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Patel Naranbhai Jinabhai Vs. Patel Gopaldas Venidas - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 1082 of 1971
Judge
Reported inAIR1972Guj229
ActsCivil Proceduer Code, 1908 - Sections 115 and 151 - Order 47, Rule 1
AppellantPatel Naranbhai Jinabhai
RespondentPatel Gopaldas Venidas
Appellant Advocate M.C. Bhatt, Adv.
Respondent Advocate Suresh M. Shah, Adv.
Cases ReferredVasntrao Laxmanrao Sahane v. Sanghvi Amrital Becharlal
Excerpt:
civil - pecuniary jurisdiction - sections 115, 151 and order 47 rule 1 of code of civil procedure, 1908 - petitioner filed suit for permanent injunction restraining respondent from interfering with his possession - by consent of parties court do not get jurisdiction - application filed by respondent re-agitated question regarding pecuniary jurisdiction - revision petition filed against trial court's order - whether trial court itself got jurisdiction or power to review its decision which was passed after hearing parties on merits - trial court not competent to review such order passed by predecessor-in-title under section 151 - order passed by trial court set aside - revision petition succeeds. - - 125 of 1969. 2. this revision petition raises many interesting questions. 2,400/-.the.....order1. this is a revision petition filed by the original plaintiff under section 115 of the civil procedure code, against the order passed by the learned civil judge, junior division, dholka, dated 29th september, 1971, below application, ex. 170, in regular civil suit no.125 of 1969.2. this revision petition raises many interesting questions.3. the facts giving rise to this revision petition, briefly stated, are as under:--the petitioner filed civil suit no.125 of 1969 against the defendant (opponent) in the court of the civil judge, junior division, dholka. that suit was for obtaining permanent injunction restraining the opponent from interfering with possession and enjoyment of the petitioner in respect of land situate in village ambaliara, taluka dholka, bearing block no.508,.....
Judgment:
ORDER

1. This is a revision petition filed by the original plaintiff under Section 115 of the Civil Procedure Code, against the order passed by the learned Civil Judge, Junior Division, Dholka, dated 29th September, 1971, below application, Ex. 170, in Regular Civil Suit No.125 of 1969.

2. This revision petition raises many interesting questions.

3. The facts giving rise to this revision petition, briefly stated, are as under:--

The petitioner filed Civil Suit No.125 of 1969 against the defendant (opponent) in the Court of the Civil Judge, Junior Division, Dholka. That suit was for obtaining permanent injunction restraining the opponent from interfering with possession and enjoyment of the petitioner in respect of land situate in village Ambaliara, Taluka Dholka, bearing Block No.508, admeasuring 4 acres 8 gunthas. According to the petitioner, that field was agreed to be purchased by him from Shantaben Mohanbhai and Laxmiben Mohanlal. That Banakhat was executed on 28th March, 1969, and the land was agreed to be sold for a sum of Rs.10,50/- out of which, Rs.7,000/- were paid on that date by him and on that very day, actual possession of the suit land was handed-over to him, and since then, it was in his actual possession and enjoyment. Thereafter, he had made improvements therein by spending a sum of Rs.2,400/-. The opponent had an intention to purchase that property and that is why he had started interesting with his possession and enjoyment. During the pendency of the suit, plaint was amended as the sale document came to the executed in respect of the suit land. In that respect, amendment was made by adding para 2-A.

4. In this suit, opponent raised several contentions. Issues were framed at Ex.59 and one of the issues raised, viz., Issue No.5-A, was, 'Whether the trial Court has pecuniary jurisdiction to try this suit'. That issue and other issues which were ordered to be heard as preliminary issues, were decided by the predecessor of present Trial Judge, Mr. K.H. Banker. By an order, Ex.75, that issue was decided against the opponent and the opponent's contention in that behalf regarding want of pecuniary jurisdiction of the Court was negatived.

5. Thereafter, application, Ex.100 was given by the petitioner to permit him to amend his written statement. That was disallowed by the present trial Judge. Evidence of the petitioner's eleven witnesses was recorded and the case was pending for recording evidence that be led by the opponent. Ex.101 was given by the opponent. Therein, again he wanted to raise Issue No.1-B regarding this very contention about pecuniary jurisdiction of the Court that application was heard by the present Trial Judge and it was rejected by his order, dated 5-7-1971. In para 5 of that order, in this behalf, he has observed:

'So far as proposed Issue No.1-B is concerned, the learned Advocate for the defendant does not press for the same. That apart from it, at Ex.75, my learned predecessor has considered the question for pecuniary jurisdiction and held against the defendant.

