Andhra HC (Pre-Telangana)
Gurram Satyaseshamamba @ Gurram Satya ... vs Gurram Krishnavenamma (Died) By Lrs. ... on 18 June, 2004
Equivalent citations: 2004(4)ALD787, 2004(4)ALT722
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
JUDGMENT P.S. Narayana, J.
1. One of us (P.S. Narayana, J.) in CRP No. 4976 of 2003 by an order dated 20-10-2003 referred the following questions to be decided by an appropriate Division Bench in view of the general importance of the questions involved in the matter which are as hereunder :
1. Whether the civil revision petitions under Article 227 of the Constitution of India arising out of tenancy proceedings also are governed by the ninety days period of limitation in view of the rules framed under Article 227 of the Constitution of India and also the Appellate Side Rules ?
2. Whether the judgment and decree in the prior litigation which had been carried upto second appeal operate as res judicata relating to the validity of the will especially in the light of the order passed in Review CMP No. 14770 of 1998?
3. Whether the civil revision petition under Article 227 of the Constitution of India be dismissed on the ground of laches ?
4. Whether the appreciation of evidence relating to the validity of the will in the civil revision petition under Article 227 of the Constitution of India can be put on the same standard as appreciation of evidence in regular civil appeal and if so what are the limitations and parameters relating to the appreciation of evidence in civil revision petition filed under Article 227 of the Constitution of India?
Likewise, by order dated 16-12-2003 in CRP No. 3773 of 2003 in view of the fact that similar question in a slightly different context had been referred to the Division Bench, the under mentioned question was referred to the Division Bench for making appropriate orders:
"Whether the civil revision petitions filed under Article 227 of the Constitution of India as against interlocutory orders made by ordinary Civil Courts which are not otherwise revisable in view of the amending provisions of Section 115 of the Code of Civil Procedure, can be maintained beyond the ordinary period of limitation specified to such Revisions under Section 115 of the Code of Civil Procedure, hereinafter in short referred to as "Code" under the provisions of the Limitation Act, 1963 in view of the fact that these Revisions are being preferred under Article 227 of the Constitution of India ?"
Except the common question, the question of limitation vis-a-vis the remedy under Article 227 of the Constitution of India, nothing else is common in between C.R.P.No. 4976/2001 and CRP No. 3773/ 2003. However, for the purpose of convenient discussion we propose to dispose of these matters by a Common Order.
Facts in CRP No. 4976/2001:
2. The 3rd respondent is one Kurella Satya Kesava Rao, the husband of Kurella Kanakarathnam. The said Kurella Kanakarathnam filed E.A. No. 387 of 1987 in E.P. No. 187 of 1987 in A.T.C. No. 45 of 1983 on the file of Special Officer-cum-Principal District Munsif, Amalapuram to bring her on record as the legal representative of one Gurram Krishnavenamma on the strength of the Will said to have been executed by the said Gurram Krishnavenamma on 17-1-1983. The present revision petitioners-judgment debtors had taken a stand disputing the said Will. The learned Special Officer-cum-Principal District Munsif, Amalapuram dismissed the above said execution application. Aggrieved by the same Kurella Kanakaratnam preferred A.T.A.No. 9 of 1997 on the file of Appellate Authority-the District Judge, East Godavari, Rajahmundry and the said Kurella Kanakaratnam died pending the appeal. Therefore the said Kurella Satya Kesava Rao was added as legal representative of the deceased Kurella Kanakaratnam as per orders in I.A. No. 2117/99 dated 20-10-2000. The present revision is filed against the order in ATA No. 9/97 on the file of the District Judge, Rajahmundry dated 30-12-2000.
Facts in CRP No. 3773/2003 and C.C. No. 620/2003:
3. The revision petitioner filed CRP No. 693/2003 under Section 115 of the Code assailing the correctness of the order dated 3-1-2003 made in CMA No. 124/2002 on the file of I Additional District Judge, Ranga Reddy confirming the order dated 4-7-2002 made in I.A. No. 1713/2002 in O.S. No. 654/2002 on the file of Principal Junior Civil Judge, Hyderabad East and North, Ranga Reddy District and the said civil revision petition was dismissed giving liberty to file a civil revision petition under Article 227 of the Constitution of India. Hence the present civil revision petition was filed under Article 227 of the Constitution of. India on 4-9-2003. Status-quo was granted with a direction to post the matter along with C.C. No. 620/2003. On 2-5-2003 Notice Before Admission was issued in C.C. No. 620/2003. In the said Contempt Case, wilful violation, and deliberate disobedience of the order dated 20-2-2003 made in C.M.P. No. 3187/2003 in CRP No. 693/2003 had been complained. The said order no longer survives in view of the fact that the civil revision petition itself was ultimately dismissed.
4. Sri M.V.S. Suresh Kumar, represented the petitioners in CRP No. 4976/ 2001 and Sri Durga Prasad Rao, represented the respondents in the said civil revision petition. Likewise, Sri Venugopal represented the Revision petitioner in CRP No. 3773/2003 and Sri Ravinder Reddy represented the respondents therein.
