Case: Ebrahim Aboobakar And Another Vs. Custodian General Ofevacuee Property

in the same judgment made the following observations:"The preliminary objection to the appeal is two-fold: (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 has been against them. How it can be said that they are not persons aggrieved, by the decision, passes my understanding. When two persons are in the position of litigants before the High Court, and the decision of the court goes against one of them, how it can be said that he is not a person aggrieved by the decision. I cannot understand. I am clearly of opinion that the Board were persons aggrieved by this decision. Then (2) it is said that the decision is not an order. When the High Court makes a declaration of right, and further orders the costs of the application to be paid (which is the common form here used), and that is drawn up and sealed with the seal of the Court, and, I suppose placed on record, as all orders of the High Court are, it seems to me that it is clearly an order of the Court."20. 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.21. 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 respondent 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 involved 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 on 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 pointed out was in the description of the order attacked in appeal. It is well settled that such errors of description cannot be allowed to prejudice the right of a party. The two orders of the 8th and 9th made on consecutive days, though under different provisions of the Ordinance, were interlinked and the latter order was merely consequential on the conclusion reached on the 8th and the description in the memorandum of appeal that the appeal was against the order of the 9th cannot be considered as really an error of a kind of which serious notice could be taken.22. The last point raised before us was not taken in the High Court and therefore we have not the benefit of that courts 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 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 without 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.23. 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. When a certain person claiming to be interested in getting a property declared evacuee property is allowed to put in a written statement and lead evidence, then the decision of the court whether favourable or unfavorable 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", 1949 F C R 667, on an analogous provision of the Code of Civil Procedure contained in Orders XL, Rule 1 and XLIII, Rule 1(s). Order XLIII, Rule I(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 1 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 order made by the Additional Custodian refusing to declare Aboobakar an evacuee and his property evacuee property was an order made under section 7 of the Ordinance and was therefore appealable under section 24.24.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 subject-matter, 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 particular facts collateral 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 asa court 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 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 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 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 respondent quashing the order of the 13th May 1950 was right. We are further of the opinion that none of the contentions raised has any meritcivil 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 sucha certain person claiming to be interested in getting a property declared evacuee property is allowed to put in a written statement and lead evidence, then the decision of the court whether favourable or unfavorable to him has to take the form of an adjudication and necessarily amounts to anour opinion, therefore, the order made by the Additional Custodian refusing to declare Aboobakar an evacuee and his property evacuee property was an order made under section 7 of the Ordinance and was therefore appealable under section 24.