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1989 DIGILAW 274 (MP)

RAMESHCHANDRA SHARMA v. HARGOVIND JAWARLAL MAHAJAN

1989-08-28

K.L.SHRIVASTAVA

body1989
JUDGMENT : ( 1. ) THIS revision petition under section 115, Civil Procedure Code, 1908 (for short the Code) is directed against the order dated 18-1-1989 passed by the Addl. Judge to the District Judge, Dhar in Revision Petition No. 9 of 1985 arising out of Civil Suit No. 54-A/87 of the Court of Civil Judge, Class I, Manawar, District Dhar. ( 2. ) CIRCUMSTANCES giving rise to the revision petition are these : The non-applicant No. 1 Hargovind has instituted the aforesaid eviction suit against the present three petitioners and the N. As. 2 and 3 they being respectively the sons and daughters of the deceased Kanhaiyalal who was the original tenant. ( 3. ) IN the said suit the non-applicants 2 and 3 put in appearance but did not file their registered addresses. ( 4. ) IN the trial Court the non-applicant No. 1 filed an application for framing additional issues for trial as preliminary issues. ( 5. ) THE application was dismissed by the learned Civil Judge. ( 6. ) AGAINST the aforesaid order passed by the Civil Judge, the non-applicant no. 1 preferred the Revision Petition No. 9/88 before the Addl. Judge to the district Judge, Dhar. ( 7. ) IN the said revision, earlier order passed was for issue of notices to the non-applicants 2 and 3. Subsequently, in view of the provision embodied in order 41, Rule 14 (4) of the Code, it has been ordered that it is not necessary to serve notices of the revision petition on the said non-applicants. ( 8. ) AGGRIEVED by the order aforesaid, the petitioners have invoked this courts revisional jurisdiction. ( 9. ) THE contention of the petitioners learned counsel is that unless the court, in consequence of the omission to file registered address, strikes out the defence as provided under Order 8, Rule 12 of the Code, recourse to the provision under Order 41, Rule 14 (4) could not be had. ( 10. ) THE contention of the learned counsel for the N. A. 1 is that the exercise of power under Order 41, Rule 14 (4) of the Code is not conditional upon striking out the defence. According to him, in view of the provision in section 115 of the Code the impugned order is not amenable to interference in exercise of this courts revisional jurisdiction. ( 11. According to him, in view of the provision in section 115 of the Code the impugned order is not amenable to interference in exercise of this courts revisional jurisdiction. ( 11. ) THE point for consideration is whether the revision petition deserves to be allowed. ( 12. ) SECTION 115 of the Code has been substituted by the M. P. Act no. 29/84 and it has ben reproduced in Peerbuxs case, 1986 MPLJ 720 = 1986 C. C. L. J. (M. P.) 30. ( 13. ) FROM a perusal of the provision in section 115 of the Code it is clear that the revisional jurisdiction thereunder is not only discretionary but is also limited in its scope to jurisdictional errors alone. The jurisdiction is further restricted by various other conditions. The first condition of revisability of an order is that it must amount to a case decided within the meaning of the expression as used in the provision. Under the provision aforesaid no revision lies against the appellate revisional order of the District Judge, in suit or other proceeding of the subordinate Courts valued below twenty thousand rupees. Condition embodied in clause (ii) of the second proviso relating to failure of justice or irreparable injury to the party concerned if the impugned order is allowed to stand is a crucial one. ( 14. ) IN connection with a similar provision, the Apex Court in paragraph 10 of the decision in Shri Vishnu Awatars case, AIR 1980 SC 1575 has delivered itself thus : - "10. Schematically, we are satisfied that decisions of District Courts rendered in appeal or revision are beyond revision by the High Court, if the suit is of less than twenty thousand rupees. But an exception has been engrafted by the first proviso to Section 3 to the effect that where an original decision has been made by a District Court the High Courts appellate or revisional power will come into play. This is as it should be, for one appeal or revision, is almost universal. But otherwise the district Courts decision is immune to revisional probe by the High Court. This is as it should be, for one appeal or revision, is almost universal. But otherwise the district Courts decision is immune to revisional probe by the High Court. " Further in paragraph 13 it has been observed thus : - "the short test to refuse revisory jurisdiction to the High Court is to ascertain whether the decision sought to be challenged is in a case arising out of a suit of the valuation of Rs. 20,000/- and more. If the answer is yes then the High Court has revisory powers, but if the suit from which the case arises and in which the decision is made is one where the valuation is less than rupees twenty thousand then the litigation cannot travel beyond the District Court except in that class of cases where the decision is taken for the first time by the District Court itself in a case arising out of an original proceeding. " ( 15. ) IN relation to an order passed by the District Judge in appeal or revision, the distinction between an order thereunder passed by him in exercise of his revisional or appellate jurisdiction affecting the trial Courts order and an original order thereunder passed by him not touching the trial Courts order on merits has to be borne in mind. The impugned order is an example of original order passed by the District Judge in revision. ( 16. ) FROM what has been stated above it follows that what the provision in section 115 of the Code bars is further revision against the appellate or revisional order by the District Court and not against the original order passed by him. The object behind the provision is that the order passed by the subordinate Court in suits of the value of less than twenty thousand rupees the order passed by the subordinate Court is not to travel beyond revision or appeal in the District Court. It is not the intentment of the Legislature that even the original orders passed by the District Judge in appeal or revision arising out of such suits or proceedings are immune from revisional probe of the High Court. Any contrary construction of the provision would offend against the rule regarding availability of at least one remedy referred to in the extract from paragraph 10 in the S. C. decision which has been reproduced above. ( 17. Any contrary construction of the provision would offend against the rule regarding availability of at least one remedy referred to in the extract from paragraph 10 in the S. C. decision which has been reproduced above. ( 17. ) IN the ultimate analysis I hold that the revision petition is maintainable. ( 18. ) THIS brings us to the question as to whether the impugned order satisfies the condition in clause (ii) of the second proviso. Apart from the fact that the interest of the absentee N. As. 2 and 3 is represented by the petitioners, it may be noted that the revision petition is not by them. As the present petitioners are not affected by the order it cannot be said that, if allowed to stand, it would occasion a failure of justice or cause irreparable injury to them. The revision petition, therefore, deserves to be dismissed on this short ground. ( 19. ) IN passing it may also be pointed out that the contention sought to be canvassed on behalf of the petitioners relating to the striking out of the defence as a condition precedent for the applicability of the provision under Order 41, rule 14 (4) of the Code is also devoid of merit. ( 20. ) FOR the foregoing reasons I find that the revision petition has not a leg to stand upon and deserves no other fate than that of dismissal. It is accordingly dismissed with costs. Counsels fee Rs. 100/- if certified. Revision dismissed.