C. S. CLARKE v. GEORGE W. MAYOR — 1993 DIGILAW 503 (DEL)

V. B. Bansal ( 1 ) SHRI C. S. Clarke, petitioner has filed this revision petition against the order dated 4/03/1992 of Shri M. S. Rohilla,additional District Judge. Delhi, thereby dismissing the suit of the plaintiffagainst the defendants. ( 2 ) BRIEFLY stated, the facts leading to the filing of this petition arethat a suit for declaration that under the contract and law. the plaintiff wasentitled to partly furnished residential accommodation in the Campus offrank Anthony Public School or in close vicinity. during the term ofemployment and for permanent injunction. restraining the defendants, theiragents, employees and nominees from forcibly dispossessing him from thetwo rooms accommodation, in his possession, in the Middle School buildingin the Campus of Frank Anthony Public School, Lajpat Napar. New Delhiwas filed by the plaintiff against the defondant. It has inler. alia been pleadedby the petitioner/plaintiff that he has been a permanent teacher of Frankanthony Public School, Lajpat Nagar, New Delhi, which he joined on 7. 7. 75in pursuance of appointment letter dated 16. 5. 1975. It is also claimed thatas a condition of his service, he was allotted accommodation/quarter by thedefendants at Ground Floor of premises No. N-86, Greater Kailash-I, Newdelhi and subsequently the said accommodation was got vacated by theland-lord and on 14. 12. 1988, defendant No. 2 allotted two rooms to theplaintiff in the Middle School building in the Campus of the school for hisresidence. It has also been claimed that defendants were asking the plaintiff to vacate the aforesaid accommodation to which, he is not agreeableand that the alternative accommodation stated to have been arranged bydefendant No. 2 was not suitable and thus, the suit. ( 3 ). The suit was contested by the defendants and a written statementhad been filed by defendant No. 2 in which, a prayer was made that thesuit was not competent and so the same may be dismissed. ( 4 ). During the pendency of the suit, an application dated 5. 3. 1990,under Section 151 Civil Procedure Code was moved by the defendants, in which, it wasinter-alia pleaded that the plaintiff has since been removed from the serviceof the school vide Resolution dated 30. 7. 1989 of the Board of Governors (Managing Committee) of the Frank Anthony Public School. It has alsobeen stated that the jurisdiction of the Civil Court was barred undersection25 of the Delhi School Education Act. 7. 1989 of the Board of Governors (Managing Committee) of the Frank Anthony Public School. It has alsobeen stated that the jurisdiction of the Civil Court was barred undersection25 of the Delhi School Education Act. A prayer was, therefore, made thatthe suit may be dismissed as having become infructuons. ( 5 ). This application was contested by the plaintiff and a reply wasfiled. Learned Trial Court, after hearing arguments, allowed the application and the suit, filed by the plaintiff, was dismissed as infructuous. ( 6 ) I have heard Shri Atul Wadhera, learned Counsel for the petitioner and Shri S. K. Taneja. learned Counsel for the respondents and havealso gone through the record. ( 7 ). A preliminary objection has been raised by the learned Counselfor the respondents with regard to the maintainability of the revision petition. It has been submitted by the learned Counsel for the respondent thatvide impugned order, the suit of the plaintiff itself has been dismissed andthus, it was open to the petitioner to file an appeal. He has, thus, submittedthat the impugned judgment and decree being appealable, no revision iscompetent. A prayer has. therefore, been made that this revision petitionmay be dismissed on this short ground. ( 8 ). Learned Counsel for the petitioner has, on the other hand, submitted that the learned Trial Court has failed to frame any preliminary issueand without giving any opportunity to the petitioner of leading evidence onpreliminary issue, has committed grave error in dismissing the suit itself,while disposing of an application under Section 151 Civil Procedure Code He has, thus,submitted that since the impugned order has been passed while disposingof an application under Section 151 CPC, it is open to the petitioner tochallenge the same by way of filing a Civil Revision. He has, therefore,submitted that this plea of the learned Counsel for the respondent has noforce and may be rejected. ( 9 ). There can possibly be no dispute that vide impugned order dated4. 3. 1992, the learned Trial Court has dismissed the suit and decree sheet hasalso been drawn on the day on which the suit has been dismissed. Thequestion, as to whether the suit has rightly been dismissed or not, has to begone into by appropriate Court in competent proceedings. There can possibly be no dispute that vide impugned order dated4. 3. 1992, the learned Trial Court has dismissed the suit and decree sheet hasalso been drawn on the day on which the suit has been dismissed. Thequestion, as to whether the suit has rightly been dismissed or not, has to begone into by appropriate Court in competent proceedings. Section 96cpc provides for the filing of an appeal from every decree passed by anycourt exercising original jurisdiction to the Court authorised to hear appealsfrom the decision of such Court. The suit having already been dismissed, canit be laid that it is open to the petitioner to challenge the impugned orderonly by way of filing a revision petition ? My answer is in the negative. Learned Counsel for the petitioner has not been able to point out any provision of law, authorising him to file a revision against the dismissal of asuit, in which, a decree has also been drawn. Learned Counsel for thepetitioner has, however, placed reliance upon the judgment in the case ofmajor S. S. Khanna v. Brig. P. J. Oillon, reported in AIR 1964 SC 497 . Itwas submitted by the learned Counsel for the petitioner that the expression"case" includes a part of a case and that there is no escape from the conclusion that revisional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal lies from the ultimate decree ororder, passed in the suit. He has also referred to an observation in the saidjudgment "any other view would impute to the Legislature an intentionto restrict the exercise of this salutary jurisdiction to those comparativelyunimportant suits and proceedings in which, the appellate jurisdiction of thehigh Court is excluded for reasons of public policy. " There can possiblybe no dispute that effective exercise of its superintendence and visitorialpowers, revisional jurisdiction is conferred upon the High Court and itwould be putting an unwarranted restriction on the jurisdiction of the Highcourt to restrict to those cases only where no appeal would reach the Highcourt from the final order, passed in the proceedings. It would be appropriate, at this stage, to refer to the facts of this case. Brig. F. J. Dillon andmaj. S S. Khanna (hereinafter called dillon and khanda respectively)carried on business in partnership as Construction Engineers, and agreed todissolve the partnership w. e. f. 15/02/1956. It would be appropriate, at this stage, to refer to the facts of this case. Brig. F. J. Dillon andmaj. S S. Khanna (hereinafter called dillon and khanda respectively)carried on business in partnership as Construction Engineers, and agreed todissolve the partnership w. e. f. 15/02/1956. According to the termsof the Deed of Dissolution, Dillon agreed to takeover the assets and properties of the partnership as absolute owner who was to pay all the debtsand to discharge all the liabilities of thepartnership. He was to keepkhanna indemnified against all emands. However, Khanna commencedan action against Dillon for dissolution of partnership and rendition ofaccounts. A compromise was, however, arrived at between the partics,confirniing the earlier dissolution of the partnership, subject to a scheme ofwinding up, under which all outstandings realised from the debtors of thefirm and the sale proceeds of certain assets, were to go into a bankingaccount to be opened in the joint names of Dillon and Khanna and were tobe applied in the first instance to meet the liabilities of the dissolved firm,and the balance in that joint account was to belong to Dillon. Some outstandings of the dissolved partnership were collected by Dillon and weredeposited in the joint account of Dillon and Khanna. A suit for recoveryof Rs. 54,250. 00 with future interest was filed by Dillon, alleging that be had,at the request of Khanna, advanced a sum of Rs. 46,000. 