Orissa High Court
Sitaram @ Mahendra Ghosh And Ors. vs Sri Antaryami Mohapatra And 18 Ors. And ... on 5 September, 2003
Equivalent citations: 96(2003)CLT762, 2003(II)OLR409
Author: P.K. Tripathy
Bench: P.K. Tripathy
JUDGMENT P.K. Tripathy, J.
1. By this common judgment all the aforesaid Civil Revisions are considered relating to maintainability in view of the amendment of Section 115 of the Code of Civil Procedure, 1908 (in short, 'the Code'), which came into force by Act 46 of 1999 with effect from Ist July, 2002. Before considering the legal issue, orders which are impugned in each of the revision petitions are briefly noted as follows :
C.R.P. No. 89 of 2002 The respondent in Munsif Appeal No. 95 of 1999 pending in the Court of District Judge, Balasore has preferred this revision challenging to the order dated 30.7.2002 passed by the District Judge in allowing the application for substitution filed by the appellant and rejecting the application for abatement filed by the respondent.
C.R.P. No. 107 of 2002 Plaintiff in Title Suit No. 341 of 1996 of the Court of Civil Judge (Sr. Division), Bhubaneswar, has preferred this revision challenging to the order of addition of party by substituting the petitioners as against deceased defendant No. 2.C.R.P. No. 115 of 2002
Appellant in R.F.A. No. 24 of 2002 has preferred this revision challenging to the order dated 26.8.2002 passed by the Fast Track Court No. 2 at Bhubaneswar allowing his application under Order 41, Rule 5 of the Code subject to petitioner depositing Rs. 4,000/-(four thousands) per month in the Court towards occupation of the suit premises.C.R.P. No. 124 of 2002
Plaintiffs in Title Suit No. 277 of 1999 of the Court of Civil Judge (Sr. Division), Ist Court, Cuttack, have preferred this revision against the order dated 20.8.2002. In that order the Court below rejected the prayer of the plaintiffs to issue a direction to the defendants No. 7 and 8 to adduce evidence first.C.R.P. No. 139 of 2002
Plaintiff's application under Order 6, Rule 17, CPC having been rejected by the Civil Judge (Sr. Dvn.), Bhanjanagar in Title Suit No. 16 of 2000, she has filed this revision.C.R.P. No. 158 of 2002
Plaintiff's successive application under Order 6, Rule 17 of the Code for amendment of the plaint in Title Suit No. 2 of 2000 of the Court of Civil Judge (Sr. Division), Udala was rejected as per the impugned order passed on 29.8.2002, and that order has been challenged in this civil revision.C.R.P. No. 169 of 2002
Defendant No. 1 in Title Suit No. 290 of 2001 of the Court of Civil Judge (Sr. Division), First Court, Cuttack, has preferred this revision challenging to the order of appointment of G.A.L. to represent the interest of defendant Nos. 2 and 3 who are persons of unsound mind.C.R.P. No. 181 of 2002
Plaintiffs in Title Suit No. 46/217 of 2002/1995, who are also the defendants 1 and 2 in Title Suit No. 47/260 of 2002/1995 of the Fast Track Court No. 1, Bhubaneswar, have preferred this revision as against the order dated 23.9.2002, because the trial Court directed the parties to file affidavits as contemplated under Order 18, Rule 4, CPC.C.R.P. No. 232 of 2002
Petitioners' application for adding them as parties to Title Suit No. 442 of 1996 of the Court of Civil Judge (Sr. Division), Puri was rejected by that Court on 4.10.2002, Hence, they have filed this revision.C.R.P. No. 237 of 2002
The revision-petitioner filed an application under Order 1, Rule 10, read with Section 151 of the Code to implead him as the representative of Shri Lingaraj Mahaprabhu, the defendant No. 1, instead of permitting one Pranab Kishore Bharati Gosain to represent the deity. As per the impugned order dated 8.11.2002 in Title Suit No. 592 of 2001, learned Civil Judge (Sr. Division), Bhubaneswar has rejected that application. Hence the revision.C.R.P. No. 242 of 2002
Plaintiff's application for acceptance of documents in evidence in Title Suit No. 60 of 1999 having been rejected on 20.11.2002 by the Addl. Civil Judge (Sr. Division), Dhenkanal, he has preferred this civil revision.C.R.P. No. 254 of 2002
The 3rd party-petitioner challenges to the order dated 10.7.2002 in Civil Revision No. 42 of 2002 of the Court of District Judge, Puri, by which learned District Judge has dismissed the revision at the stage of admission.C.R.P. No. 255 of 2002
The plaintiff/opp. party filed Money Suit No. 18 of 2001 in the Court of Civil Judge (Sr. Division), Khurda claiming for compensation of Rs. 1,52,000/- on the ground of negligent act of the defendants/petitioners, as a result of which plaintiff's mother suffered the death. In that suit petitioners filed an application under Section 10, read with Section 151 of the Code to stay the suit on the ground that G.R. Case No. 8 of 2001 registered against them is pending subjudice in the Court of S.D.J.M., Khurda. That application was rejected and hence this revision.
