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Ramdeen and anr. Vs. Ramswaroop and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 438 of 1979
Judge
Reported inAIR1982MP158; 1981MPLJ575
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115(1) and 115(2) - Order 39, Rule 1
AppellantRamdeen and anr.
RespondentRamswaroop and ors.
DispositionRevision dismissed
Cases Referred(See Municipal Corporation of Delhi v. Sureshchandra Jaipuria
Excerpt:
- .....section 115 of the civil p. c. is highly restricted and more so after the amending act, 1976. error of jurisdiction or manifest error at procedure affecting ultimate decision resulting in grave injustice can alone be set right in a proceeding in revision, (shaikh jaffar v. mohd. pasha (air 1975 sc 794)). section 115 of the code applies to jurisdiction alone, irregular exercise or the non-exercise of it, or the illegal assumption of it. it cannot be directed against conclusion of law in which the question of jurisdiction is not involved (see keshar deo chamaria v. radha kissen (air 1953 sc 23) and k. bala subramania v. n. m. sambanda moorthy (air 1975 sc 818)). no error of fact, however great, can be cured by this court in revision, unless an error of law relates to lower court's.....
Judgment:
ORDER

M.D. Bhatt, J.

1. This is a defendants' revision against the lower appellate Court's order affirming the trial Court's order granting temporary injunction in the plaintiffs-non-applicants' favour under Order 39, Rules 1 and 2, C.P.C.

2. The plaintiffs-non-applicants, claiming themselves in possession of certain agricultural lands by virtue of a sale deed executed in favour of their grandfather by the present applicant-defendant No. 1 Ramdeen, had filed the suit for permanent injunction against Ramdeen and another. The application for temporary injunction had also been filed. The trial Court after considering the documents on record and so also the affidavits of both the sides, granted the temporary injunction. The defendants preferred an appeal but the same was dismissed. Hence, now, the present revision.

3. Learned counsel for the applicants-defendants has urged before me that both the Courts below have not properly appreciated the fact that the possession regarding the lands in question is entered in their favour in the revenue records. It is also urged that the affidavits filed on their side have not been considered and properly appreciated.

4. It may be stated that the jurisdiction and power of interference of this Court in a proceeding under Section 115 of the Civil P. C. is highly restricted and more so after the Amending Act, 1976. Error of jurisdiction or manifest error at procedure affecting ultimate decision resulting in grave injustice can alone be set right in a proceeding in revision, (Shaikh Jaffar v. Mohd. Pasha (AIR 1975 SC 794)). Section 115 of the Code applies to jurisdiction alone, irregular exercise or the non-exercise of it, or the illegal assumption of it. It cannot be directed against conclusion of law in which the question of jurisdiction is not involved (See Keshar Deo Chamaria v. Radha Kissen (AIR 1953 SC 23) and K. Bala Subramania v. N. M. Sambanda Moorthy (AIR 1975 SC 818)). No error of fact, however great, can be cured by this Court in revision, unless an error of law relates to lower court's jurisdiction. (See Pandurang Dhondi v. Maruti Hari Jadhav (AIR 1966 SC 153)). If a subordinate Court has jurisdiction to decide a question before it it may decide it rightly or wrongly, whether the question be one of law or of fact; that would not bring the ease within the purview at either of the three clauses of Sec. 115(1) of the Code. It is only where the error of law or fact has relation to the jurisdiction of the subordinate Court to try the dispute that the section would be attracted. When both the trial Court and the appellate Court have given concurrent findings of fact that there is prima facie case, it is not justified for this Court to interfere with such concurrent findings of fact. (See Municipal Corporation of Delhi v. Sureshchandra Jaipuria (AIR 1976 SC 2621)). It may be further observed that by the Amending Act, 1978, Sub-section (2) has been inserted in Section 115 of the Code. It is enjoined by the said provision: 'The High Court shall not under this section, vary or reverse any decree or order against which an appeallies either to the High Court or to any Court subordinate thereto,' This obviously is also a clear bar for exercising the power of revision under Section 115, particularly when the appeal against the trial Court's order under Order 39. Rules 1 and 2 had already been preferred and decided by the lower appellate Court.

5. Any way, as it is, it may be, incidentally, observed that there is no substance in the contentions pressed by the applicants-defendants' learned counsel. Both the courts below are found to have fully and properly considered the principles, governing the grant of temporary injunction under Order 39, Rules 1 and 2. C.P.C. The trial Court had properly discussed the material on record, viz.. the documents and so also the affidavits. Besides, the entries in the revenue records have also been duly evaluated in the trial Court's order. The lower appellate Court has found itself in full agreement with the reasonings and the findings of the trial Court. I equally see no reason to interfere with the same.

6. In the result, thus, the defendants' revision being absolutely without any merit and also being not tenable according to law, stands dismissed with costs. The applicants-defendant shall bear the non-applicants-plaintiffs' costs besides bearing their own. Pleaders' fee of Rs. 100 on either side is allowed, if certified


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