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Radhakrishna Films (P) Ltd. Vs. Chandy Varughese and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 293 of 1970
Judge
Reported inAIR1972Ker122
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115; Limitation Act, 1963 - Sections 5; Provincial Insolvency Act, 1920 - Sections 75(1)
AppellantRadhakrishna Films (P) Ltd.
RespondentChandy Varughese and ors.
Appellant Advocate T.A. Naravanan Nair, Adv.
Respondent Advocate S. Subramonia Iyer, Adv.
DispositionPetition dismissed
Cases ReferredShakuntala Devi Jain v. Kuntal Kumari.
Excerpt:
.....limitation act, 1963 and section 75 (1) of provincial insolvency act, 1920 - whether it is within jurisdiction of high court to interfere in revision with finding of additional district judge - district judge (dj) found that no sufficient ground to condone delay caused in filing appeal before lower appellate court - in view of precedence words 'sufficient cause' that occur in section 5 require liberal construction in order to advance substantial justice - stated that wrong decision on facts by competent court also decision according to law - power conferred under first proviso to section 75 (1) does not enable court to de novo examine findings of dj. - - the right of appeal carries with it a right of re-hearing on law as well as on fact, unless any particular statute provides..........judge on appreciation of evidence, found that there was no sufficient ground to excuse the delay. the delay petition was therefore dismissed, with the result that the appeal was also dismissed as it was barred by limitation. the present revision is filed against the dismissal of the appeal contending that the lower appellate court was not correct in dismissing the petition to condone the delay, that there was sufficient ground to allow that petition and that accordingly the order of the lower court should be set aside sending back the appeal to that court for dis-posal on merits in accordance with law.2. the question that has firstly to be decided in this revision petition is whether it is within the jurisdiction of the high court to interfere in revision with the finding of the.....
Judgment:
ORDER

E.K. Moidu, J.

1. This Civil Revision Petition by a creditor arises from an insolvency proceeding wherein one deceased Mathai Chandy was sought to be adjudicated upon as an insolvent. The petitioner obtained two decrees of about Rs. 50,000/- against Mathai Chandy, whose sons and daughters-in-law are respondents before this Court. Within three months before the filing of the Insolvency Petition Mathai Chandy assigned away a decree which he had obtained against a third party for about Rs. 8500/- in favour of the respondents for a nominal sum of Rs. 500/- with a view to defeat or delay the rights of the petitioner. So alleging the conduct of Mathai Chandy as an act of insolvency the aforesaid petition was filed before the Subordinate Judge but that petition was dismissed on 31-8-1965. As against the order of dismissal, an appeal was filed before the District Court, Kottayam. on 14-2-1966. There was a delay of 31 days in filing the said appeal. So a petition was also filed under Section 5 of the Limitation Act to condone the delay. The learned Additional District Judge on appreciation of evidence, found that there was no sufficient ground to excuse the delay. The delay petition was therefore dismissed, with the result that the appeal was also dismissed as it was barred by limitation. The present revision is filed against the dismissal of the appeal contending that the lower appellate Court was not correct in dismissing the petition to condone the delay, that there was sufficient ground to allow that petition and that accordingly the order of the lower Court should be set aside sending back the appeal to that Court for dis-posal on merits in accordance with law.

2. The question that has firstly to be decided in this revision petition is whether it is within the Jurisdiction of the High Court to interfere in revision with the finding of the learned Additional District Judge that there was no sufficient ground to condone the delay caused in filing the appeal before the lower appellate Court.

3. It is clear that the distinction between an appeal and a revision is a real one. The right of appeal carries with it a right of re-hearing on law as well as on fact, unless any particular statute provides anything to the contrary. Under Section 115 Civil P. C. any way. the High Court's power in revision is limited to see whether in a case decided there has been an assumption of jurisdic-tion where none existed, or a refusal of jurisdiction where it did. or there has been material irregularity or illegality in the exercise of that jurisdiction. That right is limited to jurisdiction and jurisdiction alone. The decision of the lower appellate Court in this case is based upon a conclusion of facts established in the case. In this regard, reference may be made to the often quoted decision in Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee. AIR 1964 SC 1336. That decision considered the scope of Section 115, Civil P. C. On questions of fact where a conclusion is arrived at by the lower appellate Court on the basis of Section 5 of the Limitation Act. It is pointed out that the question whether there was sufficient cause is exclusively within the jurisdiction of the Court and the Court can decide it rightly or wronp-ly. In that particular case, the plaintiff was prevented by sufficient cause from continuing the suit after the death of the original plaintiff, and sufficient cause having been shown, the lower appellate Court allowed the application and set aside the abatement of the suit. The High Court interfered with that finding of the lower appellate Court and held that the plaintiff had entirely failed to make out any good cause for the delay. It is in this connection that the Supreme Court said that the trial Court had jurisdiction to determine whether there was sufficient cause for the plaintiff for not making the application for setting aside the abatement in tune, and if so satisfied to admit it, and the High Court fell in error in interfering with that finding of fact. In the light of the above decision, the finding of fact by the lower appellate Court that the petitioner did not establish sufficient ground to condone the delay cannot be set aside in revision. The lower appellate Court examined the Managing Director of the petitioner as P. W. 1 and the effect of an affidavit produced on its behalf from its Advocate was also taken into consideration. The learned Additional District Judge found that the facts set out in the Advocate's affidavit were not made a ground for excusing the delay in the petitioner's affidavit filed in support of the condonation application. The learned Additional District Judge was not satisfied of the bona fides of the revision petitioner. The finding of fact so arrived at by the learned Additional District Judge is conclusive between the parties.

