Skip to content


Vasantrao Kesheorao Dharangaonkar Vs. Leelabai Gajraj Jain - Court Judgment

LegalCrystal Citation
SubjectContract
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 267 of 1979
Judge
Reported inAIR1980Bom398
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 6, Rule 16
AppellantVasantrao Kesheorao Dharangaonkar
RespondentLeelabai Gajraj Jain
Appellant AdvocateP.V. Kulkarni, Adv.
Respondent AdvocateC.P. Kalele, Adv.
Excerpt:
.....anonymous petitions and undertaking detailed scrutiny. income tax act 1961 s.132 - 13) calling for better particulars. hence the defence of the defendant in respect of the contentions from which better particulars arise to be struck off. reliance was placed on the following observations appearing in the said decision :it is well settled that the revisional jurisdiction of the high court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate courts. and if the high court is satisfied that there is no error in regard to any of these three matters, it has no power to interfere merely because it differs from the conclusions of the subordinate court on questions of fact or law......can contest on the other ground only c. o. a.'feeling aggrieved by this order the present revision application has been preferred by the original defendant.8. though in the grounds of revision it was stated that on 25-1-1979 when the case was called on for hearing the counsel for the applicant reached the court late from the bar room and that the learned trial judge passed the order on that day on ex. 18 in the absence of the applicant without giving him any opportunity to be heard in the matter, the truth of this averment, however, is not borne out from the record of the lower court. the roznama dated 25-1-1979 shows that both the parties were represented by the counsel, that their arguments were heard on ex. 18 and the impugned order was passed by the learned trial judge. i,.....
Judgment:
ORDER

1. This civil revision application is preferred by the original defendant against an order passed by the Civil Judge, Senior Division, Khamgaon, striking out a part of the defence raised in the written statement, purporting to act under Order 6, Rule 16 of the Code of Civil Procedure.

2. The respondent-plaintiff filed a suit for specific performance of contract, or in the alternative for refund of consideration. The subject matter of agreement was one house.

3. The defence raised by this applicant was that there was an agreement of sale, but it was essentially a transaction of loan. He further pleaded that the property in question was a joint family property and he alone could not enter into a contract of sale of the same. He further pleaded that some of the property was in possession of some persons and their joinder was, therefore, necessary.

4. The non-applicant filed an application dated 11-8-1977 (Ex. 13) calling for better particulars. The application was opposed by this applicant stating that the particulars sought for were within the knowledge of the non-applicant and that he was under no obligation to furnish these particulars.

5. The learned trial Judge as per order dated 28-9-1977 directed the applicant to supply the particulars sought in paras 2 and 3 of the application at Ex. 13,

6. The applicant furnished some particulars on 20-2-1978 vide Ex. 16. The non-applicant (plaintiff) filed an application on 28-3-1978, complaining that the applicant did not furnish the particulars though ordered by the Court and his defence, therefore, should be struck off.

7. This application was opposed and it was asserted that the applicant had complied with the orders of the Court and had furnished all the necessary particulars. The non-applicant (plaintiff), it was alleged, wanted to cross-examine the applicant and to harass him. It appears that thereafter on 20-6-1978 the applicant furnished some more particulars. However, thereafter after hearing both the parties, the learned trial Judge passed the following impugned order on 25-1-1979:

'The defendant has not supplied the particulars as were ordered. Hence the defence of the defendant in respect of the contentions from which better particulars arise to be struck off. The defendant can contest on the other ground only C. O. A.'

Feeling aggrieved by this order the present revision application has been preferred by the original defendant.

8. Though in the grounds of revision it was stated that on 25-1-1979 when the case was called on for hearing the counsel for the applicant reached the Court late from the Bar room and that the learned trial Judge passed the order on that day on Ex. 18 in the absence of the applicant without giving him any opportunity to be heard in the matter, the truth of this averment, however, is not borne out from the record of the lower Court. The Roznama dated 25-1-1979 shows that both the parties were represented by the counsel, that their arguments were heard on Ex. 18 and the impugned order was passed by the learned trial Judge. I, therefore, see no merit in the contention that the impugned order was passed in the absence of the applicant or his advocate without any opportunity being given to them.

9. Shri Kulkarni next submitted that though the applicant has furnished particulars the learned trial Judge was wrong in observing that no particulars were furnished. Shri Kalele, the learned counsel for the non-applicant, on the other hand, relying upon Sher Singh v. Joint Director. Consolidation, : [1978]3SCR982 submitted that it was not a fit case where this Court should interfere in the revision. Reliance was placed on the following observations appearing in the said decision :--

'It is well settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate Courts. If a subordinate Court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exercising its jurisdiction under Section 115 of Civil P. C. to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the Court to try the dispute itself. Xxxxx

10. The position that emerges from these decisions is that Section 115 of the Civil P. C. empowers the High Court to satisfy itself on three matters:

(a) that the order of the subordinate Court is within its jurisdiction;

(b) that the case is one in which the Court ought to have exercised jurisdiction; or (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provisions of law, or with material irregularity by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. And if the High Court is satisfied that there is no error in regard to any of these three matters, it has no power to interfere merely because it differs from the conclusions of the subordinate Court on questions of fact or law. A distinction must be drawn between the errors committed by subordinate Courts in deciding questions of law which have relation to, or are concerned with, questions of jurisdiction of the said Courts, and errors of law which have no such relation or connection. An erroneous decision on a question of fact or of law reached by the subordinate Court which has no relation to question of jurisdiction of that Court, cannot be corrected by the High Court under Section 115.

11. In the instant case by an application dated 11-8-1977 Ex. 13 the particulars on the following facts were asked for by the non-applicant:

'The defendant ought to have stated who or the names of the persons constituted the joint Hindu family and how the property came to be owned by them'.

'Who are in possession of the property or a portion of the suit house, character of possession, rent fetched and since when they are in possession.'

All that was furnished by the applicant by Ex. 16 was that the property was ancestral property and that all Class I heirs were the owners of the property, without specifying the names of those persons and explaining how the property came to be owned by them. Again about the persons in occupation of the premises, two names, namely, (1) Benodekar and (2) Bhatia were disclosed without! specifying the character of their possession or the rent, if any, paid by them and since when they were in possession.

12. When the non-applicant applied on 28-3-1978 for striking out the defence, the application was vehemently opposed as stated above, but then on 20-6-1978 it appears that the applicant on his own accord furnished some more particulars. By this statement again only 3 names were disclosed being the Joint owners, again without explaining how they came to own and their, interest in the suit property. It was then merely stated that Benodekar was an employee in the Bank of Maharashtra and the name of the other tenant was Bhatia. Their full names were not disclosed nor the amount of rent, if any, paid by them. In fact these were the persons in occupation of the property which admittedly belonged to this applicant.

13. Under these circumstances it cannot be said that the particulars as ordered by the lower Court were fully and adequately furnished. The lower Court never observed that no particulars were furnished. What is stated was that the applicant did not supply the particulars as were ordered and hence his defence in so far as it arose out of the particulars sought for was only ordered to be struck out. The record shows that the applicant was not only sluggard and remiss, but he was recalcitrant and persistent in not supplying the full particulars though ordered by the lower Court. It cannot, therefore, be said that the order passed by the lower Court, under the circum-stances of the case, was either illegal or wrong as to be interfered with in this revision. This application has, therefore, to be rejected. In the result, the revision application is dismissed with cost.

14. Revision dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //