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1996 DIGILAW 36 (CAL)

Sk. Barjahan v. Khalilur Rahaman Middaya

1996-01-30

DEBI PRASAD SIRCAR

body1996
JUDGMENT The judgment of the Court was as follows :–– In this revisional application under Section 115 of the Code of Civil Procedure, the Order No. 261 dated 2.9.1995, passed by the Learned Additional District Judge, 1st Court, Howrah in O. S. No. 17/81 has been challenged. 2. The suit is over the points and the wakf property as described in the petition filed by Sk. Barjahan, a third party petitioner. The wakf property was under the management of Mutwali, some persons filed a suit, O. S. No. 17/81, as plaintiffs in the Court of the Learned District Judge, Howrah, for removal of the Mutwali. The case was transferred to the Learned Additional District Judge, 1st Court, Howrah and in the course of proceeding of the suit, the latter Court appointed Receivers one after another for management of the property in place of the Mutwali. He appointed one Sk. Soleman at first, one Badruddoja Molla thereafter, and at present one Abdul Mazid is functioning as the Mutwali. 3. The present petitioner Sk. Barjahan is a third party in report the matter involved in the suit. His claim is that he was inducted as a tenant in a portion of the property by Sk. Soleman, the first Receiver and in exercise of his lawful title as tenant, he continued to possess that portion of this suit property. But the present Receiver Abdul Mazid, bore a jaundiced eye against the petitioner Sk. Barjahan. Since taking over charge, the present Receiver was putting the petitioner Barjahan to trouble and tries frantically to compel him to vacate the property in his possession and was putting fencing around Dag Nos. 1508 and 1510 to oust him from possession thereof. Under the instigate of the present Receiver some local people demolished the dwelling house of this third party petitioner and damaged his belongings. The Receiver filed petitions before the Learned Trial Court for permission to institute Civil as well as Criminal Proceedings against Sk. Barjahan, the third party petitioner. 4. The third party petitioner Sk. Barjahan filed a petition on 16.5.95 under Section 151 C.P.C. before the Learned Trial Court praying for allowing him to repair the damaged structure. The prayers of the Receiver Abdul Mazid for instituting proceedings Civil and Criminal against the third party petitioner Sk. Barjahan, the third party petitioner. 4. The third party petitioner Sk. Barjahan filed a petition on 16.5.95 under Section 151 C.P.C. before the Learned Trial Court praying for allowing him to repair the damaged structure. The prayers of the Receiver Abdul Mazid for instituting proceedings Civil and Criminal against the third party petitioner Sk. Barjahan were considered by the Learned Trial Court along with the petition filed by the third party petitioner under Section 151 C.P.C. By his order No. 261 dated 2.9.95, the Learned Additional District Judge, 1st Court, Howrah rejected the prayer of the third party petitioner for permission to the repair the structure under his occupation; but he allowed the prayers of the Receiver for instituting proceedings Civil and Criminal against the third party petitioner Sk. Barjahan and his wife Ayesha Bibi. The aggrieved third party petitioner prefers this revisional application before this Court. 5. The point for determination is whether the impugned order is any way illegal or irregular calling for intervention of this Court under Section 115 Civil Procedure Code. DECISION 6. In a petition under Section 115 C.P.C. the scope for consideration is limited to the extent that the provision empowers the High Court to satisfy itself on three matters:- (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which to the Court ought to exercise its jurisdiction; (c) that in exercising jurisdiction the Court has acted illegally, i.e. in breach of some provisions of law or with material irregularity, i.e. by committing some error of procedure in the course of trial which is material in that it may have affected the ultimate decision. 7. There can be no interference in revision merely because the decision is erroneous in law or in fact where there is no error pertaining to jurisdiction. AIR 1965 SC 553 error of law may of course involve a question of jurisdiction in several ways, as for example :–– (I) when a Court passes an order purporting to act under any law or section which is clearly inapplicable. Here the erroneous belief regarding inapplicability of the law leads to assumption of jurisdiction where there is none, (II) or, the Court may refuse to pass an order under any provision of law clearly applicable to the case under the erroneous belief that it is not applicable. Here the erroneous belief regarding inapplicability of the law leads to assumption of jurisdiction where there is none, (II) or, the Court may refuse to pass an order under any provision of law clearly applicable to the case under the erroneous belief that it is not applicable. It is a case of error of law causing refusal or failure to exercise jurisdiction were it exists, (III) or, there may be error, or irregularity of procedure or disregard of some rule of law in the manner of arriving at a decision although the Court is possessed of jurisdiction. Here the Court having jurisdiction violates a rule of law or procedure when exercising it. It is a case of illegal or irregular exercise of jurisdiction as described by (c) above. All such error resulting from assumption of jurisdiction or non-exercise of jurisdiction or illegal or irregular exercise of jurisdiction are subject to revision. 