It is thus evident that another effort made by the opponent to re-agitate that very question regarding pecuniary jurisdiction of the Trial Court, proved abortive. Thereafter, as said earlier them the suit was pending for hearing of evidence that be led by the opponent, application, Ex.170, was given by the opponent stating therein that the present suit being a suit for obtaining perpetual injunction, it is not capable of monetary valuation and consequently, it cannot be said that the value of the subject-matter of the suit exceeds Rs.10,000/- or not. That being the position, such a suit could only be heard by the Court of the Civil Judge, Senior Division, as the Court of Civil Judge, Junior Division, has got limited jurisdiction to hear the suit the valuation of the subject-matter of which does not exceeded RS.10,000/-. In the instant case, value of the suit property, i.e., land itself, is shown to be Rs.10,501/-. in para 4, it is stated that in Civil Revision Application No.151 of 1968, this Court, by its decision, dated 25th January, 1971, has taken a view supporting his contention. He has come to know about it presently and hence, he has produced the certified copy of it. The Court has got inherent power under Section 151 of the Civil Procedure Code (which will be hereinafter referred to as 'the Code') whether it has jurisdiction to proceed with the suit or not. By the consent of the parties , the Court does not get jurisdiction. If the Court has committed any error, the court has inherent power to review it. It was. Therefore, prayed that the issue be framed as stated herein:

'Whether this Court has jurisdiction to entertain and hear this suit as the relief claimed is for permanent injunction which is incapable of monetary evaluation. If not, what is its effect in view of the judgment of Gujarat High Court, given in Special Civil Appln. No.151 of 1968 on 25-1-1971 (Guj).'

This application was hotly opposed by the petitioner on the ground that the Trial Court had earlier decided this very question after hearing the parties, and consequently, that Court had no jurisdiction or power to review or revise that decision. Any party who is aggrieved by that order, can get it reviewed by filing a revision petition or by taking up this contention in the appeal that may be filed after the entire suit is disposed of. In short, the contention raised was that the trial Court itself cannot review or revise such order in the exercise of its inherent power under S. 151 of the Code. It could be reviewed only by the superior court. It was contended that even if it was found that the decision was erroneous, in view of exposition of law by the Superior Court in a decision given thereafter, it was not open to the trial Court to review that decision. That learned Trial Judge negatived these contentions raised on behalf of the petitioners and found that what he was doing was not really reviewing or revising the earlier decision. Opponent wanted him to approach this subject from a different angle and that too, relying upon the decision given by this Court, and so, it was open to him to re-examine that question from that angle and consequently, he has framed the issue in question.

6. Being dissatisfied with that order, the petitioner has preferred the present revision petitioner to his has preferred the present revision petition to this Court.

7. Important question, therefore that arises for consideration is, whether the Trial Court itself has got any such jurisdiction or power to review or revise its decision which was given after hearing the parties on merits of it, as that decision may have been rendered open to doubt in view of the decision given by this Court in another matter.

8. Before I advert to this important point that arises for consideration, I first propose to refer to material para 10 of the plaint. It is averred therein that for the purposes of Court's jurisdiction and Court-fees, he values the subject-matter of the suit at Rs.300/- and he affixes the fixed Court-fee of Rs.30/-. It is significant to note that in the written statement that came to the filed by the opponent, that valuation was not challenged. It was not even at that stage suggested that in a suit like the present suit, where such an injunction I prayed for, the petitioner (plaintiff) has no right to put his own valuation as the subject-matter of such a suit is incapable of monetary valuation. In short, no challenge was made to the valuation put by the petitioner in the plaint, para 10. Predecessor of the present Trial Judge raised preliminary Issue No.5-A in this behalf, and it came to be decided by an order below Ex.75. Material portion of that order reads:

'This suit is valued for the purpose of Court-fees at Rs.300/- as para 10 of the plaint, Ex. 1. Now it is settled law that the valuation for the purpose of Court-fees as well as for jurisdiction, should be the same. Reliance is placed in Section 8 of the Suits Valuation Act, and on ILR 45 Bom 567 = (AIR 1921 Bom 65) Govinda Bai Kirshna v. Hanmaya Lingaya Fulmali). Hence, irrespective of the value of the suit property the valuation for the purpose of the Court-fees as well as for the jurisdiction should be the same. The valuation for the purpose of the Court-fees as well as the jurisdiction is Rs.300/-. the Court has, therefore, a pecuniary jurisdiction to try this suit. The learned Advocate for the defendant fairly concedes. Hence, this Issue No.5-A is decided in the affirmative.'

This order is dated 7th November, 1970. As said earlier, again that question was sought to be re-agitated before the Trial Court by application, Ex.101, and that was not allowed to be re-agitated by the learned Trial Judge in view of the order passed by his predecessor below Ex.75.

9. Mr. Suresh M. Shah, appearing for the opponent, has urged that the Court has always inherent power to review, its own decision and especially when the Court finds that its decision is erroneous in view of the subsequent decision of this Court brought to its notice. He has further urged that this is merely an attempt to review. There is not order passed by the Trial Court reviewing or revising the previous order. At this stage, therefore, this Court should not interfere. It is further contended that what the learned Trial Judge has done is merely adding this issue in view of the provisions of Order 14, Rule 5 of the Code. The Court has got power to amend the issue or frame the additional issues at any time before passing a decree. The Trial Court has merely added this issue, which was according to Mr. Shah, within the competence of the Trial court and this Court would not, therefore, be justified in interfering with that order in the exercise of its revisional jurisdiction under Section 115 of the code. It is further contended by him that by the impugned order, the suit regarding the claim or a part of it is not disposed of. It is, therefore, submitted that the impugned order would not be covered by the phrase 'case decided' and consequently, this court has no jurisdiction or power to interfere with such order.

