Heir of Mahant Vyankates-Hvardasji Guru Madhavdasji and Anr. v. Govinddasji Madhavdasji
1995-03-27
J.N.BHATT
body1995
DigiLaw.ai
J. N. BHATT, J. ( 1 ) THIS group of eight Civil Revision Applications arise out of common orders, between the common parties and raise common questions, therefore they are being disposed of by this common Judgment upon request. ( 2 ) REGULAR Civil Suit No. 1950 of 1975 was filed against one Venkateshwaradasji guru Madhavdasji and others in the City Civil Court at Ahmedabad for possession of the suit land more particularly described in the complaint. It was filed on the basis of title alleging that the said Venkateshwaradasji had committed trespass on the land and hand erected illegally certain hutments and had inducted tenants and other defendants. ( 3 ) ON the other hand, the said Venkateshwaradasji had filed Civil Suit No. 394 of 1976 in the City Civil Court at Ahmedabad against Mahant Premadasji Ramdasji in respect of certain deposit receipts, savings bank account and other immovable properties allegedly left behind by deceased Ramdasji Ishwardasji. The said Premdasji Ramdasji died on January 14, 1978. Venkateshwaradasji thereupon given an application for bringing one Kamaldasji Guru Premdasji, Sishya of Premdasji as the heir and legal representative of deceased premdasji on the record of the said suit. The said application was preferred at Exh. 33 on February 24, 1978. ( 4 ) SUBSEQUENTLY, said Venkateshwaradasji expired on September 24, 1978. Therefore, civil Applications, Exh. 21, 43, 59, 62, 67 and 69 came to be filed in Civil Suit No. 1950 of 1975 and applications Exhs. No. 33,42, 45 and 81 were also filed in Civil Suit No. 394 of 1976 for bringing the heirs and legal representatives of deceased Venkateshwaradasji on the record of the said suit for stay of the suits for bringing the heirs and legal representatives of the deceased, Premdasji etc. ( 5 ) LD. City Civil Court Judge (4th Court), Ahmedabad, by a common order dated december 4, 1981 was pleased to reject the applications at Exh. 43 and 69 in Civil Suit no. 1950 of 1975 and Exh. 81 in Civil Suit No. 394 of 1976.
( 5 ) LD. City Civil Court Judge (4th Court), Ahmedabad, by a common order dated december 4, 1981 was pleased to reject the applications at Exh. 43 and 69 in Civil Suit no. 1950 of 1975 and Exh. 81 in Civil Suit No. 394 of 1976. In short, the effect of the orders passed by the Court was;1) Stay Applications were rejected; 2) Govinddasji Madhavdasji be brought on record of the suit as heir and legal representatives of deceased Venkateshwaradasji in Civil Suit No. 1950 of 1975; 3) Claim of hardship advanced by Maltidasji came to be rejected in both the suits; 4) Kamaldasji Guru Premdasji be brought on record as a heir and legal representative of deceased, Premdasji Ramdasji in Civil Suit No. 394 of 1976. ( 6 ) BEING dissatisfied by the common order passed by the Id. Trial Court Judge, the petitioners have filed following revisions against orders passed on applications below different exhibits by invoking the aids of the provisions of Sec. 115 of the Code of Civil procedure, 1908 (Code) more particularly described and tabulated as follows : C. R. A. No. Exh. No. of the application, the order on which is challenged. C. S. No. 2186/81 21 1950/75 2189/81 45 394/76 2190/81 81 394/76 2191/81 43 1950/75 2192/81 62 1950/75 2193/81 69 1950/75 2194/81 59 1950/75 2195/81 42 394/76 2187/81 67 1950/75 2188/81 33 394/76 ( 7 ) THE Civil Revision Applications Nos. 2187 of 1981 and 2188 of 1981 came to be withdrawn by the petitioners. Thus, eight Civil Revision Applications are left in the field for consideration and adjudication. ( 8 ) FOLLOWING contentions are raised in support of their contentions in this group of revisions:1. Whether Maltidasji or Govinddasji was the heir and legal representative of deceased Venkateshwaradasji was subjudice and pending for determination by the High Court in F. A. Nos. 1231 and 1239 of 1980. That even Ramji mandir is a Public Trust or not was subjudice in the said appeals. 2. That the decision of the City Civil Court in CMA No. 58 of 1978 rejecting 5 the claim of Maltidasji was not final as it is pending for determination in the appellate court. 3.
