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2010 DIGILAW 201 (KAR)

Syed Dastagir v. S. M. Rickabchand Challani

2010-02-16

ARAVIND KUMAR

body2010
Judgment :- The unsuccessful defendants in R.A.No.179/2007 and R.A.No.213/2007 are questioning the correctness and the legality of the order passed in these two appeals dated 11-12-2008 by the I Additional Civil Judge Sr.Dn. & CJM Mysore, whereunder application for additional evidence had been dismissed. 2. The facts in nutshell are as follows: The parties are referred to as per the ranks in the Court below. The plaintiff (1st respondent herein) who is the landlord and owner of the non-residential premises bearing No.347/2, Ashoka Road, Lashkar Mohalla, Mysore-570001 instituted ejectment suit against the defendants (petitioners 1 and 2 herein) in O.S.No.39/2005 on the file of the IV Additional Civil Judge, (Jr.Dn) Mysore. The defendants on service of notice appeared and filed their written statement denying the plaint averments. The trail Court framed initially four issues. Subsequently an additional issue was also framed and on considering the pleadings, evidence on record and the documents produced by its judgment and decree date 2-4-2007 decreed the suit. 3. Aggrieved by the same the defendants filed two appeals i.e., R.A.No.179/2007 (filed by the second revision petitioner) and R.A.No.213/2007 (filed by the first revision petitioner herein). The said appeals also came to be dismissed by judgment and decree dated 11-12-2008 and the judgment passed by the Court below came to be confirmed. 4. During the pendency of these appeals before the first Additional Civil Judge (Sr.Dn). & CJM Mysore, an application under Order 41 Rule 27 had been filed by the appellants therein seeking to adduce additional evidence. The said application was resisted by the respondent by filing detailed objections. The said application was also considered by the appellate Court while considering the appeal on main and by its judgment and decree dt. 11-12-2008 as referred to supra not only dismissed the appeal but also dismissed the application filed by the appellants seeking production of additional evidence. 5. Being aggrieved by this judgment and decree passed in R.A.Nos.179/2007 and 213/2007 dated 11.12.2008 of the first appellate Court the appellants therein i.e., petitioners in this revision petition filed two separate second appeals namely RSA 394/2009 (filed by the first revision petitioner) and RSA 367/2009 (filed by the second revision petitioner). 5. Being aggrieved by this judgment and decree passed in R.A.Nos.179/2007 and 213/2007 dated 11.12.2008 of the first appellate Court the appellants therein i.e., petitioners in this revision petition filed two separate second appeals namely RSA 394/2009 (filed by the first revision petitioner) and RSA 367/2009 (filed by the second revision petitioner). The said appeals were considered on merits and the findings of the first Appellate Court as well as trail Court came to be confirmed and when the appeals were being dismissed, the learned counsel appearing for both the appellants sought for time to vacate the premises and to enable the appellants therein to file an affidavit of undertaking, the matter came to be adjourned and on the adjourned date namely on 9-4-2009 an affidavit sworn to by the respective appellants therein, the revision petitioners herein was filed in RSA 394/2009 and RSA 367/2009 respectively. The said affidavits was taken on record and undertaking given by the appellants was accepted as it was “an absolute undertaking to vacate the schedule premises” and accordingly granted time of nine months from 9-4-2009 to vacate the premises and handover vacant possession of the premises to the respondent landlord therein. The co-ordinate Bench of this Court observed in these two second appeals about non-pressing of other contentions by the appellants therein and dismissed the appeals and confirmed the orders of the Courts below. 6. Thereafterwards an application came to be filed in the above said two Second Appeals i.e., RSA.No.394/2009 and RSA.367/2009 seeking extension of time to vacate and handover possession of the premises by the very same two appellants. The said applications though was opposed by respondent-Landlord, considering the probable hardship the appellants (tenants) may suffer, this Court by order dated 18-12-2009 allowed the application and granted 15 days time to “honourbly vacate from the premises”. 7. When these aspects being the factual matrix, the revision petitioners have now come up in this revision petition questioning the finding given by the first appellate court in R.A.No.179/2007 and R.A.No.213/2007 where under the application for additional evidence had been dismissed by raising several contentions. There has been a delay of 291 days in filing the present revision petition and seeking condonation of the same an application in Misc.Cvl.1090/2010 is also filed. The said application is vehemently opposed by the respondent by filing a detailed statement of objections. There has been a delay of 291 days in filing the present revision petition and seeking condonation of the same an application in Misc.Cvl.1090/2010 is also filed. The said application is vehemently opposed by the respondent by filing a detailed statement of objections. Though, this matter is listed for orders for considering the application for condonation of delay, considering the same would also result in considering the merits of the case, by consent of learned counsel for the parties the revision petition and I.A. for delay are heard on merits. 8. In so far as merits are concerned. Sri. Joseph, learned counsel appearing for the petitioner would contend that the order passed on an application filed under Order 41 Rule 27 is not an appealable order and it does not come within the scope and ambit of a “decree” and as such the petitioners are not precluded from challenging the same by invoking revisional jurisdiction of this Court. In support of his submission he brings to the notice of this Court the definition of decree as defined under Section 2(2) and the definition of the word “Order” as defined under Section 2(14) of the Code of Civil Procedure. To buttress his argument, he would cite two decisions of the Hon’ble Supreme Court in the case Diwan Brothers Vs. Central Bank of India, Bombay and others reported in (1976) SCC Suppl. 664 and Hero Vinoth Vs. Seshammal Reported in (2006) 5 SCC 545 . He would elaborate his submissions by contending that when an application for additional evidence is filed it would go to the root of the matter namely, the jurisdiction of the Court and hence the petitioners are justified in invoking the revisional jurisdiction of this Court though they had challenged the judgment and decree passed in R.A.No.179/2007 and R.A.No.213/2007 by filing Second Appeals. 9. He would draw the attention of this Court to the portion of the first appellate Court’s order to contend that there is no finding given in the operative portion of the judgment of the first appellate Court as well as in its decree about the rejection of the application filed for additional evidence and hence rejection of application for additional evidence is to be considered as an “order” and if so construed, the petitioners would be justified in invoking the revisional jurisdiction. He would also contend that with regard to the production of additional evidence, the first appellate Court though framed an issue and discussed the same but no finding was given. On these lines he submits that order challenged in the revision petition is to be set aside and the revision petitioner should be permitted to tender additional evidence. 10. Per Contra Mrs. Mrudula learned counsel appearing for Sri T.N. Raghupathy would contend as follows: (i) The prayer made in the revision petition is for setting aside the entire order dated 11.12.2008 passed in R.A.No.179/2007 and R.A.No.213/2007 which is impermissible since said order has already merged with the order passed in RSA 367/2009 and 394/2009. (ii) Two orders passed by the first appellate Court in RA 179/2007 & RA 213/2007 was the subject matter of consideration in RSA 367/2009 and 394/2009 respectively and by virtue of the judgment and decree passed in Regular second appeals the judgment and decree of the first appellate Court has merged and hence the revision petitioner cannot re-agitate the same issue under guise of Revision. (iii) In view of the order passed in R.A. having been challenged in RSA the present revision petition is not maintainable. (iv) There are no grounds made out to condone the delay. (v) She would contend the revision petitioners having exhausted all their avenues have now devised this revision petition to wriggle out of the undertaking given before this court and accordingly seeks for dismissal of the revision petition with costs. 11. Having heard the learned counsel for the parties. The following points arise for my consideration. (i) Whether the order passed by the first Appellate Court dated 11-12-2008 suffers from any legal infirmity? (ii) Whether the revision petition is maintainable? (iii) To what order? 12. Re. Contention No.1 In order to appreciate the contention raised by the learned counsel for the appellant it would be necessary to extract the relevant provisions of Civil Procedure Code namely Section 2(2), and 2(14) and Order 41 Rule 27 Civil Procedure Code: “Section 2(2) & 2(14) CPC 2. Definitions: (1) XXX (2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Definitions: (1) XXX (2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include- (a) Any adjudication from which an appeal lies an appeal from an order, or (b) Any order of dismissal for default Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final; (3) to (13) XXX (14) ‘order” means the formal expression of any decision of a Civil Court which is not a decree; ORDER XLI RULE 27 Form of appeal- What to accompany memorandum (1) Every appeal ………… (2) to (26) XXX 27. Production of additional evidence in Appellate Court: (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if- (a) The court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) The party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or) (b) The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission.” 13. Admittedly the revision petitioner sought for production of additional evidence before the first appellate Court by invoking the provision Order 41 Rule 27 Civil Procedure Code. (2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission.” 13. Admittedly the revision petitioner sought for production of additional evidence before the first appellate Court by invoking the provision Order 41 Rule 27 Civil Procedure Code. The Court below having considered the claim of the revision petitioner has come to a conclusion that what was sought to be produced by way of additional evidence was registered extract dated 1-3-2006 and this was available with the petitioners and nonproduction of the same was fatal to the petitioners (appellants therein) and on the said ground has dismissed the said application. Having suffered this order the revision petitioner questioned the said judgment and decree passed by the first appellate Court in RSA 394/2009 wherein it is contended in ground 14 to the following effect: “The 1st appellate Court further committed an error that the appellant intended to produce additional documents to prove their case. But the Court below without allowing to do so posted the matter for further proceedings only on the ground that the respondent 1 aged about 81 years and the additional documents would not support to the case of the respondent.” 14. Having raised this as a ground in the second appeal and which also came to be considered and rejected by the second appellate Court, by holding there was no substantial question of law which requires to be formulated for being considered and rejected the appeal. The order of the first appellate Court dated 11-12-2008 having merged in the order of the second appellate Court dated 9-4-2009 the revision petitioner cannot contend that the order passed rejecting the application filed under Order 41 Rule 27 is to be construed as an independent order which allows the aggrieved party to challenge the same by way of revision petition. 