5. Submissions at length were made on question of limitation and rules under Article 227 of the Constitution of India, Appellate Side Rules and also historical background of the evolution of Article 227 of the Constitution of India and powers and the exercise of powers thereof from the inception, both pre-Constitutional scenario and post-constitutional scenario as well. The stand taken by the Counsel representing the Revision petitioners is that Article 227 of the Constitution of India being a Constitutional remedy, the principles applicable to Constitutional remedies under Articles 226 and 227 of the Constitution of India alone are to be made applicable and definitely not the ordinary rules of limitation since such fetters cannot be imposed especially in view of the fact that this power is a basic structure of the Constitution. Several other contentions relating to the aspect of delay, laches, res judicata, powers and limitations thereof for exercise of powers under Article 227 of the Constitution of India, validity of the Will and proof relating thereto also had been advanced. Contentions touching the merits of these matters had been elaborately argued. The report of the Commissioner and the contents thereof also had been specifically pointed out in CRP No. 3773/2003. Though a couple of questions had been referred to the Division Bench by one of us (P.S. Narayana, J), the question of reference in nut-shell boils down to this:
"Whether civil revision petitions under Article 227 of the Constitution of India would be governed by the ordinary period of limitation which may be specified by an ordinary Legislation or the Rules as the case may be, or the same would be governed by the principles governing the remedies under Articles 226 and 227 of the Constitution of India."
The other questions are more or less incidental concerning with certain factual aspects.
6. Article 227 of the Constitution of India reads as hereunder :
(1) Every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provision, the High Court may--
(a) call for returns from such Courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such Courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under Clause (2) or Clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any Court or Tribunal constituted by or under any law relating to the Armed Forces.
Section 122 of the Code reads :
"High Court, not being the Court of a Judicial Commissioner, may from time to time alter previous publication, make rules relating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule."
Section 124 of the Code reads :
"Every Rule Committee shall make a report to the High Court established at the town at which it is constituted on any proposal to annul, alter or add to the rules in the First Schedule or to make new rules, and before making any rules, under Section 122, the High Court shall take such report into consideration,"
Rule 41A(2) of the Appellate Side Rules reads :
"No application in civil revision shall be presented after ninety days from the date of the order complained of, provided that the Court may, on sufficient cause shown, excuse the delay in presentation."
Rule 1 of the Rules to regulate the proceedings under Article 227 of the Constitution of India reads :
"Applications under Article 227 of the Constitution shall be in the same form as civil revision petitions presented to the High Court and the Appellate side Rules applicable to the latter shall apply mutatis mutandis to the former except in respect of matters for which special provision is made in these rules."
It is well settled that power of superintendence under Article 227 of the Constitution of India is not confined to administrative superintendence only but includes the power of judicial review too. Section 115 of the Code, in its amended form, reads :
(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 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.
(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.
As against the orders made by the Tenancy Appellate Tribunals, remedy under Article 227 of the Constitution of India is being availed. Likewise, in the light of the amended Section 115 of the Code, as against interlocutory orders not having finality, civil revision petitions under Article 227 of the Constitution of India are being filed. It is made clear that existence j of power is something different from exercise thereof. It is needless to say that the power under Article 227 of the Constitution of India is discretionary. In Surya Dev Rai v. Ram Chander Rai, 2003 (5) ALD 36 (SC) = 2003 (5) ALT 19 (SC), the Apex Court held at paras 28, 33 and 37 as follows :
"The Constitution Bench in L. Chandra Kumar v. Union of India and Ors., , dealt with the nature of power of judicial review conferred by Article 226 of the Constitution and the power of superintendence conferred by Article 227. It was held that the jurisdiction conferred on the Supreme Court under Article 32 of the Constitution and on the High Courts under Articles 226 and 227 of the Constitution is part of the basic structure of the Constitution, forming its integral and essential feature, which cannot be tampered with much less taken away even by constitutional amendment, not to speak of a parliamentary legislation. A recent Division Bench decision by Delhi High Court (Dalveer Bhandari and H.R. Malhotra, JJ) in Criminal Writ Petition Nos. 758, 917 and 1295 of 2002 - Govind v. State (Government of NCT of Delhi) decided on April 7, 2003 (reported as (2003) 6 ILD 468, makes an indepth survey of decided cases including almost all the leading decisions by this Court and holds - "The power of the High Court under Article 226 cannot be whittled down, nullified, curtailed, abrogated, diluted or taken either by judicial pronouncement or by the legislative enactment or even by the amendment of the Constitution. The power of judicial review is an inherent part of the basic structure and it cannot be abrogated without affecting the basic structure of the Constitution." The essence of constitutional and legal principles, relevant to the issue at hand, has been correctly summed up by the Division Bench of the High Court and we record our approval of the same.
We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away - and could not have taken away - the Constitutional jurisdiction of the High Court to issue a writ of certiorari to a Civil Court nor the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. The power exists, untrammeled by the amendment in Section 115 of the CPC, and is available to be exercised subject to rules of self discipline and practice which are well settled.
Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:
(1) Amendment by Act No. 46 of 1999 with effect from 1.7.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case."
