JUDGMENT Kamlesh Sharma, Actg. C. J.: This civil revision petition under Section US C.P.C. is directed against judgment dated 24.11.1995 passed by Sub Judge 1st Class (1), Shimla whereby application of respondent No. 1 and Ms. Simarjit Kaur was allowed and their suit was restored, which was dismissed in default on 14.12.1981. 2. Brief facts are that an application for restoration under Section 151 C.P.C. was filed on 17.3.1982, which was opposed by the petitioner-defendant, inter alia, on the ground that it was hopelessly barred by limitation and liable to be dismissed. In view of this, the respondent - plaintiff filed application under Section 5 of the Limitation Act for condonation of delay for making the application for restoration, which was dismissed by the then Sub Judge 1st class (2), Shimla on 29.11.1983 holding that the respondent-plaintiff failed to prove any sufficient cause for having filed the application for restoration of the suit after expiry of period of limitation. The judgment of Sub Judge 1st Class (2), Shimla was set aside by Additional District Judge (2), Shimla by his judgment dated 1.8.1986 in the appeal filed by the respondent-plaintiff allowing the application under Section 5 of the Limitation Act holding that on coming to know on 15.3.1982 that his suit stood dismissed on 14.12.1981 the respondent - plaintiff inspected the record on next date i.e. 16.3.1982 and thereafter filed application for restoration on 17.3.1982. Additional District Judge (2), Shimla to decide the application for restoration of the suit on merits. 3. Thereafter, on receipt of the case, Sub Judge 1st Class, Shimla proceeded to frame following issues on 12.8.1991:- 1. Whether there is sufficient cause to restore the suit as prayed for ? OPA. 2. Whether the application is not maintainable as alleged ? OPR. 3. Whether the application is liable to be dismissed as alleged in preliminary objection No.3 ? OPR. 4. Whether the application is within time ? OPA 5. Relief. Answering issues No. 1 and 4 in affirmative and issues No, 2 and 3 in negative Sub Judge 1st Class, Shimla has held that he was satisfied that it was original plaintiff-applicant Kishan Singh, who was present in the Court on 2.12.1981 when next date was fixed and there is every possibility that he might have heard the date as 14.3.1982 instead of 14.12.1981, as such, it was a case of "normal human error".
For allowing the application it also weighed with Sub Judge 1st Class, Shimla that original suit was filed as far back as in the year 1976 and even the original plaintiff Kishan Singh has also since died and his legal representatives are pursuing this litigation for restoration of the suit for the last more than 14 years, as such, the ends of justice would be defeated if the suit is not restored and decided on merits, 4. So far issue No.2 is concerned, the contention of the petitioner-defendant that application under Section 151 C.P.C. was not maintainable and it was required to be filed under Order 9 Rule 9 C.P.C. was repelled on the ground that the application for restoration of the suit could not be dismissed merely for mentioining wrong provision of law. The point under Issue No.3 that the application having been presented by one Shri J.C. Rana, Advocate, a junior of Shri Bakshi Sita Ram, learned counsel appearing for the respondent - plaintiff was not maintainable, was also decided against the petitioner-defendant in view of the findings of Additional District Judge in this regard, which had become final between the parties. 5. This Court has heard learned counsel for the parties and gone through the record. Mr. R.L Sood, learned counsel for the petitioner-defendant has challenged the findings of Sub Judge 1st Class, Shimla mainly on three grounds. His first submission is that in view of conscious election of the respondent-plaintiff to move an application for restoration of his suit under Section 151 C.P.C. instead of Order 9 Rule 9 C.P.C, Sub Judge 1st Class, Shimla is not right in holding the application as maintainable under Order 9 Rule 9 C.P.C. merely on the ground that mentioning of wrong provision of law is of no consequence. For making this submission he has relied upon a judgment of Rajasthan High Court in Sohanlal & Am. v. Devachand, AIR 1957 Rajasthan 11. Another submission made by Mr. Sood is that the age of the case is not a valid consideration for restoration of the suit unless sufficient cause is made out from the record. Third argument of Mr. Sood is that in view of the variance in pleadings and proof, there was no justification to allow the application and restore the suit. 6. On the other hand Mr.