10. Another contention raised by him is that even if it is a 'case decided', none of the clause, (a), (b) or (c) of Section 115 of the Code, would be attracted. According to him, at the most, it could be said that it was a wrong exercise of jurisdiction. It is submitted by him that under Order 47, Rule 1 of the Code, the Court has power to review its own order or decision, which falls within the four corners of that rule. Even if it is found that it will not fall within the four corners of it, and the Court tries to review such an order, it would mean that it was a wrong exercise of jurisdiction.

11. Lastly, it is contended by him that this Court should refuse to interfere with such order, as this Court has got discretion to interfere with such order or not, the reason advanced being that interference with such order would not be advancing the cause of justice.

12. In my opinion, none of the contentions urged by Mr. Shah can be accepted as well founded in view of the position obtaining in the present case, which will be referred to by me hereafter while dealing with these contentions.

13. I will first deal with the provisions of Order 14, Rule 5 of the Code. Material part of it reads:

'(1) The Court may at any time before passing a decree amend the issues or fame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.'

In the instant case, grievance is not about framing any additional issues or amending the issues. The Court has got always such power and that power could be exercised at any item before the decree is passed.

14. The real controversy between the parties is whether it is open to the Trial Court to review or revise its own order as its decision, which was given after hearing the parties, is rendered open to doubt in view of the decision given thereafter by the Superior Court. One has to bear in mind that powers of review, contemplated by the code itself, are limited.

15, Order 47, Rule 1 of the code, reads:

'(1) Any person considering himself aggrieved--

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes.

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not with in his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of somemistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.'

It is thus evident that the powers given for reviewing in the circumstances referred to in Orded 47, Rule 1 of the Code, are limited. Furthermore, Article 124 of the Limitation Act, 1963, provides a period for filing such application which is thirty days from the date of the decision or the order complained of. Admittedly, no such review petition was filed in the instant case within the period of limitation. On the contrary, as said earlier, this very question was sought to be agitated again before the present Trial Judge and he rightly said that in view of his predecessor's order, it was not open to him to reconsider that question. The learned Trial Judge, in the impugned order, observe that the opponent now wants him to approach this very question from a different angle in view of the decision of this Court, and consequently, it was open to him to do it. When the Code itself provides for review of such orders, by that Court, and lays down the limitations, the question that arises for consideration is whether the Court ignoring those provisions, can exercise its inherent powers under Section 151 of the Code and review of review such earlier decision. In my opinion, the answer should be in the negative. When there is a provision in the Code itself that such review could be made only if the case falls within the four corners of those provisions, the Court will not be justified in reviewing such order under its inherent jurisdiction. In my opinion, it will not be open to the Court to exercise its inherent jurisdiction under Section 151 of the Code.

16. In Satyadhyan ghosal v. Smt. Deorajin Debi : [1960]3SCR590 , the Supreme Court has observed:

'The principle of res judicata applies also as between two stages in the same litigation to these extent that a Court, whether the trial stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings.'

17. In Arim Singh v. Mohindra Kumar : [1964]5SCR946 , the Supreme Court has observed:

'......................... Where the principle of resjudicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principles is held applicable. : [1960]3SCR590 , relied on.'

It is further observed therein :

'Interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of res judicata does not apply to the findings, on which these orders are based, though if applications were made for relief on the same bases after the same has once been disposed of, the Court would be justified in rejecting the same as an abuse of the process of Court. There are other orders which are also interlocutory, but would fall into a different category. The difference form the ones just now referred to lies in the fact that they are not directed to maintaining the status quo, or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matters in issue arising in the suit, nor put an end to the litigation.'

In the instant case, there was a controversy between the parties, whether the Trial Court had pecuniary jurisdiction to hear the present suit. The Court decided that controversy between the parties. No doubt, the order passed is an interlocutory order as the suit claim or a part of the suit has not come to be disposed of. But the controversy in this behalf between the parties has been decided on merits. It being an interlocutory order of that category, in view of the decision of the Supreme Court, in my opinion, the Trial Court review it, simply because that decision of his been rendered open to doubt, in view of the decision of this Court.

18. In Kalika Prasad v. Additional Commissioner, Agra Division : AIR1956All103 , Mehrotra, J., has observed:

'There is no inherent power given to the Courts to reconsider their order once passed, unless the power of review is granted expressly under the provisions of the statute. The Statute which confers a right to review itself indicates the limitation under which that power is to be exercised. But in the absence of any such power the Court cannot review its order on the mere ground that at a later stage it considers that its previous order was wrong.'