In State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela (Dead) His Legal Representatives and Ors., AIR 1968 SC 1481, it was held:
"Mr. Bindra submitted that Section 12 of the Abolition Act makes the decision of the Tribunal final and conclusive and the High Court had no jurisdiction to interfere with this decision, particularly in respect of solatium of 15 per centum and non-irrigational bunds, tanks and wells. We are unable to accept this contention. Article 227 of the Constitution gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. It was the duty of the Revenue Tribunal to award compensation to the Taluqdars in accordance with the provisions of Sections 7 and 14 of the Act. The High Court had jurisdiction to revise the decision of the Tribunal where the Tribunal on a misreading of the provisions of Sections 7 and 14 declined to do what was by those provisions of law incumbent on it to do. Tested in this light it does not appear that the High Court exceeded its jurisdiction under Article 227 in revising the decision of the Tribunal in respect of the solatium and irrigational bunds, tanks and wells. Numerous cases were pending before the Revenue Tribunal in respect of compensation payable to the taluqdars under the Bombay Taluqdari Tenure Abolition Act. To prevent miscarriage of justice it was necessary for the High Court to lay down general principles on which compensation should be assessed so that the Tribunal may act within the limits of their authority. On finding that the Tribunal had misconceived its duties under Sections 7 and 14, the High Court could not only set aside its decision, but also direct it to make further inquiries after taking evidence. As pointed out in Hari Vishnu Kamath v. Syed Ahmed Ishaque, , the High Court in exercise of its supervisory jurisdiction under Article 227 cannot only annul the decision of the Tribunal but can also issue further direction in the matter."
In Chandrasekhar Singh v. Siya Ram Singh, , it was observed :
"But Mr. Lal Narayan Sinha submitted that the order of the High Court could be sustained as the power of the High Court under Article 227 cannot be questioned. While there could be no dispute that the power of the High Court under Article 227 cannot be curtailed under Section 146 of the Criminal Procedure Code, we do not think that the facts of the case would justify the High Court to interfere under Article 227."
In S. Barrow v. State of U.P., , the power of the High Court to quash order suo motu relating to awarding of compensation under Section 11 of the U.P. Act 26 of 1948 had been dealt with. Reliance also was placed on Bombay Metropolitan Region Development Authority, Bombay v. Gokak Patel Volkart Limited, . In Sudama Devi v. Commissioner, , the Apex Court while dealing with a writ petition and the question of limitation held :
"We are of the view that so far as writ petition under Article 226 of the Constitution is concerned, there can be no hard and fast rule of 90 days by way of period of limitation but the general rule of laches alone can be applied and this must necessarily depend on the facts and circumstances of each case. The High Court has said in its order that "the writ petition was beyond time by 136 days. Neither the explanation of 136 days nor the explanation for filing it today, was given." This view does not appear to be correct because the High Court has proceeded on the assumption that there is a period of limitation of 90 days and unless sufficient cause is shown as contemplated under Section 5 of the Limitation Act, a writ petition filed after the expiration of 90 days is liable to be rejected. This assumption is wholly unjustified. There is no period of limitation prescribed by any law for filing a writ petition under Article 226 of the Constitution. It is in fact doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt, that no such period of limitation can be laid down either under rules made by the High Court or by practice. In every case it would have to be decided on the facts and circumstances, whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as a period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner...."
The journey of law from Kesavananda Bharati v. Union of India, , Minerva Mills Limited v. Union of India, , to L. Chandra Kumar v. Union of India, , would clearly go to show that power of judicial review under Articles 226 and 227 of the Constitution of India is a part of the basic structure of the Constitution of India. In the light of the same, can there by imposition of any fetter on this power of Constitutional Courts by importing ordinary rules of limitation specified by the rules ? No doubt, for practice and procedure such rules may be there, but they can neither control nor over-ride the Constitutional power vested in High Courts by virtue of either Article 226 or 227 of the Constitution of India. Hence, the contention that this is only a revisional power under Article 227 and hence it being not a new power and such power also can be restricted by ordinary rules of limitation, cannot be accepted. Rules under Section 122 of the Code no doubt form part and parcel of the Code. Reliance was placed on Sawan Ram v. Guman Singh, , Setho Das v. Paro Devi, , Pulin Behari v. Byomkesh Mitra, , Waryam Singh v. Amarnath, 1954 SCR 565. In State of M.P. v. Bhai Lal Bhai, , at para 21 it was held:
"The learned Judges appear to have failed to notice that the delay in these petitions was more than the delay in the petition made in Bhai Lal Bhai's case, 1960 M.P.C. 304 out of which Civil Appeal No. 362 of 62 has arisen. On behalf of the respondents-petitioners in these appeals (CA Nos. 861 to 867 of 1962) Mr. Andley has argued that the delay in these cases even is not such as would justify refusal of the order for refund. We argued that assuming that the remedy of recovery by action in a Civil Court stood barred on the date these applications were made that would be no reason to refuse relief under Article 226 of the Constitution. Learned Counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. The period of limitation prescribed for the recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonable. If, on the other hand, as Mr. Andley seems to argue, that the mistake discovered much later this would be a controversial fact which cannot conveniently be decided in writ proceedings. In either view of the matter we are of opinion the orders for refund made by the High Court in these seven cases cannot be sustained."
In Tilokchand Motichand v. H.B. Munshi, , at paras 16, 17, 36 and 37 it was held :
"In England, as pointed out by Bachawat J., the Court of Chancery acted on the analogy of Statute of Limitation (vide Halsbury, Vol.14, P.647, Article 1190).