Third argument of Mr. Sood is that in view of the variance in pleadings and proof, there was no justification to allow the application and restore the suit. 6. On the other hand Mr. Rajiv Sharma, learned counsel appearing for the respondent-plaintiff, has urged that this Court, in exercise of jurisdiction under Section 115 C.P.C., may not interfere with the findings of Sub Judge 1st Class, Shimla which are arrived at by him on the appreciation of material on record. In respect of scope of this Court under Section 115 C.P.C. Mr. Sharma has cited number of judgments of the Supreme Court but this Court will refer to a few of them. 7. In Vora Abbasbhai Alimahomad v. Haji Gulamnabi Haji Safibhai, AIR Supreme Court 1341 and M/s. D. l. F. Housing and Construction Co. (p) Ltd., v. Sarup Singh & Ors., AIR 1971 Supreme Court 2324, it was consistently held by learned Judges of the Supreme Court that while exercising the jurisdiction under Section 115 CPC, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relations to the jurisdiction of the Court to try the dispute itself, as envisaged under Clauses (a) and (b) of Section 115 CPC. In respect of Clause (c) of Section 115 CPC the learned Judges of Supreme Court have opined that the words "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may relate either to breach of some provision of law or to material defect of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. 8. In M. L. Sethi v. R. P. Kapur, AIR 1972 SC 2379, learned Judges of Supreme Court, while elaborating the meaning of word "jurisdiction" after taking into consideration various judgments of Privy Council and Supreme Court, observed : "Whether there is excess of jurisdiction or merely error within, jurisdiction can be determined only by construing the empowering statute, which will give little guidance.
It is really a question of how much latitude the Court is prepared to allow, in the end it can only be a value judgment, (See H.W.R. Wade, "Constitutional and Administrative Aspects of the Animenic case", Law Quarterly Review, Vol.85, 1969, P. 198). Why is it that wrong decision on a question of limitation or res judicata was treated as a jurisdictional error and liable to be interfered with in revision? It is a bit difficult to understand how an erroneous decision on a question of limitation or res judicata would oust the jurisdiction of the Court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack. The reason can only be that the error of law was considered as vital by the Court. And there is no yardstick to determine the magnitude of the error other than the opinion of the Court." 9. There provisions have further been circumscribed by adding proviso to Section 115 CPC by the C.P.C. (Amendt.) Act of 1976, that 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. In The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad & Anr. v. Ajit Parsad Tarway, Manager (Purchase and Stores), Hyderabad, AIR 1973 SC 76, M/s. Bhojraj Kunwarji Oil Mill and Ginning Factory & Anr. v. Yograj Sinha Shankersinha Parihar & Ors., AIR 1984 S.C.1894 and in Masjid Kacha,Tank Nahan v. TuffailMohammed, AIR 1991 SC 455, it is further elaborated that under Section 115 CPC the High Court can not re-appreciate the evidence and can not set aside the concurrent findings of the Court below by taking a different view of the evidence. The High Court is empowered only to interfere with the findings of fact if the findings are perverse or there has been non-appreciation or non-consideration of the material evidence on record by the Court below.
The High Court is empowered only to interfere with the findings of fact if the findings are perverse or there has been non-appreciation or non-consideration of the material evidence on record by the Court below. Simply because another view of the evidence may be taken is no ground by the High Court to interfere in its revisional jurisdiction. 10. Keeping in view the guidelines laid down by Supreme Court in respect of scope of interference by the High Court in exercise of jurisdiction under Section 115 CPC this Court does not find any infirmity in the impugned judgment which calls for interference. The submission of Shri Sood, learned counsel for the petitioner- defendant, is also without any substance that Sub Judge 1st Class was not right in exercising jurisdiction under Order 9 Rule 9 when the respondent - plaintiff had specifically invoked inherent powers of the Court by moving application under Section 151 CPC. The judgment of Rajasthan High Court in Sohanlal & Anr. v. Devachand (supra) does not help the petitioner-defendant wherein it is held that condition precedent for restoration of the suit is the sufficient cause for the absence of the plaintiff and if it is not made out from the record, the Court has no inherent powers to restore the suit dismissed in default under Section 151 CPC. So far the present case is concerned, Sub Judge 1st Class has categorically found that the sufficient cause for the absence of original plaintiff Kishan Singh was made out that he had heard the date as 14.3.1982 instead of 14.12.1981 when he himself attended the Court on 2.12.1981. So far the principle that where the code makes provision to govern a particular situation, such provision must as a rule be interpreted to be exhaustive and it would be entirely wrong to travel outside it and have recourse to the so called inherent power is concerned, there can be no two opinion. 11. The other arguments of Mr. Sood are also without any substance. The long duration of 14 years during which the respondent - plaintiff pursued his application for restoration of his suit, besides other factors, itself shows that absence of his appearance on the date when the suit was dismissed in default was bonafide and not due to his negligence. Mr.
The other arguments of Mr. Sood are also without any substance. The long duration of 14 years during which the respondent - plaintiff pursued his application for restoration of his suit, besides other factors, itself shows that absence of his appearance on the date when the suit was dismissed in default was bonafide and not due to his negligence. Mr. Sood is not able to show any material variance in pleading and proof which demolishes the case of respondent-plaintiff that he had sufficient cause for his absence in the Court on 14.12.1981. 12. In the result, this Court does not find any merit in this Revision Petition and it is rejected. CMP No.410/95: In view of the order passed in the Civil Revision, this CMP stands disposed of and interim order dated 8.12.1995 stands vacated.