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Vyankatrao Khushalrao Sawarkar Vs. Pandurang Janbaji Gurao and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 61 of 1977
Judge
Reported inAIR1980Bom194; 1980MhLJ487
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 9, Rule 13 - Order 41, Rule 11; Provincial Small Cause Courts Act, 1920 - Sections 25; Bombay Prohibition Act; Code of Criminal Procedure (CrPC) , 1898 - Sections 421, 439, 439(1), 439(2) and 439(6)
AppellantVyankatrao Khushalrao Sawarkar
RespondentPandurang Janbaji Gurao and anr.
Appellant AdvocateP.M. Sontakkey, Adv.
Respondent AdvocateG.A. Paunikar, Adv.
Excerpt:
.....order 9 rule 13 - whether the application for setting aside ex-parte decree was tenable - ex-parte decree passed by trial court not merged with order dismissing revision application - so application filed by for setting aside ex-parte decree tenable. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the accused either belongs to or does not belongs to schedule caste or scheduled tribe. after final opinion is formed, it is open to..........the question which arises for consideration in this revision application is whether ex parte decree passed by the court of small causes merges in the order passed by the high court summarily dismissing a revision application filed under section 25 of the provincial small cause courts act (hereinafter referred to as 'the act').2. non-applicant no. 1 had filed a suit in the court of small causes at nagpur against the applicant and non-applicant no. 2 for ejectment and recovery of rent. the defendant in the suit did not appear and hence an ex parte decree was passed against both of them on 2nd october, 1975. the applicant filed an application under order 9, rule 13, c. p. c. (hereinafter referred to as 'the code') for setting aside the ex parte decree passed against him. he also.....
Judgment:
ORDER

1. The question which arises for consideration in this revision application is whether ex parte decree passed by the Court of Small Causes merges in the order passed by the High Court summarily dismissing a revision application filed under Section 25 of the Provincial Small Cause Courts Act (hereinafter referred to as 'the Act').

2. Non-applicant No. 1 had filed a suit in the Court of Small Causes at Nagpur against the Applicant and non-applicant No. 2 for ejectment and recovery of rent. The defendant in the suit did not appear and hence an ex parte decree was passed against both of them on 2nd October, 1975. The applicant filed an application under Order 9, Rule 13, C. P. C. (hereinafter referred to as 'the Code') for setting aside the ex parte decree passed against him. He also preferred a revision application in this Court under the provisions of Section 25 of the Act. That revision application was dismissed summarily by this Court. The applicant, therefore, proceeded with his application before the trial Court for setting aside the ex parte decree. One of the contentions raised by non-applicant No. 1 plaintiff for resisting this application was that the application for setting aside ex parte decree was not tenable in view of rejection of the revision application of the applicant by this Court. The question whether the said application for setting aside ex parte decree was tenable in view of the above said contention of non-applicant No. 1 was taken up as a preliminary issue by the trial Court. It held that the ex parte decree which had been passed by it was confirmed by the dismissal of the revision application by this Court. In this view of the matter the trial Court rejected the application of the applicant for setting aside the ex parte decree. It is against this order that the present revision application has been filed.

3. On behalf of the applicant Mr. Sontakkey submitted that the view taken by the learned trial Judge to the effect that the decree of the trial Court was confirmed by this Court when it dismissed the revision application, is not correct, According to Mr. Sontakkey, since the revision application was summarily rejected, it could not be said that the decree of the trial Court had merged in the order passed by this Court in revision.

4. On the other hand, Mr. G. A. Paunikar, the learned counsel for non-applicant No. 1, submitted that the question whether the revision application was dismissed summarily or otherwise would not make any difference in so far as the doctrine of merger is concerned and once the revision application was filed in this Court and it was entertained, the decree passed by the trial Court must be said to have merged in the order passed by this Court in revision. Mr. Paunikar pointed out that this Court in Kantilal v. Chiba : AIR1967Bom310 had held that the fact whether an appeal was heard and dismissed summarily under Order 41, Rule 11 of the Code or after issuing notice to the respondent would not make any difference in so far as the doctrine of merger is concerned. Mr. Paunikar further, relying on the observations of the Supreme Court in Shankar v. Krishnaji : [1970]1SCR322 , submitted that there is no difference between summary dismissal of an appeal and summary dismissal of a revision and that both of them stand on the same footing. Mr. Paunikar submitted that applying the ratio of the Supreme Court in Shankar's case to the decision of this Court in Kantilal's case, it will have to be held that the decree passed by the trial Court merges in the order passed by the High Court in revision even if the latter is dismissed summarily.

