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2010 DIGILAW 1614 (ALL)

Jaswant Singh and Another v. Kusum Lata Devi

2010-05-14

RAJIV SHARMA

body2010
Rajiv Sharma, J.;- Heard Sri S.K. Mehrotra, learned Counsel for the revisionists and Sri R.N. Tilhari, Counsel for the respondent. Aggrieved by the judgment and order dated 15.10.1990 passed by the District Judge, Hardoi in S.C.C. Appeal No. 70 of 1989, the revisionists have preferred this revision under Section 388 (3) of Indian Succession Act, 1925 read with Section 141 and Section 115 of the Code of Civil Procedure. Draped in brevity, the facts giving rise to the instant revision are that the dispute is in respect to the succession of the case property in the shape of a FDR for Rs.14000/- left by Shiraj Singh on his death on 6.12.1986 in village Bhinsari, Pargana Gopamau, Tahsil and district Hardoi. Respondent-Smt. Susum Late, wife of Babu Singh, filed a case for succession certificate as she being the daughter of deceased Shivraj Singh and except her, no other issue was alive at the time of his death. The same was registered as Misc. Case No. 125 of 1986. The Civil Judge, vide order dated 17.10.1989, after considering the evidence led by the parties, dismissed the claim of the respondent-Smt. Kusum Lata for issuance of succession certificate in her name and by the same order and further directed to issue the succession certificate in the name of the defendants-revisionists in respect of the FDR in question. Against the order dated 17.10.1989, respondent-Smt. Kusum Lata preferred an appeal, which was registered as Misc. Civil Appeal No. 70 of 1989. The appellate Court, while concluding observed that " ..............However, the proof that could be obtained by the appellant, has been brought before the Court in proof of the birth of a daughter to Gulab Singh in the year 1922. The learned Trial Court has surprisingly enough raised a presumption that the said daughter of Gulab Singh might have expired. I am really amazed at this logic of the learned trial Court. Here the trial Court has to decide between the respective cases of the parties and not to import anything from his side. It is not the case of the opposite parties that a daughter was born to Gulab Singh, who, however, died in her infancy or at any point of time. Their case is that of total denial of a birth of a daughter to Gulab Singh. It is not the case of the opposite parties that a daughter was born to Gulab Singh, who, however, died in her infancy or at any point of time. Their case is that of total denial of a birth of a daughter to Gulab Singh. On the other hand, the appellant has come forward with a straight forward case that her mother was born as a daughter to Gulab Singh and as such her mother was the sister of deceased Shivraj Singh. The said case of the appellant stands thoroughly proved by the entry of the birth register of the year 1922. Once it is established that a daughter was born to Gulab Singh, the appellant becomes a preferable successor in comparison to the opposite parties being the daughter of the sister of deceased Shivraj Singh. It is also worth notice that the opposite parties have not given any reliable proof regarding any other woman than Smt. Savitri being the mother of the appellant." Accordingly, the appellate Court, vide order dated 15.10.1990, allowed the appeal, set-aside the judgment and order dated 17.10.1989 and a direction was issued to issue a succession certificate in the name of respondent-Smt. Kusum Lata Devi. Feeling aggrieved, the revisionists have preferred the instant revision inter alia on the grounds that the appellate Court acted in exercise of its jurisdiction illegally and with material irregularity in placing reliance on the alleged entry of the Kutumb Register, as the same being not in consonance with the oral evidence, with the genealogy of the deceased and therefore, it was inadmissible in evidence. Apart from the above, the Court below illegally placed the burden of proof on the revisionists and decided the case of surmises and conjuntures. A preliminary objection has been raised by Sri R. N. Tilhari, learned Counsel for the respondent that the Civil Revision under Section 115 of the Code of Civil Procedure (hereinafter referred to as 'CPC') as amended by the State of U.P. is not maintainable. In support of his submission, he has relied upon the judgment of Full Bench rendered in the case of M/s Jupiter Chit Fund (Pvt.) Ltd. V. Dwarka Diesh Dayal and others [AIR 1979 Allahabad 218] and the judgment of the Apex Court rendered in the case of Vishnu