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2002 DIGILAW 18 (KAR)

MALATESH v. MAQBOOL AHMAD

2002-01-07

M.P.CHINNAPPA

body2002
M. P. CHINNAPPA, J. ( 1 ) THE petitioner who is an elected candidate in the Taluk Savanur Panchayat election held on 6-6-00 has questioned the order of the learned Civil Judge (Sr. Dn.) Haveli, declining to reject the election petition filed by the respondent No. 1 in this petn. under S. 115, CPC. The respondent No. 1 has raised the preliminary objection regarding maintainability of this revision petition filed under Section 115, CPC in view of S. 132 (2) of the Panchayath Raj Act, 1993, (for short "the Act" ). ( 2 ) I have heard Sri. F. V. Patil the learned counsel for the petitioner, Sri. H. B. Datar the learned Senior Counsel who was requested to intervene also ably assisted this Court in view of the important question involved in this case and also heard Sri. V. V. Gangadhar the learned counsel for the R-1 and the Government Advocate for R-2. The assistance rendered by Sri. H. B. Datar is placed on record. ( 3 ) THE main argument of the learned counsel for the respondent No. 1 is that provision is provided under the Act, and it shall be complied with strictly and no revision under S. 115, CPC is maintainable. In support of his argument he has drawn my attention to S. 132 of the Act which reads :" (1) The provisions of Sections 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 shall apply mutatis mutandis in respect of election to Taluk Panchayat, the application being to the (Civil Judge (Senior Division)) having jurisdiction and the deposit as security for costs being one thousand rupees. (2) Any person aggrieved by any decision or order of the (Civil Judge (Senior Division)) under this section may, within thirty days form the date of such decision or order appeal to the District Judge and the decision of the District Judge on such appeal shall be final. "in view of sub-clause (2) to S. 132 of the Act, he submitted that a provision is made to prefer an appeal to the District Judge and the order in question was passed under S. 17 of the Act. Therefore, the petitioner ought to have filed an appeal before the District Judge and the revision as brought is not maintainable. ( 4 ) SRI. H. B. Datar, the learned counsel however submitted that the Civil Judge (Sr. Therefore, the petitioner ought to have filed an appeal before the District Judge and the revision as brought is not maintainable. ( 4 ) SRI. H. B. Datar, the learned counsel however submitted that the Civil Judge (Sr. Dn.) is subordinate to High Court and in view of S. 115 of the CPC the petitioner is right in preferring the reivision petition before this Court invoking S. 115, CPC. In support of his argument, he cited a decision rendered by the Kerala High Court in Vasu v. Naryanan Nambooripad, AIR 1962 Ker 261 wherein the Kerala High Court held : (Para 3) "there is yet another way of looking at the question, Section 115 of the Code lays down that the High Court may call for the record of any case, decided by a subordinate Court, in which no appeal lies to the High Court, so that the provision for an appeal, to another subordinate Court, as in the present case does not oust the High Court"s power of revision under this section. This view, I find, has been expressed by Raman Nayar, J. , also in Martha Nicholas v. Yesamma, 1961 0 KLT 927. " ( 5 ) HE also further placed reliance on the Judgment of the Supreme Court in Smt. Vidya Vati v. Shri Devi Das, AIR 1977 SC 397 wherein Their Lordships have held :"under S. 115 a revision application can lie before the High Court from an order made by a subordinate Court only if no appeal lies from that order to the High Court. The words of limitation used in Section 115, are "in which no appeal lies thereto" and these words clearly mean that no appeal must lie to the High Court from the order sought to be revised. Where an order allowing, a review application in a suit for possession is made by sub-judge and an appeal against such an order lies to the District Court and not to the High Court, a revision application filed against the said order before the High Court is maintainable and it cannot be rejected as incompetent. "this Judgment came to be rendered by the Hon"ble Supreme Court on 28-4-1975 in Civil Appeal No. 501/76 and at that time sub-section (2) of S. 115, CPC was not incorporated in the Code but the same came to be included in the statute w. e. f. 1- 2-1977. "this Judgment came to be rendered by the Hon"ble Supreme Court on 28-4-1975 in Civil Appeal No. 501/76 and at that time sub-section (2) of S. 115, CPC was not incorporated in the Code but the same came to be included in the statute w. e. f. 1- 2-1977. According to sub-section (2) of S. 115 CPC the High Court shall not under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. Their Lordships have dealt