Karam Chand and Others vs Bhagwan Dass and Others

Surinder Sarup, J.—Heard the learned Counsel for the parties. Perused the office report as also the impugned order alongwith the lower Court record which has since been received It is stated by the learned Counsel for the Petitioners that the Plaintiff has applied before the lower Appellate Court, i.e. the Court of District Judge, Shimla for being granted a decree for possession of the suit property. This obviously means that that the Defendant-Petitioner is in possession of the same. Therefore, instead of ordering status quo stay of the impugned judgment and decree granted should have stay, as prayed for by the Defendant-Petitioner.

The learned Counsel for the Plaintiff-Respondents has cited before me a case reported as Ganesh Shankar Naik v. Joao Jose Catao Peregrino da Costa AIR 1976 GoaDD 24 . It has been held therein that when stay in refused by Appellate Court under Order 41, Rule 5, Code of Civil Procedure. refusal to exercise descretion does not amount to decide a ''Case'' so as to attract Section 115, Code of Civil Procedure. In other words, such an order is not open to revision. He has also cited a case reported as M/s Bhojrj Kunwarji Oil Mill and Bhojraj Kunwarji Oil Mill and Ginning Factory and Another Vs. Yograjsinha Shankarsinha Parihar and Others, It has been laid down therein that interference is only possible on the ground that a different view on facts elicited was possible. It is not permissible in exercise of revisional jurisdiction. He has further cited as case reported as Shri M.L. Sethi Vs. Shri R.P. Kapur, It has been held therein that the jurisdiction of the High Court u/s 115, CPC is a limited one. The section is not directed against conclusion of law or fact in which the question of jurisdiction is not involved. He has further cited a case reported as Ratilal Balabhai Nazar Vs. Ranchhodbhai Shankarbhai Patel and Another, It has been held therein that erroneous construction placed upon a statute by the trial Court does not amount to exercising jurisdiction illegally or with material irregularity and would not furnish a ground for interference u/s 115, Code of Civil Procedure.

In so far as the three Apex Court Rulings are concerned, they are not directly on the point in issue. So far as the Ruling of Goa, Daman and Diu is concerned, this Court is of the impression that this view has not been approved by other High Courts, though at the moment no specific authority or Ruling comes to my mind.

Faced with the above situation, the learned Counsel for the Plaintiff-Respondent has submitted that in the present case by ordering status quo the learned lower Appellate Court has not acted with material irregularity or illegally nor it is a case of lack of jurisdiction or failure of exercising jurisdiction, so as to come within the ambit u/s 115, Code of Civil Procedure. Without going into the merits of this argument and considering prima facie between the parties, this Court is of the considered view that it would be in the interest of justice that the operation of the judgment and decree under appeal passed by the trial Court should remain stayed during the pendency of the appeal before the learned lower Appellate Court This finding and observation will not be deemed as an expression on the merits if the dispute between the parties and the lower Appellate Court would not be affected by this consideration at all while deciding the appeal on merits.

For the aforesaid reasons, the interim order passed by the order of the learned lower Appellate Court is modified to the extent that the operation of the impugned judgment and decree of the trial Court shall remain stayed during the pendency of the appeal before him. In the interest of justice, the learned lower Appellate Court is further directed to dispose of the appeal finally within three months from the date of the appearance of the parties before him The parties through their learned Counsel are directed to appear before the Disirict Judge, Shimla on 6-5-1997. This revision petition is disposed of accordingly.