Perumal v. Jalamuthu and Others — 1985 DIGILAW 358 (MAD)

Judgment :- This revision is directed against the order passed by the Revenue Court, Pondicherry, ordering resumption of the land, in P.C.T.P.A.No.44 of 1977 on its file. 2. The brief facts which are necessary for disposal of this Revision are as follows: The first respondent herein has filed an application before the lower Court for resumption of the petition-mentioned lands, which are agricultural lands, under section 4(1) of the Pondicherry Cultivating Tenants Protection Act, 1970. According to the first respondent herein, he was a lessee under the first respondent before the lower court by virtue of lease deeds from 1st August, 1961. He filed suit for injunction against the first respondent before the Court below for restraining him from disturbing his possession of the land in his capacity as a lessee in O.S.No. 381 of 1981 on the file of the learned Principal District Munsif, Pondicherry and the said suit was decreed. The learned Second Additional District Judge, Pondicherry also confirmed the above judgment and decree in A.S.No.18 of 1975 on 18th November, 1975. Subsequently, he managed to continue in possession of the property and an attempt was made to dispossess him by the month of November, 1976 and he filed an application before the Civil Court for enforcement of the decree of injunction, and finally he was dispossessed by the end of March, 1977, by one Muthu-krishnan, who is supported by the second respondent herein. 3. The said application was resisted by the respondents before the lower court and in their counter they contended that the first respondent had sold the property to the respondents 2 and 3 in the year 1972 and that the first respondent has nothing to do with the said properties and that the petitioner (first respondent herein) is fully aware of the same. The contention of respondents 2 and 3 is that by virtue of the purchase, they have been in possession of the petition-mentioned properties. The alleged dispossession is false and the first respondent herein has never been a tenant under them and as such, he is not entitled for resumption of possession of the properties. 4. The learned Presiding Officer, Revenue Court, Pondicherry, allowed the application on the basis of the judgments of the learned Principal District Munsif in O.S.No.381 of 1971 and of the learned District judge in A.S.No.18 of 1975, which are marked as Exs.P-2 and P--4 respectively. 5. 4. The learned Presiding Officer, Revenue Court, Pondicherry, allowed the application on the basis of the judgments of the learned Principal District Munsif in O.S.No.381 of 1971 and of the learned District judge in A.S.No.18 of 1975, which are marked as Exs.P-2 and P--4 respectively. 5. The learned Counsel for the petitioner mainly submitted that under section 4(5) of the ‘Pondicherry Cultivating tenants’ Protection Act, the application for restoration of possession should be filed within two months from the date, of dispossession and in the instant case, even the evidence of the first respondent herein is that he was dispossessed in 1971 and absolutely there is nothing to show that he was dispossessed within two months prior to the filing of this application and as such, the order is not sustainable and is liable to be set aside. He further contended that there is no finding that the petitioner is a cultivating tenant on the date when he filed the application, which is also necessary ingredient and as such, the order passed by the Court below is illegal, improper and is liable to be set aside. In support of his contention, he relied on the decision of this Court in Shanmuga-thammal and others v, Valliappan alias Vallinayagan and others, (1971)2 M.L.J.149= 84 L.W.879 wherein Ramanujam, J. had occasion to consider the scope of section 4(5) of the Madras Cultivating Tenants’ Protection Act, which is an analogous to section 4(5) of the Pondicherry Cultivating Tenants’ Protection Act and held that the jurisdiction to order restoration of possession under section 4(5) depends upon the fact whether it had been moved within two months of the date of dispossession and the Court cannot proceed to grant the relief of restoration of possession without giving a finding as to when dispossession took place. On going through the materials placed before me and the order passed by the lower Court, 1 find that the Court below based its conclusion only on the basis of the two decrees marked as Exs.P-2 and P-4 and held that the petition for restoration is filed within time and that he was dispossessed as claimed in his petition. It is relevant to extract the portion of the judgment for proper appreciation of the contention of the parties: ‘The question is thrown up as to from which date Respondent 2 and Respondent 3 were in possession. It is relevant to extract the portion of the judgment for proper appreciation of the contention of the parties: ‘The question is thrown up as to from which date Respondent 2 and Respondent 3 were in possession. Ex.P-2 and P-4 the Judgments of the Principal District Munsif and II Additional District judge in O.S.No.381 of 1971 and A.S.No.18/75 respectively confirm that the petitioner was in possession of the land even though the petitioner deposed that he was dispossessed in 1971, I am inclined to ignore the same in the face of the above judgments. Hence, I am inclined to give him the benefit of doubt and hold that he was dispossessed as claimed in his petition.’ The learned Counsel for the respondents did not dispute the fact that, there is no evidence regarding the dispossession within two months prior to the filing of the application, even though it is alleged in the petition and further there is no finding to the effect that the first respondent herein had been dispossessed within two months of the filing of the petition; but he would contend that the revisional jurisdiction exercised by the High Court under section 115 Code of Civil Procedure is purely discretionary and the same is intended to secure the ends of justice and as such, even though there is no such finding by the lower court, this Court ought not to interfere with the order of resumption passed by the lower court, especially when the Civil Court has granted injunction in favour of the first respondent herein as against the first respondent before the Court below and that respondents 2 and 3 before the lower Court purchased the properties during the pendency of these proceedings. In support of his contention, he relied on several decisions of this Court and other High Court. In Chennichi alias Parikkal v. D.A. Srinivasan Chettiar, (1970)1 M.L.J.234= 83 L.W.366 Ismail, J. (as he then was) held as follows: "The exercise of the revisional powers of the High Court under section 115, Civil Procedure Code, is purely discretionary. The High Court will not take a technical view and necessarily interfere in every case, where an order is wrong and even improper, if such interference will produce hardship or injustice. The revisional jurisdiction of the Court is intended