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Varadarajan Vs. Govindaswamy and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1975)2MLJ17
AppellantVaradarajan
RespondentGovindaswamy and anr.
Cases ReferredSashi Kanta v. Nasirabad Loan Office Company
Excerpt:
- .....of the calcutta high court, in sashi kanta v. nasirabad loan office company : air1936cal786 , held:revisional power of the high court under section 115 is a bar only when an appeal lies to high court. the fact that an appeal lay to the lower appellate court will not take away the powers of the high court to revise the order of the trial court. the language of section 115 is that the high court may call for the record of any case which has been decided by any court subordinate to such high court in which no appeal lies thereto.7. the bench in nanda lal v. askaran baboo : air1944cal309 , stated:the precise meaning of the word ' thereto ' has given rise to some controversy, but it seems to us that it can only refer to the high court and not a court subordinate to the high court.though.....
Judgment:
ORDER

P.R. Gokulakrishnan, J.

1. The above matter has come up before me upon an office note for orders as to maintainability of the civil revision petition.

2. The suit O.S. No. 912 of 1970 was filed for declaration of the plaintiff's four-ninths share in the suit well and for restraining the defendants by means of a permanent injunction from interfering with the right of the plaintiffs to take water from the well through a channel LMN marked in the plaint sketch, passing through the land of the defendants to the first plaintiff's land, and through the LMN channel to the land of the second plaintiff. On the defendants entering appearance and filing their written statement, issues were framed by the trial Court. When the suit came up for trial on 7th February, 1972 the defendants, when called were absent, and they were set ex parte; their Counsel also reporting no instructions. On the first plaintiff proving the claim by examining himself as P.W. 1 the trial Court decreed the suit with costs as prayed for.

3. The first defendant, aggrieved by the decision of the trial Court, presented the civil revision petition against the judgment and decree in the suit. The office returned the papers questioning as to how a civil revision will lie when the decree is an appealable one. To this return, counsel for the petitioner re-presented the papers stating that no appeal lies to the High Court from the decree of the District Munsif, that the petitioner has not filed any appeal to the District Court, that he desires to challenge the regularity and legality of the decree on grounds of revision and that if the petition is otherwise in order, the existence of an alternative remedy by way of appeal to a subordinate Court is not a bar to entertaining the revision. On this re-presentation and statement by the Counsel for the petitioner, the office has posted this matter before this Court for orders regarding the maintainability of the civil revision petition. The question that has to be decided is as to whether a revision to the High Court is competent when, as per the provisions of the Code of Civil Procedure, the petitioner has a right to prefer an appeal to the appellate Court.

4. Thiru T.V. Subramaniam, the learned Counsel appearing for the petitioner, citing, Section 115, Civil Procedure Code, argued that an appeal will not directly lie to the High Court from the judgement and decree in O.S. No. 912 of 1970 and as such the revision is maintainable.

Section 115, Civil Procedure Code, reads:

The High Court may call for the record of any case which has been decided in any Court subordinate to such High Court and in which no appeal lies there to, and if such subordinate Court appears:

(a) ....

(b) ....

(c) ....

the High Court may make such order in the case as it thinks fit.

Thus, a revision will lie, as per Section 115. Civil Procedure Code, to the High Court only when no appeal lies thereto from the judgment and decree sought to be revised. Thiru T.V. Subramaniam, the learned Counsel appearing for the petitioner submitted that 'no appeal lies thereto' means that no appeal will lie directly to the High Court from the judgment and decree in question. According to the learned Counsel, an appeal would lie, in this case, only to a Court subordinate to the High Court, and not to the High Court itself directly. No doubt, an appeal might come up to the High Court by way of a 'second appeal' from the decision of the appellate Court. But that is not contemplated by the clause ' in which no appeal lies thereto '. According to the learned Counsel, since no appeal directly would lie to the High Court from the decree and judgment in O.S. No. 912 of 1970, the revision filed under Section 115. Civil Procedure Code, is not prohibited.

5. Number of authorities were cited, which I will refer for the purpose of deciding on the maintainability of the present civil revision petition.

Daw Min Baw v. A.V.P.L.N. Chettiar Firm I.L.R. (1933) Rang. 134 was relied on by the learned Counsel for the petitioner in support of his contention. There a single Judge of the Rangoon High Court held:

Under Section 115 of the Civil Procedure Code, the High Court is entitled to entertain an application for revision from the decision of any Court subordinate thereto from which no direct appeal lies thereto. The fact that an appeal lies from such decision to a lower appellate Court and thereafter a second appeal to the High Court, does not prevent the High Court from exercising its revisional powers directly in a proper case. The word ' case ' in Section 115 ot the Civil Procedure Code, includes not only original cases but also first appeal cases.

