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2010 DIGILAW 475 (ORI)

R. Rama Rao v. R. Appala Swamy

2010-07-16

SANJU PANDA

body2010
JUDGMENT Sanju Panda, J. 1. In this writ application challenge has been made to the order dated 22.8.2007 passed by the learned District Judge, Ganjam-Gajapati in Civil Revision No. 9 of 2006 allowing the revision by setting aside the judgment dated 25.2.2006 passed by the learned Civil Judge (Junior Division), Berhampur in C.S. No. 286 of 2004 filed under Section 6 of the Specific Relief Act and passing a decree in the Civil Revision in favour of the opposite party, as the revisional Court has no jurisdiction to pass a decree. 2. The facts as narrated in the writ application are as follows: The defendant is the petitioner. The opposite party as plaintiff filed the suit under Section 6 of the Specific Relief Act (hereinafter referred to as "the Act") wherein he specifically pleaded that the disputed house which is situated at Main Road of Prem Nagar of Mouza-Puruna Berhampur under Berhampur Municipality, was the subject-matter of the eviction proceeding initiated by the State Government in Land Encroachment Case No. 825 of 1984 before the Tahasildar, Berhampur. It was his plea that his father and defendant constructed two portions of separate house over the encroached area for which the plaintiff contributed huge money and stayed there with his family in the disputed house. The defendant stayed in the adjoining portion of the disputed house. The father of the parties executed a Willnama on 8.6.1998 in respect of the suit house and the adjoining portion in favour of both the plaintiff-opposite party and one Venkataramana, the brother of the plaintiff authorizing them to enjoy the respective portions as the absolute owners thereof after his death. However, being misguided by the defendant, the father of the plaintiff had filed T.S. No. 115 of 1999 in the Court of learned Civil Judge (Junior Division), Berhampur against the plaintiff for recovery of arrears of house rent from January 1999 onwards and his eviction from the disputed house. The said suit was contested by the plaintiff and the same was decreed. Against the same, the plaintiff preferred RFA No. 35 of 2002 which was also dismissed. Thereafter, he filed Review Petition No. 1 of 2003. The review petition having been dismissed, the plaintiff filed RSA No. 215 of 2003 before this Court. The said suit was contested by the plaintiff and the same was decreed. Against the same, the plaintiff preferred RFA No. 35 of 2002 which was also dismissed. Thereafter, he filed Review Petition No. 1 of 2003. The review petition having been dismissed, the plaintiff filed RSA No. 215 of 2003 before this Court. During pendency of the second appeal, the father of the plaintiff died on 28.1.2004 and after his death, the defendant-petitioner started litigation with the plaintiff-opposite party and created breach of peace for which complaint was given before the police. Apprehending danger, the plaintiff left the disputed house and shifted his family to his own house on 8.4.2004. When the plaintiff was busy in the Election work in the same month, he got an information that on 19.4.2004, the defendant after breaking the lock of the disputed house forcibly occupied the same without the consent of the plaintiff for which the opposite party issued a notice through an Advocate to the petitioner. Since the defendant did not restore the possession, a proceeding under Section 145, CrPC was initiated before the Executive Magistrate in M.C. Case No. 208 of 2004 which is pending. At this stage, he filed the present suit, i.e., C.S. No. 286 of 2004 under Section 6 of the Act for recovery of possession. The defendant appeared and filed his written statement taking a stand that the plaintiff was staying in the house on payment of rent and when he failed to pay the rent, his father filed a suit for recovery of arrear rent, damages and recovery of possession. The suit was decreed and RFA No. 35 of 2002 was filed which was also dismissed on 7.12.2002 by the learned Addl. District Judge, Berhampur. Review Petition No. 1 of 2003 was filed which was also dismissed on 21.3.2003. Thereafter, RSA No. 215 of 2003 was filed before this Court. During pendency of the second appeal, the father died. Due to non-substitution of the legal heirs, the appeal abated. The plaintiff has not got any manner in the right, title and interest in the suit house. On the complaint filed by the plaintiff, the police reported that the proceeding under Section 145, Cr.P.C. that regarding possession of the parties in the said proceeding, the present suit is not maintainable. Due to non-substitution of the legal heirs, the appeal abated. The plaintiff has not got any manner in the right, title and interest in the suit house. On the complaint filed by the plaintiff, the police reported that the proceeding under Section 145, Cr.P.C. that regarding possession of the parties in the said proceeding, the present suit is not maintainable. On the above pleadings of the parties, the trial Court formulated as many as four issues and the parties adduced their evidence in support of their respective pleas. The plaintiff examined himself as P.W.1 and exhibited certain documents