with sub-clause (1) of S. 115, in the above decisions and had no occasion to consider sub-section (2) of S. 115, obviously because this sub-section (2) of S. 115 was brought in the statute after this decision came to be rendered by the Supreme Court. In view of sub-section (2) of S. 115 when an appeal lies to the High Court or the subordinate Court, entertainment of revision petition under Section 115, CPC is barred. Therefore, this decision is not applicable in view of the subsequent amendment. Similarly, the Kerala High Court also considered the scope and ambit of S. 115, CPC perior to 1975. ( 6 ) THE Madras High Court also has considered a similar question in P. Ramaswamy v. Sri Dhandayuhapani Finance, Sankari, AIR 1986 Mad 360 and held following the Judgment of the Kerala High Court referred to above that when power is conferred on a High Court under S. 115, CPC to call for records of a subordinate Court in which no appeal lies to it, existence of an appeal to another subordinate Court would not oust the power of revision to entertain such matters. In this decision also there is no reference to S. 115 (2) CPC. Even otherwise, on facts also the decision is not applicable. ( 7 ) THE learned counsel for the petitioner Sri. F. V. Patil also submitted that this Court has considered the similar question in H. V. Venkatesh v. Election Officer, Tahsildar, Mulbagal Taluk, Kolar District (1994) 4 Kant LJ 680 : (1995 AIHC 6629) and held :"the expressions "district Court" and "district Judge" being interchargeable expressions, the Munsiff can be equated with the Munsif Court and the learned Munsiff being subordinate to this Court, the decision of the learned Munsiff in the election petition is revisable by this Court under Section 115, of CPC. "in that case also this Court considered the scope of Ss. 15 and 17 of the Act. However, it is true as rightly pointed out by the learned counsel Sri A. V. Gandadharappa sub-section (2) of S. 132 of the Act was not brought to the notice of the Court. From the perusal of the order of this Court also it is clear that it proceeded on the assumption that there is no appeal provision provided under the Act. With this background it is now necessary to find out as to whether the revision petition is maintainable as brought by the petitioner. Further the decision referred to in that Judgment pertain to H. R. C. Act. ( 8 ) THE brief facts of the case are that the respondent No. 1 who was defeated in the Taluk Panchayat Election of Savanur held in the month of June, 2000 filed the election petition No. 1/2000 on the file of the Civil Judge, (Sr. Dn.) Haveri, questioning the validity of the election wherein the petitioner was duly elected. Thereafter, the petitioner filed his objections and the respect No. 1 filed I. A. III under Order VI, R. 17 CPC seeking amendment of the petition. The Court below after considering the arguments advanced by the petitioner and also the proposed amendment came to be allowed as it does not change the nature of case nor cause of action. This order has not been questioned. ( 9 ) IN the meantime, the petitioner also filed. I. A. II under Order VI, R. 16 and Order VII, R. 11 , CPC r/w under Sections 15 and 17 of the Act for rejecting the election petition. That application was dismissed. Hence this petition. ( 10 ) IT is no doubt true that no appeal to the High Court is provided under the Act but as per Section 132 (2) of the Act, any order passed under Sections 15 to 24 of the Act an appeal lies to the District Judge. There is no dispute that the order in question was also passed under Section 17 of the Act rejecting the said application and as against which an appeal does lies to the District Judge. No appeal has been filed preferred but this revision petition is filed. There is no dispute that the order in question was also passed under Section 17 of the Act rejecting the said application and as against which an appeal does lies to the District Judge. No appeal has been filed preferred but this revision petition is filed. ( 11 ) THE learned counsel submitted that the petitioner invoked Order VI, R. 16 and Order VII, R. 11, CPC and therefore, the revision petition is maintainable as the provisions of the CPC were invoked. It is settled law that when specific provisions are made applicable in a special law the application of general provisions viz. CPC cannot be invoked. The Panchayat Raj Act is a self contained Act and it is a special Statute. ( 12 ) FROM the reading of the said Act it is clear that no specific provision of CPC is made applicable. Hence under the Panchayath Raj Act sub-section (7) of S. 17 only deals with the trial of election petition as nearly as may be in accordance the procedure applicable under the CPC 1908. This only suggests as to the manner of service of notice to the opposite parties administering oath, examintion of witnesses, the