6. A single Judge of the Calcutta High Court, in Sashi Kanta v. Nasirabad Loan Office Company : AIR1936Cal786 , held:

Revisional power of the High Court under Section 115 is a bar only when an appeal lies to High Court. The fact that an appeal lay to the lower appellate Court will not take away the powers of the High Court to revise the order of the trial Court. The language of Section 115 is that the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court in which no appeal lies thereto.

7. The Bench in Nanda Lal v. Askaran Baboo : AIR1944Cal309 , stated:

The precise meaning of the word ' thereto ' has given rise to some controversy, but it seems to us that it can only refer to the High Court and not a Court subordinate to the High Court.

Though in the above case it has been held that the word ' thereto ' occurring in Section 115, Civil Procedure Code, refers only to the High Court, that was a case where no second appeal even lay to the High Court.

8. In Kedaranath Lal v. Sheonarain Ram : AIR1952Pat280 , a single Judge of the Patna High Court has held:

Section 115 means that the High Court cannot act only in those cases in which an appeal lies to that Court. The fact that an appeal lies to the lower appellate Court does not take away the High Court's power of revision.

Even in the above case, no second appeal lay to the High Court.

9. The citation given by the learned Counsel which is reported in Vaithilingam Pillai v. Kandaswami Pillai : AIR1931Mad1 , deals with powers of the High Court to interfere in revision under Section 115, Civil Procedure Code. That has nothing to do with the facts of the present case or with the interpretation of Section 115, Civil Procedure Code.

10. Thiru T.V. Subramaniam cited the Bench decision in Kulandai v. Indian Ramaswami 27 M.L.W. 286 : 108 I.C. 539 : I.L.R. (1938) Mad. 664 : (1938) 55 M.L.J. 345 : A.I.R. 1938 Mad. 416, for the proposition that the High Court can interfere and correct the mistake of the trial Court under Section 115, Civil Procedure Code. That was a case in which a revision was filed against the order of the trial Court holding that the Court-fee paid was not proper and until the proper Court-fee was paid the suit could not be proceeded with. In that case the High Court felt that the trial Court had failed to exercise jurisdiction and observed that while Courts would not generally interfere in revision where an equally efficacious remedy is open to the party they have in several cases interfered where the remedy by way of appeal would entail unnecessary hardship on the party, involve multiplicity of proceedings, or would not give the party as complete and efficacious a relief as interference with an interlocutory order and the case satisfied the requirements of Section 115, Civil Procedure Code. The contention in that case was that the party could have filed an appeal against the dismissal of the suit itself on the ground that proper Court-fee had not been paid. In the interests of justice the High Court interfered with the order holding that such interference under Section 115, Civil Procedure Code, to correct a mistake was justifiable. I do not think the said decision is helpful, to decide the question in issue.

11. Thiru T.V. Subramaniam also cited cases which hold the view that a revision is not maintainable when directly or indirectly an appeal lies to the High Court. In Pattammal v. Krishnaswami Iyer : AIR1928Mad794 , a single Judge of this High Court stated:

Any order which may be brought up in appeal to the High Court either directly or after an intermediate appeal to a lower Court should be held to be a case in which an appeal lies to the High Court.

12. On this observation, this High Court held that a revision will not lie when a second appeal is competent to the High Court.

13. In Veerappa Thevar v. Katkaswami Chettiar (1966) 1 M.L.J. 427 : 79 M.L.W. 163 : I.L.R. (1966) Mad. 546 : A.I.R. 1967 Mad 313, Natesan, J., has held that Section 115 is available only when there is no appeal to the High Court and that if an appeal lies to the High Court even by way of second appeal it could not entertain a revision under Section 115 of the Code of Civil Procedure.

In Jagannatha Prasad Gupta v. Ranganatha Konar : AIR1966Mad370 ., Kailasam, J., has stated:

The power of revision may be exercised in any case, which has been decided by a Court subordinate to the High Court in which no appeal lies thereto. We are concerned with the words ' in which no appeal lies thereto '; it has been held that, if an appeal lies in the High Court against the order sought to be revised, a revision is not competent. The appeal to the High Court may not necessarily be directly from the order complained against. An appeal may lie to the High Court indirectly by way of a second appeal. Even then, the re-visional jurisdiction of the High Court under Section 115, Civil Procedure Code has been held to be barred.

