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Bira Mallik Vs. Chaitan Mallik - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 391 of 1971
Judge
Reported inAIR1973Ori102; 38(1972)CLT1004
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 41, Rules 23 and 25
AppellantBira Mallik
RespondentChaitan Mallik
Appellant AdvocateR.N. Sinha and ;S.N. Sinha, Advs.
Respondent AdvocateR.K. Patnaik, Adv.
DispositionRevision dismissed
Cases ReferredHindusthan Aeronautics Ltd. v. Ajit Prasad Tewary
Excerpt:
.....those in schedule ka of the written statement, are liable to partition, since they are joint family properties and had not been partitioned before. in such a case, in view of the express provisions of this rule the high court cannot have recourse to inherent powers, because it is well settled that inherent powers canbe availed of ex debito justitiae only in the absence of express provisions in the code. on this ground, this revision is bound to fail......it or otherwise affecting it. the inherent power has not been conferred upon the court, it is a power inherent in the court by virtue of its duty to do justice between the parties before it. further, when the code itself recognizes the existence of the inherent power of the court, there is no question of implying any powers outside the limits of the code.' they further said that there being no such expression in section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by order 39 or by any rules made under the code, the courts have inherent jurisdiction to issue temporary injunction in those circumstances, if the interests of justice require it.what has been said in regard to inherent powers of the court to issue interim injunction, having.....
Judgment:
ORDER

S.K. Ray, Actg. C.J.

1. This revision is by the defendant and arises out of a suit for partition which the plaintiff-opposite party sought to carve out his moiety share in the suit-property allotting the balance half to the petitioner.

2. The plaintiff's case was that all the ancestral properties of the parties had been partitioned by metes and bounds excepting the suit-property which is the homestead of the parties. The petitioner in his written statement pleaded that the lands set out in Schedule Ka of the written statement were also the joint family property of the parties, and so liable to partition. Since all the joint family properties had not been included in the partition suit, the suit was liable to be dismissed. Accordingly, one issue was framed as to whether the properties given in Schedule Ka of the written statement had been partitioned amongst the members of the family previously and whether all the joint family properties liable to partition, have been brought into hotchpot in the suit.

3. The trial court held that the properties in Schedule B of the plaint as well as those in Schedule Ka of the written statement, are liable to partition, since they are joint family properties and had not been partitioned before. The plaintiff, thereupon, appealed in respect of that portion of the decree under which Schedule Ka property of the written statement was directed to be partitioned. The trial court came to the conclusion that Ka Schedule property was the joint family property and was thus liable to partition reiving upon the statement of P. W. 1. the son of the plaintiff. Schedule Ka contained four lots. According to the plaintiff, 'his father purchased lots 1 and 2 and lots 3 and 4 were joint family properties which had been allotted to his share in the prior partition. P. W. 1, son of the plaintiff, however, stated that they became separate in mess only twenty years ago and lots 1 and 2 of Schedule Ka were purchased by his father.

4. The lower appellate court thought that the evidence on the point was very inconclusive, the testimony of the father and son being at variance with each other and apart from the presumption of the entry in the C. S. record of rights being in favour of the plaintiff, the oral evidence adduced on behalf of the plaintiff, however, put the matter in doubt.

5. The plaintiff-appellant contended before him that the parties had not focussed their attention properly on the issues regarding the joint family character of Ka Schedule property and prayed for a remand. The lower appellate court was of opinion, on the evidence on record, that the defence case is not acceptable. Therefore, in the interest of justice. he remanded the case to the trial court directing him to afford further opportunities to the parties to lead evidence on the question as to whether Ka Schedule property is the joint family property liable to partition in the suit.

6. The only contention raised here is that the lower appellate court's power of remand being limited to the case envisaged under Rules 23 and 25 of Order 41. Civil P. C., and the present order of remand being one. not covered by either of these two rules, has been passed without jurisdiction.

Reliance in this connection is placed on a decision of the Supreme Court in AIR 1965 SC 364. (Mahendra v. Sushilla). In this case. Mudholkar J. in a separate judgment said as follows:

'Appellate Court's power under Section 107 of the Civil P. C. to remand a case or to frame issues and refer them for trial, or to take additional evidence or require such evidence to be taken is regulated by the provisions of Order 41, Rr. 23 to 25 and 27. Rule 25 circumscribes the powers of the appellate Court to frame an issue and refer the same for trial to the Court below, if it need be by taking additional evidence, and permits it to adopt this course only if (a) the trial Court has omitted to frame an issue (b) try an issue or (c) to determine any question of fact which appears to the appellate court essential to the right decision of the suit upon the merits. There is no scope for exercise of power under Rule 25. where the trial Court already had raised the necessary issues which the appellate Court purported to remand for finding. In such a case, in view of the express provisions of this rule the High Court cannot have recourse to inherent powers, because it is well settled that inherent powers canbe availed of ex debito justitiae only in the absence of express provisions in the Code.'