C.R.P. Nos. 261 of 2002 and 326 of 2002 Common order was passed on 4.10.2002 by the Addl. District Judge, Baripada in Title Appeal No. 32/23/38 of 2002/1996, by rejecting the application under Order 6, Rule 17, CPC for amendment of the written statement and also for additional evidence under Order 41, Rule 27, CPC. Both the petitions were rejected. As against that, C.R.P. No. 261 of 2002 has been filed challenging to the order refusing to accept additional evidence, and C.R.P. No. 326 of 2002 has been filed challenging to the rejection of the application for amendment.C.R.P. No. 269 of 2002
Appellant in Title Appeal No. 8 of 1991 has preferred this revision challenging to the order dated 15.11.2002 passed by the Ad hoc Addl. District Judge, Dhenkanal in rejecting an application under Order 41, Rule 27 of the Code moved by the appellant.C.R.P. No. 270 of 2002
Defendants/Appellants in Title Appeal No. 44 of 1990 of the Court of District Judge, Cuttack, have preferred this revision challenging to the rejection of the application under Order 6, Rule 17, CPC, in which they wanted to amend their written-statement by introducing a counter claim for mandatory injunction against the plaintiff, so also an application was moved under Order 41, Rule 27 of the Code to admit the deposition of one of the parties to the proceeding in an earlier suit as additional evidence. In the impugned order dated 21.11.2002 learned 2nd Addl. District Judge, Cuttack has rejected the application under Order 6, Rule 17 of the Code and has directed to consider the other application at the time of hearing of the appeal.C.R.P. No. 283 of 2002
In Title Suit No. 51 of 2002 of the Court of Civil Judge (Jr. Division), Bhubaneswar, defendants filed an application for stay of the suit during pendency of O.E.A. Appeal. That application having been rejected by the lower Court, the present revision has been preferred.C.R.P. No. 285 of 2002
Plaintiff of Title Suit No. 77 of 1998 of the Court of Civil Judge (Sr. Division), Aska has preferred this revision against the, order dated 6.11.2002 of that Court. As per that order, the Court below allowed the prayer for amendment of the written statement to correct certain typographical error and clerical mistakes.C.R.P. No. 293 of 2002
In this revision plaintiff in Title Suit No. 137 of 1992 of the Court of First Addl. Civil Judge (Sr. Division), Cuttack has challenged to the order dated 7.10.2002, by which the Court below has rejected the report submitted by the Amin Commissioner in the Final Decree Proceeding and has directed for deputing a fresh Amin Commissioner.C.R.P. No. 305 of 2002
Learned Civil Judge (Sr. Division), Banki on 10.10.2002 allowed plaintiff's application for amendment of the plaint, and defendant No. 1 has challenged that order in this civil revision.C.R.P. No. 315 of 2002
In Title Appeal No. 29 of 1996, on 23.11.2002 learned Ad hoc Addl. District Judge, Balasore rejected the application under Order 41, Rule 27 of the Code filed by the defendants/appellants. Hence, they have preferred this civil revision.C.R.P. No. 317 of 2002
Plaintiff has filed this revision challenging to the refusal to the prayer of amendment of the plaint under Order 6, Rule 17 of the Code, in Title Suit No. 2 of 1991 of the Court of Civil Judge (Sr. Division), Bhanjanagar, as per the impugned order dated 2.12.2002.C.R.P. No. 336 of 2002
Application filed by the petitioners to implead them as parties in Title Suit No. 106/324 of 1996 having been rejected by the Fast Track Court No. 2, Bhubaneswar, the said interveners have preferred this civil revision.C.R.P. No. 4 of 2003
Defendants in Money Suit No. 1/62 of 2001-1999 of the Court of Addl. Civil Judge (Sr. Division), Puri are the petitioners as against the order passed on 21.9.2002. The trial Court rejected the application for amendment of the written statement. Hence they have filed this civil revision.C.R.P. No. 22 of 2003
Defendant No. 1 in Title Suit No. 14 of 2001 of the Court of Civil Judge (Sr. Division), Udala has preferred this civil revision challenging to the order passed by that Court on 7.1.2003 in rejecting the application for amendment of the written statement.C.R.P. No. 36 of 2003
