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Himachal Pradesh High Court · body

2003 DIGILAW 29 (HP)

SHANKRI ALIAS SHANTI v. BIMLA DEVI

2003-03-04

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—This revision petition under Section 115 of the Code of Civil Procedure (hereafter referred to as the Code) is directed against the order dated 8.1.2001, passed by the learned Additional District Judge, Shimla, whereby the order dated 14.3.2000 passed by the learned Sub-Judge (V), Shimla, dismissing the application of respondents 1 to 4 under Order 39 Rules 1 and 2 of the Code, has been set aside. 2. The admitted facts leading to the presentation of this petition are that respondents 1 to 4 filed a civil suit seeking declaration that the petitioner is not legally wedded wife of late Sh. Budhi Ram and for permanent prohibitory injunction restraining the respondents from releasing the pensionary benefits of late Sh. Budhi Ram in favour of the petitioner. Alongwith the plaint an application under Order 39 Rules 1 and 2 of the Code was filed. The claim of the respondents 1 to 4 is based on the allegations that the petitioner is not legally wedded wife of said Budhi Ram and, thus, not entitled to the pensionary benefits. 3. The petitioner contested the suit as also the application on the grounds that in fact she is the legally wedded wife of deceased Budhi Ram whereas the respondents 1 to 4 have no right, title and interest in the pensionary benefits of the said deceased and the claim of respondent No. 4 that she is legally wedded wife of Budhi Ram had been denied. 4. The learned trial Judge, after hearing the parties, dismissed the application, though without assigning any reason in support of his final order. Respondents 1 to 4 preferred an appeal against the order of the learned trial Judge, who, by the impugned order, set aside the order passed by the trial Court and directed that pensionary benefits of late Sh. Budhi Ram be distributed by respondents 5 and 6 in equal shares to the petitioner and respondents 1 to 3, subject to respondent No. 1 producing an affidavit that she was unmarried. Being aggrieved, the petitioner has preferred the present revision petition. 5. I have heard the learned Counsel for respondents 1 to 4 but could not have the advantage of hearing anyone for the petitioner and respondents 5 and 6, as none put in appearance when the case was called for hearing. 6. Being aggrieved, the petitioner has preferred the present revision petition. 5. I have heard the learned Counsel for respondents 1 to 4 but could not have the advantage of hearing anyone for the petitioner and respondents 5 and 6, as none put in appearance when the case was called for hearing. 6. It may be pointed out at the very outset that it is well settled that scope of interference by the High Court in exercise of its powers under Section 115 of the Code with the findings of the Subordinate Court is very narrow and such an interference will be justified only where such Court has exercised the jurisdiction not vested in it by law, or has failed to exercise the jurisdiction vested in it or has acted in the exercise of such jurisdiction illegally or with material irregularity. 7. In Bhagat Chand v. Thelu and others, 2001 (2) Shim. L.C. 278, this Court, while dealing with the scope of interference in exercise of revisional jurisdiction by the High Court with an order passed by the Subordinate Court, has held as under : "8. In exercise of its revisional jurisdiction High Court may interfere with an order passed by a Court subordinate to it against which revision lies if the following conditions are satisfied: (1) That such subordinate Court while passing the order: (a) has exercised a jurisdiction not vested in it, or (b) has failed to exercise a jurisdiction vested in it, or (c) has acted in the exercise of its jurisdiction illegally and with material irregularity, and (2) That such order if allowed to stand, will occasion a failure of justice or irreparable injury to the party against whom it is made. 9. In case the aforesaid conditions are not satisfied, the High Court shall not interfere merely on the ground that a different view on facts as on record is possible." 8. In The Managing Director (MIG), Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad, AIR 1973 SC 76, while dealing with a similar question, the Honble Supreme Court held as under : "5. In our opinion, the High Court had no jurisdiction to interfere with the order of the first appellate Court. In our opinion, the High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appellate Court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is riot the case that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code: See the decisions of this Court in Pandurang Dhoni v. Maruti Hari Jadhav, (1996) 1 SCR 102 : AIR 1966 SC 153 and D.L.F. Housing and Construction Co. (P) Ltd., New Delhi v. Sarup Singh, 1970 (2) SCR 368 : AIR 1971 SC 2324." 9. A perusal of the record in this case reveals that the appellate Court below has not committed any jurisdictional error in passing the impugned order. The pensionary benefits have been ordered to be paid to the widow and the children of the second wife, relying on the ratio as laid down by the Apex Court in Rameshwari Devi v. State of Bihar and others, JT 2000 (1) SC 328, and that too when the material aspects of the case were admitted by the counsel for the parties stating before the appellate Court below that the order of the Sub Judge might be suitably modified and the pensionary benefits may be ordered to be released in favour of the petitioner and respondents 1 to 3. Thus, the impugned order is not only in conformity with the law as laid down by the Apex Court but is also based on the submissions made by the counsel for the parties before the appellate Court below. Therefore, the impugned order does not call for interference by this Court. 10. As a result, this petition merits dismissal and is accordingly dismissed. Revision petition dismissed.