19. In S. P. Awate v. C. P. Fernandes : AIR1959Bom466 Chagla, C. J., at pages 337 and 338, has made the following pertinent observations:

'Mr. Singhvi wanted to argue, and in fairness to him I want to incorporate the argument in this judgment, that after the Constitution the Court must consider the conflict between the Payment of Wages Act and the rules embodied in the Railway Code and the Court should take the view that the Payment of Wages Act constitutes social legislation and that legislation must prevail even over a special legislation dealing with a special class of citizens. There may be force in Mr. Singhvi's argument. It may be that we were wrong in the view that we took that we must determine the wages to which the railway servant was entitled according to the rules in the Railway Code and not according to the provisions of the Payment of Wages Act. But that is a criticism which should be advanced not before this Court on a review application but before a higher Court in appeal. It is always wrong for any Judge to assume infallibility for his judgment and every Judge must be prepared to consider that his judgment is erroneous. This is exactly why higher Courts of Appeal exist in a country, and it may be that possibly or rather probably, if the matter had gone to the Supreme Court, that Court would have taken a different view with regard to the law than the one we laid down in the decision just referred to. As I said before, it would be wrong on my part, whatever view I might take as to the merits of Mr. Singhvi's argument, to extend the jurisdiction of this Court on a review application. Questions of jurisdiction must not be determined from the point of view of the merits of the particular case which is being argued before a Court. Whether a Court has or has not jurisdiction does not depend upon how strong or how meritorious the case of a party is, and however meritorious the case of Mr. Singhvi's client may be, this Court is helpless and unable to give him relief because in my opinion the points that Mr. Singhvi wishes to urge are points which cannot be urged on a review application.'

20. A Division Bench of the Bombay High Court in Girdharlal Masukhbhai Gandhi v. Kapadvanj Municipality, AIR 1930 Bom 317, has observed:

'A Court hearing an application for review has no jurisdiction to order a review because it is of opinion that a different conclusion of law should have been arrived at: AIR 1922 PC 112, Relied on.'

21. In S. O. Krishna Aiyar v. S. V. Narayanan : AIR1951Mad660 , Baladrishna Ayyar, J. has observed :

'What the learned Judge has really done is to write a second judgment reversing his first because on fuller argument and further consideration he thought that the view he had first taken was wrong. This is clearly not a purpose for which Order 47 (1) is intended.'

22. Learned Author Mulla, in his book, 'Code of Civil Procedure', 13th Edition, Volume II, at pages 1667 and 1668, has considered this topic under the caption 'power to review - its scope. It is stated:

'A Court or tribunal has no inherent jurisdiction to review its decision duly pronounced. It can do so only if it is authorised by statute. The High Court of Allahabad has held dissenting from this view that a Court can review its decision under Section 151. A Court cannot review its judgment on the merits merely because it has come to a different conclusion on further argument and further consideration. There is no power in the High Court to review an order dismissing an application for leave to appeal to the Supreme Court for failure to deposit printing charges. It has been held that a Court can order review only on the application of a party and not suo motu.'

It is significant to note that at present I am not considering the power of review of the Court of plenary jurisdiction.

23. Mr. Shah has laid considerable emphasis on the decision of the Supreme Court in Mathura Prasad Bajoo Jaiswal v. Dossibai N. B. Jeejeebhoy : [1970]3SCR830 in support of his arguments. His Lordship Shah, 1 (as he then was), has considered this point at great length and has observed at page 617:

'But the doctrine of res judicata belongs to the domain of procedure: it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby ...................... A decision on an issue of law sill be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law.'

At page 618, in para 9, it is observed:

'A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as resjudicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.'

It is further observed therein in para 12:

'In the present case the decision of the Civil Judge, Junior Division, Boriveli, that he had no jurisdiction to entertain the application for determination of standard rent. Is, in view of the judgment of this Court, plainly erroneous see Mrs. Dossinbai N. B. Jeejeebhoy v. Khemchand Gorumal, : [1962]3SCR928 . If the decision in the previous proceeding be regarded as conclusive it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature.'

In the instant case, that is not the position. There is no question of any special law or special rule which would be applicable to the parties on account of such erroneous decision regarding jurisdiction. It is open to a judicial review at the hands of the superior Court. This decision is not sought to be used by the petitioner to prevent any such decision in any other proceeding so as to suggest that any special rule in derogation of the general rule is to be made applicable to the parties on account of the previous decision in a prior proceedings.

24. Mr. Shah invited my attention to the decision of the Privy Council in Shamu Patter v. Abdul Kadir Ravuthan, (1913) ILR 35 Mad 607 (PC). At page 608, the Privy Council has observed'

' The first portion of Section 149 of the Civil Procedure Code (Act XIV of 1882) leaves it in the discretion of the Court to frame such additional issues as it thinks fit; whilst the latter part makes it imperative on the Judge to frame such additional issues as may be necessary to determine the controversy between the parties. The Subordinate Judge was therefore fully empowered to frame the issue on which he decided the case.'

I have already stated earlier that the real controversy between the parties is not regarding framing of additional issues or amendment of issues. The real controversy is whether it is open the Court at a subsequent stage of the proceeding to review or revise its own order or decision which was passed on merits after hearing the parties on account of exposition of law by this Court in another matter which may raise some doubt as regards the correctness or otherwise of that decision.

25. Mr. Shah also invited my attention to the decision of a single Judge of the Bombay High Court at Nagpur, in Vasant Jaiwantrao Mahajan v. Tukaram Madhaji Patil, AIR 1960 Bom 485. It is observed therein:

'Where a relevant provision of law, in this instance Order 9, Rule 13, Proviso, has not been considered at the time of passing an order, such an order can be reviewed if necessary, by the Judge who passes that order or by his successor: , Relied on.'

The question there was whether an ex parte decree passed against several defendants in a suit which is of a particular nature, can be set aside against all, when the petitioner - defendant is only one who has filed such an application to set aside such an ex parte decree under Order 9, Rule 13 of the Code. In that context, these observations have been made.

26. In Hari Shankar v. Anath Nath , their Lordships have made the position in this behalf quite clear. At pages 110 and 111, it is observed:

'The High Court accepted the appellants' contention and reversed the decision of the Tribunal and in allowing the appeal, it was certainly within its powers to reverse the decree with regard to non-appealing proprietors as well who figured as respondents in the appeal, if considered such order or decree to be necessary for doing complete justice between the parties and to avoid inconsistent decisions in the same proceeding.'

It is further observed therein:

'Mr. Gupta argues that no such powers could be exercised by the High Court on an application for review, and he relies upon the decision of the Privy Council in Chhaiju Ram v. Neki, 49 Ind App 144 = (AIR 1922 PC 112), where it was held by Viscount Haldane that the expression 'any other sufficient reason' in Order 47, Rule 1, Civil Procedure Code, would be interpreted to mean 'a reason sufficient on grounds at least analogous to those specified immediately previously.' In this case, the Punjab Chief Court had granted an application for review on the ground that the judgment proceeded on an incorrect exposition of law. This, it was held, was not a sufficient ground within the meaning of Order 47, Rule 1, Civil Procedure Code, and the Court had no jurisdiction to order a review because it was of opinion that a different conclusion of law should have been arrived at.'

It is significant to note that in para 18, after referring to the aforesaid observations of the Privy Council, their Lordships of the Federal Court have in terms observed:

'That a decision is erroneous in law is certainly no ground for ordering review. If the Court has decided a point and decided it erroneously the error could not be one apparent on the fact of the record or even analogous to it. When, however, the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the fact of the record sufficient to bring the case within the purview of Order 47, Rule 1, Civil Procedure Code.'

At page 111, in para 20, it is further observed:

'From such materials as we have got, we are bound to say that in fact there was an omission on the part of the Court to consider the clear provision of Order 41, Rule 33, Civil Procedure Code, when the original judgment was passed; and such omission, which appears on the face of the judgment, would constitute a sufficient ground analogous to those mentioned in Order 47, Rule 1, Civil Procedure Code, and the Court was not incompetent to reconsider the matter if it so desired.'

In the instant case, that is not the position. The impugned order below Ex. 75, to which I have referred to in extenso, clearly indicates that the Court considered the relevant provisions of the Suits Valuation Act and also the decision of the Bombay High Court, which according to it, were material and relevant and on merits, decided this question. These decisions relied upon by Mr. Shah have, therefore, no application.

17.12.1971.

27. Mr. Shah also relied upon the decision of Jammu and Kashmir High Court in the Custodian General E. P. v. Mohd. Syed Baba, AIR 1970 J and K 163. It is observed:

'Where a specific provision of law is not pointed out to the Court at the time of passing of the order such an order suffers from an error apparent on the face of the record so as to justify review.'

28. In Income-tax Officer, Masulipatnam v. K. Srinivasa Rao. AIR 1969 Andh Pra 441, relied upon by Mr. Shah, it is observed:

'It is thus clear that the provisions of Order 47 of the Civil Procedure Code would apply to the proceedings under Article 226 of the Constitution.'

It is further observed:

'The learned counsel for the respondent in the review petition (petitioner in the writ petition No. 1126 of 1962) has fairly stated that the latter decision of the Supreme Court has completely reversed the position and that in the light of that decision, our decision dated 1.2.1968 became erroneous. He has, however, contended that there is a remedy available to the revenue, by way of appeal to the Supreme Court and that, therefore, our order dated 1.2.1968 need not be reviewed. But, in view of the circumstances stated above and also the fact that had the latter decision, which brought to our notice, our decision would have been one of dismissal of the writ petition.'

In the instant case, the decision has been given by this Court subsequent to the earlier decision of the trial Court.

29. In Thungabhandra Industries Ltd. v. Govt, of Andhra Pradesh, : [1964]5SCR174 , the Supreme Court, has observed:

'There is distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is substantial point of law which stares one in the fact, and there could be reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.'

In the instant case, in my opinion, that is not the position. Apart from that, as said earlier, in the instant case, no such review petition was filed. Period of limitation for filing review application had already expired. This was a case where the opponent requested the Court to use its inherent powers under Section 151 of the Civil Procedure Code.

30. Mr. Shah invited my attention to the decision of a single Judge of the Mysore High Court in Naganath v. Khandaba Balaba Misal, AIR 1961 Mys 101.