It seems to me, however, that the above solution is not quite appropriate for petitions under Article 32. A delay of 12 years or 6 years would make a strange bed-fellow with a direction or order or writ in the nature of mandamus, certiorari and prohibition. Bearing in mind the history of these writs I cannot believe that the Constituent Assembly had the intention that five Judges of this Court should sit together to enforce a fundamental right at the instance of a person, which had without any reasonable explanation slept over his rights for 6 or 12 years. The history of these writs both in England and the USA convinces me that the underlying idea of the Constitution was to provide an expeditious and authoritative remedy against the inroads of the State. If a claim is barred under the Limitation Act, unless there are exceptional circumstances, prima facie it is a stale claim and should not be entertained by this Court. But even if it is not barred under the Indian Limitation Act, it may not be entertained by this Court if on the facts of the case there is unreasonable delay. For instance, if the State had taken possession of property under a law alleged to be void, and if a petitioner comes to this Court 11 years after the possession was taken by the State, I would dismiss the petition on the ground of delay, unless there is some reasonable explanation. The fact that a suit for possession of land would still be in time would not be relevant at all. It is difficult to lay down a precise period beyond which delay should be explained. I favour one year because this Court should not be approached lightly, and competent legal advice should be taken and pros and cons carefully weighed before coming to this Court. It is common knowledge that appeals and representations to the higher authorities take time; time spent in pursuing these remedies may not be excluded under the Limitation Act, but it may ordinarily be taken as a good explanation for the delay.
The next and the more fundamental question is whether in the circumstances the Court should give relief in a writ petition under Article 32 of the Constitution. No period of limitation is prescribed for such a petition. The right to move this Court for enforcement of fundamental rights is guaranteed by Article 32. The writ under Article 32 issues as a matter of course if a breach of a fundamental right is established. Technical rules applicable to suits like the provisions of Section 80 of the Code of Civil Procedure are not applicable to a proceeding, under Article 32. But this does not mean that in giving relief under Article 32 the Court must ignore and trample under foot all laws of procedure, evidence, limitation, res judicata and the like. Under Article 145(1)(c) rules may be framed for regulating the practice and procedure in proceedings under Article 32. In the absence of such rules the Court may adopt any reasonable rule of procedure. Thus a petitioner has no right to move this Court under Article 32 for enforcement of his fundamental right on a petition containing misleading and inaccurate statements, and if he files such a petition the Court will dismiss it, see W.P. No. 183 of 1966, Indian Sugar and Refineries Ltd. v. Union of India decided on March 12, 1967 (SC). On grounds of public policy it would be intolerable if the Court were to entertain such a petition. Likewise the Court held in , that the general principles of res judicata applied to a writ petition under Article 32. Similarly, this Court has summarily dismissed innumerable writ petitions on the ground that it was presented after unreasonable delay.
The normal remedy for recovery of money paid to the State under coercion or mistake of law is by suit. Articles 32 and 226 of the Constitution provide concurrent remedy in respect of the same claim. The extraordinary remedies under the Constitution are not intended to enable the claimant to recover monies the recovery of which by suit is barred by limitation. Where the remedy in a writ application under Article 32 or Article 226 corresponds to a remedy in an ordinary suit and the latter remedy is subject to the bar of a statute of limitation, the Courts in its writ jurisdiction acts by analogy to the statute, adopts the statute as its own rule of procedure and in the absence of special circumstances imposes the same limitation on the summary remedy in the writ jurisdiction. On similar grounds the Court of Chancery acted on the analogy of the Statutes of limitation in disposing of stale claims though the proceeding in a Chancery was not subject to any express statutory bar, see Halsbury's Laws of England, Vol.14, page 647, Article 1190, Knox v. Gye, 5 HL 656 at p.674. Likewise, the High Court acts on the analogy of the statute of limitation in a proceeding under Article 226 though the statute does not expressly apply to the proceeding. The Court will almost always refuse to give relief under Article 226 if the delay is more than the statutory period of limitation".
In Aided Singh v. Karan Singh, , it was held at para 120:
"To sum up, the powers contemplated by the Constitution makers under Articles 226 and 227 appear to be different. The former is described as the power to issue certain writ orders or directions. The latter is described as the power of superintendence. There are two separate sections in the Constitution next door to each other dealing with these powers. The power under Article 226 is only judicial. The power under Article 227 is both judicial and administrative. The power under Article 226 is exercised on the application of a party and for the enforcement of a legal right.
The power under Article 227 can be exercised suo motu by the Court as the custodian of all justice within the limits of its territorial jurisdiction and for the vindication of its position as such. For the exercise of the power under Article 226, the Court has framed rules. There are no such rules for the exercise of power under Article 227. Article 226 appears to be self-restrictive. On the other hand, there are no restrictions, if any, are self-imposed. The power under Article 227 is a power that can be exercised only over Courts and Tribunals.
On the other hand, the power under Article 226 is a power that can be exercised not only over Courts and Tribunals, but also over other bodies like the Government. Article 226 confers a new power, at any rate, so far as the Allahabad High Court is concerned. On the other hand. Article 227 relates to a power which is merely a continuation of an old power. In India, legislative history discloses that there has been in the past and there is at present a rupture between the two powers. Prior to the Constitution, the power to issue writs, could not be considered to be a branch of the power of superintendence, because the power of superintendence possessed by the High Courts did not carry with it the power to issue writs.
Even under the Constitution, the power of superintendence is treated as a power divorced from the power to issue writs. This is borne out by the fact that the Supreme Court possesses the power to issue writs, yet it does not possess the power of superintendence. The analogy of English law cannot hold good in India. In England the power to issue writs is a part and parcel of the power of superintendence, because the power there is exercised by the Court as a delegate of the Sovereign who is the fountain of all justice.
This is not so in India where the source or power has always been the Statute which is at present the Constitution of India. The power conferred under Article 26 in India is also wider than the power to issue high prerogative writs in England. The power exercised under Article 226 is original. On the other hand, the power exercised under Article 227 is not original. Further, it is more reasonable to hold that an appeal should lie in cases where the judgment of a Single Judge relates to the judgment of a Court or Tribunal than to take a contrary view.