Defendant No. 1 in Title Suit No. 152 of 1996 of the Court of Fast Track Court No. 4, Bhubaneswar has filed this civil revision against the order dated 17.1.2003. It appears from that order that, after the case from both sides were closed but before hearing of argument plaintiff filed some sale deeds and the same was accepted on record on the ground that such documents are not accepted as additional evidence. Hence the revision.C.R.P. No. 44 of 2003
In Title Suit No. 22/81 of 1990-2000 of the Court of Addl. Civil Judge (Sr. Division), Balasore, plaintiff filed three applications, one to accept the registered sale deeds of 30 years old on record subject to proof and relevancy and the other two petitions to prove execution of the documents and also about the custody of such 30 years old document. As per the impugned order dated 22.11.2002 all such applications were rejected by the trial Court. Hence the revision.C.R.P. No. 53 of 2003
Misc. Case No. 9 of 1997 has been filed by the opposite parties 1 & 2 in the Court of District Judge, Cuttack for grant of Probate or Letter of Administration on a Will executed on 10.3.1992 by their mother in their favour including the sole opposite party/ the present petitioner. In that proceeding opposite parties 3 & 4 (of this civil revision) filed an application under Order 1, Rule 10, read with Order 22, Rule 10 of the Code with the prayer to implead them as parties to that proceeding. On hearing the parties, the Court below allowed that application treating the same to be one under Sections 283 and 284 of Indian Succession Act. Opposite party in Misc. Case No. 9 of 1997 has thus preferred this civil revision challenging to that order passed on 16.8.2002.
C.R.P. Nos. 71, 72 & 73 of 2003 Three separate orders passed on 10.1.2003 in Misc. Case No. 367 of 1998 of the Court of Civil Judge (Sr. Division), Jagatsinghpur are under challenge. The aforesaid Misc. Case has been filed by the petitioner claiming for revocation of Succession Certificate granted in favour of the opposite parties who were the petitioners in Succession Misc. Case No. 17 of 1996. Learned Civil Judge allowed the prayer to cause production of Exts. 1 to 8 (of Succession Misc. Case No. 17 of 1996) and that order is under challenge in C.R.P. No. 72 of 2003. Learned Civil Judge allowed the prayer for causing production of the originals of the Succession Certificate granted in the above noted Succession Misc. Case and that order is under challenge in C.R.P. No. 73 of 2003, and the order passed by learned Civil Judge in recalling the P.Ws. 1 and 2 for their cross-examination is under challenge in C.R.P, No. 71 of 2003.C.R.P. No. 83 of 2003
Petitioner is the appellant in Title Appeal No. 42 of 2002 of the Court of District Judge, Balasore. He has preferred this civil revision challenging to the order passed by that Court on 16.12.2002 in rejecting the application for amendment of the written statement.C.R.P. No. 85 of 2003
Defendant in Money Suit No. 52 of 2001 of the Fast Track Court No. 4, Bhubaneswar has preferred this civil revision challenging to the order dated 6.1.2003 of that Court. By that order the Court below has directed the defendant to adduce evidence first on the ground that the claim of the plaintiff relating to the suit transaction has been admitted by the defendant/petitioner in his written statement and therefore the onus lies on him to prove withdrawal and adjustment.C.R.P. No. 103 of 2003
The sole defendant in Title Suit No. 73 of 2000 challenges to the order passed by learned Civil Judge (Sr. Division), Udala on 21.2.2003 in that suit directing for examination of the document, i.e., the will (Ext. A) by a Hand-writing Expert.C.R.P. No. 116 of 2003
Plaintiff is the petitioner in this civil revision as against the order passed on 1.2.2003 by learned Civil Judge (Sr. Division), Bhubaneswar in Title Suit No. 600 of 2000 by rejecting the application for amendment as well as for addition of parties.C.R.P. No. 117 of 2003
The sole defendant in Money Suit No. 522 of 1994 of the Court of Civil Judge (Sr. Division), Berhampur has preferred this civil revision challenging to the order passed by that Court on 20.2.2003 in rejecting the prayer for amendment of the written statement.
