Chattisgarh High Court
Sunil Kumar Pathak vs Sate Of Chhattisgarh on 25 July, 2007
Author: Dilip Raosaheb Deshmukh
Bench: Dilip Raosaheb Deshmukh
IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
Civil Revision No 272 OF 2002
Sunil Kumar Pathak
...Petitioners
VERSUS
1 Sate of Chhattisgarh
2 Nazul Officer Raipur
3 Naib Tahsildar Nazul Department
4 Anil Pathak
...Respondents
! Shri Shreekumar Agrawal Senior Advocate with Shri Anand Gupta counsel for the petitioner plaintiff ^ Shri G D Vaswani Govt Advocate for the non applicants defendants No 1 to 3 Honble Shri Dilip Raosaheb Deshmukh J Dated: 25/07/2007 : Order Civil Revision U/s115 of the C.P.C.
ORAL ORDER (Passed on 25-07-2007) Heard.
2. Being aggrieved by the order dated 3.4.2002 in Civil Appeal No. 47-A/2001, passed by III Additional District Judge, Raipur, the petitioner has preferred this Civil Revision.
3. Brief facts are that vide judgment and decree dated 18.1.1993 passed in Civil Suit No. 250A/1992 by the IV Civil Judge, Class-II, Raipur, it was declared that the petitioner/plaintiff had perfected his title over a piece of land in area 4,500 ft. of plot No. 3/11 situated in Raipur by adverse possession. The non-applicants/defendants were restrained from interfering with the possession of the petitioner/plaintiff over the piece of land. An appeal was filed by the non-applicants/defendants No. 1 to 3 against the judgment and decree on 6.9.1997 along with an application under Section 5 of Limitation Act for condonation of delay in filing the appeal. It was stated that on 22.8.1998 while a proclamation was being made regarding warrant of possession issued by the Executing Court in execution of the decree, the non-
applicants/defendants came to know for the first time about the ex-parte decree passed in Civil Suit No. 250-A/1992 on 18.1.1993. By the impugned order, the First Additional District Judge, Raipur has allowed the application and condoned the delay in preferring the appeal.
4. It is not disputed that notice of the Civil Suit was duly served on the defendants No. 1 to 3 and Shri V.K. Nayak, Government Advocate had appeared on their behalf before the Trial Court on 9.5.1992.
5. Shri Shreekumar Agrawal, learned Senior Advocate argued that under Article 123 of the Limitation Act, the period of limitation of 30 days begins to run from the date of the decree where the summons were duly served on the defendants. In this manner, since the ex-parte decree was passed on 18.1.1993, there was no sufficient explanation for the delay in filing the appeal on 6.9.1997 because not only the defendants No. 1 to 3 were duly represented by the Govt. Advocate on 9.5.1992 but also had notice of the execution case No. 250-A/1992 on 7.7.1997. It was contended that in either case the appeal was hopelessly barred by limitation.
6. On the other hand, Shri G.D. Vaswani, learned Govt. Advocate argued that unless a jurisdictional error in the impugned order was shown, the High Court would not entertain the Civil Revision under Section 115 of the C.P.C. Reliance was placed on Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Others AIR 1964 S.C. 1336. Further, reliance was placed on State of Nagaland Vs. Lipok AO and others (2005) 3 S.C.C. 752, State of Madhya Pradesh Vs. Balveer Singh 2001 (1) MPJR 546, Lakshmi Commercial Bank Ltd., Vs. Bengal National Textiles Mills Ltd, and others AIR 1992 CALCUTTA 278, Brij Kishore S. Ghosh Vs. Jayantilal Maneklal Bhatt and another AIR 1989 GUJRAT 227, Land Acquisition Officer Vs. Dijabar Panda and others AIR 1987 ORISSA 198, Official Trustee, West Bengal Vs. Lal Chand Mullick AIR 1982 CALCUTTA 210 and Bank of India Vs. M/s Mehta Brothers and others AIR 1991 DELHI 194 while contending that even though the litigant was the State, it could not be made to suffer due to the lapse on the part of the Government Advocate especially when the State was not to benefit at all by abstaining itself from the litigation since the land in dispute was nazul land and a passage leading to the entry of a public office. It was also contended that although the judgment and decree was only for declaration of title, the trial Court had delivered possession of the land to the decree holder in execution of the decree and thus had acted wholly without jurisdiction. Under these circumstances, it was pointed out that in order to do substantial justice between the parties, the delay was rightly condoned by the lower Court.
7. Having considered the rival submissions, I have perused the record.
8. Section 115 of the C.P.C. reads as under:
"115. 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 Courts 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.
(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court."
[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.]
9. A reading of Section 115 C.P.C., leave no room for any doubt that the High Court may show interference in an order passed by a Court subordinate to it and in which no appeal lies only where there is a jurisdictional error of any one of the three types mentioned under sub-clause (1) of Section 115 C.P.C. and on no other ground. In the present case, the lower appellate Court was exercising jurisdiction under Article 123 of the Limitation Act and had on proper appreciation of the facts held that the non-applicants/defendants No. 1 to 3 were prevented by sufficient cause from preferring the appeal within limitation. A copy of the execution proceedings filed by the learned counsel for the petitioner further shows that execution of the land in question which was a passage leading to the entry of public office was delivered wholly without jurisdiction to the decree holder because the trial Court had not passed any decree for possession. In this view of the matter, for doing substantial justice between the parties, the lower appellate Court was wholly justified in condoning the delay in preferring the appeal and no jurisdictional error on the part of the lower Appellate Court is seen.
10. In Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Others (supra), the Apex Court was considering a matter in which the High Court had in exercise of the revisional jurisdiction under Section 115 C.P.C. allowed the application of the appellant under sub-rule (2) Rule 9 of Order 22 of the C.P.C. for setting aside the abatement of suit, which had been instituted against the father of the respondent. In that case, the trial Judge had held that the appellant had established that it was prevented by sufficient cause from continuing the suit and allowing the application for setting aside the abatement of the suit. In revision by the respondent, the High Court disagreed with the Subordinate Judge and held that the appellant had entirely failed to make out any good cause for the delay in applying for setting aside the abatement in time and for applying for the substitution at later than the period allowed by the law. The Apex Court held as under:
"It is not open to the High Court in the exercise of its revisional jurisdiction under Section 115, to question the findings of fact recorded by a subordinate Court. Section 115 applies to cases involving questions of jurisdiction, i.e questions regarding the irregular exercise or non- exercise of jurisdiction or the illegal assumption of jurisdiction by a Court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved. AIR 1917 PC 71; C.As. Nos. 452 and 487 of 1962 D/-19-10-1962 (SC), Relied on.
The proposition that an erroneous decision on a question of limitation involves the question of jurisdiction applies to cases in which the law definitely ousts the jurisdiction of the Court to try a certain dispute between the parties and not to cases in which there is no such ouster of jurisdiction under the provisions of any law, but where it is left to the Court itself to determine certain matters as a result of which determination the Court has to pass a certain order and may, if necessary, proceed to decide the dispute between the parties. The distinction between the two classes of cases is that in one, the Court decides a question of law pertaining to jurisdiction. In the other, it decides a question within its jurisdiction."
11. Placing reliance on Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Others (supra), I decline to interfere in the order passed by the Appellate Court in exercise of the revisional jurisdiction. Consequently, this revision fails and is dismissed.
JUDGE