14. In Vaishnav College for Women v. Mrs. Aleyamma Thomas : (1971)1MLJ76 , Ramanujam, J., dealing with a revision against the order passed in an interlocutory application for an injunction by the District Munsif of Poonamallee, held:

In this case, against the order in question, the petitioner has no right of appeal to this Court directly or indirectly. He has only a remedy by way of an appeal to the District Court without any further right of appeal to this Court. In view of this position, I am of the view that there is no bar in entertaining this revision petition under Section 115 of the Code.

Thus, in this case, since no appeal even ultimately is provided to the High Court, the High Court held that a revision is competent. This does not mean that a revision is competent when an appeal is provided directly or indirectly to the High Court.

15. In spite of the above decisions of our High Court against the principle propounded by the learned Counsel appearing for the petitioner, he tried to press his point by citing the decision reported in Joseph v. Varadarajan : (1969)2MLJ234 . There, Ramaprasada Rao, J., held that the jurisdiction exercised by the High Court under Section 115 Civil Procedure Code, is wholesome, supervisory and visitorial. From the facts of that case it is clear that from an order passed under Order 33, r. 5 (d-1) an appeal is provided under Order 43, r. 1 (nn) to the District Court and there is no further appeal to the High Court. In those circumstances, the learned Judge held that the rule of practice set out in the section enables the High Court to entertain a revision against the original order even though an appeal is provided to the District Court, provided no appeal lay against the appellate order of the District Judge. Thus, I am of opinion there is absolutely no conflict between this decision, and the other decisions of the single Judges of this High Court noticed supra.

16. S.S. Khanna v. F.J. Dillon : [1964]4SCR409 , dealing with the expression 'case' occurring in Section 115, Civil Procedure Code, the Supreme Court held:

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 to the entirety of the proceedings in a civil Court. To interpret the expression ' case ' as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the Jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant against where it is most needed, and may result in the perpetration of gross injustice' 'The expression ' case ' includes a suit, but in ascertaining the limits of the jurisdiction of the High Court, there would be no warrant for equating it with a suit alone.

17. Thus, the Supreme Court, in a case where the trial Court on a preliminary issue decided that the suit being by a partner against another partner of a dissolved firm which was in the process of winding up and in respect of advances from the partnership assets, was not maintainable, held that an order comes under the definition of ' case ' and as such the revision was maintainable to the High Court. Dealing further, Hidayatullah, J., (as he then was) observed:

The present cases answer the description as the orders of the Subordinate Judge were erroneous in denying a jurisdiction and no appeal lay to the High Court against them. Even otherwise, the trial Judge was in error in not dismissing the suits. His decision that the suits were not maintainable and yet keeping them pending was itself an exercise of jurisdiction with material irregularity. If the trial Judge had dismissed the suits and passed decrees there would undoubtedly have been appeals and no revision would have lain. But the order actually passed by him was not a decree or even an order made appealable by Section 104 of the Code. Involving as it did a clear question of jurisdiction it was revisable and the High Court was within its rights in correcting it by the exercise of its powers under Section 115 of the Code.

The above Supreme Court decision does not warrant the conclusion that the High Court can interfere in revision under Section 115 though an appeal lies to the High Court either directly or indirectly. On the other hand, the facts of the case dealt with by the Supreme Court and the discussion pertaining to the same, centered round the word ' case ' occurring in Section 115, Civil Procedure Code, and incidentally the Supreme Court observed that if the trial Judge had dismissed the suits and passed decrees, there would undoubtedly, have been appeals and no revision would have lain'

18. On an analysis of the decisions referred to above, the principle enunciated by single Judges of this Court is that a revision cannot be maintained if an appeal lies to the High Court either directly or indirectly. Admittedly, in the present case, a second appeal will lie from the decision rendered by the trial Court subsequent to the disposal of the case by the lower appellate Court by way of a first appeal. I am not agreeing with the principle stated in Daw Min Baw v. A.V.P.L.N. Chettiyar Firm I.L.R. (1933) Rang. 134, Nanda Lal v. Askaran Baboo : AIR1944Cal309 , Sashi Kanta v. Nasirabad Loan Office Company : AIR1936Cal786 , and other decisions supporting this view.

19. In these circumstances, the revision is not maintainable.


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