The contrary view would also bar the right of appeal of a party to the Supreme Court under Article 133 of the Constitution. There may be cases where both the Articles 226 and 227 are applicable. In cases where the relief can be given under both, the Court should exercise its power under Article 226 on the principle that where a specific remedy is provided, the general provisions of law should not be resorted to. In any case, if a party is otherwise entitled to a right of appeal against an order under Article 226, the fact that the same relief could be granted under Article 227 is no reason for depriving it of the said right where the party has given the application itself under Article 226, has claimed its right to relief under the said Article, and the case itself has been entertained and disposed of by the Court under the same Article."
The contention that the rule specifying the period of limitation cannot be rendered nugatory in view of it being public policy cannot be accepted especially in view of the post Chandra Kumar's scenario (supra). Definitely no such fetters can be imposed on exercise of Constitutional power by these Courts. It is no doubt true that in several of the matters as against interlocutory orders under the Code, since in view of the amended Section 115 of the Code, Revisions cannot be maintained, even beyond the period of limitation the remedy under Article 227 of the Constitution of India is being invoked. This question is more concerned with the exercise of power and mode of exercise of such power. Definitely, the Court can decline to interfere on the ground of delay and laches but not on the ground that it is barred by limitation specified by the rules. It is no doubt true that to file Revisions under Section 115 of the Code, there is a period of limitation. When the object of introducing the amending provisions itself is to check the delay being caused in disposal of the main matters in view of entertaining of civil revision petitions as against every interlocutory order, to hold that the ordinary period of limitation is not applicable to the civil revision petitions under Article 227 of the Constitution of India preferred as against such interlocutory orders, would be in a way defeating the said object. Procedural rules or safeguards cannot override the exercise of power of judicial review by Constitutional Courts inclusive of the constitutional remedy under Article 227 of the Constitution of India. No guidelines need be laid down in this regard. We do hope that the Constitutional Courts would exercise sound judicial discretion while either entertaining or declining to entertain such civil revision petitions as against such interlocutory orders which are otherwise not revisable under Section 115 of the Code. Limitation cannot be imposed in exercise of Constitutional powers by higher Courts in judicial hierarchy, suffice to state that these Courts would be definitely cautious in such matters keeping in view the broader spectrum and horizon of this procedural anomaly of ordinary rules of limitation vis-a-vis the Constitutional remedies.
7. It is no doubt true that rule of reading down a provision is a rule of harmonious construction in a different name. In Calcutta Gujarati Education Society v. Calcutta Municipal Corporation, , it was held :
"The rule of "reading down" a provision of law is now well recognized. It is a rule of harmonious construction in a different name. It is resorted to smoothen the crudities or ironing out the creases found in a statute to make it workable. In the garb of "reading down", however, it is not open to read words and expressions not found in it and thus venture into a kind of judicial legislation. The rule of reading down is to be used for the limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statute. It is to be used keeping in view the scheme of the statute and to fulfil its purposes. See the following observations of this Court in the case of B.R. Enterprises v. State of U.P., :
"First attempt should be made by the Courts to uphold the charged provision and not to invalidate it merely because one of the possible interpretations leads to such a result, howsoever attractive it may be. Thus, where there are two possible interpretations, one invalidating the law and the other upholding, the latter should be adopted. For this, the Courts have been endeavouring, sometimes to give restrictive or expansive meaning keeping in view the nature of legislation, may be beneficial, penal or fiscal etc. Cumulatively it is to subserve the object of the legislation. Old golden rule is of respecting the wisdom of legislature that they are aware of the law and would never have intended for an invalid legislation. This also keeps Courts within their track and checks individual zeal of going wayward. Yet in spite of this, if the impugned legislation cannot be saved the Courts shall not hesitate to strike it down. Similarly, for upholding any provision, if it could be saved by reading it down, it should be done, unless plain words are so clear to be in defiance of the Constitution. These interpretations spring out because of concern of the Courts to salvage a legislation to achieve its objective and not to let it fall merely because of a possible ingenious interpretation. The words are not static but dynamic. This infuses fertility in the field of interpretation. This equally helps to save an Act but also the cause of attack on the Act. Here the Courts have to play a cautious role of weeding out the wild from the crop, of course, without infringing the Constitution. For doing this, its historical background, the purpose of enacting such a provision, the mischief, if any which existed, which is sought to be eliminated....This principle of reading down, however, will not be available where the plain and literal meaning from a bare reading of any impugned provisions clearly shows that it confers arbitrary, uncanalised or unbridled power."
Reliance also was placed on P. Tulsi Das v. Government of A.P., , St. Johns Teachers Training Institute v. Regional Director National Council for Teacher Education, , in this regard. The Constitutional power of the High Courts under Article 227 of the Constitution of India cannot be in any way curtailed or limited by imposing such rule of restriction under the rule making power and such rules cannot in any way affect the Constitutional powers of these Courts concerned with the power of judicial review and hence these rules imposing such limitation may have to be read down and the powers of the High Courts under Article 227 of the Constitution of India are left unaffected by such restrictions specified in the procedural Rules.
8. After dealing with the common question involved in both these civil revision petitions, the merits of these civil revision petitions are being considered.