and the defendant examined himself as D.W.1 and also exhibited some documents. Analyzing the evidence of the parties, the trial Court came to the conclusion that admittedly the defendant did not take the consent of the plaintiff to enter into the suit house. The plaintiff has mentioned in the plaint that he vacated the house on 8.4.2004 after keeping it with his possession. So it was the duty of the plaintiff to prove that on 8.4.2004 he locked the house even though he vacated the same, but he has not examined any other independent witness for corroboration of the said fact. Rather the defendant has proved the enquiry report of the proceeding under Section 145, Cr.P.C. vide Ext.D where it has been mentioned that the house was occupied by the defendant on 8.4.2004. So the plaintiff failed to prove his pleading as has been alleged in the plaint that the house was occupied on 19.4.2004 by the defendant. Therefore, the plaintiff has failed to prove that the defendant broke upon the lock on 19.4.2004 and forcibly dispossessed the plaintiff. On the above finding, the trial Court dismissed the suit holding that as the plaintiff was not in possession of the disputed house, the question of recovery of possession does not arise. Being aggrieved by the said judgment, the plaintiff filed the CR No. 9 of 2006 before the learned District Judge, Ganjam. The revisional Court after hearing the parties, allowed the revision holding that the plaintiff petitioner was in possession of the suit house and his father had filed a suit for his eviction which was decreed against the plaintiff. Being aggrieved by the said judgment, the plaintiff filed the CR No. 9 of 2006 before the learned District Judge, Ganjam. The revisional Court after hearing the parties, allowed the revision holding that the plaintiff petitioner was in possession of the suit house and his father had filed a suit for his eviction which was decreed against the plaintiff. The said fact established that the plaintiff was in possession of the suit premises and the execution case was pending before the Court below for execution of the said decree for eviction and realization of arrear rent which has not been taken into consideration by the trial Court. It further held that the trial Court has also not taken note of the provision contained in Order 21 Rule 2, CPC which provides that in case of adjustment or satisfaction of any decree, the same is to be certified by the executing Court and unless the same has been done by the Court concerned even if a decree has been otherwise satisfied in case of dispute, the same cannot be recognized by the Court. In the present case, admittedly the second appeal was pending against the suit for eviction and realization of arrear rents. However, the trial Court has laid much emphasis on the evidence with regard to abandonment of the suit premises by the plaintiff and the defendant has pleaded that his evidence that he was in occupation of the suit premises on 8.4.2004 has even more emphasis. Therefore, the revisional Court has exercised the jurisdiction vested on it with material irregularity and the finding with regard to possession can very well be gone into in a revision as no appeal is provided against the order which affects the right of a party and provides him a summary remedy as provided under Section 6 of the Specific Relief Act. Since the plaintiff, having been found to be in possession and directed eviction by the trial Court in the earlier suit and there being the execution case pending, has proved the basic ingredients of Section 6 of the Act and the cause of action arises within six months, he is entitled to the decree prayed for in the present suit and with regard to the observation of the revisional Court that since the appeal is not available it has jurisdiction to reverse or vary a decree passed under Section 6 of the Act, and it on a decision reported in AIR 1965 Allahabad 409 (Maya Ram v. Sant Ram) wherein it was held that the revisional jurisdiction of the Court is not fettered to interfere in a decree, which is not appealable. On the basis of the above decision, the Court has allowed the revision. Learned counsel for the petitioner has challenged the said order in this writ application and submitted that the revisional Court has no jurisdiction to entertain the revision after amendment of the Civil Procedure Code in the year 2002. After the amendment came into force on July, 2002 as the jurisdiction of the District Judge is not conferred by the Act, the Orissa Amendment of the year 1991 conferring jurisdiction on the District judge to entertain civil revision where the valuation of the suit is upto Rs. 1,00,000/- is inconsistent with the amended Act. Therefore, the impugned revisional order is liable to be set aside. Further, the revisional Court has no jurisdiction to pass a decree. In support of his contention, he cited the decisions reported in AIR 1986 SC 589 (Ganpat Giri v. IInd Additional District Judge, Balia and Ors.) (1995) 4 SCC 718 (Pt. Rishikesh and Anr. v. Salma Begum (Smt) and (2003) SCC 228 (Kanaka Gruha Nirmana Sahakara Sangha v. Narayanamma (Smt.) (Since deceased) by LRs. and Ors.). Learned counsel for the opposite party supported the impugned order passed by the revisional