00 asshort termloan, which he had promised to pay but failed to do so. The plea takenup by Khanna was that be did not borrow any loan and the amount claimedin the action, being advanced, even on the plea of Dillon. out of joint funds,belonging to the two partners, no suit for recovery was maintainable. Oneof the issues framed by the Trial Court was :whether the suit is not maintainable and the plaintiff is not entitledto institute this suit, alleged in paras 15, 16, 17, 18 of the writtenstatement ?the learned Trial Court came to the conclusion that this suit was not maintainable. However, no further order with regard to the dismissal of the suitwas passed and the case was adjourned. It was in these circumstances thata revision was filed in the High Court, which was accepted and the order inquestion was set aside. However, no further order with regard to the dismissal of the suitwas passed and the case was adjourned. It was in these circumstances thata revision was filed in the High Court, which was accepted and the order inquestion was set aside. The plea taken up before the Supreme Court hadbeen that the order did not amount to a case, which had been decided within the meanings of Section 115 Civil Procedure Code and the decree, which may have beenpassed in suit, will be subject to the appeal to the High Court; the powerof the High Court was by the express term of Section 115 Civil Procedure Code excludedand the order did not fall within three Clauses (a), (b) and (e) of Section 115. While disposing of the matter, it was held by the Supreme Court that hadthe learned Trial Court dismissed the suit after deciding the preliminary issue,the aggrieved party had a right to file an appeal and no revision would havebeen filed or even entertained. But the suit having not been dismissed andhaving been kept pending after deciding the preliminary issue against theplaintiff with regard to the maintainability of the suit, it was open to theaggrieved party to challenge the same by way of a revision in the High Courtand the High Court was fully justified in deciding the revision petition. ( 10 ). From the facts narrated above, it is clear that this judgment cannot, by any stretch of imagination, help the petitioner and it very much goesagainst the submission made by the learned Counsel for the petitioner. Itis clear that while disposing of the application of the respondent, taking anobjection that the suit has become infructuous, learned Trial Court bad dismissed the suit as infructuous. In these circumstances, the only remedyavailable to the petitioner was to file an appeal and the revision petition isincompetent. ( 11 ). Learned Counsel for the petitioner has submitted that this revision petition was filed on 11. 3. 199? against the impugned order dated4. 3. 1992 i. e. within 30 days of the decision and thus, was within the periodduring which the petitioner could file an appeal. He has further submittedthat appeal against the impugned order could be filed only in this Court andin these circumstances, submitted that this revision petition can be treatedas an appeal. 3. 199? against the impugned order dated4. 3. 1992 i. e. within 30 days of the decision and thus, was within the periodduring which the petitioner could file an appeal. He has further submittedthat appeal against the impugned order could be filed only in this Court andin these circumstances, submitted that this revision petition can be treatedas an appeal. Learned Counsel for the respondent has, however, submittedthat the petitioner has not challenged the decree drawn by the learned Trialcourt in terms of the impugned order nor has the same been challenged inthe case and so this cannot be treated as an appeal. I am inclined to agreewith the submission of the learned Counsel for the respondent. Memorandumnot accompanied by a certified copy of the decree would be incompetentand invalid and thus, can not be considered to be a valid appeal. Referencein this regard can be made to the case of Shakuntala Devi Jain v. Kuntalkumarl and Others, reprted in AIR 1969 SC 575 . In the case of Labhmalv. Lalchand, reported as AIR 1972 Rajasthan 123, it has been held thatwhere at the time of filing of the appeal, the decree had already been drawnup by the Lower Court but the appellant had not applied for it in time, theappeal filed without the copy of the decree would be incompetent. It hasalso been observed that even if the appellant was under erroneous impression that the decree had not been drawn, can also be of no avail to him andthe appeal, without any copy of the decree would be incompetent. ( 12 ). Considering all the facts, I am clearly of the view that eventhis request of the learned Counsel for the petitioner that the present revision petition may be treated as an appeal, cannot be acceeded. ( 13 ). In view of my aforegoing discussion, I hold that the revisionpetition is incompetent and not maintainable and the same is, therefore,dismissed with costs.