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Ghewar Chand and ors. Vs. Gaj Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 141 of 1979
Judge
Reported inAIR1980Raj202; 1980()WLN373
ActsRajasthan Court-fees and Suits Valuation Act, 1961 - Sections 11; Code of Civil Procedure (CPC) , 1908 - Sections 115 - Order 8, Rule 2
AppellantGhewar Chand and ors.
RespondentGaj Singh and ors.
Appellant Advocate I.C. Maloo, Adv.
Respondent Advocate M.L. Panwar,; D.K. Parihar and; G.N. Gaur, Advs.
DispositionRevision dismissed
Cases ReferredSardar Bharti v. Kishanpuri. In
Excerpt:
.....recommend that section 115 of the code should be retained subject to the modification that no revision application shall lie against an interlocutory order unless either of the following conditions is satisfied, namely: or (ii) that if the order, if allowed to stand, is likely to occasion a failure of justice or cause an irreparable injury. (act 104 of 19761.'from the aforesaid views expressed by the committee, it would appear that the maintainability of the revision petitions against interlocutory orders should be conditioned by the existence of the circumstances provided in clauses (a) and (b) of the proviso added in sub-section (1). if any interlocutory order occasions failure of justice or causes irreparable injury to the party against whom, it was made, then such an..........recommend that section 115 of the code should be retained subject to the modification that no revision application shall lie against an interlocutory order unless either of the following conditions is satisfied, namely:-- (i) that if the orders were made in favour of the applicant, it would finally dispose of the suit or other proceeding; or (ii) that if the order, if allowed to stand, is likely to occasion a failure of justice or cause an irreparable injury. the committee feel that the expression 'case decided' should be defined so that the doubt as to whether section 115 applies to an interlocutory order may be set at rest. accordingly, the committee have added a proviso and an expla-nation to section 115.--j.c.r. (act 104 of 19761.' from the aforesaid views expressed by the.....
Judgment:
ORDER

M.C. Jain, J.

1. This is a revision by the plaintiff-petitioners under Section 115, C.P.C. against the order dated April 6, 1979 passed by Additional District Judge No. 2, Jodhpur whereby the preliminary objection of the petitioners against the defendants' application under Section 11 of the Rajasthan Court-Fees and Suits Valuation Act, 1961 (hereinafter referred to as 'the Act'), has been overruled and the defendants' application was directed to be heard.

2. The plaintiffs instituted a suit for declaration, permanent injunction and possession of the suit property and in para 24 of the plaint, the plaintiffs valued the suit for purposes of court-fee and jurisdiction of the court at Rs. 51,000 and paid the court-fee to the tune oi Rs. 1,308 under Section 24 of the Act.The defendant No. 1 submitted an application on February 24, 1979 under Sections 10, 11(2) and 18 of the Act and Order 7, Rule 11 (b), C.P.C. It was stated in the application that the plaintiffs have deliberately undervalued the suit and have paid deficit court-fee. The details of the property in question have not been given in order to pay less court-fee. It was stated that the valuation of the disputed property is not less than ten lacs. It was prayed that the plaintiffs be directed to pay the deficit court-fee and on non-payment of requisite court-fee, the plaintiffs' suit may be dismissed. Reply to this application was filed by the plaintiffs on March 16, 1979 wherein the contents of the application were denied and it was stated that the plaintiffs have paid full court-fee. Counsel for the defendants Nos. 2 and 3 also adopted the application submitted by defendant No. 1. Preliminary objection was raised by the plaintiffs thai the question of valuation of suit for purposes of court-fee, should be raised only in the written statement and not by way of application. Arguments on this preliminary objection were heard and the same was overruled by the impugned order placing reliance on a decision of this Court in Motilal v. Jagdish Prasad Sharma, 1968 WLN 206. Dissatisfied with the order of rejection of the preliminary objection, the plaintiffs have approached this Court under Section 115, C.P.C.

3. On behalf of the non-petitioners, their learned counsel Shri M.L. Panwar, Shri G. N. Gaur and Shri D.K. Parihar have raised preliminary objection regarding maintainability of the present revision petition. It was urged by them that the present revision petition does not lie against the impugned order as the impugned order is an interlocutory order by which no rights or obligations of the parties have been adjudicated upon. The impugned order is not covered under the expression 'any case which has been decided'. Though this expression has been explained in the explanation introduced by Section 43 of the Code of Civil Procedure (Amendment Act, 1976) (104 of 1976) (hereinafter for the sake of brevity be referred to as 'the Amendment Act'). Alternatively, it was also contended that even if it is found that the expression 'any order' in the explanation includes interlocutory orders, still the impugned order does not satisfy the requirements of Clause (b) of theproviso to Sub-section (1) of Section 115, C.P.C. It was contended that the impugned order, if allowed to stand, would not occasion a failure of justice or cause irreparable injury to the party against whom, it was made. In support of these alternative contentions, reliance has been placed on some case law.