C.R.P. No. 123 Of 2003 Plaintiff's application for amendment of the plaint having been rejected by learned Civil Judge (Sr. Division), Chhatrapur in Title Suit No. 6 of 1997 as per the impugned order passed on 13.2.2003, she has preferred this revision.C.R.P. No. 277 of 2002
Petitioner in Succession Misc. Case No. 3 of 2001 of the Court of Civil Judge (Sr. Division), Bhubaneswar has challenged to the order passed by that Court on 18.9.2002. Learned Civil Judge in that order has directed the petitioner to deposit the duty money.
2. It appears from substance of the dispute in each of the above noted Civil Revisions that the interlocutory applications were disposed of in the impugned manner by the concerned Courts below. In view of the amendment of Section 115 of the Code, the prime question that emerges for consideration is as to whether such Civil Revisions are maintainable. In other words, whether this Court exercising the revisional jurisdiction under Section 115 of the Code should admjt and entertain such revisions in the event the impugned orders, if had been made in favour of the revision-petitioners, i.e. the party applying for revision, would not have finally disposed of the suit or other proceedings.
3. In all the above noted Civil Revisions learned counsel appearing for petitioners in each of the cases, learned Addl. Govt. Advocate appearing for the State (as opposite party) in some cases and some learned counsel even appearing for the other opposite party members in some other cases, have advanced argument in support of maintainability of such Civil Revisions as against the impugned interlocutory orders on the ground that such impugned orders come within the meaning of the term "cases decided" as per the interpretations made in the cited cases, out of which case of Major S.S. Khanna v. Brid. F. J. Dillon, AIR 1964 S.C. 497, and Baldebdas Sibalal and Anr. v. Filmstar Distributors (India) Pvt. Ltd. and Anr., AIR 1970 SC 406 are relied on as core decisions in that respect. Accordingly, it was argued that amendment in Section 115 of the Code by Act 46 of 1999 does not affect maintainability of civil revisions. In that respect, referring to the case of Simplex Engineering and Foundary Works Ltd. and two Ors. v. Bhubaneswar Patnaik (Civil Revision Petition No. 57 of 2003 decided by this Bench as per the judgment delivered on 11.2.2003 and reported in 2003 (1) OLR 508) they argued that the ratio stated in that case is not correct in view of the above noted two decisions of the Apex Court and series of other decisions from different High Courts including this Court on the interpretation of the term "Case decided".
4. Some counsel appearing for some opposite party members however did not agree to the aforesaid argument advanced in support of maintainability of civil revisions against interlocutory orders. Their contention is that in view of the statutory provision in Section 115 of the Code, as it stands now, even if an order comes within the meaning of the term "case decided" then also a revision application shall not be maintainable unless that qualifies to the requirement of law in the proviso to Sub-section (1) of Section 115 of the Code, where it has been prescribed that "except when 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". Some of such counsel also argued that decision of this Court in the case of M/s. Simplex Engineering (supra) relating to construing the meaning of the term "other proceedings" appearing in the phrase "suit or other proceedings" is not correct in view of the ratio in the case of Shri Vishnu Avatar etc. v. Sriram Avatar, AIR 1980 SC 1575, in which, with the help of the maxim 'ejusdem generis' their Lordships have excluded proceeding arising out of suits from the purview of the term "other proceedings". Therefore, according to them, a proceeding arising in or out of a sujt is not a proceeding within the meaning of the term "other proceedings" used in Section 115 of the Code and in that respect the term "other proceedings" means proceedings of original nature like Arbitration Proceeding, Proceeding under the Indian Succession Act, etc.