CRP No. 4976 of 20019. The facts in nut-shell are as hereunder :
One Gurram Krishnavenamma filed ATC No. 45/83 on the file of Special Officer-cum-Principal District Munsif, Amalapuram against Gurram Tatayya Naidu for eviction and the said tenancy case was allowed on 3-10-1983 and aggrieved by the same Gurram Tatayya Naidu filed ATA No. 160/85 and pending the appeal Gurram Krishnavenamma died and the said appeal was dismissed as not pressed. The said Krishnavenamma also filed suit O.S. No. 106/84 for recovery of loan against the said Tatayya Naidu and the said suit was dismissed and aggrieved by the same the said Krishnavenamma filed A.S.No. 38/91 and the said appeal was allowed and Revision petitioners unsuccessfully challenged the said judgment and decree in A.S. No. 38/91 by filing S.A. No. 420/97 on the file of this Court and subsequent thereto Review C.M.P. No. 14770/ 98 was filed in S.A. No. 420/97 and this Court in the Second Appeal through orders dated 30-3-1998 made the following order:
"No substantial question of law arises for consideration in this second appeal. Therefore it must fail. It is accordingly dismissed. No costs."
In the Review CMP No. 14770/98 on 24-7-1998 this Court made the following order :
"Having regard to the facts and circumstances of the case, I make it clear that the order dismissing the second appeal does not preclude the petitioners/appellants to challenge the validity of the Will dated 17-1-1983 which is the subject-matter for consideration in A.T.A. No. 8/97 and batch on the file of Principal District Judge, Rajahmundry, by order dated 30-6-1997 shall stand accordingly modified. The petition accordingly disposed of."
Elaborate submissions were made on the interpretation of the words "does not preclude the petitioners" mentioned in the Order in Review CMP No. 14770/98. It had been strongly contended by Sri T. Durga Prasada Rao that at the best, this may amount to an observation and cannot be taken as a direction and since the result is dismissal of the Second Appeal, the finding relating to the validity of the Will in the prior proceedings definitely operates as res judicata. On the contrary, Sri Srinivas had referred to the meaning of the words "does not preclude" by referring to the Law Lexicon and Black Dictionary.
10. The limitations on reappreciation of evidence in a Revision under Article 227 of the Constitution of India are well settled and need no repetition again at our hands. Strong reliance was placed on Janki Narayan Bhoir v. Narayan Nandeo Kadam, , in relation to proof of will. There cannot be any quarrel about the principles in relation to the proof of will. Reliance also was placed on decisions in Karri Nukaraju v. Putra Venkata Rao, , Kashibai v. Parwatibai, 1995 (3) ALT 57 (SC), B. Rajagopala Rao v. Appayya Dora Hanumanthu, , Ram Piari v. Bhagant, , Sinna Subbai Goundan v. M. Rangai Goundan, 1958 LW 562, MT. Malukan v. Sheran, AIR 1935 Peshawar 150, Rajindernath v. L.T. Commissioner, Delhi, , R. Kameswara Rao v. B. Suryaprakash Rao, , Sankar Reddy v. Mahalakshmamma, AIR 1922 PC 315, Madhavayya v. Achamma, AIR 1949 PC 325, Mohinder Kaur v. Piara Singh, , S. Naghabushanam v. V. Raghavayya, 1967 (2) An. WR 386, G. Paramasivudu v. M. Subbanna, 52 IC 625, M.C. Chockalinga Thevar v. K.A. Sankarappa Naikar, AIR (29) 1942 Madras 421, Lonankutty v. Thomman, , S. Sundaresa Pai v. Sumangala T. Pai, , Rabindra Nath Mukherjee v. Panchanan Banerjee, 1995 (2) APLJ 86, Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, , S. Mohammad Umarsaheb v. S. Hasham Karimsab, , Sukhbir Narain (Dead) by LRs. v. Deputy Director of Consolidation, and State of Punjab v. Bua Das Kaushal, .
11. It is no doubt a reversing order. The Will dated 17-1-1983 was held to be not true and valid by the Primary Tenancy Tribunal which was reversed by the Appellate Tenancy Tribunal in ATA No. 9/ 97. The learned Appellate Authority discussed the evidence independently and recorded findings de hors the findings in the prior civil litigation and hence the observations if any made in SA No. 420/97 would be of no consequence. No doubt a contention was advanced that this observation was made without notice to opposite parties and hence not binding on them. This question need not detain us any longer in confirming the impugned order in the light of the clear and elaborate reasons recorded at paras 8 and 9.
12. Kurella Kanakaratnam examined PWs.1 to 3 and marked Exs.A-1 to A-4. PW-1 Satya Kesava Rao is her husband. PW-2 Rangaiah Naidu is the attestor of Ex.A-2 Will at the time of registration. PW-3 is the scribe of Ex.A-2 Will. In O.S. No. 106/84, a rent suit inter-parties, an additional issue was framed i.e., "whether the will set up by Plaintiffs 2 to 4 is true, valid and binding upon Defendants 2 to 11 ?" In A.S. No. 38/91, the question regarding the validity of the Will was framed as the third Point for consideration and the appellate Court while reversing the judgment and decree of the Trial Court recorded findings on the validity of the Will. PW-1 was not present at the time of execution of the Will. PW-2 deposed that Krishnavenamma put her signature on Ex.A2 at the time of registration. The whereabouts of another identifying witness are not known. PW3 is the scribe of Ex.A-2 and he had deposed about all the details. Ex.A-2 was attested by Prabhakar Rao and Satyanarayana Rao. Prabhakar Rao is no more, but he was examined in O.S. No. 106/84 where the validity of Ex.A-2 was raised as an Issue and his deposition is marked as Ex.A-3. The whereabouts of another attestor are not known. Section 32 of the Indian Evidence Act, 1872 reads :
"Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases :
(1) When it relates to cause of death- When the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in case in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them, was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the case of his death comes into question.
