Uttarakhand High Court
Rajesh Kumar Gautam vs Maha Mandleshwar Vedabayasanad Geeta ... on 17 July, 2003
Equivalent citations: AIR2004UTR30, AIR 2004 UTTARANCHAL 30, (2003) 52 ALL LR 676
Author: Rajesh Tandon
Bench: Rajesh Tandon
ORDER Rajesh Tandon, J.
1. Heard Sri Sharad Sharma for the revisionist and Sri Alok Singh for the respondents.
2. The present revision has been filed against the order dated 30-10-2002 passed on the application under Order XXVI, Rule 9, C. P. C. Brief facts are that a suit was filed by the plaintiff/revisionist praying for a decree of declaration against the defendant that he is owner of the property and title vested with the plaintiff. Relief Clause (Aa) of the plaint is reproduced as under :
DECREE GHOSNATMAK BAHAK VADI BARKHILAF PARTIWADIGAN ES AASHAY KEE SADAR FARMAI JAYE KI VADI SAMPATI NIMANVARNITTAHATIVADPATRA KA MALIK KABIJ HAI AUR VADI KO SAMPATI NIMANVARNIT ME SAMAST MALIKANA HAKOOK PRAPT HAI(.) It has been stated by the plaintiff that the property described in paragraph 2 of the plaint was the personal property of Swami Shanta Nand and since then he is continuing in possession over that property being his younger brother and manager of the property of Swami Shanta Nand. It was also stated that he was managing the entire affairs regarding the property of Swami Shanta Nand and was also realising rent from the tenants. In paragraph 6 of the plaint applicant was claimed that Swami Shanta Nand during his life time has executed a will on 27-9-1999 in his favour and since then he Continues to be the owner of the property.
3. Written statement was filed on behalf of the defendant which forms part of the memo of revision as annexure 2 to the counter affidavit who has disputed the averments made in the plaint and execution of the will were disputed. The defendant has also disputed that the plaintiff was the manager of the property in dispute. During the pendency of the suit an application was filed on behalf of the plaintiff under Order 26, Rule 9, C. P. C. which has been annexed as annexure 6 to the affidavit which was filed along with the revision and it was prayed that appointment of an Advocate Commissioner is necessary in order to ascertain the situation on the spot. It was also prayed as under:
"AAT PRATHANA HAI KI BISHAYAK SAMPATI KO MAUKE KEE SITHITI LANE HETU KISI ADVOCATE COMMISSIONER KO NIYUKT KARNE WA NIRISHAN KE SAMAY PHOTOGRAPH WA VIDEO FILM BANAYE JANE KE AADESH PARIT KARANE DH KIRPA KAREN(.)"
4. The aforesaid application was contested by the defendant on the ground that no commission can be issued under Order 26, Rule 9, C. P. C. to collect evidence on the spot. As Will appear from the application itself that he has tried to state in the application that his family members are residing and no Satsangh is being conducted in the premises and the same may be ascertained by video and photographs.
5. I have heard Sri Shared Sharma for the revisionist and Sri Alok Singh for the respondent at great length.
6. To me it appears that the case of the plaintiff is purely based on the will executed by Swami Shanta Nand and he is claiming ownership and title in pursuance of the will executed in his favour. The case of the defendant is that the property is a trust property. The suit was filed in the year 2002 and neither any issue has been framed nor the case has yet. proceeded and stage of evidence has yet to reach. The Court-below has passed the order rejecting the application under Order 26, Rule 9, C, P. C. at this stage. The learned Civil Judge was of the opinion that at this stage appointment of the Commissioner will not be necessary and the application itself can be decided at the stage of trial of the suit. So far as power to appoint Advocate Commissioner under Order 26, Rule 9, C. P. C. is concerned in any stage of the suit where the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report there on to the Court. Order 26, Rule 9, C. P. C. reads as under :
In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such instigation and to report thereon to the Court.
Provided that where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules...
7. So far as the stage for the purpose of elucidating any matter in dispute is concerned, it has rightly been observed by the Civil Judge (SD) that stage will come only during the trial of the suit and not at this stage.
8. Therefore, the learned Civil Judge (SD) has sufficiently safeguarded the interest of the petitioner and whenever for the purpose of elucidating any matter in dispute, will arise, the Court will be at liberty to exercise the powers under Order 26, Rule 9, C. P. C. Further it may be pointed out that it is the discretion of the Court as contained in Order 26, Rule 9, C. P. C. and the revision under Section 115, C. P. C. is not maintainable challenging the discretion of the Court below. Under Section 115, C. P. C. it has been provided as under :
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 its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit :
Thus order dated 30-10-2002 is also not a case decided as such order is not covered under any of the Clauses (a), (b) of Section 115, C. P. C. In the case D. L. F. Housing and Construction Co. Ltd. v. Sarup Singh, AIR 1971 SC 2324 Clauses (a), (b) and (c) of Section 115 has been defined. The Apex Court has held as under :
The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case.
Looking to the decision of the Apex Court the order in question is not revisable under Section 115, C. P. C. as the order passed by the Civil Judge (SD) cannot be said a matter of either exercised the jurisdiction not vested in it by law or failed to exercise jurisdiction so vested upon him.
9. Further any order passed under the provisions of Order 26, Rule 9, C. P. C. is neither a case decided nor any revision lies against such an order. It has been held in the case Smt. Harvinder Kaur v. Godha Ram, AIR 1979 Punj & Har 76 that the order made in the course of suit or proceedings would be revisable only when it determined, or adjudicate the same right or obligations of the parties in controversy. The observations made by Punjab and Haryana High Court are as under :
In the light of aforesaid observations, without dilating any more on this subject, the meaning that can be given to the explanation is that an order made in the course of a suit or proceedings would be revisable only when it determines or adjudicates some right or obligation of the parties in controversy. Thus, a revision would lie against an interlocutory order only if it determines some right or obligations of the parties in controversy. However, even after the satisfaction of the aforesaid test the power of revision would be exercisable by this Court subject to the limitation put under Sub-section (1) and the proviso to Section 115 of C. P. C.
10. Under amended Code of Civil Procedure, the scope of Section 115 has also been made very limited. No revision, therefore, is maintainable against the orders passed under Order 26, Rule 9, C. P. C. In ShivShakti Coop. Housing Society, Nagpur v. Swaraj Developers, 2003 (4) JT (SC) 255, Apex Court has held as under :
"In order to appreciate the rival submissions it will be necessary to take note of the provisions of Section 115 as they stood before amendment and after amendment.
Section 115 (before Amendment) (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 order proceeding, except where--
(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 proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
(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 proceedings."
Section 115 (after amendment) :
(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.
(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 order 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 the issue, in the course of a suit or other proceedings."
A comparison of two provisions shows that while proviso (a) of the un-amended, provision has been retained in its totality in the amended provisions, Clause (b) of the proviso has been omitted.
It is to be noted that prior to the amendments to the Code by the Old Amendment Act, the power" of revision was wider. By the amendment, certain positive restrictions were put on the High Court's power to deal with revisions under Section 115. Prior to the said amendment, it was not strictly necessary that the impugned order would have the result of finally deciding the lis or the proceedings in the lower Courts. In fact the power could be exercised in any case where jurisdictional error was committed by the original Court or where substantial injustice had resulted. By the Old Amendment Act, the condition of finally deciding of lis and the proceedings in the subordinate Courts was introduced. The proviso which was introduced contains qualifications which are pre-requisites before exercise of power under Section 115. They were Clauses (a) and (b) of the proviso. Logically, the High Court has suo motu power to revise an order where total failure of justice would have occasioned or where irreparable loss would have caused to the parties against whom it was made. These powers were retained by Clause (b). Though after 1976, the exercise of power was somewhat circumscribed, it was not totally curtailed. In other words the High Court could even after the 1976 amendment interfere in cases where there was failure of justice or irreparable loss caused, the nature of the proceedings was substantially changed and the suo motu power of the High Court was retained. It was in the nature of power of superintendence of the High Court over the subordinate Courts. Changes were related to indicating limitations in exercise of power.
11. However, in the present; case the learned Civil Judge (SD) has safeguarded the interest of the applicant by observing that the application will be decided at the time of trial no orders, therefore, are necessary and it will be open for the Presiding Officer to hear both the parties and dispose of the objections considering the scope of Order 26 Rule 9 C.P.C. The trial Court will be at liberty to consider the application during the trial of the suit.
12. I find no illegality or irregularity in the impugned order. The revision is, there fore, dismissed.