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Mahendra Pratap Kapur Vs. Burmah Shell Oil Storage and Distributing Co. Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revision No. 356 of 1972
Judge
Reported inAIR1973All109
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115
AppellantMahendra Pratap Kapur
RespondentBurmah Shell Oil Storage and Distributing Co. Ltd. and anr.
Advocates:Sidheshwari Prasad, Adv.
DispositionRevision dismissed
Excerpt:
civil - revision against order - section 115 of code of civil procedure, 1908 - plaintiff applicant filed suit for restraining defendants from removing plaintiff from dealership - defendants alleged they put third person as dealer - trial court issued temporary injunction - injunction was ordered stayed in appeal - revision filed by appellant - held, order sought to be revised must have decided the controversy between the parties - every interlocutory order does not amount to decision of case - ex-parte interim order may be passed without deciding the case. - .....for staying the operation of the injunctionorder passed by the trial court. the learned district judge passed the following order:'heard counsel for the appellant. meanwhile operation of the order dated 10-3-72 shall remain stayed.'against the aforesaid order of the learned district judge dated 11-3-1972 the present revision has been filed. the primary question for consideration is whether the present revision is maintainable inasmuch as the impugned order amounts to a 'case decided' within the meaning of section 115, c. p. c. or not. it is not disputed that the order passed by the learned district judge is an ex parte order and the application for injunction is still pending before him.in major s. s. khanna v. brig. f. j. dillon : [1964]4scr409 the supreme court thus interpreted the.....
Judgment:
ORDER

K.N. Seth, J.

1. The plaintiff applicant filed a suit for restraining the defendants from removing the plaintiff from the dealership of outlet No. ODD 803 situate at G. T. Road, Lahartara, Varanasi of which he claimed to be an authorised dealer on behalf of defendant No. 1. Along with the suit an application for temporary injunction was also filed. The defendants immediately put in appearance and alleged that they had appointed some third person as a dealer and that they have sponsored the name of that third person before the Excise Officer for grant of a licence. After hearing the parties the trial Court, by its order dated 10-3-1972, granted three days' time to the defendants to file documents and detailed objections and in the meantime issued a temporary injunction as prayed for. Against the aforesaid order the defendants filed an appeal before the learned District Judge, Varanasi, the very next day and made an application for staying the operation of the injunctionorder passed by the trial Court. The learned District Judge passed the following order:

'Heard counsel for the appellant. Meanwhile operation of the order dated 10-3-72 shall remain stayed.'

Against the aforesaid order of the learned District Judge dated 11-3-1972 the present revision has been filed. The primary question for consideration is whether the present revision is maintainable inasmuch as the impugned order amounts to a 'case decided' within the meaning of Section 115, C. P. C. or not. It is not disputed that the order passed by the learned District Judge is an ex parte order and the application for injunction is still pending before him.

In Major S. S. Khanna v. Brig. F. J. Dillon : [1964]4SCR409 the Supreme Court thus interpreted the word 'case':

'The expression 'case' is a word of comprehensive import: it includes civil proceedings other than suits, and is not restricted by anything contained in the Section to the entirety of the proceeding in a civil Court.'

The Supreme Court further observed :

'The expression 'case' includes a suit, but in ascertaining the limits of the jurisdiction of the High Court, there would be no warrant for equating it with a suit alone.'

The words 'case decided' used in Section 115, C. P. C. have been the subject-matter of innumerable judicial decisions. It is not necessary to refer to the various decisions wherein these words have been interpreted. It is sufficient for my purpose to refer to the Full Bench case of Rama Shanker Tiwari v. Mahadeo, 1968 All LJ 109 (FB). In this case the earlier decisions have been fully considered and analysed and the following observations from a Full Bench decision of seven Judges of the Lahore High Court in Bibi Gurdevi v. Chaudhari Mohammad Bakhsh, AIR 1943 Lah 65 (FB) has been cited with approval :

'The word 'case' in Section 115 does not always mean the whole suit. It is of a very wide import, and means any state of facts judicially considered. This meaning is Wide enough to include a decision on any substantial question in controversy between the parties affecting their rights, even though such order is passed in the course of the trial of the suit. An interlocutory order deciding a question of this kind as distinguished from purely formal and incidental order is a 'case decided' within the meaning of Section 115, .....'.

It, therefore, follows that there must be a decision on any substantial question in controversy between the parties affecting their rights. If the controversy has arisen by means of an independent application, that application must be finally disposed of by the court before it can be said that a case has been decided within the meaning of Section 115, C. P. c.

2. A careful reading of the aforesaid decisions indicates that although the word 'case' is wider than the word 'suit', the order sought to be revised must decide the controversy between the parlies affecting their rights. Various interlocutory orders may be passed while that proceeding is pending, but every interlocutory order would not amount to a case decided. While entertaining an application, the court may pass an ex parte interim order, but that order would not amount to a case decided. It is only when a final order is passed deciding that application that it can be said that a case has been decided.

3. Learned counsel for the applicant relied on the case of Ajaibul Hasan v. S. Chiranji Lal : AIR1951All564 . In that case certain orders were passed by the trial Court on various miscellaneous applications moved before it while the suit was pending. One of the orders was challenged in appeal before the learned District Judge. An application was also filed staying the operation of the order of the learned Munsif. After hearing both the parties the learned District Judge stayed the operation of the order. The order of the learned District Judge was challenged in revision in this Court. A preliminary objection was raised that no revision lay as there had been no 'case decided' within the meaning of Section 115, C. P. C, Dealing with the preliminary objection this Court observed :

'There is, however, no doubt that, where an order has been passed in a proceeding which is separate and independent of the suit or the appeal, as the case may be, it would be a 'case decided'. The words 'separate and independent' indicate that the proceeding is not part of the main process which leads to the termination of the suit or the appeal, but it is something detached from the same, in the sense that the suit or the appeal can be disposed of even without there having been such a proceeding. An application for injunction pending a suit or an application for stay of the order of the trial Court pending an appeal would certainly be a separate and independent proceeding in the sense that it is not a part of the proceeding leading to the termination of the suit or the appeal.'

It is evident from a reading of the facts of the aforesaid case that the order of the learned District Judge sought to be revised was a final order passed on an application for staying the operation of the order of the trial Court. There can be no dispute that if a final order is passed deciding the controversy between the parties it would amount to a case decided, but this case is no authority for the proposition that even an ex parte interim order which does not dispose of the controversy between the parties would also amount to a case decided.

4. The case of H. Bevis and Co., Kanpur v. Ram Behari : AIR1951All8 is of no assistance in interpreting the words 'case decided'. In this case the question was neither raised nor decided. Only an observation was made that the order may be revisable. A decision is an authority only for a proposition which is raised and decided by it.

5. On a careful consideration of the law as enunciated in the above noted cases, I am of the opinion that the order sought to be revised does not amount to a case decided. The application on which the impugned order was passed is still pending before the learned District Judge. The present applicant may show cause before him and have the matter finally decided by that court. The revision is not maintainable. It is accordingly dismissed.


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