Raghavendra Venkatesh Burli and ors. Vs. Nalanaikanath Balakrishnadas Gujjar and ors. - Court Judgment

Excerpt:
property - revision - whether issue of notice to appellants could be set aside by exercising revisional power - notice issued to appellants asking for their say in matter - power of revision available to high court in matter of any case which has been decided by any subordinate court provided no appeal lies thereto or where order has been passed on merits - no order on merits was passed - mere issue of notice would stand on different footing than order was on merits - no revision available to appellants. - code of civil procedure, 1908. order 37, rule 3(5) :[arali nagaraj, j] leave to defend - plaiantiff company seeking recovery of amount due from defendants - defendants had supplied goods to plaintiff which were not found to be of standard quality - defenadnts raised triable issue suit which require full-fledged trial however, defence raised by them in respect of admitted part of claim of plaintiff besides being sham and illusory was not supported by specific facts - held, therefore defendants though entitled to unconditional leave to defend, same is restricted to disputed portion. - or (b) to have failed to exercise a jurisdiction so vested; provided that the high court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where--(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. the case must be one inwhich no appeal lies and further the subordinate court must have, in the decision of the case, exercised the jurisdiction not vested in it by law or failed to exercise its jurisdiction vested in it by law or, having assumed jurisdiction, it must have acted in excess of this jurisdiction illegally or with material irregularity. or (ii) the said order would occasion a failure of justice or cause irreparable injury to the party against whom it is made. the order in question by which the amendment was allowed could not be said to have finally disposed of the case and, therefore, it would not come under clause (a). 6. now the question is whether the order in question has caused failure of justice or irreparable injury to respondent 1. it is almost inconceivable how mere amendments of pleadings could possibly cause failure of justice or irreparable injury to any party. hence we cannot envisage a situation where amendment of pleadings, whatever be the nature of such amendment would even remotely cause failure of justice or irreparable injury to any party. it cannot be conceived of a situation that the proposed amendment if allowed would cause irreparable injury or failure of justice as the remedy of the respondent 1, as stated above, is by way of an appeal. we are, therefore, of the view that the order allowing the amendment would not come under clause (b)'.15. a reading of the said judgment would show that even if an order is passed unless the said order is shown to result in failure of justice and irreparable loss, the court could not interfere in its revisional jurisdiction. 17. in the case on hand, i am convinced that no failure of justice is caused to the petitioner by issue of a notice by the court.orderr. gururajan, j. 1. the inherent jurisdiction of this court under section 115 is invoked by the plaintiff-petitioners in this petition by way of challenge to the notices ordered on the three interim appeals filed by the applicants under order 1, rule 10 of the cpc.2. this is a case of tapping the doors of a court by the respondents on the following facts:3. the predecessors of the petitioners had tiled a suit for possession of the premises in terms of the bombay rent control act. the suit came to be dismissed. the appeal also stood dismissed, civil revision petition was filed in this court by the legal representatives of the deceased r.n. burli and v.n. burli. during the pendency of the said civil revision petition in this court, the predecessors of the petitioners filed another suit for possession. the earlier civil revision petition filed was allowed and the orders of the munsiff and district judge were set aside. matter was taken to the supreme court and the supreme court dismissed the special leave petition filed by the respondents. after disposal of the special leave petition, the petitioners got the subsequent suit amended by restricting their claims to the extent of 11 guntas and sought for a declaration of title and possession. they entered into a compromise before the lok adalath. compromise was recorded and an order was passed. on 6-12-2000, three interim appeals were filed by three petitioners claiming to be the proposed defendants 27 to 29 in terms of order 1, rule 10 of the cpc. they have also filed one more interim appeal seeking for