Orissa High Court
Smt. K.Nagamani vs Smt. K.Rajeswari & Others ... Opp. ... on 14 December, 2012
HIGH COURT OF ORISSA: CUTTACK
C.R.P. No.18 of 2009
An application under Section 115 of the Code of Civil Procedure, 1908.
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Smt. K.Nagamani,
W/o K.V.Ravana,
Permanent resident of Kella Street,
PO/PS : Jeypore Town, Dist: Koraput,
At present residing of Paninola Sahi,
In front of Clinic of Dr.Prafulla Kumar Panda,
PO/PS: Jeypore, Dist: Koraput
... Petitioner
-Versus-
Smt. K.Rajeswari & Others ... Opp. Parties
For Petitioner : M/s. Sidhartha Mishra &
M.N.Ray
For Opp. Parties : M/s. D.R. Bhokta & N.Afreen
[For O.P Nos.1 to 6]
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Judgment : 14.12.2012
B.N. Mahapatra, J.The petitioner has filed this Civil Revision Petition challenging the judgment dated 10.04.2009 passed by the learned District Judge, Koraput at Jeypore in F.A.O. No.58 of 2008 confirming the order dated 04.11.2008 passed by the learned Civil Judge (Senior Division), Jeypore in C.M.A. No.62 of 2007 rejecting the petition under Section 144, CPC filed by the present petitioner for restoration of possession of the suit house.
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2. Facts giving rise to the present Civil Revision Petition are that opposite parties 1 to 6 as plaintiffs filed C.S. No.77/2003 in the Court of Civil Judge (Senior Division), Jeypore by impleading petitioner and opposite party No.7 as defendants to evict them from the suit house and for realization of arrear house rent and cost of litigation. The aforesaid suit was decreed ex parte on 26.03.2004 in favour of the plaintiffs. Thereafter, in E.P. No.8/2004, the delivery of the suit house was given to the plaintiffs/opposite parties 1 to 6. In the year 2006, the petitioner filed a petition under Order-IX, Rule 13, CPC in CMA No.1 of 2006 before the Trial Court to set aside the ex parte decree which was allowed on 20.11.2007 by setting aside the ex parte decree. Opposite parties 1 to 6 challenged the order of the Trial Court dated 20.11.2007 before this Court in CRP No.7 of 2008 in which the order of the trial court was confirmed. The Revision petitioner also filed a petition under Section 144, CPC before the learned Trial Court in CMA No.62 of 2007 praying for restoration / re-delivery of the suit house to the revision petitioner on the ground that the ex parte order, on the basis of which the plaintiffs/opposite parties 1 to 6 had got possession through the process of Court, was set aside. The Plaintiff- opposite parties 1 to 6 filed their counter challenging the entitlement of the revision petitioner to get re-delivery of the suit house on the ground that she was not the lessee under plaintiff/opposite party No.5, but the present opposite party No.7 (defendant no.1) who has allowed the revision petitioner/defendant no.2 to stay in the suit house is entitled to possession 3 of the suit house. On 01.11.2008, after closure of the arguments, opposite party No.7 filed a memo through his Advocate that the plaintiff-opposite parties delivered possession of the suit house to opposite party No.7. Thereafter learned Trial Court rejected the petition under Section 144 CPC filed by the revision petitioner. Being aggrieved by the order of the Trial Court, the revision petitioner preferred appeal before the learned District Judge by filing F.A.O. No.58 of 2008 and the learned Appellate Court vide its order dated 10.04.2009 confirmed the order of the learned Trial Court. Hence, the present Civil Revision Petition.
3. Mr.Sidhartha Mishra, learned counsel appearing for the petitioner submitted that the impugned orders are illegal and contrary to admitted documents on record. On 16.09.1999, opposite party No.5 through Sri M.Upendra Rao, Advocate had issued notice to the revision petitioner and opposite party No.7 and others to quit/vacate the suit house. Opposite party No.7/Defendant No.1, through his Advocate, Sri L.K.Panda, presently Advocate for the plaintiff-opposite party Nos.1 to 6 replied to the said notice that his client was in no way connected with the suit house in question and he never took the house on lease nor stayed therein at any time. Ch. Subhalakshmi clearly stated in her deposition in M.C. Case No.118/96 that her daughter K.Nagamani by paying Rs.20,000/- to G.Venketeswar Rao was in possession of the house for about last four years. Smt. Nagamani also claimed that she has paid Rs.50,000/- to G.Rama Devi, daughter of G.Satyabati on 30.03.1992 and was in 4 possession of the house under lease. Therefore, it clearly goes to show that opp. party No.7 is in no way concerned with the house nor inducted sub- tenants. This reply of opposite party No.7 has been lost sight of by the learned Trial Court. The delivery of warrant in E.P. No.8 of 2004 which was returned back after execution contains the report of the Process Server to the effect that the revision petitioner was evicted from the suit house but not the opposite party No.7. Therefore, the Trial Court ought to have restored the suit house to the revision petitioner. The ex parte decree was set aside on the prayer of the petitioner which was opposed by opposite party No.7 who supported the plaintiff/opposite party Nos. 1 to 6. Opposite party No.7, in C.M.A. No.1 of 2006, the proceeding under Order-IX, Rule 13, CPC, submitted before the Court to reject the petition. Further case of revision petitioner is that she was in physical possession of the suit house prior to and on the date of eviction. Therefore, the revision petitioner should be put to possession, as she and opposite party No.7 are living separately on the basis of the order passed by the learned SDJM, Jeypore in M.C. No.118 of 1996. Concluding his argument, Mr. Mishra made prayer to allow the revision petition.
4. Mr.D.R.Bhokta, learned counsel appearing for opposite parties submitted that since the Civil Revision Petition arises out of the misc. case/ interim application under Section 144, CPC, the same is not maintainable. According to the provision of Rule 431 of the G.R.C.O. (Civil) Volume-I, application under Section 144, CPC is to be registered as a misc. case. 5 Placing reliance on the judgment of this Court in Alok Kumar Bohidar and another Vs. Rajkishore Mathur and another, 96(2003) CLT 39, Mr.Bhokta submitted that the impugned order is an interlocutory one and registered as a Misc. Case. It is further submitted that all the proceedings registered as Misc. Case on the basis of miscellaneous application will come within the purview of interim proceeding as provided in the proviso to Sub-section (1) of Section 115 of the Code and those cannot be a matter of revision under Section 115, C.P.C. In support of his contention, he relied upon the decision of this Court in the case of Sitaram @ Mahendra Ghosh V. Sri Antaryami Mohapatra and 18 others and other connected cases 96 (2003) CLT 762. Placing reliance of the judgment of the Hon'ble Supreme Court in the case of Shiv Shakti Cooperative Housing Society, Nagpur Vs. M/s Swaraj Developers & Ors., 96 (2003) CLT 201 (SC), Mr. Bhokta submitted that the orders which are interim in nature cannot be a matter of revision under Section 115, CPC and therefore, the present Civil Revision Petition is not maintainable.
5. It was further submitted that opposite party No.7 was a tenant under Opposite Parties 1 to 6. The suit house was leased out to opposite party No.7 on 25.10.1993 and subsequently after few months opposite party No.7 brought the petitioner to the suit house and resided with her. Opposite party No.7 paid house rent till February, 2002 and failed to pay the house rent thereafter from the month of March, 2002 till filing of the suit. The plaintiffs issued a registered notice under Section 106 of T.P. Act 6 on 20.05.2003 terminating the tenancy. Suit house was only leased out to opposite party No.7 vide agreement dated 25.10.2003 and the revision petitioner was allowed to stay with him as concubine. Maintenance case as well as G.R. Case is pending before the learned Courts below between the petitioner and opposite party No.7. The suit house was never leased out in favour of the revision petitioner. Under Section 115, CPC, the High Court cannot re-appreciate the evidence and cannot set aside the concurrent finding of the Courts below by taking different view on the evidence. The High Court is empowered only to interfere with the findings on the facts, if the same are perverse or there has been non-appreciation or non- consideration of material evidence on record by the Courts below. Simply because another view on the evidence may be taken is no ground for the High Court to interfere with its Revisional jurisdiction. In support of the above contention, Mr.Bhokta relied on the judgment of the Hon'ble Supreme Court in the case of Yunis Ali (dead) through his Lrs. Vs. Khursheed Akram, AIR 2008 SC 2607.
6. On the rival contentions, the questions that fall for consideration by this Court are as follows:-
(i) Whether the present revision petition challenging the order dated 04.11.2008 passed by the Civil Judge (Senior Division), Jeypore in C.M.A. No.62 of 2007 as well as the confirming order of the learned District Judge, Koraput dated 10.04.2009 passed in F.A.O. No.58 of 2008, arising out of a petition filed 7 under Section 144 CPC for restoration of possession, is maintainable?
(ii) If the civil revision petition is maintainable; whether the revision petitioner is entitled to the relief prayed for in the revision petition?
(iii) What order?
7. Question no.(i) is with regard to maintainability of the Civil Revision Petition. Challenging maintainability of the Civil Revision Petition, Mr. Bhokta, learned counsel contended that the impugned order is interim in nature which does not finally decide the lis and therefore, the same cannot be challenged by way of revision under Section 115 of the CPC. Placing reliance on the decision of this Court in Sitaram @ Mahendra Ghosh v. Sri Antaryami Mohapatra and 18 others (CRP No. 89 of 2002) and other connected cases (supra), Mr. Bhokta submitted that the term "proceeding" must be proceeding of an equivalent status of a suit and does not include a proceeding arising in or out of a suit. Therefore, all the proceedings registered as Misc. Cases 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 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. Further, referring to the GRCO (Civil) Vol.-I Mr. Bhokta submitted that Rule 33 provides the list of miscellaneous jurisdiction cases in which application under Section 144 of CPC is included. Therefore, this case is not maintainable.
