Skip to content


Mohinder Nath Vs. Sandhran Rani - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. No. 77 of 1979
Judge
Reported inAIR1981J& K49
ActsCode of Civil Procedure (CPC) , 1908 - Section 115; ;Jammu and Kashmir Houses and Shops Rent Control Act, 1966 - Sections 11, 12 and 13
AppellantMohinder Nath
RespondentSandhran Rani
Appellant Advocate R.P. Sethi, Adv.
Respondent Advocate Inderjit Gupta, Adv.
Cases ReferredMd. Ishaq v. Abdul Majeed
Excerpt:
- .....of the jammu and kashmir houses and shops rent control act, had not been proved. it accordingly decided issue no. 1 against the petitioner and in favour of the respondent but did not proceed to decide issues nos. 2 and 3 and opined that the decision on issue no. 1 did not warrant dismissal of the petitioner's suit because it found that the respondent had committed one default in the payment of rent. the trial court, therefore. postponed the consideration of issues nos. 2 and 3 till deciding whether the suit could be decreed on the ground of a single default in payment of rent in terms of subsections (1), (2) and (3) of section 12 of the act. the petitioner is agrrieved of this order and has come up to this court in a revision petition under section 115 c. p. c.3. mr. r. p. sethi,.....
Judgment:
ORDER

A.S. Anand, J.

1. The petitioner is the landlord. The respondent is the tenant The petitioner filed a suit for ejectment against the respondent only on the ground of three legal defaults in the payment of rent. The respondent resisted the suit and inter alia pleaded that she had been regularly depositing the rent of the suit house with the Rent Controller, Jammu, because the petitioner had refused to accept the rent offered by her. She denied having committed any default, much less three legal defaults in the payment of rent. From the pleadings of the parties the following issues were framed:

1. Whether the defendent has committed three legal defaults in the payment of rent of two months each within a period of 18 months O. P. P.

2. Whether on proof of issue No. 1, the tenancy of the defendant stood validly determined by a valid notice O. P. P.

3. Relief.

2. The trial court found that only one legal default in the payment of the rent had been proved and that three defaults, as alleged by the petitioner and contemplated by Section 11(i) of the Jammu and Kashmir Houses and Shops Rent Control Act, had not been proved. It accordingly decided issue No. 1 against the petitioner and in favour of the respondent but did not proceed to decide issues Nos. 2 and 3 and opined that the decision on issue No. 1 did not warrant dismissal of the petitioner's suit because it found that the respondent had committed one default in the payment of rent. The trial court, therefore. postponed the consideration of issues Nos. 2 and 3 till deciding whether the suit could be decreed on the ground of a single default in payment of rent in terms of Subsections (1), (2) and (3) of Section 12 of the Act. The petitioner is agrrieved of this order and has come up to this court in a revision petition under Section 115 C. P. C.

3. Mr. R. P. Sethi, learned counsel for the petitioner has urged that on the basis of the admitted facts the finding that there had been only one default, and not three defaults, in the payment of rent, is erroneous and that on the basis of the proved facts, the court should have decided issue No. 1, in favour of the petitioner and decreed the suit. It is argued that the trial court failed to exercise the jurisdiction vested in it by law and the disposal of the case in this manner has caused miscarriage of justice. It is further argued that the trial court was in error in regarding the deposit of rent, before the rent controller, as a circumstance absolving the defendant of his liability to ejectment without there being any strict compliance with the provisions of Section 14 of the Act. It is also maintained that even on the finding, as recorded by the trial court, the suit should have been decreed because the tenant had not claimed benefit of Sub-sections (1), (2) and (3) of Section 12 of the Act.

4. Mr. Inderjeet Gupta, learned counsel for the respondent has on the other hand submitted that the impugned order does not amount to a 'case decided' within the meaning of Section 115 C. P. C., and as such the revision petition is not maintainable. It is argued that the revisional court cannot usurp the powers of the appellate court and upset such findings, which are both factual and legal in character.

