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2005 DIGILAW 360 (KER)

Kalpakamani v. Shajathan

2005-06-13

KURIAN JOSEPH, P.R.RAMAN

body2005
Judgment :- Raman, J. Petitioner is the plaintiff, who instituted the suit for partition claiming one third right over the plaint schedule item. Subsequently after the examination of two witnesses on his side and when the matter was posted for further evidence he sought to amend the plaint seeking to incorporate a prayer for recovery of the property claiming absolute right over the plaint schedule item as per I.A,No,1302/2002. the subordinate Judge, Palakkad by his order dated 24th July 2002 dismissed the petition after recording the reason as follows:- “2. The suit is filed for partition, I have heard both sides. In this suit P.W.1 and P.W.2 were already examined and posted for further evidence and at this highly belated stage this petition was filed. This is a suit of 1995 and targeted one. The document No.520/66 of S.R.O., Koduvayur partition deed is produced in support of the amendment. But I find that it will alter the character and nature of suit, because the prayer is to surrender possession of the properties on the strength of the document. So I find that petition is only belated and it is intended to protract the trial and find no bonafide.” 2. Aggrieved thereby the petitioner preferred this Civil Revision Petition under Section 115 of the Code of Civil Procedure. When the matter came up before the learned single Judge of this court the question of maintainability of the revision was raised. The learned single Judge referred the matter to the Division Bench having due regard to the importance of the question raised. 3. The main question that arises for consideration is as to whether an order passed at the interlocutory stage of the proceedings pending in a suit dismissing the application filed seeking amendment could be challenged under Section 115 of the Code Civil Procedure invoking the revisional jurisdiction of this Court. 4. By the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) a proviso was added which reads as hereunder:- “provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings”. 5. 5. Even if the amendment sought for is allowed in favour of the petitioner the proceedings would have continued and would not have finally disposed of the suit or other proceedings. The question as to whether an order passed under Order VI Rule 17 of the Code of Civil Procedure is revisable under Section 115 of the Code of Civil Procedure came up for consideration before this court in Madhavan v. Narayana Das 2002 (3) KLT 493. It was held that not only interlocutory orders but also intermediate orders are not amenable to revisional correction under the amended Section 115 of the Code of Civil Procedure. All available indications compellingly point to that conclusion that only final orders stricto sensu will be revisable. It is not open to this court to doubt the wisdom of the Legislature which advisedly brought about the amendment in clear and unambiguous language. Though a contention was raised that the words “other proceedings” appearing twice in the amended proviso to Section 115(1) in the expression “suit or other proceedings” must be expanded to include interlocutory proceedings also, the Court did not agree with the said contention. It was held that such introduction of the words “interlocutory” in front of the word “proceedings” in the proviso would defeat the very purpose of the proviso. It was also held that amendment to Section 115 of the Code of Civil Procedure will apply to pending proceedings for revision which have not been finally disposed of prior to 1-7-2002. The scope of amendment brought out to Section 115 came up for consideration before the apex court in Shiv Shakti Co-operative Housing Society v. Swaraji Developers, 2003 (2) KLT 503. After a survey of the entire case law on the subject the apex court finally held in paragraph 32 as follows:- “A plain reading of S.115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is ‘yes’ then the revision is maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the revision will not be clear. Those orders, which are interim in nature, cannot be the subject matter of revision under S.115. If the answer is ‘yes’ then the revision is maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the revision will not be clear. Those orders, which are interim in nature, cannot be the subject matter of revision under S.115. There is marked distinction in language of S.97(3) of the old Amendment Act and S.32(2) (i) of the Amendment Act. While in the former, there was clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in S.32(2) (i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation.” The question, as to whether even if the revision application are held to be not maintainable whether there will be a bar on a challenge being made under Article 227 of the Constitution of India, was however, not decided. 6. Going by the plain language of the section and the proviso to Section 115 of the Code of Civil Procedure it is evidently made clear that a revision under Section 115 is not maintainable as against an interim order unless the order complained of, if passed in favour or the person who challenged the same, would finally dispose of the matter. As we have already stated the rejection of the amendment application will not finally dispose of the matter and therefore, this is a case where it will fall within the main part of the proviso. We are, therefore, to hold that the Civil Revision Petition is not maintainable under Section 115 of the Code of Civil Procedure. 