Orissa High Court
Purastam Alias Purosottam Gaigouria ... vs Chatru Alias Chatrubhuja Gaigouria on 11 November, 1991
Equivalent citations: 1992(I)OLR72
Author: R.C. Patnaik
Bench: R.C. Patnaik
JUDGMENT R.C. Patnaik, J.
1. This case was referred to a larger Bench to consider the question if an erroneous decision of the trial Court as regards the party having right to begin is a case decided within the explanation to Section 115 of the Code of Civil Procedure.
2. Prior to the amendment of Section 115 by the Code of Civil Procedure (Amendment) Act, 1976 (Central Act, 104 of 1976), the revisional jurisdiction of this Court was attracted in a case decided by the Subordinate Court from which no appeal lay to the High Court if jurisdiction not vested in it by law has been exercised or the subordinate Court has failed to exercise jurisdiction so vested or acted in the exercise of jurisdiction illegally or with material irregularity. There was a clamour for omission of Section 115 from the Code. The proposal of the Law Commission that in view of Article 227 of the Constitution of India, Section 115 of the Code was no longer necessary was not accepted by the Joint Committee. It was of the view that remedy provided under Article 227 was likely to cause more delay and more expenditure whereas the remedy provided under Section 115 was cheap and easy. It suggested imposition of additional restriction on the exercise of revisional jurisdiction by the High Court by providing that revision would not lie if an appeal lay either to the High Court or to any subordinate Court and unless (a) the order if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings, or (b) if the order is allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made. It suggested addition of an explanation to the section providing that a 'case decided' would include an interlocutory order though the controversy had been resolved by the Supreme Court in Khanna v. Dillon, AIR 1964 SC 497 and in Baldevdas v. Filmistan, AIR 1970 SC 406, that revision was maintainable against an interlocutory order which adjudicated the rights of the parties in controversy.
3. The question that arises for consideration in this case is if an erroneous decision of the subordinate Court on the question of 'right to begin' is a case decided and if it also satisfies the requirements of Clause (b) of the proviso, namely, the order if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made ?
4. It cannot be disputed that placing of onus correctly on the party is an important and valuable aspect in procedural law. 'Right to begin' is determined by the rules of evidence. The party on whom lies the onus probandi should begin. In Debara v. Suryakumari, ILR 1976 Cut. 879, R. N. Misra, J. (as he then was) followed the cases in Ratti Lal v. Raghun, AIR 1924 V.P. 53 and Bir Babu v. Raghubar Babu, AIR 1947 Patna 469 where it was held that if the order is of a type as to cause irreparable loss to the injured party and there was no right of appeal and no remedy available to the party, it would be indeed an irregularity which had to be rectified in exercise of jurisdiction under Section 115 of the Code and held that an erroneous decision as to 'right to begin' was available to be corrected in exercise of jurisdiction under Section 115. The said learned Judge again in a similar matter (Hajaru Ganda v. Kalia Pati, 1976 (1) CWR 481) where the controversy was whether the plaintiff or the defendant had the right to begin, took note of the decision in K.L. Subudhi Brothers v. D. Bhaskar Rao, 1972(2) CWR 1044 where a Division Bench of this Court had stated one of the requirements for exercise of jurisdiction under Section 115 as under:
"Such an order will, however be open to revision only if the other conditions expressly laid down in Section 115 are satisfied and the order has resulted or is likely to result in such gross injustice or irreparable injury as cannot be remedied otherwise than by the exercise of the extraordinary jurisdiction of the High Court at that stage."
The decision in K. L. Subudhi's case (supra) was rendered prior to 1976 Amendment. Even then a Division Bench of this Court observed that the order to be revisable should have resulted in or likely to result in such gross injustice or irreparable injury as cannot be remedied otherwise than by the exercise of revisional jurisdiction. Taking the other requirements into account and the observations made by him in Debara's case (supra), the learned Judge held that a decision on the question as to who should begin first was a case decided and was available to be revised, if erroneous. He relied upon a decision of the Patna High Court in Bir Babu's case (supra) and observed that "the prejudicial effect of wrong placing of the onus and requiring the defendant to begin at the trial is ordinarily not a remediable one and the matter is so much connected with the case that an error committed on that score should be open to revision under Section 115 of the Code of Civil Procedure"
5. That an erroneous decision relating to 'the right to begin' in clear breach of the provisions of Rules 1 and 2 of Order 18, CPC causes irreparable injury to the party was noted in Balakrishna Kar v. H. K. Mahatab, AIR 1954 Orissa 191, where it was said :
"If we do not interfere at this stage it may well be that the point will again be agitated at a later stage necessitating an order for re-trial. Such a course would involve the parties in considerable expense and would also entail delay which can be avoided by our interference at this stage."
We may observe that a wrong decision on the question of 'the right to begin' is likely to occasion failure of justice.
6. In this case, the plaintiff sought partition alleging that the property was joint family property and had not been decided by metes and bounds. The defendant-petitioners placed a previous partition since 1960-61 to defeat the plaintiff's suit. In view of the plea of the defendants that there was a previous partition, the learned Subordinate Judge called upon the defendants to begin. The plaintiff's plea that the property was joint family property having been admitted by the defendants and the latter having pleaded previous partition, the defendants are to lose if neither party adduced evidence, the burden being on the defendants to prove previous partition. Only when the defendants lead some evidence in proof of previous partition, the plaintiff would be obliged to lead evidence in rebuttal. Rightly, therefore, the learned Subordinate Judge called upon the defendants to begin. We, therefore, see no merit in this revision which is accordingly dismissed. There would be no order as to costs.
K.C. Jagadeb Roy, J.
7. I agree.