It is observed

'A subsequent order reconsidering a previous order and allowing the plaintiff to produce certain documents on an application made by him under Order 13, Rule 2 and Section 151 is not without the jurisdiction of the Judge even though the previous order had been made by his predecessor-in-title. A previous order which relates merely to the issue of process for summoning witnesses, or for production of evidence, not having the effect of a final decision, can be reconsidered by the Court Such an order is in the nature of a Chamber order and the matter is in the discretion of the Court.'

This decision is in respect of an interlocutory order of the first category of cases referred to in the earlier Supreme Court decision. Such an order can, therefore, be revised by the Court in the exercise of its inherent jurisdiction , as no rights are decided thereby.

31. In am, therefore, of the opinion that the trial Court was not competent to review or revise such order passed by the predecessor-in title under Section 151 of the Code. What the learned trial Judge means by saying that this is not reviewing or revising the decision of his predecessor in-title, but he is considering it from a different angle, is nothing short of hearing an additional argument or a fuller argument and that could not be done as stated in the number of decisions referred to by me earlier. Party complaining of such an order has several remedies open to correct the decision, if really the decision is erroneous. One of such remedies was to file revision petition against that order. Section one will be to file an appropriate writ proceeding to get that order quashed. The third remedy available will be at the time of an appeal that be filed against the final disposal of the suit. It is, therefore, evident that the rights are still not crystallised. This decision can be reviewed by the higher Court in the aforesaid proceeding. It will be worthwhile to understand the concept of the work 'jurisdiction'. In Smt. Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621, His Lordship S. K. Das, J. observes:

' 'jurisdiction' means authority to decided. Whenever a judicial or quasi-judicial tribunal is empowered or required to esquire into a question of law or fact for the purpose of giving a decision on its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. Where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion, whether it is wrong in law or in fact. The question whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable at the commencement, not at the conclusion of the inquiry.'

32. Mr. Shah invited my attention to the decision of the Supreme Court in Keshardeo Chamria v. Radha Kissen Chamria : [1953]4SCR136 . It is observed therein:

(i) In the Circumstances of the case the order dismissing the execution on part satisfaction was bad and the executing Court was justified in correcting the same under its inherent powers.

(ii) the order of restoration of the execution case passed under Section 151 by the executing Court did not come within the purview of Section 47, Civil P. C., and as such was not appealable. The proceedings that commenced with the decree holder's application for restoration of the execution and terminated with the order of revival could in no sense be said to relate to the determination of any question concerning the execution, discharge or satisfaction of the decree. Such proceedings were in their nature collateral to the execution and were independent of it.

(iii) ..... ...... .......

(iv) In reversing the order of the executing Court reviving the execution, the High Court exercised a jurisdiction not conferred on it by Section 115. The High Court therefore acted in excess of its jurisdiction when it entertained a revision against the order of the executing Court and set it aside in exercise of that jurisdiction and remanded the case for further inquiry.'

It is not a case where particular order was passed after hearing the parties on merits and such question was sought to be reviewed in the exercise of inherent powers of the Court.

33. I am. Therefore, of the opinion, that the learned trial Judge has committed an error in holding that it is open to him to allow the parties to re-agitate this question and to review or revise the order passed by the parties to re-agitate this question and to review or revise the order passed by the predecessor-in-title. Such an issue could not have been raised as the Court has no such inherent power to review or revise the order passed by the predecessor-in-title after hearing the parties on merits, simply because a decision of this Court given later on, may raise doubts regarding the correctness of that decision. It is open to the party complaining of such order to get the mistake corrected, if there be any, at the hands of the superior Court.

34. After arguing on merits, Mr. Shah has raised preliminary objections and urged that the order in question does not amount to a 'case decided', as neither the suit nor a part of the suit is disposed of, and that being the position, condition precedent is not satisfied for the exercise of the revisional jurisdiction of this Court under Section 115 of the Code.

35. In support of this argument of his, Mr. Shah has invited my attention to the decision of a Division Bench of this Court in Shah Prabhudas Ishwardas v. Shah Bhogilal Nathalal : AIR1968Guj236 , Bhagwati, J. (as he then was), speaking for the Division Bench after referring to the decision of the Privy Council in Balkrishna Udayar v. Vasudev Aiyar, 44 Ind App 261 = (AIR 1917 PC 71) and the decision of the Supreme Court in S. S. Khanna v. F. J. Dhilon. : [1964]4SCR409 , has observed:

'These observations clearly show that a case decided within the meaning of Section 115 is not confined to an entire suit or preceding but includes an issue or a part of a suit or proceeding and if an order decides an issue or a part of suit or proceeding, it would be a case decided within the meaning of Section 115. If an order decides some right or obligation which is in controversy between the parties in the suit or proceeding, a part of the suit or proceeding whether it forms the subject-matter of a separate issue or not, would be decided and that would be a decision of a case as contemplated by Section 115. Such an order may decide the right or obligation expressly in so many terms or it may decide the right or obligation as a matter of direct and necessary consequence as in the case before the Supreme Court. But in either case it would be a case decided, as the right or obligation would be determined and a part of the suit or proceeding relating to the controversy as to such right or obligation would be decided.'