1231 and 1239 of 1980. That even Ramji mandir is a Public Trust or not was subjudice in the said appeals. 2. That the decision of the City Civil Court in CMA No. 58 of 1978 rejecting 5 the claim of Maltidasji was not final as it is pending for determination in the appellate court. 3. That the finding of the Trial Court that the decision in CMA 58/78 was res judicata under Sec. 11 of CPC or was governed by the principle analogous to res judicata is erroneous. 4. That the Trial Court misread and misconstrued Order 41 Rule 5 of the code which had nothing to do with the stay of proceedings under Sec. 10 or sec. 151 of CPC or with the question of res judicata under Sec. 11; but all that Order 41, Rule 5 lays down is that mere filing of the appeal does not operate as a stay of the decree appealed against - a concept totally different from the concept of stay in view of the matter being subjudice before the higher Court. 5. That the lower court having held that the issues before the High Court in first Appeals and the issues before him were identical erred in not staying the suits. 6. That the application made by Govinddasji was barred by limitation. 7. That the scope and ambit of Order 22 CPC was not to determine who amongst the rival claimants was the real heir and legal representative to the deceased - such a question can only be determined in a separate suit or appropriate proceedings. 8. That even on the basis of the will the petitioner Maltidasji will be the heir and legal representative of deceased Venkateshwaradasji. ( 9 ) IT is a settled proposition of law that the jurisdictional sweep in a revision under sec. 115 of the Code is very much circumscribed. Sec. 115 reads as under;115.
8. That even on the basis of the will the petitioner Maltidasji will be the heir and legal representative of deceased Venkateshwaradasji. ( 9 ) IT is a settled proposition of law that the jurisdictional sweep in a revision under sec. 115 of the Code is very much circumscribed. Sec. 115 reads as under;115. (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 proceeding, 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 decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. ( 10 ) IT is very clear from the aforesaid provision that Sec. 115 empowers this Court to satisfy itself on following three aspects; 1) That the order of the subordinate court is within its jurisdiction; 2) That the case is one in which the court ought to exercise jurisdiction; 3) That in exercising, the Court has acted illegally that is in breach of provisions of law or with material irregularity, that is by committing some error or procedure in course of the trial which is material in that which may have affected the ultimate decision. ( 11 ) IF this Court is satisfied on those three aspects, then this Court has no power to interfere because it differs from the conclusions recorded by the subordinate courts on questions.
( 11 ) IF this Court is satisfied on those three aspects, then this Court has no power to interfere because it differs from the conclusions recorded by the subordinate courts on questions. If the finding made by the Trial Court or the lower court, as the case may be, is neither manifestly perverse nor erroneous, this Court could not substitute its finding for the one reached by the Trial Court or a lower court on a reappraisal of the evidence. ( 12 ) INTERFERENCE with the order of Trial Court on the only ground, that a different view of facts is possible, is also not permissible. Upon this basic premises, the merits of this batch of eight Civil Revision Applications is required to be examined and appreciated. ( 13 ) IN so far as the aforesaid grounds are concerned, it may be mentioned that there is no dispute about the fact that at the stage of hearing that First Appeal No. 1231 and 1239 of 1980 which are no longer pending, they are already decided by this court against the present petitioners. Therefore, the grounds No. 1, 2, 3, 4, 5 and 6 do not survive as they are covered by the decision of this Court in the said two appeals. So is the case in so far as ground Nos. 7 and 8 are concerned. This Court in aforesaid two appeals, has decided about the succesor or the legal representatives of deceased venkateshwaradasji. With the result, the ground Nos. 7 and 8 stated hereinbefore also do not assume any survival value. ( 14 ) APART from that, the Id. counsel appearing for the petitioners in these batch of eight petitions has not been able to point out or indicate any material which would warrant the interference of this Court. There is no jurisdictional error committed by the trial court. No illegality is spelt out. No perversity is pointed out. With the result, entire batch of eight revision applications is required to be rejected being meritless. Accordingly, these eight revision applications are rejected, having regard to the facts and circumstances. There shall be no order as to costs. .