5. Keeping in view the principle stated by the apex Court in the case of M/s S. S. Khanna (supra) and Baldev Das Sibalal (supra) besides a series of decisions of this Court and different High Courts cited at the Bar, this Court finds that the impugned orders of different categories, in the above noted Civil Revisions come within the meaning of the term 'case decided'. But, satisfying that requirement of Section 115(1) of the Code and even satisfying the requirement of the jurisdictional error as noted in clauses (a) to (c) of Subsection (1) of Section 115 of the Code, this Court finds that the Civil Revisions are not maintainable as per the amended provision of Section 115. The simple reason for the same is that notwithstanding qualifying to any other requirement as prescribed under Section 115, a person applying for revision against a particular order must satisfy the Court that if the impugned order would have been passed in his favour then the 'suit or other proceeding' would have stood disposed of finally. Unless that requirement is satisfied, a revision is not entertainable even if the impugned order amounts to a case decided and there is jurisdictionaf error committed by the Court below in dealing with and disposing of that matter. In that context this Court while relying on the amended provision in Section 115 of the Code, also relies on the case of Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developersand Ors., 2003 (4) SCALE 241.
6. So far the meaning of the term 'proceeding' which occurs in Section 115 of the Code, this Court in the case of M/s Simplex Engineering (supra) took the view that if a final order passed in a proceeding arising in or out of a suit and such order is appelable under Order 43 Rule 1 of the Code then such a proceeding be treated as a 'proceeding' within the meaning of the term "Suit or other proceeding" as mentioned in the proviso under Sub-section. (1) of Section 115 of the Code because such proceeding are transferable under Section 24 of the Code and procedure for disposal of such proceedings shall be in accordance with the provision in Section 141 of the Code. That view was expressed and the judgment was delivered without being cognisant of the ratio in the case of Shri Bishnu Awatar etc. (supra) because that decision was not brought to the notice. In that case the apex Court interpreted the term 'suit or other proceeding' and propounded that the term 'proceeding' must be a proceeding of the equivalent status of a suit and does not include a proceeding arising in or out of a suit. Therefore, if the principle of 'ejusdem generis' shall be applied as propounded by the Apex Court, then the proceeding arising in or out of a Civil Suit cannot be termed as a proceeding within the meaning of Section 115 of the Code. Therefore, all the proceedings registered as Misc. Case's on the basis of miscellaneous application, be it for a temporary injunction, appointment of receiver, restoration of the suit, setting aside the ex parte decree, etc., are concerned, such miscellaneous cases will not come within the purview of the term 'proceeding' as provided in the proviso to Sub-section (1) of Section 115 of the Code.
7. Therefore, this Court finds that a Civil Revision, at the instance of a litigant, is maintainable on satisfaction of the following circumstances cumulatively, viz. :
(a) (i) Impugned order amounts to a case decided. .
(ii) Such order must have been passed by any Court subordinate to such High Court.
(iii) Such order must not be appealable one.
(b) There must be allegation of jurisdictional error, i.e. to say :
(i) exercise of jurisdiction not vested in the Court below by law, or (ii) a jurisdiction vested in it by law was failed to be exercised, and/or (iii) has acted in the exercise of its jurisdiction illegally or with material irregularity.
(c) If the impugned order had been passed in favour of the revision-petitioner then that would have finally disposed of the suit or other proceedings.
8. Thus, keeping in view the stringency of the law, the rational behind that and Constitutional obligation of the Court to prevail the law, this Court finds that none of the impugned orders satisfy to the aforesaid requirement of law cumulatively. Thus, all the Civil Revisions are found not maintainable in view of the prohibition prescribed by Section 115 of the Code. Therefore, all the Civil Revisions are dismissed accordingly.