5. According to Mr. Sethi, however, the impugned order itself is not appealable to the Court and since it decides a vital question in controversy between the parties, the order amounts to 'a case decided' within the meaning of Section 115 C. P. C.

6. The short question which therefore first arises for consideration at this stage is:

1. Whether in the facts and circumstances of the present case when the trial court has decided an issue, on the basis of evidence in a particular manner and has not passed any final orders so far as the suit is concerned can the order be interfered with in exercise of the revisional jurisdiction of the High Court.

7. It is well settled that a revisional court does not normally interfere with the findings of fact recorded by a trial court because that power of interference essentially falls within the domain of the appellate court. In the instant case, the trial court decided issue No. 1 which admittedly is a mixed issue of law and fact but postponed the decision of issues Nos. 2 and 3 on the ground that it had to see whether the suit of the petitioner, could be decreed under Section 12 of the Act or not. The petitioner cannot file an appeal against this order. Thus, the petitioner, against whom a vital issue, which is in a way the sole question in the suit, has been decided, has been apparently left with no remedy at this stage. The question is whether this court should appropriately interfere with the impugned order at this stage or refuse to exercise the jurisdiction under Section 115 C. P. C. Should the High Court leave the exercise of its powers and discretion under Section 115 C. P. C. in the hands of the trial court! Cases may arise where the trial court may decide all vital issues in a case against a party but postpone the decision of an issue relating to 'relief' so as to leave an argument open that the order does not amount to a 'case decided' and thus seek to oust the exercise of jurisdiction by the High Court. These are matters which are required to be considered in this case.

8. With a view to appreciate the controversy raised in the preliminary objection it would be relevant to reproduce Section 115 of the Code of Civil Procedure which reads thus:

'The High Court may call for the record of any case which has been decided by any court subordinate to the 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, or

(d) to have caused failure of justice the High Court may make such order in case as it thinks fit.'

9. From the phraseology of the section, it is obvious that the revisional jurisdiction can be exercised by the High Court in a case in which no appeal lies to the High Court from that order, provided the case has been 'decided' by any court subordinate to it and further if the case falls in any of the four Clauses (a) to (d) of the Section. The first condition envisaged under Section 115 of the Civil Procedure Code relates to the maintainability of the petition i. e. as the petition would be maintainable only if it is against an order which decides a case. The second condition relates to the exercise of powers of interference if the case is covered by Clauses (a) to (d) of the Section. The term 'case decided' has not been defined in the Code of Civil Procedure. By the plea in language. the expression 'case' appears to be more comprehensive than the word 'suit' and may in appropriate cases, include decision on a part of a suit, as opposed to the decision of the suit as a whole.

10. A Full Bench of seven Judges of the Lahore High Court in Bibi Gurdevi v. Chaudhri Mohammad Bakshi, AIR 1943 Lah 65 held as under:

'The word 'case' in Section 115 is wide enough to include interlocutory order passed in a suit. An order by the Court staying a suit before it on receipt of a robkar from the Debt Conciliation Board under Section 25 Punjab Relief of Indebtedness Act, is a 'case decided' within the meaning of Section 115 and therefore, is revisable by the High Court.........The word 'case',in Section 115 does not always mean the whole suit. It is of a very wide import, and means, any state of factsjuridically considered. This meaning is wide enough to include a decision on any substantial question in controversy between the parties affecting their rights, even though such order is passed' in the course of the trial of the suit. An interlocutory order deciding a question of this kind, as distinguished from purely formal and incidental order is a 'case decided' within the meaning of Section 115 but it will be open to revision only if the other conditions expressly laid down in Section 115 are satisfied and the order has resulted or is likely to result in such gross injustice or irreparable injury as cannot be remedied otherwise than by the exercise of the extraordinary jurisdiction of the High Court at that stage.'

