Madras High Court
Roman Catholic Church, Maniaran Kunnu ... vs Mariarulappan And Two Others on 26 February, 2001
Equivalent citations: (2001)2MLJ190
ORDER
1. The third defendant in O.S.No.316 of 1998 on the file of the Additional District Munsif. Kuzhithurai, Is the revision petitioner, The suit has been filed by the first respondent herein against respondents 2 and 3, who are respectively his father and brother and the revision petitioner herein, for partition and separate possession of his 1/3rd share in the suit property of an extent of 2 acres 60 cents in R.S.No.325 of Painkulam Village, averring as follows:
2. The suit property originally belonged to his grandfather, who purchased the same from the previous owners as per sale deed dated 29.4.1973 (M.E). The suit property being an ancestral property, the first respondent is entitled to 1/3rd share, while respondents 2 and 3 are each entitled to 1/3rd share. The revision petitioner has its property and Church south of the suit property separated by compound wall of about 8 feet height. Just prior to the suit, at the request of the Church, the second respondent surrendered about 2 cents of land to the revision petitioner for constructing a small water tank to take water to the Church property. As the suit property has not been partitioned by metes and bounds and disputes have arisen among the respondents herein, the suit is necessitated.
3. Respondents 2 and 3 support the case of the first respondent.
4. The revision petitioner has filed a written statement contending inter alia as follows:
Though the suit property originally belonged personally and exclusively to the plaintiff's ancestor Innasi, the said Innasi along with one Ayyappan @ Abraham, who had interest in another item of property sold his entire right to the revision petitioner on 16.8.1973 M.E., corresponding to 28.4.1998, under Document No.1697 marked in the present suit as Ex.P-1, the same having been called for by the Court from the Sub Registrar's Office at Munchira, the original having been lost by the revision petitioner. In the resurvey and settlement conducted by the State, the property has been demarcated as Sub division No.1 (14 ares). Sub Division No.3 (220 ares) and Sub Division No.7 (10 ares) in Field No.325 lying contiguously with boundaries all around. All the revenue records stand in the name of Rt.Rev.Dr.T.R. Agniswami, the then Bishop of Kottar Roman Catholic Diocese, of which the revision petitioner Church is a Constituent Parish. The suit property forms part of the property purchased by the revision petitioner as already stated and there is no compound wall separating the suit portion from the rest of the property of the revision petitioner. The second respondent did not surrender any part of the suit property to the revision petitioner for any purpose. He was incompetent to do so. The cause of action averred in the plaint is false and concocted by the first respondent in collusion with respondents 2 and 3.
5. Pending suit the revision petitioner filed I.A.No.874 of 1998 to call for emergency from the Sub Registrar's office at Munchirai the book containing Documents Nos.1697, 1877 and 1879 of 1073 M.E. and admit the same as evidence in the suit. No counter was filed and the application was allowed on 4.2.1999.
6. Thereafter, the revision petitioner preferred the present application in I.A.No.336 of 1999 to summon one of the two persons named in the petition for preparing copies of Exs.P-1, P-2 and P-3 in Tamil alleging that the documents summoned and marked through an employee of the Sub Registrar's Office as Exs.P-1, P-2 and P-3 were found written in Malayalam, which was in vogue at the time the documents came to be executed, that parts of the documents were crumbled and that it was necessary to prepare copies of the documents by a person well-versed in the language before the book was returned to the Sub Registrar's Office.
7. The first respondent/plaintiff filed a counter opposing the application. In the counter, it was stated that admittedly the documents were crumbled and it was not possible to take copies, that the documents produced from the Sub Registrar's Office, Munchirai, did not relate to the suit properties, that the revision petitioner had no right in the suit property and did not also get any right under any document and that the petition was not at alt supported by any good faith.
8. The learned Additional District Munsif dismissed the application holding that the documents would be available with the persons concerned, that the revision petitioner would have translation of the contents of those documents and file them in the Court, that the revision petitioner had not shown as to the properties which were dealt with under those documents and how those documents were absolutely necessary and that therefore, there was no case made out for granting the prayer.
9. As against this order the present civil revision petition has been filed.
10. Mr.K.N. Thampi, learned Counsel appearing for the first respondent, raised a preliminary objection as to the maintainability of the civil revision petition as, according to him, the order passed in the application could not be stated to be one deciding a case between the parties and unless it was shown that it was a case decided, there could be no revision under Section 115 of the Code of Civil Procedure. In support of this contention, the learned Counsel relied on the following decisions.
C.L. Ramiah Thevar v. P.C. Balarama Raja, and (2) Subbian v. Siva Kumar, .
The learned Counsel also referred to the decision in Pankajbhai Magjibhai Patel v. State of Gujarat and another, 2001 (1) CTC 368 for the proposition that in case I did not agree with the decisions of the single Judges of this Court on this point, I would be duty bound to refer the matter to be decided by a larger Bench.
11. Let us now have a look at the provisions of Section 115 of the Code of Civil Procedure. It runs as follows:
"Revision: (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if 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 High Court may make such order in the case as it thinks fit.
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 -
(a) 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
(b) the order, if allowed to stand, would occasion a failure of justice or cause Irreparable Injury to the party against whom it was made.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
Explanation: In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding."
12. Before the introduction of the explanation to Section 115, the Courts in this country had taken different views. However, the Supreme Court in S.S. Khanna v. F.J. Dillon, decided that the word "case" was not restricted to a litigation in the nature of a suit but included all proceedings in which the jurisdiction of a Civil Court was invoked for the determination of a claim or right legally enforceable and that revision was maintainable against interlocutory orders passed in a suit.
13. The explanation has now put the matter beyond doubt and the present position is that any case, which has been decided would include any order made or any order deciding an issue in the course of a suit or other proceeding. However, as pointed out by Mulla in the Code of Civil Procedure 15th Edition, Volume I page 826. "the explanation must be read along with the rest of the section. So read, although an order may be said to be a case decided, every such order would not be revisable unless there is a question of jurisdiction within the meaning of clauses (a), (b) or (c) of sub-section (1) and further it is an order as contemplated by clause (a) or (b) of the proviso. The order also must be one which for the purposes of the suit decides some right or obligation of the parties." That is to say, the High Court has no powers to vary or reverse any order made or any order deciding an issue in the course of a suit or other proceeding unless 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 the order if allowed to stand would occasion a failure of justice or cause irreparable injury to a party against whom it was made.
14. Instances of interlocutory orders which can be disturbed in exercise of powers of revision under Section 115 of the Code of Civil Procedure may be listed as follows;
(1) An order granting permission to sue as an indigent person.
(2) Where the Court asks the plaintiff to pay additional court fee before the suit is entertained.
(3) An order under Section 10 of the Code granting stay or declining to stay the order of the trial Court.
(4) An order striking out pleading for non-payment of costs.
(5) Amendment of pleadings.
(6) An order holding that a document was insufficiently stamped and impounding It under Section 38 of the Stamp Act.
(7) An order refusing an application to bring on record the legal representatives of a deceased party under Order 22.
(8) An order by the Small Cause court returning the plaint for presentation to proper Court.
(9) An order refusing to examine a witness.
(10) Pecuniary jurisdiction of the Court.
(11) Maintainability of the suit.
(12) Interim Injunction.
(13) Appointment of receiver.
(14) Staying the hearing of a suit or proceeding.
(15) Amendment.
15. Instances where the powers under Section 115 cannot normally be exercised may be tabulated as follows:
(1) Refusal to frame additional issues.
(2) Passing of exparte interim order, though made in the course of a suit.
(3) An order which decides that certain evidence is inadmissible.
(4) An order refusing adjournment except in peculiar circumstances.
(5) Allowing or disallowing questions in examination and cross-examination, (6) Wrong admission of documents in evidence.
(7) Confirming or setting aside Advocate Commissioner's report and ordering fresh investigation.
(8) Summoning of witnesses.
(9) Discovery, production and Inspection of documents.
(10) Issue of commissions for examination of witnesses.
The above lists are only illustrative and not exhaustive.
