Research › Search › Judgment

Kerala High Court · body

2000 DIGILAW 384 (KER)

Balakrishna Poduval v. Thampan

2000-07-24

T.M.HASSAN PILLAI

body2000
ORDER T.M. Hassan Pillai, J. 1. The revision petitions are heard together and are disposed of by a common order. 2. The revisional jurisdiction of this Court under S.115 of the Code of Civil Procedure is different from the appellate jurisdiction exercised in first appeal (different in nature, quality and extent). The limits of revisional jurisdiction are prescribed and its boundaries defined by S.115 of the Code of Civil Procedure. Revisional jurisdiction is to be exercised by the High Court in a case in which no appeal lies to it from the decision of a subordinate Court if it appears to it that the subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction vested in it by law or has acted in the exercise of its jurisdiction illegally or with material irregularity. The exercise of revisional jurisdiction is thus confined to questions of jurisdiction. In a first appeal the court is free to decide all questions of law and fact which arise in the case. In the exercise of its revisional jurisdiction the High Court is not entitled to reexamine or reassess the evidence on record and substitute its own findings on facts for those of the subordinate Court (see Manick Chandra Nandy V . Debdas Nandy, AIR 1986 SC 446 ). Bearing in mind the above laid down principles I have to consider in these revisions the question whether the court below failed to exercise a jurisdiction which is vested in it or has acted in the exercise of its jurisdiction illegally or with material irregularity or exercised jurisdiction not vested in it. 3. The revision petitioners filed O. S. No. 185 of 1995 on the file of Munsiff's Court, Payyannur for granting them permanent prohibitory injunction restraining the defendants 1 and 2 in that suit from destroying or demolishing the road passing through the plaint 'B' schedule property and also for a mandatory injunction directing the 1st and 2nd defendants to remove the laterite stones and foundation of the compound wall constructed extending to the road and other structures projected into the 'B' schedule road. That suit happened to be dismissed on account of non prosecution on 25.8.1995. To be more precise, the dismissal was on the ground that plaintiffs were absent when the suit was called on 25.8.1995. That suit happened to be dismissed on account of non prosecution on 25.8.1995. To be more precise, the dismissal was on the ground that plaintiffs were absent when the suit was called on 25.8.1995. Alleging that subsequently respondents 1 and 2 illegally started construction and completed the compound wall quite contrary to the oral agreement between revision petitioners and respondents they (revision petitioners) filed O. S. 36/96 before the Munsiff Court, Payyannur and their assertion in that suit was that there arose a fresh cause of action for them to file that suit. The prayer made in that suit was to grant a mandatory injunction against the defendants therein. That suit was dismissed by the court below on 6.4.1997 on the ground that that suit was barred under O.9 R.9 of the Civil Procedure Code. 4. Revision petitioners case is that appeal filed by them against the dismissal of the second suit filed by them has been pending before the Sub Court, Payyannur as A. S. No. 41 of 1987. Subsequently, 2 1/2 years after dismissal of O. S. 185/1995 revision petitioners filed I.A. 1439/97 and I.A. 1441/97 for condonation of the delay in filing the application for restoration of that suit and also to restore the suit to the file of the Munsiff's Court, Payyannur, respectively. Both applications were dismissed by the learned Munsiff on 20.1.1998 declining to accept the case of revision petitioners for not filing the restoration application to restore the suit O. S. 185/95 dismissed for default in time. Case put forth in the restoration application was that 1st revision petitioner was employed at Surat and 2nd revision petitioner was unable to prosecute the suit due to his illness. The further ground stated was that revision petitioners were made to believe by the respondents that they would not construct compound wall etc. Against the orders passed by the learned Munsiff revision petitioners filed C. M. A. Nos. 22 and 23 of 1998 before the Subordinate Judge's Court, Payyannur. C. M. A. 23 of 1998 was preferred against the order passed by the Munsiff's Court refusing to condone the delay in filing the application for restoration of the suit dismissed for default and C. M. A. 22 of 1998 was filed against the order passed by the learned Munsiff refusing to restore the suit to file. 5. Orders impugned in C. M. As. 5. Orders impugned in C. M. As. 22/98 and 23/98 were passed on 20.1.98 and application for obtaining certified copies of the orders was filed on 31.1.98. Certified copies of orders were given to the revision petitioners on 10.3.98. C. M. As were filed out of time i.e. on 16.6.1998. In fact, there was a delay of 84 days in filing the C. M. As. 6. There was delay in preferring the appeals (C. M. As 22 and 23 of 1998) before the lower appellate court and the applications filed to condone the delay (I.A. 716/98 in C. M. A. 23/98 and I.A. 715/98 in C. M. A. 22/98) in filing the appeals by the revision petitioners (appellants therein) were dismissed by the lower appellate court on the ground that no sufficient reason for condoning the delay in preferring C. M. As was shown nor established. Aggrieved by the orders passed by the lower appellate court these revisions have been filed. C. R. P. No. 1847 has been filed challenging the order passed in I.A. 716/98 by the Subordinate Judge in C. M. A. 23/1998. The other two revisions (C. R. P. 2090/99 and C. R. P. 2427/99) have been filed against orders dismissing C. M. A. No. 22/98 and the order dismissing I.A. 715/98 in C. M. A. 22/98. 7. One of the grounds found favour with the lower appellate court for passing impugned orders is lack of bona fides ie. application for restoration of O. S. 185/95 was filed by the revision petitioners after the dismissal of O. S. 36/96. Court below cannot be faulted for reaching such a conclusion on the basis of materials placed before it. 8. I also agree with the finding of the lower appellate court that no satisfactory explanation has been given by the revision petitioners for the delay in filing the restoration application (application for restoring to file O. S. 185/95) and the delay in filing the appeals preferred against the orders of the Munsiff. Sri. O. Ramachandran Nambiar, learned counsel also fairly submitted before me that no case of exercise of jurisdiction by the lower appellate court illegally or with material irregularity is made out. He also fairly submitted that no case is made out that lower appellate court failed to exercise jurisdiction vested in it or exercised jurisdiction not vested in it. Sri. O. Ramachandran Nambiar, learned counsel also fairly submitted before me that no case of exercise of jurisdiction by the lower appellate court illegally or with material irregularity is made out. He also fairly submitted that no case is made out that lower appellate court failed to exercise jurisdiction vested in it or exercised jurisdiction not vested in it. It was the assertion of revision petitioners that they were made to believe that respondents have agreed not to construct compound wall etc. and when they (respondents) committed breach of the agreement they filed O. S. 36/96. It is not the case of the revision petitioners that they were diligently prosecuting the second suit on the basis of a wrong legal advice given to them. It is to be pointed out that their case was that second suit was filed basing on a different cause of action which arose subsequently. The proper remedy available to them was to file an application for restoration of the suit dismissed for default in time. Application for restoration of earlier suit was filed with an oblique motive of overcoming hurdle of dismissal of the 2nd suit filed. Counsel submitted at the time of hearing that A. S. 41/97 preferred by revision petitioner against the judgment and decree passed in O. S. 36/96 was dismissed upholding the judgment under attack in that appeal. 9. No case is made out to invoke the revisional jurisdiction of this Court under S.115 C.P.C. I find no ground to allow these revisions and hence dismissed.