11. Their Lordships of the Supreme Court in Major S. Section Khanna v. Brig. F. J. Dillon, AIR 1964 SC 497 held after a review of various authorities that the expression 'case' includes a part of a case and that there is no escape from the conclusion that revisional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal lies from the ultimate decree or order passed in the case provided the conditions envisaged under Section 115 C. P. C. are satisfied. In the case before their Lordships of the Supreme Court, one Brig. Dillon had filed a suit in the court of Subordinate Judge at Delhi for the recovery of some amount from Major Khanna who had promised to repay but had failed to repay. Major Khanna pleaded that he had not borrowed any loan from Brig. Dillon and that the amount claimed in the action was advanced out of the joint funds, belonging to the partnership to which Brig. Dillon and Major Khanna were partners. On the pleadings of the parties the trial court framed a preliminary issue: (at p. 503 of AIR)

'Whether this suit is not maintainable and the plaintiff is not entitled to institute the suit as alleged in paras 15, 16, 17 and 18 of the written statement ?'

After hearing the learned counsel for the parties, the trial court held that the suit being by a partner against another partner of a dissolved partnership firm (which was in the process of winding up) was not maintainable. Aggrieved against the order of the trial court holding that the suit was notmaintainable, the plaintiff filed a revision in the High Court of Punjab under Section 115 C. P. C. The High Court accepted the revision petition and set aside the order of the trial court and directed that the suit be heard and disposed of according to law. With Special Leave an appeal was taken to the Supreme Court by Major Khanna against the order of the High Court primarily on the ground that the High Court could not have exercised its revisional jurisdiction under Section 115, Civil P. C. as there was no 'case decided' and the impugned order was only an interlocutory order. Their Lordships dismissed the appeal and while considering the jurisdiction to be exercised under Section 115 C. P. C. observed :

'The section consists of two parts, the first prescribes the conditions in which jurisdiction of the High Court arises i. e. there is a case decided by a subordinate court in which no appeal lies to the High Court; the second sets out the circumstances in which the jurisdiction may be exercised. But the power of the High Court is exercisable in respect of 'any case which has been decided'. 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 Civil Court in which the jurisdiction of the court is invoked for the determination of some claim or right legally enforceable.....'

It was also observed by their Lordships:

'......The expression 'case' is aword 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 proceeding 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 writ and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice.'

12. Their Lordships expressly overruled the judgment of the Allahabad High Court, AIR 1921 All 1 (FB) and observed: (at p. 501 of AIR 1964 SC)

'It may be observed that the majority view of the High Court of Allahabad in Budhu Lal v. Mewa Ram (AIR 1921 All 1 (FB)) founded upon the supposition that even though the word 'case' has a wide signification the jurisdiction of the High Court can only be invoked from an order in a suit, where the suit and not a part of it is decided proceeded upon the fallacy that because the expression case includes a suit, in defining the limits of the jurisdiction conferred upon the High Court the expression 'suit' should be substituted in the section when the order sought to be revised is an order passed in a suit. 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.'

13. A learned single Judge of this Court in 1976 Kash LJ 284: (AIR 1977 J & K 33) while dealing with the meaning of the expression 'case decided' relied upon AIR 1964 SC 497 (supra) and opined thus: (at p. 35 of AIR)

'These observations clearly suggest that if, by an interlocutory order a subordinate court decides any question in controversy between parties to a suit or proceeding and the decision is one having direct bearing on their rights and obligations in such suit or proceeding, expressly so stated or as a necessary consequence of the order, then irrespective of the fact whether such question forms the subject matter of a separate issue or not, the order would be 'case decided' even if it does not finally decide the suit or proceedings'.

14. Let us apply the aforesaid principles to the facts and circumstances of the present case. The trial court has, in unmistakable terms, decided issue No. 1 against the petitioner. It cannot be denied that the decision of this issue is one having a direct bearing on the rights and obligations in the suit between the parties and is an issue of vital importance. After having decided issue No. 1. it was not proper for the Court, then to postpone the decision of issues Nos. 2 and 3, on the ground that it required to be considered whether the petitioner could succeed in the case on the basis of one proved default in the payment of rent only or not,which was not the case put up by the petitioner in his plaint or set up by the respondent in her written statement. I am of the opinion that by adopting this course there has been a patent material irregularity in the procedure followed by the trial court. The impugned order would also have the effect to cause unnecessary delay in the disposal of the case, a situation which cannot be viewed with favour. Such a piecemeal decision of a suit, is neither contemplated by the Code nor is it otherwise desirable or proper. One could understand, if the court, was deciding a preliminary or a legal issue, the disposal of which could decide the fate of a case one way or the other, but one cannot contemplate piecemeal disposal of a case on a issue of fact when a court decides one factual issue and postpones the decision of the consequential issues and the other issues of fact, it adopts a procedure not warranted by law and fails to exercise jurisdiction which is vested in it by law to deal with the entire case in unison. A Full Bench of this court, while interpreting the scope of Clause (d) of Section 115 C. P. C. in 1 J & K LR 26, opined that a case would be covered under Clause (d) if the effect of the order is to prolong the trial or where the order causes unnecessary delay in the disposal of the case as also if there has been a patent irregularity in the procedure adopted by the trial court. By postponing the decision of issues Nos. 2 and 3, after having decided issue No. 1 against the petitioner, the trial court put the petitioner at a great disadvantage and prevented him from following his remedy before the appellate court besides prolonging the litigation. I am unable to agree with Mr. Gupta that no revision is competent against an order which only decides an issue or a part of a case, reliance in support of which assertion has been placed on AIR 1921 All 1 (FB), and on Md. Ishaq v. Abdul Majeed, AIR 1954 All 455. The view of the Full Bench in AIR 1921 All 1, was not approved by the Supreme Court in AIR 1964 SC 497 and in so far as AIR 1954 All 455 is concerned, there is only a cryptic reference to this aspect of the case in para 4 of the judgment. No reasons have been advanced in support of the view. Maybe the court was inflenced by the earlier Full Benchjudgment of that very court in AIR 1921 All 1 (FB) and advanced no reasons in support of the view. However, with respect to the learned Judge of the Allahabad High Court I am unable to follow the judgment reported in AIR 1954 All 455, which has stated the proposition much too broadly and has given no reasons in support thereof. In view, of the Supreme Court decision in 1964, AIR 1921 All 1 (FB) cannot be held to be good law any longer.

15. On the basis of the judgment noticed in the earlier part of this order, I would hold that a 'case' is said to be 'decided' within the meaning of Section 115 C. P. C. if the court adjudicates for the purposes of the suit some vital right or obligation of the parties in controversy. The mere fact that any of the parties can ultimately challenge the findings before an appellate court cannot be treated as an absolute bar to the maintainability of a revision petition. An order to amount to a 'case decided' need not dispose of the suit as a whole and it is sufficient if the order decides a vital matter in controversy between the parties. In the particular facts and circumstances of this case, the impugned order decides a vital issue and since the trial court adopted a procedure not warranted by law, the impugned order can be interfered with in exercise of the revisional powers as the order amounts to 'case decided'. It is, therefore, just and proper that the mischief is undone at the earliest so as not to protract the litigation unnecessarily. The preliminary objection is, therefore, rejected.

16. As I have found that the trial court adopted a procedure which was irregular and which had the effect to prolong the disposal of the case, the case is properly covered by Clause (d) of Section 115 C. P. C. and needs to be set aside on that short ground and I hereby set it aside.

17. While setting aside the order of the trial court the case is remanded to it with the direction that the trial court shall decide the case in its entirety in accordance with law after hearing learned counsel for the parties.

18. Since, issue No. 1 is a factual issue, I refrain from dealing with it on merits and the setting aside of the order should not be interpreted to meanthat the factual aspect of issue No. 1 has also been dealt with by this court, I have, therefore, not dealt with the arguments of Mr. Sethi assailina the finding of issue No. 1 and it shall be open to the petitioner to raise all these points before the trial court which shall decide them in accordance with law.

19. The setting aside of the impugned order should, however, not be taken as an expression of opinion on the merits of the controversy between the parties to the suit. Parties to appear in the trial court on 21-2-1980.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //