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Vaidya Rudra Dutt Vs. Smt. Teeja - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Appln. No. 251 of 1971
Judge
Reported inAIR1972Raj141; 1971(4)WLN676
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115
AppellantVaidya Rudra Dutt
RespondentSmt. Teeja
Appellant Advocate N.L. Tibrewal, Adv.
Respondent Advocate N.M. Kasliwal, Adv.
DispositionApplication allowed
Cases ReferredIn S. S. Khanna v. F. J. Dillon
Excerpt:
.....and is not restricted by anything contained in the secion to the entirely of the proceeding in a civil court.';having regard to the above view the present in a case decided. with the remitting of the above issue for decision to the trial court one stage of the interlocutory proceeding before the appellate court was concluded. - .....an issue or a part of a suit or proceeding and therefore the order on an issue or a part of a suit orproceeding is not a 'case which has been decided', and the high court has no power in exercise of its revisional jurisdiction to correct an error in an interlocutory order. an analysis of the cases decided by the high courts--their number is legion--would serve no useful purpose. in every high court from time to time opinion has fluctuated. the meaning of the expression 'case' must be sought in the nature of the jurisdiction conferred by section 115, and the purpose for which the high courts were invested with it. .................... the expression 'case' is a word of comprehensive import: it includes civil proceedings other than suits, and is not restricted by anything contained.....
Judgment:
ORDER

Jagat Narayan, C.J.

1. This is a revision application by the plaintiff against an appellate order of the Civil Judge, Jaipur City, framing an issue to the effect whether the defendant was not a defaulter in the payment of rent as the same was offered and tendered by her to the plaintiff, and remitting it for trial to the lower Court under Order 41, Rule 25, C. P. C.

2. The plaintiff brought a suit for ejectment inter alia on the ground of default. The defence of the defendant on the ground of default was struck off by the trial Court as in its opinion there was default in making payments in accordance with Section 13 (4). The suit for eviction was accordingly decreed. On appeal the appellate Court framed the above issue following the decision in Vishwanath Singh v. Gopilal, 1970 Raj LW 223. That decision has since been overruled by a Division Bench of this Court in Saligram v. Narot-tamlal, 1971 WLN 118 = (AIR 1972 Raj 127) with the result that the above issue no longer arises.

3. On behalf of the defendant it is contended that it is not a case decided. Reliance is placed on the decision in Bir Indra Bikram Singh v. Raghubar Dayal, AIR 1935 Oudh 333. No reason for the view taken in that case has been given in the decision. In S. S. Khanna v. F. J. Dillon, AIR 1964 SC 497 it was observed as follows:

'The expression 'case' is not defined in the Code, nor in the General Clauses Act. It is undoubtedly not restricted to a litigation in the nature of a suit in a Civil Court: ......it includes a proceeding in a CivilCourt in which the jurisdiction of the Court is invoked for the determination of some claim or right legally enforceable. On the question whether an order of a Court which does not finally dispose of the suit or proceeding amounts to a 'case which has been decided', there has arisen a serious conflict of opinion in the High Courts in India and the question has not been directly considered by this Court. One view which is accepted by a majority of the High Courts is that the expression 'case' includes an interlocutory proceeding relating to the rights and obligations of the parties, and the expression record of any case includes so much of the proceeding as relates to the order disposing of the interlocutory proceeding ........ The other view is that the expression 'case' does not include an issue or a part of a suit or proceeding and therefore the order on an issue or a part of a suit orproceeding is not a 'case which has been decided', and the High Court has no power in exercise of its revisional jurisdiction to correct an error in an interlocutory order. An analysis of the cases decided by the High Courts--their number is legion--would serve no useful purpose. In every High Court from time to time opinion has fluctuated. The meaning of the expression 'case' must be sought in the nature of the jurisdiction conferred by Section 115, and the purpose for which the High Courts were invested with it.

....................

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 tothe entirely of the proceeding in a civilCourt.'

Having regard to the above view the present is a case decided. With the remitting of the above issue for decision to the trial Court one stage of the interlocutory proceeding before the appellate Court was concluded.

4. I accordingly allow the revision application, set aside the order of the appellate Court framing the above issue and remitting it to the trial Court and remand the appeal to the appellate Court for rehearing and decision in accordance with law.


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