15. The principles enunciated by the Hon’ble Supreme Court in the two judgments cited by the learned counsel for the petitioner cannot be disputed. However, it is to be examined to what extent the principles enunciated are applicable to the facts of the present case. 15. The principles enunciated by the Hon’ble Supreme Court in the two judgments cited by the learned counsel for the petitioner cannot be disputed. However, it is to be examined to what extent the principles enunciated are applicable to the facts of the present case. In the instant case the application having been considered by the first appellate Court and having been rejected by 1st Appellate Court has merged in the decree passed by the first appellate Court which decree of the first appellate Court has also subsequently merged in the decree of the second appellate Court namely in Judgment and decree passed RSA 394/2009 and 367/2009. In view of the same I am unable to accept to the request of Mr. Joseph the order passed under Order 41 Rule 27 in the circumstances of the case cannot be construed as a “decree” and it can be revised as if it was an order, particularly in the backdrop of the same having merged in the decree of the second appellate Court. Hence the contention raised by the learned counsel for the appellant on point No.1 is hereby rejected. 16. Re: Point No.2.: In so far as the maintainability of revision petition is concerned, which is raised by the learned counsel for the respondent the same requires to be up held as revision not maintainable for the following reasons: The prayer sought for in the present revision petition is to set aside the order passed in R.A.No.179/2007 and 213/2007 dated 11-12-2008 rejecting the application of the revision petitioner for adducing additional evidence. When it has been held that the order rejecting the application for adducing additional evidence is merged in the Judgment and decree of the second appellate Court’s judgment and decree, the present revision petition cannot be held to be maintainable. 17. Another aspect which requires to be noticed is that Section 115 provides for exercise of revisional jurisdiction in respect of an order passed for which no appeal lies thereto. 17. Another aspect which requires to be noticed is that Section 115 provides for exercise of revisional jurisdiction in respect of an order passed for which no appeal lies thereto. In the instant case the revision petitioner though now contends that it is the order passed rejecting the application under Order 41 Rule 27 and it is be construed as an “order” and not as a “decree” cannot be accepted for the reason the very same petitioner has raised the very issue of production of additional evidence as a ground in the second appeal and as a consequence of it, has raised a substantial question of law namely jurisdiction of Court to entertain the suit for possession. The fact having been negatived in the appeal, it cannot be said that the order passed is a revisible order. Hence, the said contention raised by the learned counsel for the respondent is liable to be upheld. 18. It is seen from the perusal of the records that the revision petitioner has indulged himself in un-righteous litigation particularly having filed an affidavit of undertaking before this Court agreeing thereunder and to quit and hand over vacant possession of the schedule premises, has now come up in this revision petition which requires to be deprecated and accordingly it is so done. Having initiated or ignited such unrighteous litigation, the revision petitioner should not be allowed to go scot-free and they are required to be mulcted with exemplary costs. The judgment of the Hon’ble Supreme court in a case reported in the case of Sita Ram Bhandar Society, New Delhi vs. Lieutenant Governor, Government of NCT, Delhi and others (2009) 10 SCC 501 is extracted herein below: “The petitioner has been able to frustrate the acquisition and development of the land right from 1980 onwards by taking recourse to one litigation after the other. The record reveals that all the suits/writ petitions, etc. that had been filed had failed. Undoubtedly, every citizen has a right to utilize all legal means which are open to him in a bid to vindicate and protect his rights, but if the court comes to the conclusion that the pleas raised are frivolous and meant to frustrate and delay an acquisition which is in public interest, deterrent action is called for”. Undoubtedly, every citizen has a right to utilize all legal means which are open to him in a bid to vindicate and protect his rights, but if the court comes to the conclusion that the pleas raised are frivolous and meant to frustrate and delay an acquisition which is in public interest, deterrent action is called for”. The principles enunciated in the above said judgment would apply in all force to the facts of the present case. The revision petitioner after having availed all remedies available in law and after having filed an application for extension of time and having obtained the benefit of order from this Court by order dated 18-12-2009 and secured an order of extension and knowing fully well that they would have to vacate on or before 24-01-2010 have filed the present revision petition on 15-01-2001 purporting to challenge the orders dated 11-12-2008 passed in R.A.Nos 179 and 213/2007 (which admittedly has already reached finality in R.S.A.Nos 394/2009 and 367/2009 dated 01-04-2009) in this revision petition and attempting to obtain orders by using trick and stratagem which cannot be countenanced by this Court and is required to be dealt firmly. This conduct of the revision petitioner clearly depicts that their only intention is to drag on the proceedings and squat on the property by devising the present type of litigation and by using their so called ingenuity which not only requires to be curbed but also to be deprecated. Hence in the fitness of things, I am of the considered opinion that each of the petitioners are liable to be mulcted with exemplary costs of Rs.25,000/-each to be paid by them to the respondent within one month from today failing which the respondents are entitled to execute this order by initiating appropriate execution proceedings. The revision petition as well as I.A. filed for delay are accordingly dismissed.