Court and submitted that in view of the decisions reported in 2008 (II) OLR 418 (Bijaya Kumar Sahu v. Smt. Namita Panda and Anr.) and 2003 (I) OLR 501 (Smt. Kamini Bala Patra v. Sri Gourahari Patra and four Ors.) the impugned order need not be interfered with by this Court. From the rival submissions of the parties and the facts narrated above, it appears that the plaintiff filed the suit for restoration of possession under Section 6 of the Act in the month of April, 2004 on the allegation that he was dispossessed forcibly by the defendant in the month of April, 2004 and it was not disputed by the parties that the suit was filed within six months of forcible dispossession of the plaintiff and it was not barred by limitation. Therefore, all endeavours construed to made by the defendant regarding dispossession of the plaintiff were within six months from the date of filing of the suit. The trial Court, instead of considering as to whether the plaintiff was entitled to the relief of restoration of possession of the suit premises, gave much emphasis on the date of dispossession, i.e., 8.4.2004, that too, on the basis of a police report submitted in a proceeding under Section 145, Cr.P.C. vide Ext.D. Law is well settled that the civil Court has to come to its own independent finding without relying on the finding or any material of the criminal Court. The defendant admitted that there was a suit for eviction filed by the father against the plaintiff where a decree for eviction and realization of rent was passed by the trial Court. Non-satisfaction of the said decree on the face of it reveals that the plaintiff was very much in possession of the suit house and he was forcibly dispossessed by the defendant. On that score, the trial Court should have decreed the plaintiff's suit. The trial Court not having done so, it ignored the admissible evidence available on record and therefore, the conclusion reached by it is an error apparent on the face of the record. So far as maintainability of the revision is concerned, this Court in a decision reported in 2008 (II) OLR 415 held that the learned District Judge has jurisdiction to entertain the revision. In the decision reported in 2008 (II) OLR 415 (supra) where this Court taking note of the decision reported in 2003 (I) OLR 508 has held that the Orissa Amendment of 1991 to Section 115 CPC continues to remain operative except to the extent of the proviso thereto. In the decision reported in 2008 (II) OLR 415 (supra) where this Court taking note of the decision reported in 2003 (I) OLR 508 has held that the Orissa Amendment of 1991 to Section 115 CPC continues to remain operative except to the extent of the proviso thereto. Learned District Judges remain vested with jurisdiction to entertain the revisions in terms of Orissa Amendment Section 115 CPC subject to applying the proviso to Section 115 as introduced by the Central Amendment Act of 1999 while exercising such jurisdiction. In view of the said pronouncement of this Court in 2008 (II) OLR 415 (supra), the revision before the District Judge is maintainable. In (1995) 4 SCC 718 (PT. Rishikesh and Anr. v. Salma Begum (Smt.), the apex Court held that if the Central Act was made earlier than the State Act, the proviso to Article 254(2) of the Constitution of India is not attracted and the State Act would prevail notwithstanding any inconsistency with the Central Act. In the present case, the State Amendment was earlier than the Central Amendment, the said decision is not applicable. The apex Court in the decision reported in (2003) 1 SCC 228 has held that Article 254(1) of the Constitution of India gives supremacy to the law made by Parliament, which Parliament is competent to enact. But, for application of this article, firstly, there must be repugnancy between the State law and the law made by Parliament. Secondly, if there is repugnancy, the State legislation would be void only to the extent of repugnancy. If there is no repugnancy between the two laws, there is no question of application of Article 254(1) and both the Acts would prevail. This decision is also not applicable to the present case. The decisions cited above by the learned Counsel for the petitioner reveal that the 2001 amendment was inconsistent with the Central Amendment to the Civil Procedure (Amendment) Act, 1976. So far as the Orissa Amendment of the year, 1991 is concerned, it has conferred a power on the District Judge to entertain civil revision against the order passed by the trial Court in a Suit where the valuation of the suit is upto Rs. 1 lakh. So far as the Orissa Amendment of the year, 1991 is concerned, it has conferred a power on the District Judge to entertain civil revision against the order passed by the trial Court in a Suit where the valuation of the suit is upto Rs. 1 lakh. Since the jurisdiction of the District Judge is concurrent jurisdiction, this is not inconsistent with the Central Amendment to the CPC in 2002 and hence the District Judge has the jurisdiction to entertain the revision. This view is also fortified by the decision of this Court reported in 2008 (II) OLR 415 (supra). Therefore, there is no illegality in the order passed by the revisional Court. The writ petition is accordingly dismissed. No costs.