'Applying this test let us see whether the order impugned in the present case can be said to be a case decided within the meaning of Section 115. Does the order decide an issue or a part of the suit by determining some right or obligation in controversy between the parties in the suit? The answer must clearly be in the affirmative. The question whether the document Exhibit 4/1 was a promissory note and, therefore, in admissible in evidence by reason of insufficiency stamp formed the subject-matter of issue No. 3 and the decision of this question had a direct bearing on the right of the plaintiffs to recover the settled amount from the defendants. The document Exhibit 4/1 being the foundation of the plaintiffs' claim, the direct and inevitable consequence of the plaintiffs claim must fail and the order, therefore, determined by its direct and immediate impact the right of the plaintiffs to recover the amount claimed by them from the defendants which right was in controversy in the suit.'

In the instant case, the predecessor-in-title of the learned trial Judge had decided the controversy between the parties regarding pecuniary jurisdiction of the Court. It was held that the trial Court had pecuniary jurisdiction to hear this suit. That controversy was again sought to be raised on the basis that the Court had power to review or revise such order in the inherent jurisdiction of it under Section 151 of the Code. The trial Court is of the opinion that it has such power. It has consequently raised this issue and wants to determine this question afresh and this question is sought to be allowed to be re-agitated. This controversy has been decided. If the Court ultimately holds that it has no pecuniary jurisdiction, the result would be that that suit would be thrown out so far as the trial Court is concerned. It will have thus direct impact on the suit. In my opinion, the parties has been decided and it would amount to a 'case decided'.

36. Mr. Shah invited my attention to the decision of a single Judge of this Court in Jayantilal Jivanlal Mistri v. Ratilal Jivanlal Mistri : (1968)9GLR900 . J. B. Mehta, J. has observed:

'When the Court allows a document to be admitted in evidence or the Court refused to allow it, that does not amount to deciding a case, but it amounts to deciding a question regarding the admissibility or certain evidence. Therefore, when the Court decided questions under the Evidence Act, it was not deciding a case and therefore, its decision could not be the subject matter of revision under Section 115 of the Civil Procedure Code. The expression 'case decided' need not be a termination of the entire case but at least the decision must terminate a part of the controversy in the sense that it must decide the rights and liabilities of the parties. It is only such interlocutory orders which terminated a part of controversy which could be revised under Section 115. The other interlocutory orders by which expeditions disposal of the suit is secured and which are merely steps for arriving at the decision on the rights and liabilities of the parties would not fall within the scope of Section 115.'

In my opinion, the rights or obligations could be also procedural rights or obligations. If there is such controversy and decision is given, such decision can amount to a 'case decided if its effects is as stated by the Division bench of this Court in the decision referred to above.

37. I have considered this point at considerable length in Chunilal Dahyabhai v. Dharamshi Nanji, 10 Guj LR 734. It is observed :

'The word 'case in Section 115 of the Civil Procedure Code is a word of wide or comprehensive import and clearly covers a far larger area than would be covered by such a word as 'suit' or 'appeal'. Inasmuch a Section 115 in merely an empowering section granting certain jurisdiction to the High Court, and as the use or exercise of that jurisdiction will, within the prescribed limits, be regulated by the discretion of the High Court, the section ought to receive rather a liberal than a narrow interpretation.

The word 'controversy' need not be given a restricted meaning. The word controversy' is used in the general sense and it has got to be given a comprehensive meaning unless there is something to indicate that a narrow and restricted meaning was intended.

It was held that, in the instant case, the suit was for rendition of accounts in relation to the acts done by the petitioner in his capacity as a power of attorney holder of the opponents and for recovering the sum that may be found due on taking accounts. The petitioner challenged the factum of his holding a power of attorney for the opponents. The opponent had sought for discovery of documents on an affidavit. The Court ordered the petitioner to file an affidavit of document and accordingly discover was made. Thereafter the opponent gave an application for inspection of the documents referred to in the affidavit of documents and to permit him to take copies. The court overruled the objection and passed an order directing the defendant to give his affidavit.

It was held that the decision of the Court in the present case would amount to a case decided as a controversy between the parties to regard to the right or obligation in relation to inspection of certain documents in a proceeding has been decided by the Court.'

38. Mr. Shah invited my attention to the decision of a Division Bench of the Allahabad High Court in Malkhan v. Mahar Chand : AIR1955All307 and has urged that even if the Court had decided the issue regarding jurisdiction and held that it had jurisdiction to decide such decision would not amount to a 'case decided' as neither the suit nor a part of it, on account of such decision of the such decision came to be disposed of. This decision of the Allahabad High Court, no doubt, supports that argument of his. But the ratio laid down therein is quite contrary to what has been stated by the Division Bench of our High Court in : AIR1968Guj236 (supra). It is observed therein:

'............... A plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court trying the proceeding. If the erroneous decision is in favour of the party raising the pleas, the Court would be refusing to exercise jurisdiction vested in it and if on the other land the erroneous decision is against the party raising the pleas, the court would be clutching at jurisdiction it does not possess. In either case the section would be attracted: Clause (b) in the former case and Clause (a) in the latter.'

I, therefore, hold that the present decision would be covered by the phrase 'case decided'.