(2) Or is made in course of business- When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him books kept in the ordinary course of business, or in the discharge professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him, or of the date of a letter or other document usually dated, written or signed by him.
(3) Or against interest of maker- When the statement is against the pecuniary or proprietary interest of the person making it or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.
(4) Or gives opinion as to public right or custom, or matters general interests- When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom, or matter had arisen.
(5) Or relates to existence of relationship-When the statement relates to the existence of any relationship between persons as to whose relationship by blood, marriage, or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
(6) Or is made in will or deed relating to family affairs.-When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any Will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tomb stone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.
(7) Or in document relating to transaction mentioned in Clause (a).- When the statement is contained in any deed, Will or other document which relates to any such transaction as is mentioned in Clause (a).
(8) Or is made by several persons and expresses feelings relevant to matter in question- When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.
There cannot be any controversy about the admissibility of Ex.A-3, certified copy of the deposition. It is no doubt true that the judgment in O.S. No. 106/84 was marked as Ex.B-1, but however for reasons best known the judgment and decree of the appellate Court were not marked. Ex.A-1 is a certified copy of the Will and Ex.A-2 is the original of Ex.A-1. Ex.A-3 is a certified copy of the deposition of PW-4 in O.S. No. 106/84. Ex.A-4 is funeral card with publication. As already specified supra, Ex.B-1 is a certified copy of Judgment in O.S. No. 106/84. Ex.B-2 is a certified copy of the deposition of PW-1 in O.S. No. 106/84, Ex.B-3 is a copy of the plaint in O.S. No. 232/89, Ex.B-4 is a certified copy of the decree. The evidence of PW-2 and PW-3 and Ex.A-3 would clearly go to show that Gurram Krishnavenamma executed Ex.A-2 Will in a sound disposing state of mind. Certain submissions were made at length about the suspicious circumstances. Reliance was placed on P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar, 1995 (2) LS 20 (SC), H. Venkata Sastry and Sons, by its Manager v. H. Venkata Sastry (died) and Ors., 1974 LW 701, Elaborate submissions were made on the aspect of applicability of res judicata in view of the prior judgment inter-parties in relation to the validity of the Will and reliance was placed on Bal Kishan v. Kishan Lal, ILR 1888 All. 1F48. Gaddam Paramasivudu v. Mulakala Subbanna, 1952 IC 625 (Madras) and Krishnan Nair v. Kambi, AIR 1937 Madras 544. It cannot be laid down as a matter of law that because witnesses did not state that they signed the Will in the presence of the attestors, there is no attestation. Reliance was placed on Naresh Charan Das Gupta v. Paresh Charan Das Gupta, , Ram Lal v. Hari Kishan, , Dhyan Chand v. Smt. Savitri Devi and Ors., , Ladhi Bai v. Thakur Shriji, and Satipada Chatterjee v. Annakali Debya, . Whether there is direct evidence, the fact that the signature of attestor was shaky does not raise any suspicion. Reliance was placed on the decisions referred in Rajindernath v. L.T. Commissioner, Delhi R. Kameswara Rao v. B. Suryaprakash Rao and Sankar Reddy v. Mahalakshmamma (supra) and Misri Lal (dead) by L.Rs. v. Smt. Daulati Devi, and Brij Mohan Lal Arora v. Giridhari Lal Manucha, . Deprivation of natural heirs was held to be not a suspicious circumstances. Reliance was placed on Rabindra Nath Mukherjee v. Panchanan Banerjee, 1995 (2) APLJ 86 (SC), K. Madayya Shetty v. Durgaparameshwari, and Leela v. Drumti Devi, . High Court is not expected to consider a plea not raised before the Courts below. Reliance was placed on Filmistan (Private) Limited v. Balkrishna Bhiwa, , Sohan Singh v. G.M. Ordnance Factory, Khamaria, , Pfizer Ltd. v. Mazdoor Congress, and Raghunathe Jew v. State of Orissa, . These aspects need not be dealt with at length. Though the Judgment in O.S. No. 106/84 was marked as Ex.B-1, it is pertinent to note that the judgment and decree of the appellate Court wherein the same was reversed had not been marked. A serious attempt was made to convince that the judgment and decree in a rent suit may not operate as res judicata in Tenancy proceedings. Reliance also was placed on Section 11, Explanation VIII of the Code and also on the undernoted decisions to substantiate this contention, one contending that the prior judgment inter-parties would operate as res judicata and another contending that it would not : Malaya Kumar v. Fakir Mohammad, AIR 1947 Cal. 393, Shital Prasad v. Manbahal Singh, , Kalimaddin Mea v. Eakutennesa Bibi, AIR 1940 Cal. 347, G. Eshwaraiah v. Moharudrappa Kheni, 1969 (2) ALT 8, Pradip Singh v. Ram Sunder Singh, AIR 1949 Patna 510, S.M. Kashiroda v. Debendra Nath Kar, , The Goripalyan Durga v. Kesavaswamy Iyer, , Ichhalal Jagmohan Das v. Anjibai Zujya, AIR 1929 Bom. 32, Bhupendra v. Narayanpada, AIR 1935 Cal. 607, Sheoram v. Mulchand Bindraj, AIR 1938 Nag. 195, Dalip Narain Singh v. Deokinandan Prasad Singh, AIR 1939 Pat. 519, Ram Chander Prasad v. Sital Prasad, AIR 1948 Pat. 130.