an order not to draw any decree till the disposal of the three interim applications filed by them. the learned trial judge, in terms of his order dated 6-12-2000 issued notices in respect of three applications filed under order 1, rule 10. this order is challenged in this petition.4. notice was issued and the respondents have entered appearance.5. heard sri jayavittal rao kolar, and sri n.r. kanchi, learned counsels appearing for the parties and sri g.s. vishveshwara, learned counsel appearing for the 4th respondent.6. the counsel for the petitioners contends that the issue of a notice by the learned judge is required to be set aside by this court in this revision. they say that a long drawn litigation has come to an end through lok adalath and that the said order is being once again reopened in terms of order 1, rule 10 of the cpc. they say that the issue of notice is without jurisdiction and the same is liable to be set aside.7. per contra, sri g.s. vishveshwara, learned counsel contends that no revision is maintainable for a mere issue of notice. he wants the revision to be dismissed.8. a short question that require my consideration is as to whether this court has to exercise its revisional power by setting aside an order of issue of notice to the petitioners.section 115 reads as under;'revision.--(1) the high court may call for the record of any case which has been decided by any court subordinate to such high court and in which no appeal lies thereto, and if such subordinate court appears-- (a) to have exercised a jurisdiction not vested in it by law; or(b) to have failed to exercise a jurisdiction so vested; or(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the high court may make such order in the case as it thinks fit:provided that the high court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where-- (a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings, or(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. (2) the high court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the high court or to any court subordinate thereto'.9. a reading of the said section would show that the revisional power is available to this court in the matter of any case which has been decided by any court subordinate to this court and in which no appeal lies thereto. in the case on hand, there is no decision as such. there is no case decided as on today. an issue of a notice cannot be treated as a case decided in terms of section 115. therefore, no revision as such is available to the petitioners on the facts of this case,10. in this connection, it is relevant to notice the observations of this court made in m.c. madhura v. bharatiya vidya bhauan and ors., 1980(2) kar. l.j. 305which reads as under in para 3:'it is needless for me to point out that in order to exercise jurisdiction under section 115 of the cpc, there must have been a case decided by the subordinate court. the case must be one inwhich no appeal lies and further the subordinate court must have, in the decision of the case, exercised the jurisdiction not vested in it by law or failed to exercise its jurisdiction vested in it by law or, having assumed jurisdiction, it must have acted in excess of this jurisdiction illegally or with material irregularity. it is only in these circumstances, that this court gets jurisdiction to interfere with the impugned order sitting in revision. it is not every illegal order that is passed by the subordinate court that this court can interfere in revision. it may further be mentioned that the revisional powers are to be exercised this court in its discretion, to bring about substantial justice'.11. however, the counsel for the petitioners contends that the facts of this case would show that even issue of a notice requires my intervention. they say that the matter has been settled before the lok adalath and the petitioners are aggrieved by the same. he has got other remedies including making an application for setting aside the decree.12. they refer to kishan rao and anr. v. bidar district legal services authority and ors., : air2001kant407 a. ahmed pasha and anr. v. c. gulnaz jubeen, : air2001kant412 banwari lal v. smt. chando devi through l.rs. and anr., : air1993sc1139 s.g. thimmappa v. t. anantha and ors., : air1986kant1 and hamumaga v. anjanappa, 1973(2) mys. l.j. 96.kishan rao's case, supra, is a case with regard to a case of a party not being bound by decree of a lok adalath. this court notices that in such cases, parties can make an application before the civil court to set aside the decree.the second case is again an order passed by the trial court rejecting application for reference in exercise of the power under section 20 of the act.mir sardar ah