4. Shri I.C. Maloo, counsel for the plaintiff-petitioners on the other hand, urged that the expression 'any case which has been decided' occurring in Sub-section (1) of Section 115, C.P.C., has been explained in Sub-section (2) and according to the explanation, this expression includes any order made or any order deciding an issue, in the course of a suit or other proceeding. Shri Maloo vehemently contended that the expression 'any order' is not only restricted to final orders but should be given an extended meaning so as to include even interlocutory orders. He urged that all interlocutory orders are revisable subject to the fulfilment of the conditions laid down in Clauses (a) and (b) of the proviso of Sub-section (1) of Section 115, C.P.C. He urged that Section 11 of the Court-Fees Act does not provide that an objection as to valuation can be raised by way of an application. On the contrary, if the whole of the provision of Section 11 is read, it can be taken that such an objection can be raised only in the written statement. Allowing an objection as to valuation to be raised in an application before filing of the written statement would result into failure of justice inasmuch as that the application raising such an objection would not be verified like the pleading and all rules relating to pleadings would not be applicable to an application and there would be no limit in the enquiry if conducted on such an application as the party raising the objection, may lead any sort of evidence as his right to lead evidence would not be restricted by any law relating to pleadings. Shri Maloo urged that the observations made in Motilal's case (1968 WLN 206) (supra) relied on by the trial court are only obiter and the observations are not the ratio of the case, as in that case, written statement was already filed and it was held that the question of the suit being properly valued or not, could not be determined by the trial court without amendment of the written statement.

5. I have given my serious consideration to the rival submissions, made bythe learned counsel for the parties on the question of maintainability of this revision petition.

6. It may be pointed out that Section 115, C.P.C. underwent amendment by the Amendment Act. Original Section 11 re-numbered as Sub-section (1) and thereafter, proviso was added and further Sub-section (2) was inserted by the Amendment Act. Section 115, C.P.C as it stands now, reads as under:--

'(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such Subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where-

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

Explanation.-- In this section, the expression 'any case which has been decided' includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.'

Prior to 1st February, 1977, the date when the Amendment Act came into force, the explanation defining the expression 'any case which has been decided' did not exist. Similarly, the conditions laid down in Clauses (a) and (b) to the proviso were not required to be fulfilled for the exercise of the powers under Section 115, C.P.C. There was conflict of opinion with regard to the meaning and content of the expression 'any case which has been decided'. Thatconflict was resolved by the Supreme Court in S.S. Khanna v. F.J. Dhillon, AIR 1964 SC 497 upholding the view that it did include interlocutory orders. However, this position was explained by the Supreme Court in its later decision in Baldevdas Shivlal v. Filmistan Distributors (India) Pvt. Ltd., AIR 1970 SC 406. In this case after considering S.S. Khanna's case, it was observed as under: 'But it was not decided in S.S. Khanna's case (AIR 1964 SC 497) that every order of the Courts in the course of a suit amounts to a case decided. A case may be said to be decided, if the Court adjudicates for the purpose of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of Section 115 of the Civil P. C.'

After insertion of Sub-section (2) including the explanation, this question has come up for consideration as to whether interlocutory orders are covered within the expression 'any order made' which have been included in the expression 'any case which has been decided' in the explanation.

7. In Smt. Harvinder Kaur v. Godha Ram, AIR 1979 Punj & Har 76, the impugned order was an order refusing to appoint Local Commissioner under Order 26, Rule 9, C.P.C. In the light of the aforesaid observations of their Lordships of the Supreme Court, it was held that the meaning that can be given to the explanation is that an order made in the course of a suit or proceeding would be revisable only when it determines or adjudicates some right or obligation of the parties in controversy. Thus, a revision would He against an interlocutory order only if it determines or adjudicates some right or obligation of the parties in controversy. It was further observed:--

'However, even after the satisfaction of the aforesaid test the power of revision would be exercisable by this Court subject to the limitations put under Sub-section (1) and the proviso to Section 115 of the Civil P. C.'

The Division Bench of the Punjab and Haryana High Court, when the matter came up on reference on account of conflicting decisions of that Court, further observed in para 13 as under:--

'Before parting with the judgment, it may, however, be made clear that it cannot as a general rule be laid down thatin no case a revision would lie against an interlocutory order passed under any other provision of Order 26, and that it would be on the facts of each case that it will have to be found out whether the interlocutory order, against which a revision is sought to be filed, has adjudicated for the purposes of the suit some right or obligation of the parties in controversy or not.'

8. In Sabitri Debi v. Baikuntha Das, AIR 1979 Orissa 140, the impugned order was an order refusing to send a document to handwriting expert relying on the observations of their Lordships of the Supreme Court in Baldevdas's case as well as in the case of Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47. it was held that no right or obligation of the parties in controversy is adjudicated upon by the court by the impugned order. It is a matter relating to procedure and since no right or obligation is determined by the impugned order, it would not come within the ambit of the expression 'case which has been decided.'

9. In Modi Spinning & Weaving Mills Co. v. Ladha Ram & Co., AIR 1978 All 260, the impugned order was an order refusing an application for framing an additional issue. Relying on the observations of their Lordships of the Supreme Court in S.S. Khanna's case (AIR 1964 SC 497) (supra), Baldevdas's case (AIR 1970 SC 406) (supra) and Madhu Limaye's case (AIR 1978 SC 47) (supra), it was held as under:--

'The power to frame additional issues is a discretionary power of the trial court. Additional issues may be framed if the court thinks necessary for determining the matter in controversy. By an order refusing to frame additional issues or allowing an application for framing of additional issues no right or obligation of the parties in controversy is adjudicated upon by the court. It is a matter only of procedure. The Court, after examining the pleadings and other material on record as required under Rule 3, may frame the issues. Since no right or obligation of a party is determined by an order refusing to frame additional issues such an order cannot be held to be deciding a case between the parties and would not come within the ambit of the expression 'case which has been decided'. Similar would be the position in regard to an order by which additional issues are framed or amended.'

Reference was also made by Shri Panwar to Notes of Cases in Chhakkan v. Zaheer Hasan, AIR 1980 NOC 39 (All): 1979 All LR 495, in which the impugned order was an order deciding that certain document can be looked into for collateral purposes, it was held that it does not amount to a 'case decided' within the meaning of Section 115 adjudicating the rights and obligations of the parties. It was observed that the order cannot be interfered with in revision.

10. It would appear that the Punjab and Haryana, Orissa and Allahabad High Courts have taken the view that even after insertion of the explanation in subsection (2) of Section 115, C.P.C., an interlocutory order would be equated to 'any case which has been decided' only if it decides, determines or adjudicates any rights or obligations of the parties in controversy. It may be mentioned that I have not been referred to any decision of the Supreme Court interpreting the expression 'any case which has been decided', as explained in the explanation. I may here profitably reproduce an extract from the report of the Joint Committee. It did not find favour with the committee that Section 115, C.P.C. may be omitted as expressed by the Law Commission. The Committee, however, expressed:--

'The Committee, however, feel that in addition to the restrictions contained in Section 115, an overall restriction on the scope of application for revision against interlocutory orders should be imposed. Having regard to the recommendations made by the Law Commission in its Fourteenth and Twentyseventh Reports, the Committee recommend that Section 115 of the Code should be retained subject to the modification that no revision application shall lie against an interlocutory order unless either of the following conditions is satisfied, namely:--

(i) that if the orders were made in favour of the applicant, it would finally dispose of the suit or other proceeding; or

(ii) that if the order, if allowed to stand, is likely to occasion a failure of justice or cause an irreparable injury.

The Committee feel that the expression 'case decided' should be defined so that the doubt as to whether Section 115 applies to an interlocutory order may be set at rest. Accordingly, the Committee have added a proviso and an Expla-nation to Section 115.--J.C.R. (Act 104 of 19761.'

From the aforesaid views expressed by the Committee, it would appear that the maintainability of the revision petitions against interlocutory orders should be conditioned by the existence of the circumstances provided in Clauses (a) and (b) of the proviso added in Sub-section (1). If any interlocutory order occasions failure of justice or causes irreparable injury to the party against whom, it was made, then such an interlocutory order would be revisable. Similarly, if the interlocutory order if reversed, the suit or other proceeding, can be finally disposed of, then such an interlocutory order is also revisable under Clause (a) to the proviso. These are the overall restrictions, which have been placed on the scope of application for revision against interlocutory orders over and above the existing restrictions provided in Sub-section (1).

11. In Tata Iron & Steel Co. Ltd. v. Rajarishi Exports (P.) Ltd., AIR 1978 Orissa 179, order of rejection of petition requiring plaintiff to answer interrogatories in more clear, explicit and specific manner was held to be revisable and it was observed as under:--

'By adding the aforesaid explanation to Section 115, the scope and ambit of a revision in this Court have been widened, and the limitation put on the expression 'any case which has been decided' in Section 115 by the decision reported in AIR 1970 SC 406 and some other decisions would not longer hold good in view of the amendment of the said section.'

12. This case was not considered in Modi Spinning & Weaving Mills Co.'s case (AIR 1978 All 260) (supra) by the Orissa High Court.

13. Chitaley in his Commentary on the Code of Civil Procedure, 9th Edition, Volume 2 at page 520 has enumerated the following interlocutory orders, in which the High Courts have interfered under Section 115:--

(1) Where the effect of the order was to cause a multiplicity of litigation or to prolong the trial.

(2) Where there is a patent irregularity in procedure.

(3) Where the effect of the order is to cause unnecessary delay or expense.

(4) Where the order passed is perverse Or such that unless set aside irreparable harm is likely to be caused to one of the litigants.

(5) Where the effect of the order is to make the trial take an illegal course.

(6) Where the order works manifest injustice.

14. Even when interlocutory order does not adjudicate or determine any rights or obligations of the parties in controversy in the suit, still, such an interlocutory order may occasion failure of justice or cause irreparable injury and as such, it can be said that such an order is revisable. The expression 'any case which has been decided' includes 'any order made'. It is true that the expression 'any order made' includes within its embrace all sorts of orders. Such a wide connotation, of course, cannot be given to the expression 'any order'. An order, which may ultimately affect the decision of the suit or which may ultimately affect the right of the party, though it is not adjudicating the right, may, in my opinion, be covered under the expression 'any order'. Take for example, party's evidence is closed without any rhyme or reason. Assistance of issue of process has been illegally refused. It may be stated that no right in controversy has been adjudged, but, as such orders ultimately affect the right of the party or affect the decision of the suit and so, in my opinion, would be covered under the expression 'any order'. There are catena of decisions of this Court, where this Court has interfered with such orders, which may not have determined the rights and obligations of the party in controversy in the suit but may be of the nature, but which may have affected the decision of the suit, and whereby some illegality or material irregularity has been committed in the exercise of jurisdiction.

15. So far as the present case is concerned, the impugned order does not present any difficulty and it may be stated that the impugned order is not an order, which may ultimately affect the decision of the suit or which may affect the right of the petitioners. The objection as to valuation is required to be disposed of. Whether this objection is disposed of by raising it in an application or it is disposed of after being raised in the written statement, it is immaterial. Viewed from the conditions laid down in Clauses (a) and (b) to the proviso, as well, it cannot be said that by the impugned order would occasion any failure of justice or any irreparable injury would be caused to the petitioners. Admittedly, the pre-sent case is not a case falling under Clause (a) to the proviso. A similar question arose for consideration in Civil Revision No. 383 of 1978, Sardar Bharti v. Kishanpuri. In that case, as well by way of an application under Section 11 of the Act, an objection as to valuation of the suit and non-payment of requisite court-fee was raised and the Court ordered to proceed to decide the objections and a Commissioner was appointed. It was held by this Court that in view of the provisions contained in Ss. 11 and 18 of the Rajasthan Court-Fees and Suits Valuation Act, 1961, the learned Munsif has not exercised his jurisdiction illegally or with material irregularity so as to call for any interference by this Court in the revision. It was further observed that order under revision, if allowed to stand, would not occasion a failure of justice nor would cause irreparable injury to the petitioner against whom it was made. No ground for interference was made out.

16. It may be true that looking to the scheme of Section 11 of the Act, an objection as to valuation of the suit, should be raised by the defendant in the written statement and normally, all pleas should be raised by the defendant in the written statement except those, which could otherwise be raised, but if any such objection is otherwise raised by way of an application, it cannot be said that it is illegal and that such an objection cannot be allowed to be raised. It is one thing to say what is proper and desirable, it is quite different to say that it is not permitted by law. What has been observed in Motilal's case (1968 WLN 206) (supra), which was considered by the trial court may not be the ratio of the case, as contended by Shri Maloo, still, relying on those observations, it cannot be said that the trial court acted illegally or with material irregularity in the exercise of jurisdiction, which may result in failure of justice or in causing any irreparable injury.

17. In this view of the matter, the revision petition is hereby dismissed with no order as to costs.


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