus:odia,.
appeal was against the order of the 9th cannot be
a;:::,,7 , considered as really an error of a kin.d of which serious
-notice <;ould be taken. -
Pr<YP.,.~J.
The last point raised before us was not taken in the
·-.lI~hd}anJ. - High Court .and.therefore we have not the benefit of
that court's decision on the point~ It was contended
-that no appeal lay against the order of the Additional
Custodian dated the 8th February declining to declare
Aboobaker. an evacuee, that the only order that the
Custodian is entitled to pass undersectiori 7isanorder
declaring any property to be evacuee property and
that it is this order and this order alone which is
appealable under section 24. ,- In our opinion, this
_ contention is withouf force. Section 24 confers a right
of appeal against all orders made under section 7 and _
does not specify the nature of the orders made appealable. In an enquiry under section 7 the first point for
adjudication is whether a certain person falls within _
the definition of the word "evacuee" given in the
Ordinance._ .If he comes within the ambit of the
definition, then any property held by him becomes
evacuee property. The civil court is barred from
entertaining or adjudicating upon the questions whether the property is or is not evacuee property, or -
whether an evacuee has any right or interest in any
evacuee property.
The decision of the Custodian
· -whether in the affirmative or in the negative amounts .
to an adjudication under section 7 and is as such
appealable.
It was contended that when the Custodian reached
the conclusion that a certain person is not an evacuee,
then he is not entitled to make any order whatsoever
-but has just to file the proceedings. This contention
is unsound. \Vhen a certain person claiming to be
interested in getting a property declared evacuee proper~y is allowed to put in a written st;iteμient ;ind le;iq
\
1952
Ebrahim
Aboobakar
Mid Another
v.
Custodian
General of
Evacuee
Property.
Mahajan
/.
708
SUPREME COURT REPORTS
L1952J
orders of the 8th and <Jth made on consecutive days,
though under different provisions of the Ordinance
were interlinked and the latter order was merely conse'.
quential on the conclusion reached on the 8th and the
description in the memorandum of appeal that the
appeal was against the order of the qth cannot
be
considered as rea)ly an error of a kind ot which serious
notice could be taken.
The last point raised before us was not taken in the
High Court and therefore we have not the benefit of
that court's decision on the point.
It was contended
that no appeal lay against the order of the Additional
Custodian dated the 8th February declining to declare
Aboobaker an evacuee, that the only order that the
Custodian is entitled to pass under section 7 is an order
declaring any property to he , evacuee property and
that it is this order and this order alone which is
appealahle under section 24.
In
our opinion, this
contention is witliout force. Section 24 confers a right
of appeal against all orders made under section 7 and
does not specify the nature of the orders made appealahle. In an enquiry under section 7 the first point for
adjudication is whether a certain person falls within
the definition of the word "evacuee" given jn the
Ordinance.
If he comes within the ambit of the
definition, then
any property held by him becomes
evacuee
property.
The civil court
1s barred from
entertaining or adjudicating upon the questions whether the property is or is not evacuee property, or
whether an evacuee has any right or interest in any
evacuee
property.
The
decision
of
the
Custodian
whether in the affirmative or 'in the negative amounts
to an adjudication under section 7 and is as such
appealahle.
It was contended that when the Custodian
reached
the conclusion that a certain person is not an evacuee,
then he i> not entitled to make any order whatsoever
but has just to file the proceedings.
This contention
is unsound. When a certain person claiming to be
interested In getting a property declared evacuee prol''
perty is allowed to put in a written statement and lead
./
...... ~
. ,..
S.C.R.
SUPREME COURT REPORTS
709
evidence,
then the decision
of
the court whether
favourable or unfavourable to him has to take the
form of an adjudication and necessarily amounts to an
order.
Reference in this connection may be made to
the decision of
the Federal Court in Rayarappan
Nayanar v. Madhavi Amma(1) on an analogous provision of the Code of Civil Procedure contained in Orders
XL, Rule 1, and XLIII, Rule 1 (s). Order XLIII, Rule
1 (s) makes any order made under Order. XL, Rule 1,
appealable, while Order XL, Rule 1, only empowers the
court to appoint a receiver. It was held that the order
removing a receiver
was
appealable
under Order
XLIII, Rule I; inasmuch as such an order fell within
the ambit of Order XL, Rule 1, and the power of
appointing a· receiver included the power of removing
or dismissing him. The present case stands on a
higher footing. The power of granting a certain relief
includes obviously the power of refusing that relief.
In our opinion, therefore, the otder made by the Additional
Custodian refusing to
declare Aboobaker
an
evacuee and his property evacuee property was an
order made under section 7 of the Ordinance and was
therefore appealable under section 24 .
The result is that this appeal fails and is dismissed
with costs,
Appeai dismissed.
Agent for the appellants : Rajindar Narain.
Agent for the respondents : P. A. Mehta.
( 1) [1949] F.C.R. 667.
1952
Ebrahim
Aboobakar
and Another
v.
Custodian
General of
Evacuee
Property.
Makaian
f.