khan and ors. v. special deputy collector, land acquisition (industries), hyderabad and ors., air 1973 ap 298is a judgment as to when the court can add parties in the litigation.air 1999 sc (sic) is again a case of a compromise and with regard to the entertainment of an application.13. all these cases stand on an entirely different footing. those are all cases where an order has been passed on merits. in the case on hand, no order as such has been passed. it is only a notice that has been issued to the petitioner asking for their say in the matter. a mere issue of a notice as mentioned earlier, would stand on a different footing than an order on merits. therefore, all these judgments at present are not available to the petitioner for the purpose of this revision.14. in fact, recently, the supreme court, while considering the scope of section 115 in prem bakshi and ors. v. dharam dev and ors., : [2002]1scr103 has ruled in paras 5, 6 and 7 as under:'5. the proviso to sub-section (1) of section 115 puts a restriction on the powers of the high court inasmuch as the high court shall not, under this section vary or reverse any order made or any order deciding a issue, in course of a suit or other proceedings except where (i) the order made would have finally disposed of the suit or other proceedings; or (ii) the said order would occasion a failure of justice or cause irreparable injury to the party against whom it is made. under clause (a), the high court would be justified in interfering with an order of a subordinate court if the said order finally dispose of the suit or other proceedings. by way of illustration we may say that if a trial court holds by an interlocutory order that it has no jurisdiction to proceed the case or that suit is barred by limitation, it would amount to finally deciding the case and such order would be revisable. the order in question by which the amendment was allowed could not be said to have finally disposed of the case and, therefore, it would not come under clause (a).6. now the question is whether the order in question has caused failure of justice or irreparable injury to respondent 1. it is almost inconceivable how mere amendments of pleadings could possibly cause failure of justice or irreparable injury to any party. perhaps the converse is possible i.e., refusal to permit the amendment sought for could in certain situations result in miscarriage of justice. after all amendments of the pleadings would not amount to decisions on the issue involved. they only would serve advance notice to the other side as to the plea, which a party might take up. hence we cannot envisage a situation where amendment of pleadings, whatever be the nature of such amendment would even remotely cause failure of justice or irreparable injury to any party.7. from the facts extracted above, it would show that appellants only wanted to bring to the notice of the court the subsequent facts and after amendment of the plaint, respondent 1 would get opportunity of file written statement and he would be able to raise all this defence. ultimately if the suit is decided against the respondent 1 he would have a chance to take up these points before the appellate court. it cannot be conceived of a situation that the proposed amendment if allowed would cause irreparable injury or failure of justice as the remedy of the respondent 1, as stated above, is by way of an appeal. we are, therefore, of the view that the order allowing the amendment would not come under clause (b)'.15. a reading of the said judgment would show that even if an order is passed unless the said order is shown to result in failure of justice and irreparable loss, the court could not interfere in its revisional jurisdiction.16. the counsel relies on hamumaga's case, supra, to contend that courts can interfere in the matter of issue of a notice. i have carefully perused the said judgment. that was a judgment dealing with the appellate power and not revisional power. the said judgment is not applicable to the facts of this case. no other judgment involving a notice under revision under section 115 is brought to my notice by the petitioner.17. in the case on hand, i am convinced that no failure of justice is caused to the petitioner by issue of a notice by the court. in these circumstances, i do not find any justifiable grounds to interfere in the case on hand.18. crp stands dismissed. however, i deem it proper to direct the petitioners to submit their reply within 3 weeks from today. if any such reply is filed, the learned judge is directed to pass orders within 2 weeks thereafter, since, it is one of the oldest case pending on the file of the learned judge. parties to bear their respective costs.

