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2014 DIGILAW 1374 (HP)

Sarvo Devi v. Kaushlaya Devi

2014-10-08

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan J. (Oral) CMP(M) No. 331 of 2014 This application has been preferred for condoning the delay of 92 days in filing the Revision Petition. As per the petitioners, the petition could not be filed within time, as the copy was not applied by the counsel within time and thereafter the delay occurred on account of their being vacations in the Courts. 2. The application is vehemently opposed by learned counsel for the respondent by claiming that the delay in filing the Revision Petition is not 92 days, as alleged by the petitioners, but is in fact 184 days since the petitioners has applied for copy of the impugned order after the period of limitation was already over and therefore, is not entitled to the period of limitation over 90 days, which have to be excluded while computing the period of limitation. 3. It cannot be disputed that the petitioners does not stand to gain any thing by not filing the Revision Petition within the prescribed period of limitation rather the petitioners always runs the risk of their petition being thrown out only on the ground of limitation without being adjudicated upon on merits. Power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantiate justice to parties by disposing of matters on merits. The Hon’ble Supreme Court in Collector Land Acquisition Vs. Mst. Katiji has held that the expression “sufficient cause” employed by the legislature in the Limitation Act is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justice-that being the life-purpose for the existence of the institution of Courts. It is further observed that a liberal approach is adopted on principle as it is realized that:- “1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected nor on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” 4. Accordingly the application is allowed and the delay in filing revision petition is condoned. Civil Revision be registered. With the consent of the parties, the case is taken up for final hearing today. Civil Revision No. 144 of 2014 This Revision Petition under Section 115 of the Code of Civil Procedure is directed against the order passed by the learned Civil Judge (Junior Division), Court No. (II), Hamirpur whereby he dismissed the objections preferred by the petitioners. 2. It appears that the respondent/plaintiff had filed a suit for fixation of boundaries by way of demarcation with respect to the land as entered against Khasra No. 224/119 measuring one Kanal one Marla as per entries in Jamabandi for the year 1991-92 situated at Tikka Kughan, Tehsil and District Hamirpur, H.P. and also for grant of decree of permanent prohibitory injunction restraining the defendant late Sh.Chandu not to interfere over the land in question. Initially the suit was partly decreed by the then Civil Judge (Junior Division), Court No. (II), Hamirpur on 31.8.2000, whereby a decree of injunction was passed in his favour, but the relief of demarcation of the suit land was declined. On appeal having been preferred, the judgment and decree passed by the learned trial Court was reversed and the case was remanded back for decision afresh on 23.1.2006. On appeal having been preferred, the judgment and decree passed by the learned trial Court was reversed and the case was remanded back for decision afresh on 23.1.2006. After remand of the case, the suit of the plaintiff was decreed on 26.9.2007. The appeal preferred against the judgment and decree was dismissed and consequently the judgment and decree dated 26.9.2007 passed by learned trial Court attained finality. 3. The respondent filed execution petition and warrants of possession were issued and received back duly executed, where after the petitioners filed objections which came to be dismissed by the learned executing Court. A perusal of the objections preferred by the petitioners show that the objections were not preferred qua the decree in question, but in fact had been preferred against the Field Kanungo/revenue officer, who executed the warrants of possession, on the ground that while executing the warrants of possession the said officer had demolished two rooms of the objectors instead of demolishing one and half rooms and in this process had even damaged the third room. It was also claimed that the revenue officer had taken help of JCB, while executing the judgment and decree and thereby caused loss to the objectors to the tune of Rs.2,00,000/-, as the objectors had been forced to live in a tent. The precise prayer in the objection petition is as follows:- “It is, therefore, prayed that the objections as prayed for may kindly be allowed and action as warranted under law of land may kindly be initiated against the Field Kanungo/Revenue Officer in the interest of justice.” 4. The objections came up for consideration before the learned executing Court, who vide its order dated 21.8.2013 dismissed the same by holding that the objections were after thought, as at the time of carrying out the demolition, the petitioners had not raised any objection. It was further observed that the petitioners along with respectable persons have appended their signatures certifying that the possession had been satisfactorily delivered. 5. It is against this finding that the present Revision Petition has been filed on the ground that no opportunity had been given to the petitioners to substantiate the objections and therefore, the findings recorded by the learned executing Court were not only erroneous, but illegal and perverse. 5. It is against this finding that the present Revision Petition has been filed on the ground that no opportunity had been given to the petitioners to substantiate the objections and therefore, the findings recorded by the learned executing Court were not only erroneous, but illegal and perverse. This is the case where issues were required to be framed and an opportunity to lead evidence had to be afforded to the parties. 6. I have heard the Mr.G.D. Verma, Senior Advocate with Mr.B.C. Verma, Advocate for the petitioners and Mr.Neeraj Gupta, Advocate, for the respondents and gone through the record. The moot question which arises for consideration is as to whether the objections at the first instance against the decree holder were maintainable. After perusing the same, it can definitely be concluded that the objections in the present form were not maintainable. No relief whatsoever had been claimed against the decree holder and the officer against whom the relief had been claimed had also not been arrayed as party. Above all even the provisions of law under which these objections had been preferred had not been mentioned. I am afraid that such omnibus objections, that too without mentioning the provision of law and not arraying the affected parties, were not at all maintainable. 7. The revisional jurisdiction of this Court is circumscribed by Section 115 of the Code of Civil Procedure, which can only be invoked in cases in which no appeal lies to the High Court and the case was decided by any Court subordinate to this Court and 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, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity” The petition under Section 115 of the Code of Civil Procedure can only be entertained when the petitioners case falls within the four corners of the provisions of Section 115 CPC and this Court has no power to interfere in revision, except in the three eventualities mentioned above. Once it is found that the objections itself before the executing Court were not maintainable, then it can be conveniently held that the present revision petition too is not maintainable because even here the petitioners have not chosen to array the Revenue Officer(s) as party and in fact has directed this Revision Petition only against the decree holder against whom no relief has been claimed. The remedy available to the petitioners, if any, was not by way of objection petition, but lay elsewhere. The case does not fall within any of the three eventualities contemplated under Section 115 of the Code of Civil Procedure, resultantly, there is no merit in this petition and the same is dismissed, leaving the parties to bear their costs.