to secure and subserve the ends of justice and not to deny or defeat it. The High Court will not take a technical view and necessarily interfere in every case, where an order is wrong and even improper, if such interference will produce hardship or injustice. The revisional jurisdiction of the Court is intended to secure and subserve the ends of justice and not to deny or defeat it. If interference in a particular case will result in hardship or injustice to a party, the High Court will be justified in refusing to interfere in the exercise of its revisional jurisdiction, even if the order is found to be one without jurisdiction. On the facts and circumstances of the course of litigation in the instant case the order of the Rent Controller (confirmed on appeal) though without jurisdiction, is justifiable on merits, and it is not a proper case in which the High Court should interfere as it would result in injustice to the respondent." In M.Venkatachariar v. Moulvi Mohammed Fazuddin Sahib Bahadur by agent Moulvi Manjoor Ahammad Sahib Kuddaoossi, (1940)2 M.L.J.374= (1940) M.W.N.333= 52 L.W.375= A.I.R.1941 Mad.17 Horwit, J. held that even though an appeal was incompetent in view of Order XLIII, rule 1, C.P.C. yet the order passed by the appellate Court restoring the suit did not call for any interference in revision, as any inconvenience caused by the default of a party during the hearing of a suit is generally a matter for which the other side can be compensated by the awarding of costs. In Bhubaneswar Misra and others v, Sakun-tala Devi and others, A.I.R.1978 Orissa 37 it was held that: "If the court finds that by exercising its power under section 115, it is going to set aside a correct and logical order merely on the ground of lack of jurisdiction and in its wake it brings into existence a wholly illegal and incorrect order, then it may refuse to exercise its revisional jurisdiction as that would be giving effect to an illegal and incorrect order." Yet another decision in H.S.Siddappa v. Lakshmamma and another, A.I.R.1965 Mysore 313 was also cited by the learned Counsel for the respondents wherein also it was held as follows: "It is well established that the High Court is not bound to interfere under "section 115, C.P.C. except in aid of justice. Thus, where the order of a subordinate Court, has brought about a just result and where the setting aside of that order would bring about an unjust result the High Court would not exercise its discretion under section 115, C.P.C. and interfere with such order, even though the order suffers from an illegality or irregularity." In T.M.Kuppuswami Pillai v. Alwar Chet-tiar, (1935) 41 L.W.20= A.I.R.1935 Mad.89 this Court held that "...The revisional powers of the High Court are not to be exercised unless it appears to the High Court that injustice has been done to a litigant. Where the only objection to the decree of the lower court was that the suit should have been on the Original side and not on the Small Cause Side of the lower Court and the result of upholding that objection in revision would be to render a suit brought on the Original Side barred by limitation, the High Court would not use its revisional powers to bring about the injustice which such interference would entail." 6. In the instant case, even though it is alleged in the petition that the first respondent herein was dispossessed on 28th or 29th March, 1977 and the petition before the lower Court was filed within two months from the date, it has not been elicited from the first respondent herein in his evidence; but on the other hand, he had spoken about the interference by the first respondent in the petition before the lower court of his possession in 1971 and the subsequent act of dispossession is not specifically elicited in his examination. Yet, from the circumstances of the case, it is clear that both the learned District Munsif and the learned District Judge had found in Exs,P-2 and P-4 that the first respondent herein was in possession of the land and the said finding has become final and the judgment in A.S.No.18/75 was delivered only on 18th November, 1975. Yet, from the circumstances of the case, it is clear that both the learned District Munsif and the learned District Judge had found in Exs,P-2 and P-4 that the first respondent herein was in possession of the land and the said finding has become final and the judgment in A.S.No.18/75 was delivered only on 18th November, 1975. It is to be noted that by virtue of the above decree of the Civil Court, the respondent is entitled to be in possession as tenant of the properties, Respondents 2 and 3 before the lower court have admittedly purchased the property during the pendency of the proceedings and their claim that they had been in possession from the date of sale by virtue of the said purchase, was not accepted and they are bound by the decree passed by the Civil Court against their vendor, viz., the first respondent before the lower court and it is not open to them to challenge the same as not binding on them. As observed by Ismail, J. in Chennichi alias Parikkal v. D.A.Srinivasan Chettiar, (1970)1 M.L.J.234= 83 L.W.366 purely from a technical point of view and as a matter of law, certainly the contention of the learned Counsel for the petitioner is well founded, yet on the facts and circumstances of the case, there is no justification for this Court to interfere with the order passed by the lower Court. Even if the matter is remanded for fresh evidence, then the decree passed by the Civil Court granting injunction in favour of the first respondent herein would protect his possession as tenant. The Court below cannot go against the decree of Civil Court and hold that the first respondent herein is not a tenant. It can at the worst be said that in the absence of any evidence of dispossession within two months prior to his application, his remedy is to approach the Civil Court for restoration of possessions on the basis of the decree already passed. It can at the worst be said that in the absence of any evidence of dispossession within two months prior to his application, his remedy is to approach the Civil Court for restoration of possessions on the basis of the decree already passed. It is to be noted that the proceedings were instituted even in 1971 by the first respondent herein and even though he succeeded in both the Civil Courts as could be seen from Exhibits P-2 and P-4, he is not able to enjoy the properties peacefully and the Court below has taken the same into consideration and exercised its discretions and passed the order in favour of the first respondent herein. Applying the ratio laid down in the various decisions relied on by the learned Counsel for the first respondent herein. I am of the view that if the order passed by the Court below is set aside, it will result in great hardship and injustice to the respondent herein and as such, no interference is called for. 7. In the result, the Revision is dismissed and the order passed by the lower Court is confirmed. There will be no order as to costs.