7. It is then contended that even if a revision is held to be not maintainable this court could exercise, its jurisdiction under Articles 226 and 227 of the Constitution of India, as the case may be, and such remedy is still available to the petitioner. Hence the learned counsel appearing for the petitioner submitted that the case may be considered in exercise of this court’s jurisdiction under Article 226 or 227 of the Constitution of India and grant the relief as prayed for. 8. Hence the learned counsel appearing for the petitioner submitted that the case may be considered in exercise of this court’s jurisdiction under Article 226 or 227 of the Constitution of India and grant the relief as prayed for. 8. In Surya Devi Rai v. Ram Chander Rai, 2003 (3) KLT 490 the apex court considered the scope of interference under Article 226 and 227 of the Constitution of India against interlocutory orders passed by courts subordinate to High Court against which the remedy of revision has been excluded and whether it is open to challenge and subject to certiorari and supervisory jurisdiction of High Court. It was held that Section 115 of the Code of Civil Procedure as amended does not now permit a revision petition being filed against an order disposing of an appeal against the order of the trial court whether confirming, reversing or modifying the order of injunction granted by the trial court. The exercise of Revisional jurisdiction in such a case is taken away by the proviso inserted under sub-section (1) of Section 115 of the CPC. It was also held that a Revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied. While considering the scope of interference under Article 226 of the Constitution of India, it was held that in the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a court which has jurisdiction over a subject matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an appellate court and step into re-appreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court. It was also held that authority in abundance is available for the proposition that an error apparent on the face of record can be corrected by certiorari. The broad working rule for determining what is a patent error or an error apparent on the face of the record was well set out in Satyanarayan Laxminarayan Hedge and other v. Mallikarjun Bhavaappa Tirumale, (1960) 1 SCR 890. It was held that the alleged error should be self-evident. The broad working rule for determining what is a patent error or an error apparent on the face of the record was well set out in Satyanarayan Laxminarayan Hedge and other v. Mallikarjun Bhavaappa Tirumale, (1960) 1 SCR 890. It was held that the alleged error should be self-evident. An error which needs to be established by lengthy and complicated arguments or an error in a long-drawn process of reasoning on points where there may conceivably be two opinions cannot be called a patent error. In a writ of certiorari the High Court may quash the proceedings of the tribunal, authority or court but may not substitute its own findings or directions in lieu of one given in the proceedings forming the subject matter of certiorari. In Ranjeet Sing v. Ravi Prakash, (2004) 3 SCC 682 the apex court followed the decision in Surya Dev Rai’s case (supra) and held that if two opinions on the same material are reasonably possible, the finding arrived at one way or the other cannot be called a patent error. The High Court cannot act like an appellate court and reappreciate or re-evaluate the evidence while exercising certiorari or supervisory jurisdiction. Only a patent error, which does not require establishment by lengthy and complicated arguments or by long-drawn process of reasoning, held is amenable to certiorari jurisdiction. 9. In Surya Dev Rai’s case cited supra the conclusions were summoned up in paragraph 37. It was held in sub paragraph (7) thereunder that the power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. 10. In Karthiyani v. Ramanathan, 2005 (2) KLT 115 a specific question as to whether rejection of a prayer for amendment under Order VI Rule 7 could be interfered with under Article 227 of the Constitution of India came up for consideration. It was held that power under Article 227 cannot be exercised to correct an error of fact or error of law committed by the Subordinate courts. Supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Art.227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Art.227 of the Constitution to review or reweigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision. While rejecting a prayer under Order VI Rule 7, the Court is not exercising its jurisdiction not permitted by law. While exercising its jurisdiction the Court might commit error of facts or error of law and every such error cannot be corrected under Article 227 of the Constitution of India. Reference was also made to the decisions of the apex court in Surya Dev Rai v.Ram Chander Rai, 2003 (3) KLT 490 (S.C.) and Sadhana Lodh v.National Insurance Co. Ltd. 2003(2) KLT 47 (SC). In Mooppan Complex Merchants Association v. Raveendran, 2004 (3) KLT 682 the question regarding the scope of interference under Article 227 as against an order passed under Order VI Rule 17 was considered and held that Article 227 enables the High Court to have superintendence over the subordinate courts and tribunals with a view to keep them within the bounds of their jurisdiction. Obviously, the scope of interference in such a petition is very limited. Obviously, the scope of interference in such a petition is very limited. It is only when a court or tribunal has acted beyond the jurisdiction that the Court normally interferes. 11. In the light of the above discussion we find that the order impugned in the present case is not liable to be interfered with under Articles 226 or 227 of the Constitution of India. The court below declined the prayer for amendment after recording its reasons. Accordingly the Civil Revision Petition fails. It is dismissed. However, in the circumstances of the case, no order as to costs. We make it clear that we have not pronounced anything on the merits of the contentions raised as against the order passed and it is open to the petitioner to agitate such questions after culmination of the proceedings in the appeal or revision against such final order.