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2001 DIGILAW 261 (HP)

ARUN KUMAR v. PRITAM CHAND

2001-09-28

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J.(Oral):- This revision petition is directed against the judgment dated 1.11.2000 passed by the learned District Judge, Shimla in Civil Miscellaneous Appeal No.75-S/14 of 1999 whereby the appeal of the petitioner/plaintiff (hereafter referred to as the plaintiff) against the order dated 10.12.1999 passed by the learned Sub Judge (V) Shimla dismissing the application of the plaintiff under Order 39 Rules 1 & 2 of the Civil Procedure Code (hereafter referred to as the Code), has been dismissed. 2. Brief facts leading to the presentation of this revision petition are that the plaintiff has instituted a suit for permanent prohibitory injunction restraining defendant No. 1 from making any encroachment on land comprising khasra No. 1583 situate in Up-Mahal Sanjauli Chowk, Tehsil and District Shimla and also from raising any construction on Khasra No. 1584 owned by defendant No. 1 without leaving the requisite set off area. The case of the plaintiff in brief is that the land compromising khasra Nos. 1580 to 1583 is jointly owned by him and some other persons and this land abuts the land khasra No. 1584 owned by defendant No.l. On khasra No. 1580 a double storyed house, which is in possession of the plaintiff, exists for the last about 30 years. Devendant No. 1 started construction over khasra No. 1584 and attempted to encroach upon khasra No. 1583 and also tried to cover the entire area of khasra No. 1584 under the construction without leaving any set back. It is further case of the plaintiff that after the preparation of the final Settlement records, defendant No. 1, in connivance with the Settlement staff, procured order for correction of revenue entries regarding khasra No. 1583 showing defendant No. 1 as the owner in possession of the said khasra number and that such an order has been passed at the back of the plaintiff and without notice to him. 3. Along with the suit, the plaintiff filed an application under Order 39 Rules 1 & 2 of the Code for giant of temporary injunction in terms of the relief as claimed in the suit. 4. The defendants contested the suit. 3. Along with the suit, the plaintiff filed an application under Order 39 Rules 1 & 2 of the Code for giant of temporary injunction in terms of the relief as claimed in the suit. 4. The defendants contested the suit. Defendant No.l contested the application for grant of temporary injunction on the grounds that khasra No. 1583 in fact was a part of old Khasra No.322/2 owned and possessed by him but new Khasra numbers was shown in the joint ownership and possession of the plaintiff and a few other persons. When he came to know about the mistake, he approached the Settlement Officer for the correction of the entries^ which was ordered to be corrected vide order dated 28.7.1995 of the Settlement Officer and a mutation was also accordingly attested. It was further claimed that the order regarding correction of the entries in the revenue record was passed after due notice to the parties but the plaintiff and his brother failed to appear before the Collector (Settlement). 5. After hearing the parties, the learned Sub Judge observed that as per the revenue records, defendant No. 1 is owner in possession of the land khasra No. 1583, therefore, dismissed the application of the plaintiff under Order 39 Rules 1 & 2 of the Code. Being aggrieved, the plaintiff preferred an appeal. The learned District Judge, after referring to the various material placed on record, came to the conclusion that there was no prima face case in favour of the plaintiff and accordingly dismissed the appeal. 6. I have heard the learned counsel for the parties and have also gone through the material placed on the record. 7. Be it stated that by now it is well-settled that revisional powers of the High Court under Section 115 of the Code to interfere with the order passed by a subordinate court are limited and it can interfere only in a case where the subordinate Court has exercised jurisdiction not vested in it, or has failed to exercise jurisdiction vests in it, or has exercised its jurisdiction illegally and with material irregularity. Even when any of the aforesaid requisites exists, in view of the provisions of sub-section (1) of Section 115 of the Code, it has to be further shown that the .order if allowed to stand, would occasion failure of justice or irreparable injury to the party against whom it was made. It is clear from the reading of the proviso that in exercise of its powers under Section 115 of the Code, it is not competent to the High Court to correct error of fact however gross or even errors of law unless such errors have relations to the jurisdiction of the Court which passed the impugned order. 8. In Panduranq Dhondi Chouqule & Ors. v. Maruti Hari Jadhav & Ors. AIR 1966 SCC 153 the Apex Court held as followed: "(10) The provisions of S. 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction, under Section 115, it is not competent to the High Court to correct error of fact; however gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction for the court to try the dispute itself. As cls. (a), (b) and (c) of S. 115 indicate, it is only in cases where the subordinate court has exercised a jurisdiction not vested in it by aw, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction so vested, or has acted in the exercise of its jurisdiction illegal or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may raise in proceedings instituted before subordinate Courts which are related to questions of jurisdiction. It is well-settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdictions of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of S. 115 of the Code. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of S. 115 of the Code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court, cannot be corrected by the High Court under S.I 15." 9. Similar view has been taken by the Apex Court in M/s. D.L.F. Housing and Construction Company (P) ltd.. New Delhi v. Sarup Singh & Ors. 1969 (3) SCC 807 and the Managing Director (MIG) Hindustan Aeronatics Ltd Balanaqar Hyderabad & Anr. v. Ajit Prasad Tarway, Manager (Purchase & Stores) Hindustan Aeronatics ltd. Balanagar, Hyderabad, AIR 1973 SC 76. 10. In the case in hand there are concurrent findings of the Courts below that as per the latest revenue entries the suit land, i.e. khasraNo.1583 is owned and possessed by the plaintiff. The learned District Judge has come to the conclusion that there was no prima facie case in favour of the plaintiff after detailed reference to the material placed on record. Thus, there are concurrent findings of the two courts below that the plaintiff is not entitled to the discretionary relief for grant of temporary injunction. It is not a case of exercising a jurisdiction not vested in such courts nor is a case of failure to/ exercise the jurisdiction which vested in them. No illegality or perversity could, be found in the orders passed by them. Therefore, in view of the above settled position in law, the plaintiff has failed to make out a case warranting interference by this court in exercise of its revisional jurisdiction. 11. As a result, the revision petition deserves dismissal and is accordingly dismissed.