Katuri Venkateswara Rao vs Savera Laboratories Limited

Immaneni Panduranga Rao, J.—The purchaser from defendants 2 and 3 is the revision petitioner herein. The plaintiff claims to be owner of 1/3rd undivided share in the suit-schedule land whereas the first defendant''s contention is that he purchased Ac. 7-00 and odd from the second defendant, his daughter-in-law and son. The plaintiff and defendants 2 and 3 are the joint owners and claim to be in joint possession of the suit schedule property. The learned District Judge holding that the allegation that the second defendant is trying to create some documents in favour of the first defendant will not entitle the said persons to interfere with the joint possession of the plaintiff and his brothers and observing that the directions given by the learned Subordinate Judge that the first defendant should file a separate suit and get his share declared is not correct, held that it is for the plaintiff to file a suit for partition and claim his 1/3rd share if he does not want to continue his possession along with defendants 2 and 3. He accordingly granted interim suspension of the order in IA No. 101/91 in OS No. 16/91 while directing urgent notice to the respondent. Aggrieved by the said decision, the respondent in IA No. 201/91 in CMA No. 10/91 has preferred the above revision petition.

The learned counsel for the petitioner argued that admittedly the plaintiff and the defendants have a share in the suit property, and that the order of the learned District Judge in suspending the order of injunction is a case of manifest error which is liable to be interfered with in this case.

The learned counsel for the respondent submitted that the learned Subordinate Judge has granted an ex parte order of injunction; that against the said ex parte order of injunction, the first defendant preferred an appeal; that after the purchase of Ac. 7-40 cents out of the suit schedule land, the first defendant constructed a big factory called M/s. Savera Laboratories Ltd., for extracting bran oil at a cost of Rs. 5 crores that the extraction of the oil in the factory was commenced on 26-1-91 and that the suit is filed for a declaration and injunction only to harass the first defendant and cause wrongful loss to the first defendant. The learned Counsel for the respondent-first defendant raised a preliminary objection as to the maintainability of the revision petition against the interim order passed by the learned District Judge.

In support of his contention, he relied upon the decision of this Court in Venkataratnam v. Sravanthi Devi (1979(1) ALT 396), holding that a revision to the High Court against an interim order passed in an interlocutory matter is not maintainable. The learned Judge held in that decision that a case decided has to satisfy two conditions laid down in the proviso to Section 115 of the Code of Civil Procedure; that there is no warrant to hold that by the explanation engrafted to Section 115 of the Code of Civil Procedure, the scope of the revision a jurisdiction was intended to be enlarged so as to lake in any order made in an interlocutory application and that the conclusion is irresistable that any case decided has to be construed where an interlocutory matter has been finaly decided by the Court passing the order, though in an interlocutory matter. The learned Judge clarified that Section 115 of the CPC does not, therefore, take into its ambit interim orders in interlocutory matters and that the said section only contemplates final orders on interlocutory petitions and not interim orders thereon. The learned counsel for the respondent also relied upon the decision in Mir Mazhar Ali Saheb v. Mir Gulam Murtuza Ali Saheb, (1985(2) ALT 7), to the effect that the amendment to Section 115 of the CPC does not mean that it is enough if the interim order complained against is jurisdictionaily or legally wrong or procedurally wrong and that in addition to the above two conditions, it should also occasion failure of justice in order to enable the High Court to interfere with an interlocutory order. In other words, the High Cours can interfere with an interlocutory order of the Lower Court only when such an order is not only judicially or legally or procedurally wrong but also occasions failure of justice. To the same effect is the decision of our High Court in Madhavacharyulu v. Venkata Rao (1984(1) ALT 27), holding that the jurisdiction and power of interference of the High Court in a proceeding u/s 115 of the CPC is highly restricted and more so, after the Amending Act of 1976 and that the error of jurisdiction or manifest error of procedure affecting the ultimate decision resulting in a grave injustice can alone be set right in a proceeding in revision.

In the light of the decisions referred to above interpreting the scope of Section 115 of the CPC after its amendment in 1976, the decisions of the Supreme Court relied upon by the learned counsel for the petitioner in D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, , and The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, which deal with the legal position prior to the amendment of Section 115 of the CPC can have no application. I, therefore, uphold the preliminary objection raised by the learned counsel for the respondent with regard to the maintainability of the revision.

In view of the settled legal position, I do not feel it desirable to make any observations on the merits of the case. Since it is only an interlocutory order is impugned in this revision, the parties shall be at liberty to move the learned District Judge for passing final orders in IA. No. 201/91 in CMA No. 10/91.

With the above observations, the Civil Revision petition is dismissed but without costs.