mode of securing the presence of witnesses, hearing the arguments, delivering Judgment, etc. Therefore, no specific provision of CPC is made applicable under this Act and only procedures are made applicable. On the basis of it, the learned counsel further emphasised that when any specific provision of the CPC is not applicable, it is not the order passed invoking provisions of the CPC. and therefore, S. 115 of the CPC cannot be invoked. ( 13 ) BEFORE amendment the expression appeal to the High Court or the subordinate Court against an impugned order was not used. In Aundal Ammal v. Sadashivan Pillai, AIR 1987 SC 203 while discussing the scope and purport of sub-section (2) of S. 11 and sub-section (1) (b) of S. 18, S. 20 of the Kerala Buildings (Lease and Rent Control) Act, Their Lordships have held that there would be a trial by four Courts and that would be repugnant to the scheme manifest in the different sections of the Act in question. Public policy or public interest demands curtailment of laws delay and justice demands finality within quick disposal of case. The language of the provisions of S. 18 (5) read with S. 20 inhibits further revision. Public policy or public interest demands curtailment of laws delay and justice demands finality within quick disposal of case. The language of the provisions of S. 18 (5) read with S. 20 inhibits further revision. ( 14 ) BEFORE amendment the expression appeal to the High Court or the subordinate Court against an impugned order was not used. This Judgment was subsequently clarified by the Supreme Court in Mahadeo Savlaram Shelke v. Pune Municipal Corporation (1995) 3 SCC 33 : (1995 AIR (SCW) 1439) holding that bar under Section 115 (2) is to exercise revisional power where the party is provided with right of appeal to the High Court or the subordinate Court against the impugned order. It is not a bar to exercise revisional power under Section 115 (1) against the appellate Court order. From this Judgment it is clear that their Lordships have held that the bar under S. 115 (2) is to exercise revisionl power where the party is provided with right of appeal to the High Court or to any subordinate Court. As noted above, in this Act the right of appeal is provided to the District Court only to avoid unnecessary delay, waste of money and also for speedy disposal of the cases. Under the circumstances, notwithstanding the fact that the High Court has a suo motu revision power to revise the order passed by any Court subordinate to that High Court, yet in view of the bar contained in the Act under sub-section (2) of S. 115 and the subsequent observations made by their Lordships of the Supreme Court referred to above, I am of the firm view that in the interest of public and exigencies, the party should be directed to exhaust the remedy provided under the Act by preferring an appeal, lest the very purpose providing appeal provision would be defeated. The scope of the appeal is wider than revisional power. It is also not necessary to mention that the parties would be entitled to work out their remedies even against the order passed by the appellate Court. ( 15 ) I have given my anxious consideration to the Judgment cited and the arguments advanced by the learned Members of the Bar. For the reasonss stated above, the Judgments that have been cited have not considered the effect of sub-section (2) of S. 115 of the CPC. ( 15 ) I have given my anxious consideration to the Judgment cited and the arguments advanced by the learned Members of the Bar. For the reasonss stated above, the Judgments that have been cited have not considered the effect of sub-section (2) of S. 115 of the CPC. In view of the subsequent amendment vide Act 104/76, the Judgment of the Supreme Court and the other High Courts do not come to the assistance of the petitioner. I am of the firm view that no revision lies against an order where there is an appeal provision to the High Court or to any subordinate Court thereto. In this case, the admitted position is that S. 132 of the Act provides for appeal to the Dist. Judge. In the presence of a provision for appeal, the present Civil Revision Petition is clearly misconceived. I therefore, uphold the preliminary objection of the respondent and hold that no civil revision petition can lie in a case where the order is appealable either to the High Court or to any subordinate Court thereto. ( 16 ) IN view of the observations made above, the CRP stands dismissed. However, the petitioner has filed this petition in good faith and in the bona fide belief that a revision petn. is maintainable. Under the circumstances, it is open to the petitioner to prefer an appeal to the District Court under sub-section (2) of Section 132 and avail the benefit of S. 14 of the Limitation Act. Consequently, the stay granted by this Court is vacated. Revision dismissed. --- *** --- .