5. There is no dispute that the applicant had preferred a revision application in this Court under Section 25 of the Act against the ex parte decree passed by the trial Court and that this revision application came to be summarily dismissed on 18th February, 1976. The question, therefore, as stated above, is whether the ex parte decree has merged in the order which was passed by this Court in the revision application summarily dismissing it, because if the decree has merged, then the trial Court would not be competent to proceed with and decide the application filed by the applicant for setting aside the ex parte decree, It is in this context that the above said question arises for consideration in this revision application.

6. It is now well settled that the decree of subordinate Court merges in the decree of the appellate or revisional Court if the latter Court has fully heard the matter after giving notice to the respondent and has disposed of the appeal or application on merits. It is the decree of the appellate or regional Court in these circumstances which is operative and the decree of the trial Court becomes extinct. However, the question is whether this principle would apply to a revision application which is rejected summarily.

7. A similar question came up for consideration before the Supreme Court in U. J. S. Chopra v. State of Bombay : 1955CriLJ1410 , though in a different context. The appellant in that case was convicted by a Presidency Magistrate in Bombay, of an offence under the Bombay Prohibition Act and sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 250/-or to undergo rigorous imprisonment for one month. The appellant preferred an appeal to the High Court, but it was summarily dismissed. After the dismissal of the appeal the State preferred a revision application to the High Court for enhancement of the sentence. Notice was issued to the appellant under Sub-section (2) of Section 439, Cr. P. C. 1898 to show cause against it. However, the High Court did not permit him to show cause against his conviction because of the dismissal of his appeal. The appellant, therefore, moved the Supreme Court in appeal and the question for consideration before the Supreme Court was whether the summary dismissal of the appeal preferred by the appellant precluded him from taking advantage of the provisions of Sub-section (6) of Section 439 of the said Code, when he was subsequently called upon to show cause why the sentence imposed upon him should not be enhanced. This appeal in the Supreme Court was heard by three learned Judges. While construing the provisions of Section 439 of the said Code the majority of two Judges formulated four types of cases in which the question of the accused exercising his right of showing cause against the conviction may arise and these cases are as follows:--

'1. Where his petition of appeal has been summarily dismissed either without hearing him or after hearing him or his pleader as the case may be;

2. When his appeal has been dismissed after a full hearing following upon the notice of appeal being issued to the opposite party.

3. When his application for revision has been summarily dismissed either without hearing him or after hearing him or his pleader as the case may be;

4. Where his application for revision has been dismissed after a full hearing following upon a notice issued to be opposite party.'

While dealing with the cases at serial Nos. 1 and 3 the majority observed as follows:

'When a petition of appeal is presented to the High Court by the convicted person or his pleader Section 421 provides that no such appeal should be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same and the High Court might before dismissing an appeal under that section, call for the record of the case but would not be bound to do so.

Even in such a case the hearing accorded to the appellant or his pleader would be with a view to determine whether there was a 'prima facie' case made out to warrant its interference in appeal. The appellant or his pleader would be heard in support of that position and if he satisfied the High Court that there was a 'prima facie' case for its interference the High Court would admit the appeal and order a notice to issue to the opposite party in which event the appeal would be decided after a full hearing in the presence of both the parties.

The calling for the records of the case also though not compulsory but discretionary with the Court would be for this very purpose, viz. to determine whether a 'prima facie' case for its interference was made out. The whole purpose of the hearing accorded to the appellant or his pleader even after calling for the records of the case would be to determine whether a 'prima facie' case for its interference was made out and it would not be within the province of the Court at that stage to fully consider the evidence on the record and hear arguments from the appellant or his pleader with a view to determine whether the conviction could be sustained or the sentence passed upon the accused could be reduced.

The setting aside of the conviction and the reduction, if any, in the sentence could only be determined by the Court after notice was issued to the opposite party and a full hearing took place in the presence of both the parties, Even in the case of a summary dismissal of a petition of appeal under these circumstances the position would certainly not be any different from the which obtains in the case of a summary dismissal of the petition of appeal presented by the convicted person from jail or the summary dismissal of an application for criminal revision made by him or on his behalf to the High Court.

In all these cases there will be no judgment of the High Court replacing the judgment of the lower Court and the action of the High Court would only amount to a refusal by the High Court to admit the petition of appeal or the criminal revision and issue notice to the Opposite party with a view to the final determination of the questions arising in the appeal or the revision.

The order dismissing the appeal or criminal revision summarily or 'in limine' would no doubt be a final order of the High Court not subject to review or revision even by the High Court itself but would not tantamount to a judgment replacing that of the lower Court, The convicted person would be bound by that order and would not be able to present another petition or appeal or application for criminal revision challenging the conviction or the sentence passed upon him by the lower Court.

But such order would not have the effect of replacing the judgment or order of the lower Court which would in that event be subject to the exercise of revisional jurisdiction by the High Court under Section 439 of the Cr. P. C. at the instance of State or an interested party.

In the cases (1) and (2) noted above therefore, there being no judgment of the High Court replacing the judgment of the lower Court Section 439 (1) would operate and the High Court in exercise of its revisional jurisdiction either 'suo motu' or on the application of the interested party would be in a position to issue the notice of enhancement of sentence which would require to be served on the accused under Section 439 (2) so that he would have an opportunity of being heard either personally or by pleader in his own defence.

In that event the convicted person in showing cause why his sentence should not be enhanced would also be entitled to show cause against his conviction'.

It would, therefore, appear that according to the Supreme Court, when an appeal or revision application is dismissed summarily by the High Court, there is no judgment which replaces the judgment of the lower Court, which in effect means that the summary dismissal of the appeal or revision application does not in any way affect the judgment of the trial Court or the lower appellate Court as the case may be. What has been said by the Supreme Court with regard to summary dismissal of appeals and revision applications in criminal matters will apply with equal force to such dismissal in civil matters. Hence applying this dictum of the Supreme Court to appeals and revision applications in civil matters it follows that when such appeal or the revision application is summarily dismissed, the judgment and decree of the lower Court would not merge in that of the Court dismissing the appeal or revision application summarily. Now the view taken by the Supreme Court in Chopra's case has been cited with approval by the Supreme Court in Shankar v. Krishnaji (cited supra).

8. It is true that in Kantilal v. Chiba : AIR1967Bom310 , a learned single Judge of this Court has taken the view that an application for setting aside ex parte decree cannot be proceeded with by the trial Court if an appeal against that decree has been 'summarily dismissed by the appellate Court. It appears that the ruling of the Supreme Court in Chopra's case had not been brought to the notice of the learned single Judge in Kantilal's case. From para 6 of the report it appears that the learned Judge held that decree of the trial Court merges in the decree of the appellate Court even when the appeal is rejected summarily on the ground that an appeal is always treated as a rehearing of the suit and it does not make any difference whether the appeal is dismissed summarily under Order 41 Rule 11 or after giving notice to the respondent. It is also true that in Shankar v. Krishna : [1970]1SCR322 the Supreme Court has held that the principle of merger of orders of inferior Courts in those of Superior Courts would not be affected or would become inapplicable by making a distinction between a petition for revision and appeal. Reading the decision of the learned single Judge in Kantilal's case in the light of the observations of the Supreme Court in Shankar's case, it could be held as urged by Mr. Paunikar that the decree of the trial Court merges in the order passed by High Court in revision even if the revision application is rejected summarily. However, this would be against the view taken by the Supreme Court in Chopra's case. It may be mentioned here that though in Chopra's case the question of merger was considered with reference to Section 439 Cr. P.C. the principles laid down in that case were applied by the Supreme Court in Shankar's case to revision petition under Section 115 Civil P. C. I am respectfully bound by these two decisions of the Supreme Court in preference to the decision of the learned single Judge of this Court in Kantilal's case.

9. In my view, therefore, it cannot be said that the ex parte decree passed by the trial Court in this case merged with the order of this Court summarily dismissing the revision application and if that is so, the learned trial Judge was not correct in holding that the application filed by the applicant for setting aside the ex parte decree was not tenable.

10. In the result, therefore, the revision application is allowed, the rule is made absolute and the order passed by the trial Court rejecting the application of the applicant for setting aside the ex parte decree is hereby set aside and the matter is remanded to the trial Court for disposal according to law after hearing both the parties. Costs of this revision application shall be costs in the Court below.

11. Rule made absolute.


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