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2019 DIGILAW 501 (JK)

State of J&K v. Suraj Singh

2019-11-28

DHIRAJ SINGH THAKUR

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JUDGMENT : Dhiraj Singh Thakur, J. 1. An ex-parte decree dated 07.06.2002 was obtained in a Suit for Declaration filed by the plaintiff-respondent herein. An application for setting aside the ex-parte decree was filed on 30.09.2002. This application came to be dismissed in the year 2004, however, the same was restored, subject to payment of some costs. 2. In the second round, the application for setting aside ex-parte decree was again dismissed in default on 12.05.2015. An application for restoration was moved on 10.06.2015, which too came to be dismissed in default on 04.07.2016 on merits. The petitioners herein then challenged the order of dismissal dated 04.07.2016 in appeal before the learned Additional District Judge, Jammu, who, however, held the appeal to be not maintainable vide order dated 24.09.2016. The said order again came to be challenged by the petitioners herein under Section 104 of the Constitution of Jammu and Kashmir and the supervisory jurisdiction of the High Court. However, the High Court did not accept the plea of the petitioners and upheld the order of the learned Additional District Judge, Jammu. Liberty, however, was granted to the petitioners to avail appropriate remedy in accordance with law and further held that the benefit of Section 14 of the Limitation Act would be available to the petitioners, in case such an appropriate remedy was availed. Presuming that a revision petition against the order dated 04.07.2016 was the appropriate remedy, the present petition has been filed. 3. A preliminary objection has been raised by the respondent-decree holder, who states that a revision petition is, in fact, not the appropriate remedy. 4. Reliance is placed on proviso to Section 115 of the Civil Procedure Code Svt. 1977 (for brevity, 'the CPC'), which is reproduced hereunder:- "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 proceedings." 5. It was urged that an application, seeking restoration of an application for setting aside ex-parte decree, even if allowed in favour of the petitioner, would not have finally disposed of the suit or other proceedings, inasmuch as, it was stated that a decree had already followed and it was urged that allowing the application for restoration would not, in any manner, have the effect of disposing of the suit one way or the other, which already stood decreed in favour of the respondent. 6. With a view to support the maintainability of the present revision petition, learned counsel for the petitioners urged that this was a fit case, where a revisional jurisdiction ought to be exercised, inasmuch as, the plaintiff was guilty of fraud and had concealed material facts before the Trial Court and had obtained the decree based thereupon. It was stated that the property in question was State property and that the plaintiff, respondent herein had no claim or right over it. 7. Heard learned counsel for the parties. 8. The issue confronting the Court is one of jurisdiction. Whether this' Court is empowered to exercise revisional jurisdiction in view of the incorporation of the proviso to Section 115 of the CPC reproduced herein above in a case where the application for restoration of an application for setting aside the ex-parte decree has been dismissed on merits is the question. 9. On a plain reading of the proviso to Section 115 of the CPC, it can be seen that the revisional jurisdiction could be exercised by this Court only in a case, where the order impugned, if it had been made in favour of the party applying for revision would have finally disposed of the 'suit' or 'other proceedings'. 10. In my opinion, the dismissal of the application, which is impugned in the present petition, even if it allowed in favour of the petitioners, could not be said to be one, which would have finally disposed of the suit. This I say for the simple reason that if at all the application for restoration was allowed in favour of the petitioners, it would have only allowed the petitioners to agitate the issue with regard to setting aside of the ex-parte decree and would not, in any manner, have the effect of disposing of the suit. 11. This I say for the simple reason that if at all the application for restoration was allowed in favour of the petitioners, it would have only allowed the petitioners to agitate the issue with regard to setting aside of the ex-parte decree and would not, in any manner, have the effect of disposing of the suit. 11. Learned counsel for the petitioners next contended that the revision petition could be maintainable, inasmuch as, the disposal of the application for restoration would have fallen under the expression "other proceedings". In my view, even this contention cannot be accepted in view of a judgment delivered by a Co-ordinate Bench of this Court in case titled, "Mohni Devi and Anr. v. Sarabjit Singh and others", reported in 2011 (4) JKJ 312 [HC]. Paragraph Nos. 18 and 19 of the said judgment are reproduced hereunder:- "18. The argument advanced is specious and better to be ignored. It hardly needs any emphasis that the expression "other proceedings" is used to include matter that partake character of a suit. It refers to proceedings that though having characteristics of a suit is not known or styled as "suit" but some other expression to illustrate a petition under Hindu Marriage Act for restitution of congenial rights or dissolution of the marriage, though not known or styled as "suit" has all the characteristics of a suit. The opposite party is allowed to file reply to the written statement, issues are settled, evidence, recorded and the matter decided by preponderance of probabilities. When Section 115(1) refers to "suit" or "other proceedings", what is intended is, such matters though not having same nomenclature, have all the characteristics of a suit. It follows that revision by a party against an order would be maintainable, in case, the suit or other proceedings would be finally disposed of, had the order gone in favour of the party filing the civil revision. When we embark on an exercise to interpret the expression "other proceedings", we need to be reminded of the object of Civil Laws (Amendment) Act 2009 and opt for a purposive interpretation. The baseline is to be the Heydon's Rule that requires the Court to have regard to the law before the amendment, focus on mischief or defect proposed to be cured and the remedy provided by the amendment. The baseline is to be the Heydon's Rule that requires the Court to have regard to the law before the amendment, focus on mischief or defect proposed to be cured and the remedy provided by the amendment. The Civil Laws (Amendment) Act 2009 was response to concern for unending delays in civil proceedings defect proposed to be cured was frequent civil revisions in the name of failure of justice or irreparable injury to the party aggrieved with the order, and the remedy introduced was restricting scope and ambit of revisional powers. 19. Against the said backdrop, if the expression "other proceedings" is held to include and matters of interim nature or matters ancillary to the proceedings in the suit, the very purpose of the Amendment Act of 2009, would be frustrated and the legislative effort to cure the defect or address the mischief rendered, meaningless. It is pertinent to point out that in "Prem Bakshi's" case the other impugned was one by which the amendment application was allowed and in "Surya Dev Rai's" case, the order impugned was one rejecting an application for grant of temporary injunction. In case, it was permissible to interpret expression "other proceedings" as interim or ancillary applications to the proceedings in the suit, there was no occasion to hold civil revision not maintainable in all these cases." 12. I see no reason to take a view different from the one taken by the Court in the aforementioned judgment. Although serious allegations of fraud have been alleged by the petitioners in an attempt to persuade this Court to exercise jurisdiction so that no undue benefit is taken by the respondent-plaintiff, yet, in my opinion, the said argument could be raised only in appropriate proceedings. 13. In my opinion, the present petition is not maintainable and the same is, accordingly, dismissed.