13. It is pertinent to note that the plea of applicability of the doctrine of res judicata had been raised before us. The said plea was not raised either before the Primary Tenancy Tribunal or the Appellate Tenancy Tribunal and the said question is being raised for the first time. In the absence of a plea and also in the absence of the judgment of the appellate Court where findings had been recorded relating to the validity of the Will, we are not inclined to express any opinion relating to this aspect. However, there is no dispute between the parties that there was a rent suit inter-parties and the validity of the self-same Will had been gone into in the prior litigation. In Vishnu Prakash v. Sheela Devi, 2001 (3) Supreme 191, the controversy was whether the plaintiff Sheela Devi is the widow of Choudhry Suraj Prasad. After the death of the aforesaid Choudhary Suraj Prasad, Sheela Devi filed an application for mutation of agricultural property and mutation was ordered and Zamindari compensation also was paid to her. In the suits filed by her, the defence was Sheela Devi was not the legally wedded wife of Choudhary Suraj Prasad. Suits and Appeals were dismissed, but the High Court reversed the same on the ground that there was ample evidence in support of the marriage of Choudhary Suraj Prasad with Sheela Devi and there were decisions of Courts in earlier suits and proceedings to establish the claim of the plaintiff Sheela Devi. In view of the same, the Apex Court declined to interfere with the findings of the High Court that Sheela Devi is the legally wedded wife of Choudhary Suraj Prasad.
14. Section 13 of the Indian Evidence Act, 1872 reads :
Where the question is as to the existence of any right or custom, the following facts are relevant--
(a) Any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognized, or exercised, or in which its exercise was disputed, asserted or departed from.
Section 40 of the Indian Evidence Act 1872 reads :
"The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial."
It is no doubt true that the O.S. No. 106/84 is a suit for recovery of rents against Kurella Tatayya Naidu. Ex.B-1 is a certified copy of the judgment in the said suit. The said suit was dismissed and the Appeal A.S. No. 38/ 91 on the file of Subordinate Judge, Amalapuram was allowed. As against the same, S.A. No. 420/97 was preferred which was dismissed and no doubt in Review C.M.P. some observations were made by this Court. This judgment is inter-parties. The prior judgment though not inter-parties would be admissible under Section 13 of the Indian Evidence Act, 1872 (See: Tirumala Tirupati Devasthanam v. K.M. Krishnaiah, , Srinivas Krishnarao Kango v. Narayan Devji Kongo, , Sital Das v. Sant Ram, . In the present case, the respondents are placed in a better position since they placed reliance on a judgment inter-parties. Even otherwise, independent evidence was let in and clear findings were recorded in relation to the validity of the Will in controversy by the Appellate Tenancy Tribunal. In view of the evidence of PW-2 and PW-3 and Ex.A-3 and clear findings recorded in relation to the validity of the Will at paras 8 and 9 of the impugned order, we are of the considered opinion that there are no valid reasons to interfere with the impugned order especially in the light of the limitations imposed on this Court while exercising powers under Article 227 of the Constitution of India in relation to the reappreciation of evidence. In view of the same, the civil revision petition is bound to fail and accordingly the same shall stand dismissed, with costs.
CRP No. 3773 of 2003:
15. The facts in nut-shell already had been narrated supra. This Revision is as against the concurrent findings recorded by both the Courts below. The respondent in this Revision moved. I.A. No. 1713/2002 in O.S. No. 654/2002 on the file of Junior Civil Judge, Ranga Reddy, Hyderabad East and North under Order 39, Rules 1 and 2 and under Section 151 of the Code of Civil Procedure and the said application was allowed by order dated 4-7-2002 and aggrieved by the same, C.M.A. No. 124/02 was filed on the file of I Additional District Judge, Ranga Reddy and by order dated 3-1-2003 the said C.M.A. was dismissed. Aggrieved by the same, C.R.P.No. 693/2003 was preferred under Section 115 of the Code which was dismissed and consequent thereupon the present civil revision petition was filed.
16. The main controversy is in relation to the identity of the property and dispute in relation to the boundaries. Exs.Pl to P4 and Exs.R-1 to R-28 had been relied upon. Both the Courts below recorded concurrent findings on the aspect of possession prima facie on appreciation of the material available on record. No doubt, strong reliance was placed on the report of the Commissioner for establishing the factum of possession and much comment had been made on the aspect of controversy relating to the boundaries and also identity of the property. It is needless to say that the report of the Commissioner may not be very relevant for this purpose and at any rate these are all aspects which may have to be dealt within detail in the main suit and definitely not at the stage of disposal of an interlocutory application. Suffice to state that in view of the concurrent findings recorded by both the Courts to the effect that respondents are entitled to the relief prayed for, we do not see any reason to disturb the said order at this point of time. However, in the light of the nature of the controversy, the suit O.S. No. 654/2002 requires early disposal. Hence the learned Judge may make an endeavour to expedite the trial of the suit and to dispose of the same at an early date. Except making this observation no other relief can be granted in this revision and accordingly the revision shall stand dismissed. No costs.
CC No. 620 of 200317. The facts in nutshell which led to the filing of the contempt case had been already narrated supra. In view of the facts and circumstances, let the office list the contempt case before the concerned Court for further orders in this regard.