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8. The contention of Mr. Mishra appearing for the revision petitioner is that an application for restitution made under Section 144, CPC is covered under the expression "proceeding" appearing in Section 115 of the CPC. Therefore, the civil revision petition is maintainable.
9. At this juncture, it is necessary to quote the relevant provision of Sec. 115 of the CPC.
"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 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."
10. The Hon'ble Supreme Court in the case of Siva Sakti Coop. Housing Society (supra) held as follows:-
"A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the 9 order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is 'yes' then the revision is maintainable. But on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Section 115."
Thus, if the impugned order is of interim in nature and does not finally decide the lis, the revision will not be maintainable.
11. In the instant case, petition made under Section 144 of CPC is for restitution of possession of disputed property. Sub-section (2) of Section 144, CPC reads as follows:-
"(2) no suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under Sub-section (1)."
Thus sub-section (2) debars a party from instituting any suit for the purpose of obtaining restitution or other relief which could be obtained by application under sub-section (1). A close look to sub-section (2) of Section 144, CPC makes it clear that an application made under Section 144, CPC for restitution is a proceeding of equivalent status of a suit. In the instant case, had the order on the application under Sec. 144, CPC for restitution been made in favour of the petitioner, applying for revision that would have been finally disposed of the proceeding under Section 144. Merely because the application u/s.144, CPC is included under Rule 431 of GRCO (Civil) Vol. I which speaks of list of miscellaneous jurisdiction cases that will not 10 improve the case of opp. parties for the reasons stated above. Nomenclature of a proceeding will not determine the nature and character of that proceeding for the purpose of Section 115, C.P.C.
12. In view of the above, this Court is of the opinion that proceeding under Section 144 (1), CPC for restitution is coming within the purview of "other proceeding" appearing in Sec. 115, CPC and therefore, the revision petition is maintainable.
13. Question no.(ii) is whether revision petitioner is entitled to the relief prayed in Civil Revision Petition.
Undisputedly, the suit for eviction was filed impleading opposite party No.7 and the revision petitioner as defendant Nos. 1 and 2 respectively. Case of plaintiff-opposite party Nos. 1 to 6 is that opposite party No.7 has already given re-delivery of possession. The Trial Court as well as the Appellate Court has not taken into consideration the fact that the suit for eviction was filed against the revision petitioner and opposite party No.7 where as re-delivery of the possession of the suit property was given to opposite party No.7 alone. Apart from that on 16.09.1999 opposite party No.5 through Sri M.Upendra Rao, Advocate had issued notice to the revision petitioner and opposite party No.7 and others to quit/vacate the suit house. Opposite party No.7/Defendant No.1 through his Advocate replied to the said notice as follows:-
" My client is no way concerned with the house in question. My client never took the house on lease, nor stayed therein at any time. Ch.Subhalakshmi 11 clearly stated in her deposition in M.C. Case No.118/96 that her daughter K.Nagamani by paying Rs.20,000/- to G.Venketeswar Rao is in possession of the house for about last four years.
Smt. Nagamani also claims that she has paid Rs.50,000/- to G.Rama Devi, D/O. G.Satyabati on 30.03.92 and in possession of the lease.
Therefore, it clearly goes to show that my client is no way concerned with the house nor inducted sub tenants."
The above reply has not been taken into consideration by the learned Trial Court as well as the Appellate Court while dealing with petitioner's application for restitution. This amounts to non-appreciation or non-consideration of the material evidence on record by the Lower Court. The Hon'ble Supreme Court in the case of Yunis Ali (dead) through his Lrs. (supra) held that the High Court is empowered to interfere with the findings of facts if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the Courts below.
14. As per the averments made in paragraph 8 of the revision petition, the petitioner was in physical possession of the suit land prior to her eviction and the petitioner and opposite party No.7 were living separately as per order passed by the SDJM, Jeypore in M.C. No.118/96. On the contrary, it is stated by opposite parties that Suit house is only leased out to opposite party No.7 vide agreement dated 25.10.2003 and the revision petitioner was allowed to stay with him as concubine. Maintenance case as well as G.R. Case is pending before the learned Courts below 12 between the petitioner and opposite party No.7. The suit house was never leased out in favour of the revision petitioner.
15. In the fact situation, interest of justice would be best served if the possession taken by Defendant No.1 (opposite party No.7)-husband will be treated as constructive possession taken by defendant No.2-wife. This, however, will be subject to the final outcome of the original suit which shall be disposed of as early as possible, but not exceeding six months from today.
16. In the result, the Civil Revision Petition is allowed and the orders of the learned District Judge, Koraput and the learned Civil Judge (Sr. Division), Jeypore dated 10.04.2009 and 04.11.2008 respectively are set aside. No costs.
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B.N.Mahapatra, J.
Orissa High Court, Cuttack Dated 14th December, 2012/ss