Judgment:
ORDER

R. Gururajan, J.

1. The inherent jurisdiction of this Court under Section 115 is invoked by the plaintiff-petitioners in this petition by way of challenge to the notices ordered on the three interim appeals filed by the applicants under Order 1, Rule 10 of the CPC.

2. This is a case of tapping the doors of a Court by the respondents on the following facts:

3. The predecessors of the petitioners had tiled a suit for possession of the premises in terms of the Bombay Rent Control Act. The suit came to be dismissed. The appeal also stood dismissed, Civil revision petition was filed in this Court by the legal representatives of the deceased R.N. Burli and V.N. Burli. During the pendency of the said civil revision petition in this Court, the predecessors of the petitioners filed another suit for possession. The earlier civil revision petition filed was allowed and the orders of the Munsiff and District Judge were set aside. Matter was taken to the Supreme Court and the Supreme Court dismissed the special leave petition filed by the respondents. After disposal of the special leave petition, the petitioners got the subsequent suit amended by restricting their claims to the extent of 11 guntas and sought for a declaration of title and possession. They entered into a compromise before the Lok Adalath. Compromise was recorded and an order was passed. On 6-12-2000, three interim appeals were filed by three petitioners claiming to be the proposed defendants 27 to 29 in terms of Order 1, Rule 10 of the CPC. They have also filed one more interim appeal seeking for an order not to draw any decree till the disposal of the three interim applications filed by them. The learned Trial Judge, in terms of his order dated 6-12-2000 issued notices in respect of three applications filed under Order 1, Rule 10. This order is challenged in this petition.

4. Notice was issued and the respondents have entered appearance.

5. Heard Sri Jayavittal Rao Kolar, and Sri N.R. Kanchi, learned Counsels appearing for the parties and Sri G.S. Vishveshwara, learned Counsel appearing for the 4th respondent.

6. The Counsel for the petitioners contends that the issue of a notice by the learned Judge is required to be set aside by this Court in this revision. They say that a long drawn litigation has come to an end through Lok Adalath and that the said order is being once again reopened in terms of Order 1, Rule 10 of the CPC. They say that the issue of notice is without jurisdiction and the same is liable to be set aside.

7. Per contra, Sri G.S. Vishveshwara, learned Counsel contends that no revision is maintainable for a mere issue of notice. He wants the revision to be dismissed.

8. A short question that require my consideration is as to whether this Court has to exercise its revisional power by setting aside an order of issue of notice to the petitioners.

Section 115 reads as under;

'Revision.--(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--

(a) to have exercised a jurisdiction not vested in it by law; or

(b) to have failed to exercise a jurisdiction so vested; or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where--

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto'.

9. A reading of the said section would show that the revisional power is available to this Court in the matter of any case which has been decided by any Court subordinate to this Court and in which no appeal lies thereto. In the case on hand, there is no decision as such. There is no case decided as on today. An issue of a notice cannot be treated as a case decided in terms of Section 115. Therefore, no revision as such is available to the petitioners on the facts of this case,

10. In this connection, it is relevant to notice the observations of this Court made in M.C. Madhura v. Bharatiya Vidya Bhauan and Ors., 1980(2) Kar. L.J. 305which reads as under in para 3:

'It is needless for me to point out that in order to exercise jurisdiction under Section 115 of the CPC, there must have been a case decided by the subordinate Court. The case must be one inwhich no appeal lies and further the subordinate Court must have, in the decision of the case, exercised the jurisdiction not vested in it by law or failed to exercise its jurisdiction vested in it by law or, having assumed jurisdiction, it must have acted in excess of this jurisdiction illegally or with material irregularity. It is only in these circumstances, that this Court gets jurisdiction to interfere with the impugned order sitting in revision. It is not every illegal order that is passed by the subordinate Court that this Court can interfere in revision. It may further be mentioned that the revisional powers are to be exercised this Court in its discretion, to bring about substantial justice'.

11. However, the Counsel for the petitioners contends that the facts of this case would show that even issue of a notice requires my intervention. They say that the matter has been settled before the Lok Adalath and the petitioners are aggrieved by the same. He has got other remedies including making an application for setting aside the decree.

12. They refer to Kishan Rao and Anr. v. Bidar District Legal Services Authority and Ors., : AIR2001Kant407 A. Ahmed Pasha and Anr. v. C. Gulnaz Jubeen, : AIR2001Kant412 Banwari Lal v. Smt. Chando Devi through L.Rs. and Anr., : AIR1993SC1139 S.G. Thimmappa v. T. Anantha and Ors., : AIR1986Kant1 and Hamumaga v. Anjanappa, 1973(2) Mys. L.J. 96.

Kishan Rao's case, supra, is a case with regard to a case of a party not being bound by decree of a Lok Adalath. This Court notices that in such cases, parties can make an application before the Civil Court to set aside the decree.