The other two learned Judges do not appear to have subscribed to this view. An appellate court has powers, expressly conferred upon it under various provisions of the Code, in addition to its inherent powers. Section 107 of the Civil P. C. speaks of the powers of the appellate court which comprises, inter alia a power to remand a case. Such power is subiect to such conditions and limitations as may be prescribed: in other words such power will be subject to the provisions of Order 41. Rules 23 and 25, Civil P. C. That apart, Section 151, Civil P. C. recognizes the inherent powers of every Court to make such orders as may be necessary ex debito iustitiae or to prevent abuse of the process of Court. Section 94 of the Code likewise provides that a Court may, if it is so prescribed, grant a temporary in junction and may make such interlocutory order as may appear to the Court to be just and convenient.

7. The Supreme Court in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal. AIR 1962 SC 527, has said-

'The effect of the expression 'if it is so prescribed' is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued, ordinarily, the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could do that in the exercise of its inherent jurisdiction......

The section itself save that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court, it is a power inherent in the Court by virtue of its duty to do justice between the parties before it.

Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code.'

They further said that there being no such expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order 39 or by any rules made under the Code, the Courts have inherent jurisdiction to issue temporary injunction in those circumstances, if the interests of justice require it.

What has been said in regard to Inherent powers of the Court to issue interim injunction, having regard to Section 94 and Order 39 of Civil P. C., would, mutatis mutandis, apply to the exercise of inherent power in the matter of remand under Section 107 read with Order 41, Rules 23 and 25, Civil P. C. There is no denying the legal position that the inherent power of the Court cannot override the express provisions of the Code, If a given situation or a set of circumstances have been visualised and provided for in any section or rule of the Civil P. C., those situations and those circumstances must be dealt with strictly in accordance with the provisions therefor. There is no scope in such a situation to invoke the inherent (powers' of the Court, but if a situation arises which has not been envisaged in the Code, there is no bar to the exercise of the inherent, powers of the Court in the interests of justice. It is in this view that their Lordships of the Supreme Court in the case in AIR 1962 SC 527. said that even though Section 94 empowered the Court to issue temporary injunction, if it is so prescribed, it did not curtail the inherent power to grant injunction in circumstances not covered by Order 39. Similarly, even if the present situation is not one which is expressly envisaged and provided for either under Rule 23 or Rule 25 of Order 41, nevertheless, if the Court feels that in the interest of justice the matter requires reconsideration by the trial court after giving further opportunities to the parties to lead evidence, he can exercise its inherent power to remand. It is in this sense that what has been said by Mudholkar, J. in the case in AIR 1965 SC 364. must be understood.

8. In the instant case, the appellate court felt that on the evidence on record, it was not able to uphold the finding of the trial court with regard to the character of partibility of Ka Schedule property and vet felt that the interests of justice required that the parties should be given an opportunity to lead fuller evidence on the issue and hence remanded. This exercise of power of remand would obviously be one in the exercise of inherent Dower of the Court. In this sense it cannot be said that the appellate court acted without jurisdiction. He may have acted wrongly, but acting wrongly is not the same thing as to act without jurisdiction.

9. Dealing with the powers of High Court under Section 115, Civil P. C.. the Supreme Court, in the case of Managing Director, Hindusthan Aeronautics Ltd. v. Ajit Prasad Tewary 1972 SCD 161 = (AIR 1973 SC 76) has said that even though the order of the appellate court may be right or wrong or may be in accordance with law or may not be in accordance with law, but if it had jurisdiction to make that order, the High Court cannot invoke the jurisdiction under Section 115. Civil P. C.

On this ground, this revision is bound to fail.

8. There is another angle from which I am inclined not to interfere in this revision. Even assuming that the first appellate court acted illegally in the exercise of its jurisdiction or expressed a power which it did not possess, I feel that ultimate justice has been done to both parties and the order is one which is also to the benefit of the defendant, because as has been stated by the lower appellate court, if he had not remanded the case, he would have held against him. Thus, when I feel that substantial justice has been done. I should not interfere in exercise of the revisional power which is entirely discretionary and is not expected to be exercised when it appears to the Court that the ultimate justice has been done between the parties, though improperly and illegally.

9. For the aforesaid reasons. I would dismiss this revision but in the circumstances, I would direct the opposite party to pay Rs. 25/- to Mr. Sinha for the petitioner, as costs, within six months.


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