Awatar etc. In support of his submission, he has relied upon the judgment of Full Bench rendered in the case of M/s Jupiter Chit Fund (Pvt.) Ltd. V. Dwarka Diesh Dayal and others [AIR 1979 Allahabad 218] and the judgment of the Apex Court rendered in the case of Vishnu Awatar etc. V. Shiv Autar and others [1980 Allahabad Rent Cases 461] and Vishesh Kumar V. Shanti Prasad [AIR 1980 Supreme Court 892] and this Court judgment rendered in the case of Smt. Beti Devi versus Smt. Vinod Kumari [1994 (12) LCD 227]. Elaborating his arguments, he also submitted that Smt. Kusum Lata Devi-respondent falls within Category IV Class II of the Schedule of the Hindu Succession Act, 1956 being the daughter of Smt. Savitri, the sister of the deceased Shiv Raj Singh. Moreover the revisionists have no right to the property in dispute and the respondent is the only legal heir of the deceased. I have carefully considered the submissions advanced by the learned Counsel for the parties. In order to appreciate the contention with regards to preliminary objection advanced by the learned Counsel for the opposite parties, it would be necessary to reproduce the provisions of Section 115 CPC as amended in the State of U.P. w.e.f 1st July, 2002 by U.P. Act No. 14 of 2003. "115. Revision.-(1) A superior Court may revise an order passed in a case decided in an original suit or other proceeding by a subordinate Court where no appeal lies against the order and where the subordinate Court has- (a) exercised a jurisdiction not vested in it by law; or (b) failed to exercise a jurisdiction so vested; or (c) acted in exercise of its jurisdiction illegally or with material irregularity. (2) A revision application under Sub-section (1), when filed in the High Court, shall contain a certificate on the first page of such application, below the title of the case, to the effect that no revision in the case lies to the district Court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the district Court. (3) The superior Court shall not, under this section, vary or reverse any order made except where,- (i) 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; or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made. (4) 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 superior Court. Explanation I. In this section,- (i) the expression "superior Court" means- (a) the district Court, where the valuation of a case decided by a Court subordinate to it does not exceed five lakh rupees; (b) the High Court, where the order sought to be revised was passed in a case decided by the district Court or where the value of the original suit or other proceedings in a case decided by a Court subordinate to the district Court exceed five lakh rupees. (ii) the expression "order" includes an order-deciding an issue in any original suit or other proceedings. Explanation II.-The provisions of this section shall also be applicable to orders passed, before or after the commencement of this section, in original suits or other proceedings instituted before such commencement." In Jupiter Chit Fund (supra), the Full Bench of this Court held in unequivocal words that the decision on an appeal or revision by a District Court was outside the purview of the revisional powers conferred by Section 115 CPC. These two aspects were affirmed by the Supreme Court in Vishesh Kumar v. Shanti Prasad and Sri Vishnu Awatar v. Shiv Awatar respectively. In Vishesh Kumar (supra), the Supreme Court held that Section 115 as amended by U.P. Amendment Act assigns mutually exclusive jurisdiction to High Court and District Court and that recognising a revisional power in High Court over a revisional order passed by the District Judge would defeat the legislative scheme and object underlying it. In Vishnu Awatar (supra) it was held that against an order of the District Judge made in appeal no revision lies to the High Court provided the suit is valued at less than rupees twenty thousand. In Vishnu Awatar (supra) it was held that against an order of the District Judge made in appeal no revision lies to the High Court provided the suit is valued at less than rupees twenty thousand. However, in Qamaruddin v. Rasul Baksh 1990 All WC 308 the Supreme Court, without noticing the amendments made in Section 115 by the State of U.P., disposed of the matter holding that against an order made under Order 39 Rule 1 and 2 an appeal lies under Order 43 Rule 1 to the District Judge and the order of the District Judge on such appeal is amenable to the revisional jurisdiction of the High Court under Section 115 CPC. A Full Bench was again constituted in Ganga Saran (supra) and the first question framed by the Full Bench was 'Whether the judgment of the Supreme Court reported in Qamruddin (supra) has the effect of overruling the Full Bench decision of this Court in Jupiter Chit Fund (P) Ltd. (supra) as affirmed by the judgment of the Supreme Court in Vishesh Kumar (supra) and Sri Vishnu Awatar (supra). The Full Bench in Ganga Saran vs Civil Judge, Hapur, Ghaziabad And Others on 25/1/1991 AIR 1991 All 114 noticed that there was a direct conflict between the decision of the Supreme Court in Qamruddin (supra) on the one hand and the decisions of the Supreme Court in Vishesh Kumar (supra) and Vishnu Awatar (supra) affirming the decision of the Full Bench of this Court in Jupiter Chit Funds (P) Ltd. (supra) on the other hand. The Full Bench observed as follows: In such a situation it cannot be held that the case of Qamaruddin (supra) lays down the law accurately. Further it also cannot be held that the decision of the Supreme Court in Qamaruddin's case overruled the decision of Full Bench of this Court which as noticed already, has been specifically affirmed in two decisions of the Supreme Court. It would not be reasonable to say that even though Qamaruddin's case does not notice U.P. Amendment Act and the earlier decision of Supreme Court approving the Full Bench decision of this Court, it must be deemed to have dissented or departed from earlier decisions or that it has over-ruled the Full Bench decision of this Court. It goes without saying that even the decision of the Supreme Court must be understood reasonably. It goes without saying that even the decision of the Supreme Court must be understood reasonably. It would not be reasonable to say that the Supreme Court would depart or dissent from its earlier decision without even referring to them or without even referring to the relevant provisions of law. For the above reasons it must be held that the decision of Supreme Court in Qamaruddin's case (supra) to the extent it holds that revision against an appellate or revisional order passed by the district court is maintainable under Section 115, CPC (as amended by U.P. Act 31/78) to the High Court does not state the law accurately or overrule the decision of the Full Bench of this Court in Jupiter Chit Fund (Pvt.) Ltd. (supra) particularly when it has specifically been approved by the two earlier decisions of the Supreme Court. It needs to be mentioned at this stage that in Jupiter Chit Fund (Pvt.) Ltd. the Full Bench held that the words "or other proceedings" in the phrase "cases arising out of original suits or other proceedings" refer to proceedings of final nature and the words have been added in order to bring within the purview of the revisional jurisdiction orders passed in proceedings of an original nature, which are not of the nature of suits, like arbitration proceedings, and that this phrase cannot include decisions of appeals, or revisions. It is settled law that a judicial order passed by the trial court merges in the order passed by the appellate or revisional court: Shankar Ramchandra v. Krishnaji Dattatraya AIR 1970 SC 1 . How can it be said that an appellate or revisional decision in which the decision of the trial court has merged, is still a case arising out of the original suit. After merger, that case, i.e. the decision arising out of the original suit vanishes. The decision of the appeal or revision brings into existence a case which can properly be said to be arising out of the appeal or revision. The decision of an appeal or revision is hence not amenable to the revisional jurisdiction under Section 115 even after the amendment in 1973. Amendments were made in Section 115 CPC by the Code of Civil Procedure (Amendment) Act, 1999 w.e.f 1st July, 2002 but the State of U.P. substituted Section 115 CPC w.e.f. 1st July, 2002. The decision of an appeal or revision is hence not amenable to the revisional jurisdiction under Section 115 even after the amendment in 1973. Amendments were made in Section 115 CPC by the Code of Civil Procedure (Amendment) Act, 1999 w.e.f 1st July, 2002 but the State of U.P. substituted Section 115 CPC w.e.f. 1st July, 2002. The position does not change with respect to the maintainability of the Civil Revision under Section 115 CPC even after the State of U.P. substituted Section 115 CPC w.e.f. 1st July, 2002. In view of the above discussions, I am fully convinced with the arguments of the respondent's Counsel that revision against the appellate order is not maintainable and accordingly, the revision is dismissed.