The second case is again an order passed by the Trial Court rejecting application for reference in exercise of the power under Section 20 of the Act.

Mir Sardar AH Khan and Ors. v. Special Deputy Collector, Land Acquisition (Industries), Hyderabad and Ors., AIR 1973 AP 298is a judgment as to when the Court can add parties in the litigation.

AIR 1999 SC (sic) is again a case of a compromise and with regard to the entertainment of an application.

13. All these cases stand on an entirely different footing. Those are all cases where an order has been passed on merits. In the case on hand, no order as such has been passed. It is only a notice that has been issued to the petitioner asking for their say in the matter. A mere issue of a notice as mentioned earlier, would stand on a different footing than an order on merits. Therefore, all these judgments at present are not available to the petitioner for the purpose of this revision.

14. In fact, recently, the Supreme Court, while considering the scope of Section 115 in Prem Bakshi and Ors. v. Dharam Dev and Ors., : [2002]1SCR103 has ruled in paras 5, 6 and 7 as under:

'5. The proviso to Sub-section (1) of Section 115 puts a restriction on the powers of the High Court inasmuch as the High Court shall not, under this section vary or reverse any order made or any order deciding a issue, in course of a suit or other proceedings except where (i) the order made would have finally disposed of the suit or other proceedings; or (ii) the said order would occasion a failure of justice or cause irreparable injury to the party against whom it is made. Under Clause (a), the High Court would be justified in interfering with an order of a subordinate Court if the said order finally dispose of the suit or other proceedings. By way of illustration we may say that if a Trial Court holds by an interlocutory order that it has no jurisdiction to proceed the case or that suit is barred by limitation, it would amount to finally deciding the case and such order would be revisable. The order in question by which the amendment was allowed could not be said to have finally disposed of the case and, therefore, it would not come under Clause (a).

6. Now the question is whether the order in question has caused failure of justice or irreparable injury to respondent 1. It is almost inconceivable how mere amendments of pleadings could possibly cause failure of justice or irreparable injury to any party. Perhaps the converse is possible i.e., refusal to permit the amendment sought for could in certain situations result in miscarriage of justice. After all amendments of the pleadings would not amount to decisions on the issue involved. They only would serve advance notice to the other side as to the plea, which a party might take up. Hence we cannot envisage a situation where amendment of pleadings, whatever be the nature of such amendment would even remotely cause failure of justice or irreparable injury to any party.

7. From the facts extracted above, it would show that appellants only wanted to bring to the notice of the Court the subsequent facts and after amendment of the plaint, respondent 1 would get opportunity of file written statement and he would be able to raise all this defence. Ultimately if the suit is decided against the respondent 1 he would have a chance to take up these points before the appellate Court. It cannot be conceived of a situation that the proposed amendment if allowed would cause irreparable injury or failure of justice as the remedy of the respondent 1, as stated above, is by way of an appeal. We are, therefore, of the view that the order allowing the amendment would not come under Clause (b)'.

15. A reading of the said judgment would show that even if an order is passed unless the said order is shown to result in failure of justice and irreparable loss, the Court could not interfere in its revisional jurisdiction.

16. The Counsel relies on Hamumaga's case, supra, to contend that Courts can interfere in the matter of issue of a notice. I have carefully perused the said judgment. That was a judgment dealing with the appellate power and not revisional power. The said judgment is not applicable to the facts of this case. No other judgment involving a notice under revision under Section 115 is brought to my notice by the petitioner.

17. In the case on hand, I am convinced that no failure of justice is caused to the petitioner by issue of a notice by the Court. In these circumstances, I do not find any justifiable grounds to interfere in the case on hand.

18. CRP stands dismissed. However, I deem it proper to direct the petitioners to submit their reply within 3 weeks from today. If any such reply is filed, the learned Judge is directed to pass orders within 2 weeks thereafter, since, it is one of the oldest case pending on the file of the learned Judge. Parties to bear their respective costs.