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2007 DIGILAW 664 (ORI)

Sri Dilip Kumar Patro v. M. Gopikrishna Rao

2007-08-31

PRADIP MOHANTY

body2007
JUDGMENT PRADIP MOHANTY, J. — In the instant civil revision, the petitioner assails the order dated 26.06.2006 passed by the Civil Judge (Senior Division), Berhampur in T.S.No. 128 of 1997 reject¬ing his application under Section 28(1) of the Specific Relief Act, 1963 filed for rescission of the contract on the ground that the plaintiff-opposite party did not comply with the judgment and decree passed in the above noted suit and committed default in depositing the balance consideration of Rs. 1,41,844/- within the time stipulated in the decree to get the sale deed executed. 2. The brief facts of the case are that the present opposite party, as plaintiff, filed the above noted suit for specific performance of contract against the defendant-petitioner. On consideration of the pleadings of the parties, the learned trial Judge decreed the suit on 07.04.2001 with direction to the defendant to execute a sale deed in favour of the plaintiff within one month from the date of the decree on the latter’s paying the balance consideration amount within the said period. On 19.09.2001, the defendant sent a letter to the plaintiff to deposit the balance consideration amount for the purpose of executing the sale deed but the latter did not deposit the said amount within the time stipulated in the decree. As the plaintiff did not turn up, the defendant filed the petition under Section 28(1) of the Specific Relief Act to rescind the decree. The learned Civil Judge rejected the said petition by order dated 26.06.2006, which is impugned in this revision. 3. The crux of the instant case lies with the maintain¬ability of the civil revision. Therefore, this Court required the counsel for both the parties to first address on the said point and accordingly hearing proceeded on the question of maintain¬ability. To arrive at a just decision with regard to maintain¬ability, provisions of Section 115 of the C.P.C. are necessary to be gone into, which are extracted hereinbelow : “Section 115. Therefore, this Court required the counsel for both the parties to first address on the said point and accordingly hearing proceeded on the question of maintain¬ability. To arrive at a just decision with regard to maintain¬ability, provisions of Section 115 of the C.P.C. are necessary to be gone into, which are extracted hereinbelow : “Section 115. Revision - (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies there¬to, and if such subordinate Court appears - (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. 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 proceeding. (2) 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. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.” It transpires from the above provisions that the revision can be entertained by the High Court only (1) in a case which has been decided by any Court subordinate to it and against which order no appeal lies, or (2) if such subordinate Court appears to have committed jurisdictional error in any mode as per Clauses (a) to (c) of Sub-section (1) of Section 115, or (3) the effect of invoking the revisional jurisdiction would finally dispose of the suit or other proceeding if it is made in favour of revision-petitioner, or (4) if the impugned order is not an appealable one conferring jurisdiction of appeal either on this Court or any Court subordinate to it. 4. 4. The impugned order is not an appealable one conferring jurisdiction of appeal either on this Court or any Court subordinate to it. No jurisdictional error also appears to have been committed by the trial Court. So, it is only to be seen what would be the effect of invoking the revisional jurisdiction if the revision is decided in favour of the revision-petitioner. In other words, had the petition under Section 28(1) of the Specific Relief Act, 1963 been allowed in favour of the petitioner, what would have been its effect on the suit. 5. While on the point, it is necessary to look to the provisions of Section 28 of the Specific Relief Act. “28. Rescission in certain circumstances of contracts for the sale or lease of immovable property the specific perform¬ance of which has been decreed - (1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the Court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require. (2) Where a contract is rescinded under Sub-section (1), the Court - (a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor; and (b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract. (3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in Sub-section (1), the Court may, on application made in the suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely : (a) the execution of a proper conveyance or lease by the vendor or lessor; (b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease. (4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be. (5) The costs of any proceedings under this section shall be in the discretion of the Court.” In view of the above provisions, it can safely be held that had the impugned order been passed in favour of the petitioner, the trial Court would have issued directions in terms of Sub-section (2) of Section 28 of the Specific Relief Act, and in such circum¬stance, the suit would not have terminated. Therefore, in view of the proviso to Section 115(1) C.P.C. and the ratio decided in Shiv Shakti Coop. Housing Society v. M/s. Swaraj Developers, 2003 (I) OLR (SC) 673, this revision is not maintainable. However, taking note of the peculiar facts of the case and in view of the ratio decided in Col. Anil Kak (Retd.) v. Municipal Corporation, Indore 2005 (7) SCALE 356 , this Court directs the Registry to convert the instant proceeding to one under Article 227 of the Constitution of India. Petition disposed of.