16. The test in all these cases is whether the order challenged under Section 115 can be stated to be a case decided between the parties. The mere fact that any of the parties can ultimately challenge the findings before an Appellate Court cannot be treated as an absolute bar to the maintainability of a revision petition. A decision in order to amount to a case decided need not dispose of the suit as a whole. It is sufficient if it decides a vital matter in controversy between the parties,
17. The question as to whether an order was a "case decided" depends upon whether or not there was an adjudication for the purpose of suit or proceeding, of some right or obligation of parties in controversy. The order can be revised only if there was such an adjudication and the same suffered from jurisdictional error.
18. As pointed out by Untwalia, J., as the learned Judge then was, in Ramgulam Choudhary and others v. Nawin Chousdhary and others, a line has to be drawn between two types of orders, although both of them are made during the pendency of the suit or proceeding. It has to be noticed whether a particular order is an adjudication by the trial Court deciding for the purpose of suit or proceeding some right or obligation of the parties in controversy or whether it is an order which is riot of that kind. In respect of interlocutory orders, an error of jurisdiction alone will not suffice. It must be a case decided. To reiterate, it must be shown that the orders passed in the interlocutory applications affect the rights and liabilities of the parties, in the sense they become final orders. Such orders which are procedural in character cannot be said to be final orders and it cannot be said that they are cases decided.
19.There may also arise situations when an order may be passed against a petitioner, as for example, in the instant case, the documents cannot be relied on in evidence because they have been shut out of consideration and if it is to be ruled that it is open to the petitioner to raise the point in case he loses the main case, in the appeal before the higher Court, under the provisions of Section 105 of the Code of Civil Procedure, a situation may arise that the Appellate Court will find in his favour, and this will entail a remand for leading evidence, which would be callous waste of time and it would be years before the parties saw the light at the end of the tunnel. At the same time, if the documents are allowed to be received and in case the trial Court relies on these documents for reaching a decision in favour of the party producing them, it would be open to the loser to canvass before the Appellate Forum, setting forth the error, defect or irregularity in such an order in the ground of objection and persuade the Appellate Court to eschew the documents out of consideration. But, this will not necessitate a remand and further delay will be avoided. Thus, in a given case a decision may amount to a case decided in so far as one party is concerned and not so for the other party. There is no hard and fast rule. It will depend on the facts and circumstances of the case.
20.As pointed out In Shaikh Jaffar Shaikh Mahmood v. Mohd. Pasha Hakkani Saheb, the ultimate test would be whether there is an error of jurisdiction committed by the Subordinate Court in passing the order or whether there is any such manifest error of procedure committed by the Courts as may affect the ultimate decision resulting in gross injustice.
21. Shutting out the evidence, which a party is entitled to place before a Court to substantiate his case, definitely decides the right of a party, adversely against him and in this view, the order passed by the Court below in the present case is a case decided. There is also failure to exercise the jurisdiction vested in it by the Court below on a patent misconception, particularly when the earlier application had been allowed unopposed and the relevant documents had also come to Court.
22. In Chinnaraju Naidu v. Bavani Bai, 1981(II) MLJ 354 arising under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act Ratnavel Pandian, J., as the learned Judge then was, held that, "the purpose of putting a bar on the powers of appeal or revision, as the case may be, in relation to any interlocutory order passed in proceedings like rent control matters, which is not a final order affecting the right and liability of any party, is to bring about an expeditious final disposal of the case. All interlocutory order 5 passed during the proceedings under the Act cannot be said to be orders coming within the meaning of Section 23(1)(b) of the Act. Only the orders that affect the rights and liabilities of the parties in the sense that they become final orders though passed on interlocutory application, such as refusing to set aside exparte order etc., are appealable-However, it is open to the parties to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceedings."
23. The same learned Judge in Hyath Basha v. Tajan Bi, reiterated the ratio in the following terms:
"Unless it is shown that the orders passed in the interlocutory application affect the rights and liabilities of the parties, in the sense, that they become 'final orders', such orders which are procedural in character, cannot be said to be 'final orders' coming within the definition of 'order' occurring in Section 23(2) of the Act. (Rent Control Act)"
The learned Judge referred to the decision of the Supreme court in Central Bank of India v. Gokalchand, AIR 1957 SC 799 dealing with a case under the Delhi Rent Control Act Section 38(1). In that case, the Supreme Court observed that, "the words "every order" passed by the sent Controller, though very wide, do not include interlocutory orders which are merely procedural and do not affect the rights and liabilities of the parties and in a pending proceeding the Controller may pass many interlocutory orders such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises fixing a date of hearing and the admissibility of a document or the relevance of a question and that all these interlocutory orders are- steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceedings; they regulate the procedure only and do not affect any rights or liabilities of the parties. The legislature could not have intended that the parties would be harassed with the endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error defect or irregularity, if any, in such an order as the ground of objection in his appeal from the final order in the main proceeding."