39. It has been further contended by Mr. Shah that the present case would not be covered within any of the clauses, (a), (b) or (c) of Section 115 of the Code. In his submission, at the most it could be said that it was a case where there was a wrong exercise of jurisdiction. In my opinion, this is not the correct position. In the instant case, the real controversy was whether the Court has jurisdiction or power to review or revise the decision of its predecessor-in-title or its own, which has been given after hearing the parties on merits, as the view expressed therein, is rendered open to doubt in view of the subsequent decision of the higher Court. In my opinion, it is a question touching the jurisdiction. I have come to the conclusion that the trial Court had no jurisdiction or power to review or revise such decision in the exercise of its inherent jurisdiction. The trial Court, by framing the issue in question, wants to allow the party to re-agitate the question and the Court wants to review or revise its decision on hearing fuller arguments in view covered by clause (a) of Section 115 of the Code, as the Court wants to exercise its jurisdiction not vested in it by law. It can also be said that it will be covered by clause (c) of Section 115 of the Code, as it has acted in the exercise of its jurisdiction illegally in respect of the procedure. It is in contravention of the provisions regarding procedure.

40. Mr. Shah invited my attention to the decision of the Supreme Court in Vora Abbasbhai Alimahomed v. Haji Gulamnabi Haji Safibhai : [1964]5SCR157 . In my opinion, that decision does not apply as the question which the Supreme Court had to decide was the question whether there was wrong exercise of jurisdiction. The Courts below, at the most, could have been taken to a wrong conclusion whether the tenant was entitled to protection under Section 12(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.

41. In D. L. F. Housing and Construction Co. (P.) Ltd.. v. Sarup Singh, : [1970]2SCR368 , the Supreme Court has reiterated the position in his behalf, observing:

'While exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. The words 'illegally' and with material irregularity' as used in clause (c) do not cover either errors of fact or of law, they do not refer to the decision arrived at but merely to the manner in which in which it is reached. The errors contemplated by this clause may relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to error either of fact or of law, after the prescribed formalities have been complied with.'

In the instant case, the decision is in relation to the jurisdiction of the Court to revise or review its decision on the grounds mentioned above. I am, therefore, of the opinion that this Court can interfere with such an order under Section 115 of the Code.

42. It has been lastly contended by Mr. Shan that even if this Court finds that this order is wrong and is without jurisdiction, this Court should not interfere, as the discretion lies with this Court to interfere with such order in the exercise of its revisional jurisdiction under Section 115 of the Code. In support of his submission, he has invited my attention to two decisions of this Court. One is the decision of Bhagwati, J. (as he then was), in Shah Jagmohandas Purshottamdas v. Jamnadas Vrajlal Gandhi : AIR1965Guj181 and the other is also the decision of Bhagwati, J. (as he then was) in Vasntrao Laxmanrao Sahane v. Sanghvi Amrital Becharlal : (1966)7GLR840 . There is no dispute with the proposition enunciated therein that the High Court will exercise its revisional powers only in aid of justice and not merely to give effect to a technicality which would not further the ends of justice, where the High Court finds that substantial justice has been done between the parties by the order of the Subordinate Court, the High Court will not interfere with such order merely because the case comes within any of the three clauses of Section 115 of the Code. In my opinion, the present case is not a case of that type.

43. The present question was decided by the predecessor-in-title of the learned trial Judge. That question again was sought to be re-agitated before the learned trial Judge by an application, Ex. 101, and it was rejected. Same question has been again sought to be re-agitated after the decision of this Court in Civil Revision application No. 151 1968, decided on 25.1.1971 (Guj), by S. H. Sheth, J., wherein he has observed in para 16 of his judgment :

'The consideration of all the aforesaid decisions to which my attention has been invited fortifies me in my conclusion that a Court which is invested with a specific jurisdiction or a Court whose jurisdiction has been defined in specific terms by a statute can entertain suits or appeal which definitely answer the requirements prescribed by the statute for the exercise of its jurisdiction. Where the definite terms of the jurisdiction of a Civil Court are not satisfied, the case, whether it is an original suit or an appeal, must go to the Court or residuary jurisdiction. In this case, since the value of the subject-matter is, as I have held, incapable of monetary evaluation, it must go to the Court which exercises residuary original civil jurisdiction under Section 24 of the Bombay Civil Courts Act, 1869. That Court is the Court of the Civil Judge (Senior Division).'

On the basis of this decision, this question which was already decided was sought to be re-agitated and re-opened after eleven witnesses had already been examined on behalf of the plaintiff ( petitioner ) and the case was adjourned for adducing evidence by the opponent (defendant). In my opinion, this is a fit case where this Court should exercise its revisional jurisdiction under Section 115 of the Code.

44. The result is that the revision petition succeeds.

45. The revision petition is allowed and the order passed by the trial Court, dated 29th September, 1971, below Ex. Dated 29th September, 1971, below Es. 170, is set aside and application, Ex. 170, is dismissed with costs. Opponent to pay the costs of the petitioner in this revision petition. Rule is made absolute.

46. Petition allowed.


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