4. The learned counsel of the revision petitioner based his next argument that the High Court has larger power of Intervention than the one conferred upon it under Section 115. Civil P. C. In insolvency proceeding as provided by Section 75(1) of the Provincial Insolvency Act. 1920. Section 75(1) with the first proviso, reads as follows:--

'75. (1) The debtor, any creditor, the receiver or any other person aggrieved by a decision come to or an order made in the exercise of insolvency jurisdiction by a Court subordinate to a District Court may appeal to the District Court, and the order of the District Court upon such appeal shall be final.Provided that the High Court, for the purpose of satisfying itself that an order made in any appeal decided by the District Court was according to law. may call for the case and pass such order with respect thereto as it thinks fit:'

1. This section had been considered by the Supreme Court in more than one case in relation to the power of a High Court to interfere in revision against the orders of the appellate Courts in insolvency proceeding. Section 75(1) was equated with Section 25 of the Provincial Small Cause Courts Act in one of the decisions, and with Section 35 of the Delhi and Aimer Rent (Control) Act (38 of 1952) in another. Section 35 of the latter Act was considered in a decision in Hari Shankar v. Rao Girdhari Lal Chowdhury. AIR 1963 SC 698 in which the following observations made in Bell & Co. Ltd. v. Waman Hemraj. AIR 1938 Bom 223 in respect of Section 25 of the Provincial Small Cause Courts Act. were relied upon. The observations are as follows:--

'The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law then the Court can interfere. But. In my opinion, the Court ought not to interefere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at'

The scope of Section 35 of the Delhi and Aimer Rent (Control) Act was reiterated in the above Supreme Court decision as follows :--

'But it must not be overlooked that the section--in spite of its apparent widthof language where it confers a power on the High Court to pass such order as the High Court might think fit,--is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is 'according to law'. It stands to reason that if it was considered necessary that there should be a rehearing, a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal'.

Section 75(1) of the Provincial Insolvency Act is conclusive that the order of the learned Additional District Judge in an appeal shall be final and that there shall be no appeal from that order. In such a case, the scope for a revision would be very limited. In the Official Receiver. Kanpur v. Abdul Shakoor, (AIR 1965 SC 920) the finding by the lower appellate Court that a presumption in favour of the creditors under Section 118 of the Negotiable Instruments Act could be rebutted by other evidence in the case to weaken that presumption so as to discharge the burden which lay upon an insolvent. When such a conclusion of fact was arrived at by the lower appellate Court, it is not open under Section 75(1) of the Provincial Insolvency Act to revise that order by virtue of the revisional powers of the High Court. The relevant passage regarding the intervention by the High Court in revision is couched in the following words of the Supreme Court in the above decision:--

'Where a creditor made a claim based on a promissory note and the District Judge considering the evidence produced, inferred from the facts found that the statutory presumption under Section 118, Negotiable Instruments Act had been weakened and the burden which lay upon the insolvent was discharged, it is not open to the High Court exercising jurisdiction under Section 75(1) proviso 1 nor even under proviso 2 to set aside the judgment of the Court as the question whether a statutory presumption is rebutted is a question of fact.'

In a later decision in Malini Ayyappa Naicker v. Firm Seth Manghraj Udhav-das, AIR 1969 SC 1344 it is found that the power given to a High Court under the first proviso to Section 75(1) of the Provincial Insolvency Act is similar to the powers under Section 25 of the Provincial Small Cause Courts Act. There the expression 'according to law' which occurs in the proviso to Section 75(1) was considered and certain specific instances were pointed out as suitable cases when the revisional powers could be exercised. These were the instances:

'They are cases in which the Court which made the order had no jurisdiction or in which the Court has based its deci-sion on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law. then the Court can interfere. But. the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.' This expression of opinion is in accord with the earlier decisions of the Supreme Court.

5. The decision in Shakuntala Devi Jain v. Kuntal Kumari. (AIR 1969 SC 575> has no application to the facts of the present case. it is true that the words 'sufficient cause' which occur in Section 5 of the Limitation Act require a liberal construction so as to advance substantial Justice when not negligence nor inaction nor want of bona fides is imputable to the appellant. But that would, in no way affect the conclusion of fact arrived at by the lower appellate Court. This decision relied upon by the learned counsel of the revision petitioner was rendered in a different set of facts and circumstances in an appeal before the Supreme Court The proviso to Section 75(1) did not come into the picture in that case. Therefore it follows that this Court is not competent to interfere with the conclusion of fact arrived at by the learned Additional District Judge, who examined the evidence and came to a definite conclusion that sufficient cause had not been made out by the petitioner to condone the delay. it has to be stated that a wrong decision on facts by a competent Court is also .a decision according to law. The power conferred under the first proviso to Section 75(1) of the Provincial Insolvency Act. 1920. therefore does not enable this Court to de novo examine the findings of fact reached by the District Court.

6. This Civil Revision Petition has therefore no merit. In the result, it is dismissed with costs.


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