Subject to the above said limitation, an appeal lies to the Rent Control Tribunal under the Act. Even an interlocutory order passed under Section 32(7) is an order passed under the Act and subject to interference under Section 36(1) provided it affects the right and liability of the party. Thus an order of the Rent Controller refusing to set aside an exparte order is subject to appeal to the Rent Control Tribunal under the Delhi Act.
24. In Pohnuswamy Pandaram v. Salem Vaiyappamalai Jangamas Sangam Etc., 1985 (I) MLJ 380 Nainar sumdaram, J. , as the learned Judge then was, dealing with the words "case decided" after referring to a number of decisions of the Supreme Court and other High Courts, observed as follows:
"But the decisive factor to find out the revisability or otherwise of such orders is to determine whether by such orders some right or obligation of the parties in controversy gets decided. The right or obligation need not necessarily have a nexus to the main lis and in the progression of the suit towards its final adjudication and the final resolution of the controversy between the parties. Very many rights and obligations do crop up and they have foundations both in substantive law as well as in procedural law and, if they get decided by such Interlocutory orders, they are certainly revisable.."
The learned Judge further observed that, "the question as to whether a particular order adjudicates some rights or obligations of the parties in controversy will depend upon the nature of the right or obligation and it is not possible to lay down a uniform rule and no decision including any of the highest Court in the land, attempted to do so."
25. In Doshei Dei and others v. Rama Routa and others, relied on by Mr.T.R. Rajaraman, learned Counsel for the revision petitioner, as regards the scope of the provisions of Section 115 of the Code of Civil Procedure, it is observed as follows:
"It is well settled that the special and extraordinary revisional jurisdiction of this Court is exercised only to promote justice and that power should not be exercised unless it is found that the party approaching the Court under Section 115 of the Code has no other remedy in law open to him to set at right his grievance, if any."
The learned Judge referred to an earlier decision of the Patna High Court in Mahanth Som Prakash Das v. Sri Udasin Panchayati Akhara Bora, AIR 1963 Pat. 35 wherein, while considering the legality and propriety of an order refusing to entertain certain documents on the record it was held that, "a civil revision will be maintainable against any order which determines the rights and obligations of the patties in controversy. If the impugned order is allowed to stand and will occasion a failure of justice or cause irreparable loss to the party against whom it was made, then a revision against such order will lie."
In that case, it was further noticed that, "to file a document under Order 13, Rules 1 and 2 of the Code is a right of a party in a suit and that if that valuable right is denied, then that amounts to a decision in a case within the meaning of Section 115 of the Code."
26. In P.Subba Rao v. G. Ganga Rao, AIR 1935 Ori. 140 G.B. Patnaik, J., as the learned Judge then was, held that, "exclusion of evidence holding it inadmissible although under law the evidence is not inadmissible and when such evidence is a material piece of evidence influencing the Court in passing the final order, would come within the concept of "acted in exercise of jurisdiction Illegally and with material irregularity',- used in Section 115(1)(c) of the Code of Civil Procedure."
27. Again, in Sri Lakshmi Kanta Mandal v. Minor Achintya Mandal and others, it was held that, "refusal by the trial Court to admit evidence fulfilling the conditions for admission is contrary to provision of law and the same is curable in exercise of revisional power."
28. In Kanagarathinam v. S. Ramaswamy, C.R.P.Nos.67 and 68 of 1999 decided by S.S. Subramani, J. the facts were as follows:
During the evidence of P.W.I, the revision petitioner in that case served a notice to the Counsel for the respondent in the lower Court asking him to produce the day book for particular years and vouchers regarding their claim. Even though notice was served, documents were not filed nor any affidavit filed. P.W.I's examination was over and thereafter, petitioner's evidence was also completed. The matter was heard in full and posted for judgment. At that time, an application was filed by the respondent/plaintiff under Order 13, Rule 2 of the Code of Civil Procedure and also to mark the day book, which he alleged that he produced in the Court. The application was seriously opposed by the revision petitioner by stating that the document could not be marked without further evidence and at any rate when the case was adjourned to pronounce judgment, an application of that kind was not maintainable that the application was lacking in good faith and if the document was marked, it would seriously affect his case. The lower Court allowed the application in the interests of justice. It was challenged in revision. The learned Judge after referring to the decisions of the Supreme Court in Baldevdas v. Filmstar Distributors, , Alekh Pradhan v. Bhramar Pal, AIR 1978 Ori. 58 and Hemendra Chaudhaby v. M/s Punjab National Bank, held that, "the revision against an order allowing an application for producing documentary evidence, which was not filed at the appropriate stage in accordance with Order 13 Rule 1 of the Code of Civil Procedure was not a case decided for the purpose of Section 115 of the Code of Civil Procedure and that the revision was not maintainable."
29. As against these decisions, Mr.K.N. Thampi, learned Counsel for the respondents, relied on another decision of S.S. Subramani.. J. in C.L. Ramiah Thevar v. P.C. Balarama Raja, already referred to and the decision of Raviraja Pandian, J. reported in Subbian v. Siva Kumar, . In the first of the cases, in a suit for specific performance of an agreement for sale of property, the defendant denied execution, filed an interlocutory application to send the suit document for expert opinion. The application was allowed. However, the expert expressed inability to give any reliable opinion on the handwriting in the absence of enough standard materials and returned the documents. Thereafter, the revision petitioner again applied to the Court to send the documents once again for expert opinion. The lower Court rejected the memo stating that the said document had already been sent to the expert and his opinion had been obtained and therefore there was no necessity to send the documents mentioned in the memo. This order was challenged before this Court and the revision was dismissed at the stage of admission with the following observations:
"..... It is open to the revision petitioner who is the defendant before the lower Court, if he is so advised to file appropriate petition under the relevant provision of law to send the standard materials as required by the expert for his opinion by filing a fresh and separate application to that effect."
Thereafter, a fresh application was filed and the same was dismissed by the lower Court, against which revision was filed in this Court. Objection regarding the maintainability of the revision petition was raised. On merits, the learned Judge found that the revision petitioner therein did not get any further material and he wanted the Court to get expert opinion on the basis of the very same materials which were returned by the expert. There was no fresh material placed to get expert opinion. The learned Judge rejected the revision on merits as well as on the ground of maintainability by relying on the judgment of the Kerala High Court in Ravindran v. Roja, 1992 (II) KLT 102 which in my view has gone a little too far. However, the facts of the case decided by Subramani, J. are clearly distinguishable as would be evident from the discussion above.
30. The next decision is Subbian v. Siva Kumar, . In that case, maintainability of revision petition against an order giving permission to party to give evidence in execution proceedings was raised. It was held by the learned Judge after referring to a number of decisions of the Supreme Court, this Court and other High Courts that, "such an order did not decide right and obligations of parties and permitting person to appear as his own witness at a later stage in execution proceedings for reasons to be recorded is not a case decided. This case also does not apply to the facts of the present case.
31. The decision of the Supreme Court in Pamkajbhai Magjibhai Patel v. State of Gujarat and another, 2001(1) CTC 368 relied on by the learned Counsel for the respondents to bring home his point that a single Judge cannot ignore a decision rendered on the same point by another single Judge of the same High Court and it should not sideline earlier judgment and in case he did not agree with such earlier view he should refer the matter to a larger Bench, does not require to be followed in the present case for the simple reason that there is perceptibly no conflict of decisions.
32. As I have held that the order of the lower court is clearly vitiated for the reasons already set out, it will stand set aside and the application filed before the lower Court will stand allowed. The civil revision petition is allowed. Consequently, the stay petition C.M.P.No.6525 of 2000 is closed. There will be no order as to costs.
33. The lower Court will direct one of the two persons mentioned in the petition to give Tamil translation of the documents already marked as Exs.P-1, P-2 and P-3. Needless to say that the relevance of the documents whether they relate to the suit property etc. will have to be decided by the lower Court in the course of trial.