Karnataka High Court
Smt. Shyamala Bai And Ors. vs Smt. Saraswathi Bai And Ors. on 31 July, 1996
Equivalent citations: ILR1996KAR3091, 1996(5)KARLJ709, 1996 A I H C 5050, (1997) 1 CIVLJ 415
Author: Mohamed Anwar
Bench: Mohamed Anwar
ORDER Mohamed Anwar, J.
1. This revision by defendant Nos. 5 to 8 in O.S.7339/93 pending on the file of learned V Additional City Civil Judge, Bangalore is directed against the order ie. "Judgment" dated September 22, 1995 passed on I.A.20 filed by plaintiff under Order 12, Rule 6 of the Code of Civil Procedure ('C.P.C' for short) allowing in part plaintiff's claim for specific performance of the contract of sale against respondent Nos. 1 to 4, who are defendants 1 to 4 in the said suit, on the basis of their admission made in their written statement and in their statement filed in response to plaintiff's I.A.No. 20.
2. I have heard the arguments of learned Counsel on both sides.
Since the very maintainability of this revision was seriously challenged by respondent No. 5 (plaintiff) the learned Counsel for both parties were heard on the point of its maintainability.
The material facts of the case are as stated under:
Respondent No. 5 filed the said suit ie. O.S.7339/93, in the Court below against the petitioners herein arraying them as defendants 5 to 8; and against respondents 1 to 4, as defendants 1 to 4 respectively. The main relief prayed by him at para 17 of the plaint is for a judgment and decree against defendants 1 to 8 jointly and severally for specific performance of the agreement of sale dated 17.3.1992 alleged to have been executed by them in plaintiff's favour in respect of their plaint schedule property agreeing to sell the same for consideration of Rs. 95,00,000/-, they having received the total sum of Rs. 15,00,000/- from plaintiff towards part sale consideration: in the alternative for a decree jointly and severally against defendants for payment Rs. 94,00,000/- including damages of Rs. 82,00,000/-by creating a charge on the suit property. Respondents 1 to 4 (defendants 1 to 4) filed their joint written statement without denying the material allegations in the plaint in particular, the suit agreement dated 17.3.1992. On the other hand, petitioners (defendants 5 to 8) filed their joint written statement in detail denying material plaint allegations and their liability under the suit agreement to execute the sale deed in plaintiff's favour in respect of the suit property and contending that the suit agreement is a forged and concocted document.
3. During pendency of the suit plaintiff filed I.A.No. 20 under Order 12, Rule 6 C.P.C. before the Trial Court supported by an affidavit of its concerned official praying that the Trial Court may be pleased "to pass a partial decree" for specific performance against defendants 1 to 4 directing them to execute the sale deed in respect of their 7/8 the share in the suit schedule property after receiving their share of balance of sale consideration and in case they fail or neglect to execute the sale deed then to permit the plaintiff to deposit the amount in Court and to get the sale deed executed, and dispose of the suit accordingly in the interest of justice. In answer to plaintiff's I.A.No. 20, defendants 1 to 4 who are respondents 1 to 4 herein, filed their memo dated 22.9.95 in the Court below admitting the plaintiff's case against them in the following terms:
"The defendants 1 to 4 hereby admit having entered into an agreement to sell with the plaintiff dated 17.3.1992 and having received a sum of Rs. 13,00,000/- (rupees thirteen lakhs) as advance towards their 7/8th share in the schedule properly and withdraw all those allegations made against it in their written statement. The balance payable to them in respect of their share in only Rs. 70,07,250/-. In case the Court comes to the conclusion that the plaintiff is entitled to a partial decree as prayed for by it, the plaintiff may be directed to deposit the said balance of sale consideration of Rs, 70,07,250/- before getting the Sale Deed executed in its favour."
It appears that petitioners-defendants 5 to 8 did not file their objections as such to the said I.A.No. 20. Considering the said memo of respondent Nos. 1 to 4 filed before him the learned Trial Judge passed the impugned order on I.A.20 styling it as 'judgment on admission' under Order 12, Rule 6 C.P.C., allowing that application. Accordingly, by his impugned 'judgment on admission', the learned Trial Judge directed in the operative portion of the order thereof,--
'the plaintiff shall deposit a sum of Rs. 70,07,250/- in Court and get the Sale Deed executed through the Court in respect 7/ 8th share in the suit property. Draw a decree in accordance with the Judgment. Plaintiff and defendants 1 to 4 shall bear their own costs.' It is the legality and correctness of this Trial Court's order ie. 'judgment on admission' which stands challenged by the revisionists who are contesting defendants before it.
4. The learned Counsel for respondent No. 5 plaintiff, Sri G.S. Visweswara, has raised serious objection in regard to maintainability of the revision on the ground that the impugned order of the Court-below passed under Order 12, Rule 6 C.P.C. is a decree in law and, therefore, an appeal lies against it under Section 96 of C.P.C. and not the revision since Sub-section (2) of Section 115 C.P.C. expressly excludes the power of this Court in revision from interfering with any decree or order against which an appeal lies to the High Court or any other Court subordinate thereto.
5. Mr C.B. Srinivasan, Learned Counsel appearing for the petitioner, strenuously argued otherwise and vehemently maintained that in the first instance the impugned order cannot be termed as a 'decree' thereby precluding petitioner's right to challenge the same in revision and, alternatively, even if it is held to be a 'decree' the revision therefrom is competent. Elaborating his argument Mr. Srinivasan invited the Court's attention to Section 12 of the Specific Relief Act which prohibits the Trial Court from directing specific performance of a part of the contract except as otherwise provided in Sub-section (2) thereof and contended that the impugned order passed by the Trial Court is in dear contravention of this imperative direction of the law and as such the Trial Court has exercised its jurisdiction which was not vested in it in passing the same. Besides, his submission was that there was no justifiable material or any other legal basis whatsoever for Trial Court to assume that respondents 1 to 4 (defendants 1 to 4) are entitled to 7/8th share in the suit property and, as such, plaintiff's claim to this extent is entitled to succeed on the basis of their admission of his claim. He argued that it is another basic and material illegality with which the impugned order suffers, which ultimately affects the jurisdiction of the Trial Court in adjudication of the dispute between petitioners and the plaintiff. As such, Sri Srinivasan contended that, revision under Section 115 C.P.C. does lie against the impugned order of the Court-below. In support of these contentions reliance was placed by him on the following decisions:
1) CHANDRA BROTHERS v. JALAJALAKSHMI, ,
2) JANARDHAN JOG v. SRIKRISHNA, ,
3) STATE OF PUNJAB v. AMAR SINGH,
4) PREM DAYAL v. DLFH & Co. LTD., ,
5) PANDURANG v. MARUTHI,
6. Therefore, the material question that calls for determination is whether the so called impugned order of the Court-below passed under Order 12, Rule 6 C.P.C. is merely an 'interim order' or is it a 'decree' and whether a revision under Section 115 C.P.C. against the same is competent.
7. To effectively deal with the above question it becomes necessary to advert to the provision of Order 12, Rule 6 C.P.C., which reads:
"6. Judgment on admission:-- (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under Sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."
The term 'decree is defined by Sub-section (2) of Section 2 C.P.C. as under:
"decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include --
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."
It is dear from the definition of the term 'decree' that it may be either preliminary or final and a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It further transpires from the definition of 'decree' that any order passed at any stage of its proceeding in a suit by which the rights of the parties with regard to all or any of the matters in controversy in the suit are conclusively determined shall tantamount to a 'decree' in the eye of law. In the instant case, indisputably, the impugned 'order' conclusively determines the rights of plaintiff and R-1 to 4 in regard to the matter in controversy and accordingly the 'decree' has been drawn up by the Court below.
The reading of Order 12, Rule 6 of C.P.C. and the plain language of this provision read with Section 2(2) C.P.C. makes it crystal dear that any order passed by the Trial Court allowing the plaintiff's claim either partly or fully on the basis of defendant's admission at any stage of the suit is a "judgment" to be followed by a 'decree', either preliminary or final, and that it is not merely an interim order passed in the proceeding deciding the rights and obligations of the parties.
Therefore, there cannot be any dispute as to the legal position that any order passed under Order 12, Rule 6 C.P.C. by the Trial Court is a "decree" within the meaning of Section 2(2) C.P.C.
8. The next material question is whether a revision under Section 115 C.P.C. is competent from the impugned order ie. 'decree' of the court-below passed under Order 12 Rule 6 C.P.C.. In JANARDHAN JOG v. SRIKRISHNA, supra, the scope and effect of an order ie. decree passed under Order 12, Rule 6 C.P.C. came up for consideration before this Court. Although a revision was entertained from that order, the question whether a revision is maintainable against the same was not debated upon by the parties before it and as such no occasion did arise therein for this Court to decide the point on maintainability of the revision. It was submitted at the Bar that the point on maintainability of revision from an order passed by a subordinate Court under Order 12, Rule 6 C.P.C. has now arisen for consideration of this Court for the first time.
Learned Counsel for petitioner vehemently argued in support of maintainability of the revision. His contention was grounded on the restrictive power of the Trial Court in grant of specific performance of the suit contract by respondents 1 to 4 (defendant 1 to 4); and also that its further order declaring by implication that these four defendants have 7/8th share in the suit property vis-a-vis the other four defendants who are the petitioners, is entirely arbitrary and the Trial Court had no jurisdiction to pass the same. Therefore, he maintained that revision against the impugned order does lie under Section 115 C.P.C. He placed reliance on a decision of this Court in CHANDRA BROTHERS v. JALAJA LAKSHMI, supra, in support of his submission. In that decision it is held that if the Trial Court has acted in improper exercise of jurisdiction whilst passing an order and such exercise affects the rights of the parties, the revision lies against the same. There is no dispute about this position of law. But, this submission of petitioner's Learned Counsel was refuted by the Learned Counsel for R-1 contending that a revision from the impugned order would have been competent if there was no appeal provided for against the same by any express provision in C.P.C. He submitted that the impugned order being a 'decree' passed by the Trial Court, it is appeal alone which lies against the same under Section 96 C.P.C. and in view of Sub-section 2 of Section 115 C.P.C. remedy of revision therefrom is barred in law.
9. The petitioner's learned Counsel Sri Srinivasan drawing support from the case law laid down by Supreme Court in S.S. KHANNA v. F.J. DILLON, and PANDURANG v. MARUTI, maintained that even if an appeal is provided against such an order the revision under Section 115 C.P.C. is maintainable before the High Court. In the case of S.S. Khanna, supra, while considering the amplitude of the clause, 'in which no appeal lies thereto' occurrring in Sub-section (1) of Section 115 C.P.C. the Supreme Court observed, 'once it is granted that the expression 'case' includes a part of a case, there is no escape from the conclusion that revisional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal ties from the ultimate decree or order passed in the suit. Nor is the expression 'in which no appeal lies thereto' susceptible of the interpretation that it excludes the exercise of the revisional jurisdiction when an appeal may be competent from the final order'. The Supreme Court further ruled that if an appeal lies against the adjudication directly to the High Court, or to another Court from the decision of which an appeal lies to the High Court, then the High Court has no power to exercise its revisional jurisdiction. But where the decision itself is not appealable to the High Court directly or indirectly, the High Court has power to exercise revisional jurisdiction. In the case on hand the impugned order ie. 'decree' is of the City Civil Court, Bangalore. The material provision of Section (1) of the Bangalore City Civil Courts Act, 1979 reads:
"9. APPEALS AND LIMITATION -- (1) Appeals from the decrees and orders passed by the City Civil Court in suits and other proceedings of civil nature shall, when such appeals are provided by law, lie to the High Court."
Thus by virtue of Section 9(1) an appeal from any order or decree of the City Civil Court, Bangalore directly lies to this Court. In that view of the legal position, it necessarily follows in the light of the law laid down by Supreme Court in its decision in S.S. KHANNA, supra, that revision from the impugned order of the Court-below is not maintainable under Section 115 C.P.C.
Besides, that decision of the Supreme Court was rendered before the Amendment Act 104 of 1976 making sweeping amendments in C.P.C. By Amendment Act of 1976, Sub-section (2) is added to Section 115 C.P.C. which reads:
"Section 115 Revision -- (1)....
(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 proceeding."
The plain language of Sub-section (2) makes the legal position dear that no revision lies to the High Court from any decree or order passed by a subordinate Court in the course of the suit or other proceeding if an appeal lies against the same either to the High Court or to any Court subordinate thereto. In that view of the mandate of law contained in Section 115(2) C.P.C. it was rightly submitted by Learned Counsel for respondents that since the impugned decree of the Court-below is an appealable one by virtue of Section 96 C.P.C. this revision therefrom is incompetent. The revisionist could raise all objections available to him against the impugned decree of the Court-below in the appeal against it, including the ground that it had been passed by it without jurisdiction or in excess of its jurisdiction. Therefore, the decision of Supreme Court in. PANDURANG v. MARUTHI, supra, which enunciates the law to the effect that the High Court in exercise of its jurisdiction under Section 115 C.P.C. cannot correct errors of fact and of law unless they have relation to the jurisdiction of the Court to try the dispute itself does not support the petitioner's case, in that, it is not the revision but an appeal which lies from the impugned decree and Sub-section (2) of Section 115 C.P.C. excludes the jurisdiction of this Court to entertain the revision from the impugned decree. The authority of Supreme Court in STATE OF PUNJAB v. AMAR SINGH, supra, relied on by the Learned Counsel for the petitioner is not relevant to the point of issue since what is held therein is that a person who is not a party to a proceeding on the original side may prefer an appeal with the leave of the Appellate Court if, he is prejudicially affected by the judgment of the Trial Court and it would be binding on him as res judicata.
Hence, for the reasons aforesaid, I hold that the revision from the impugned decree is not competent. As such the petition is bound to fail and it fails.
Parties to bear their own costs.