8. In this case, undoubtedly, the third party petitioner is not a party to this suit, O. S. No. 17/81. His presence is not required for deciding any of the issues involved in this suit. The Learned Advocate for the third party petitioner draws attention of this Court to the Annexure "E" of his petition at pages 29-35 of the record, specifically to page 31, wherein the present Receiver Sk. Abdul Mazid in his report submitted to the Court specifically mentioned that the third party petitioner Sk. Barjahan had been recognised as a regular tenant in respect of three rooms in this suit property by the previous Receiver Sk. Soleman by realising rent and granting receipt to the said sub-tenant but the next Receiver Md. Badruddoja Molla refused to grant any receipt to the said sub-tenant as a result of which, rent for three years remained unrealised from the third party petitioner Sk. Barjahan, and, further to that, Sk. Barjahan had enclosed some portion of the vacant land adjacent to the rooms under his tenancy without the consent of the previous Receiver. The Learned Advocate for the third party petitioner submits that this report of none other than the present Receiver himself confirmed that the third party petitioner was already in lawful possession of portion of the suit property in exercise of lawful title. The Learned Advocate for the third party petitioner submits that this report of none other than the present Receiver himself confirmed that the third party petitioner was already in lawful possession of portion of the suit property in exercise of lawful title. The Learned Advocate for the third party petitioner submits that the title and possession of the third party petitioner having thus been proved, it is illegal on the part of the Learned Lower Court to treat tritely and slightingly, the petition of his third party petitioner by rejecting his prayer for thorough repairs of the rooms under his occupation, and, again, by permitting the Receiver to Institute Civil and Criminal Proceedings against the third party petitioner and his wife. The Learned Advocate for the third party petitioner draws attention of this Court to the Order 40 Rule 1 (2) C.P.C. and maintains the Receiver has no right to remove from the possession or custody of the property any person whom any party to suit has not a present right to remove. He also relies on (1) AIR 1980 Kerala 4. 9. I have examined the provision as provided in Section 115 of the C.P.C. for Revision. The reasons given by the Learned Lower Court is that the point raised by the present third party petitioner is not a point emerging from the subject matter of the suit filed by the plaintiffs against the defendants. I do not find any reasonable ground to differ from the Learned Lower Court on this score. The points for determination in the suit, i.e. O.S. No. 17/81 relate only to right of Mutwali and the question whether he should be removed in the interest of the wakf property and the Muslim public at large of that area. The point raised by the third party petitioner by praying from thorough repair of the structure under his occupation is not concerned with any way with that main issue. The observation of the Learned Trial Court that the joinder of the cause of the third party petitioner will lead to a mis-joinder of the cause in the suit cannot be rejected. The observation of the Learned Trial Court that the joinder of the cause of the third party petitioner will lead to a mis-joinder of the cause in the suit cannot be rejected. The third party petitioner, of course, may pray for judicial pronouncement in respect of his claim raised in the petition and as it has been held in the ruling reported in AIR 1980 Kerala 4 that such a point is justiciable even by a separate suit. 10. Taking into consideration all these points of law as discussed above and the circumstance of this case I do not find any reason to interfere with the order impugned in this revisional application hold that the order should be confirmed with the note that no observation of this Court in this order or in the order the Learned Trial Court in O. S. No. 17/81 shall affect the claim of the third party petitioner in any subsequent suit or petition if filed by this third party petitioner in proper procedure of law for getting relief as prayed in this petition giving rise to the revisional application and that no part of the order passed in this revisional application as well as in the impugned order of the Learned Trial Court shall operate as res judicata in respect of any such claim, if the third party petitioner institutes any suit or proceeding for getting all these relief prayed by him. 11. This revisional application is thus disposed of, confirming the order of the Learned Additional District Judge, 1st Court, Howrah, challenged in this revisional application. Let a copy of this order be sent down to the Learned Trial Court for proceedings with that the matter as per law without delay. The petitioner shall be at liberty to take necessary steps as per law as he may be advised in the perspective of this order.