S. Bishan Singh vs Murti Shivji

M. Jalal-Ud-Din, J.—This revision petition is directed against the order dated 15-12-1967 passed by the Sub Judge, Jammu in a suit for

possession brought by Murti Shivji Plaintiff Respondent against S. Bishan Singh and another. The trial court raised issues in the case and thereafter

an application was moved on 16-11-1967 by the Defendant applicant in the court below seeking amendment of the issues as indicated in the

application. Objections were invited by the trial court from the Plaintiff and after hearing arguments it deciaed the application against the

Defendant-applicant hold ing that there was no necessity to amend or add any more issue in the case. Against this order the Defendant has come

up in revision before this Court.

A preliminary objection has been raised on behalf of the Plaintiff Respondent that revision is not competent inasmuch as the order passed by the

trial court does not purport to be a case decided within the meaning of Section 115 of the Code of Civil Procedure.

Elaborate arguments were advanced on both sides respecting the preliminary objection and a number of authorities were cited for and against

the proposition. I will first of all deal with the preliminary objection raised before me.

It is true that the expression case decided is not defined in the CPC but upon a general construction of the expression it would follow that the

words ""case decided"" as used in Section 115 of the Code do not mean the entire proceeding concluded but it includes within its ambit a part of the

proceeding as well. Thus where the court below decides a part of the proceeding in a suit in which some claim or right is decided that order is

amenable to the revisional jurisdiction of the High Court and the High Court will undoubtedly interfere, if it finds that the trial court has exercised its

jurisdiction in an illegal way of has omitted to exercise its jurisdiction, or the order passed has occasioned failure of justice as contemplated in

Clause (d) of Section 115 of the Code. The same point arose for consideration before Subramanyam, J. in AIR 1958 Mad 496. That was a case

where the trial court had dismissed the application of the Defendants for deletion of an additional issue. It was held that the District Munsiff (the

trial Court) had acted with material irregularity in the exercise of his jurisdiction in framing an issue necessitating the determination of the dispute

which appears to exist inter se as between the Defendants. The revision in that case was entertained and allowed.

Again in AIR 1967 Punj 389 (FB) Capoor, J. who delivered the judgment on behalf of the Full Bench observed that ""the scheme of the Code of

Civil Procedure, read as a whole seems to negative the legislative intendment that the revisional jurisdiction should not be exercised against

interlocutory orders where an appealable decree can ultimately be passed. u/s 115 of the Code every non-appealable order affecting the decision

of the case is open to challenge in appeal from the final decree. If the legislative intendment is to the said effect, then in no case can the High Court

call for the record pertaining to an interlocutory order or entertain a revision against an interlocutory order end the High Court must withhold its

hands on the simple ground that the order impeached is interlocutory. This legal position is unacceptable for it can be sustained neither on principle

nor on authority. ""From this the proposition deducible is that Section 115, of the Code is to be construed for advancing the cause of justice and in

this manner if there is a material legal infirmity in the order passed by the trial court section 115 can be invoked so as to cover such interlocutory

orders. ""The word 'case' the learned Judge proceeded to observe ""used in Section 115 includes part of the case also and Section 115 is,

therefore, applicable to such interlocutory orders.

The Bilaspur High Court has also pronounced upon this question vide AIR 1953 Bilaspur 33 where it has laid down that ""the decision of the lower

Court in rejecting the Defendant-Petitioner's application for framing the necessary issue is a decision on a substantial question in controversy

between the parties affecting their rights and therefore amounts to a case decided"". The point it seems was also elaborately discussed by their

Lordships of the Supreme Court in Major S.S. Khanna Vs. Brig. F.J. Dillon, . The principle enunciated in the said authority is that the power of the

High Court u/s 115 is exercisable in respect of ""any case"" which has been decided. Their Lordships processed to observe that once it is granted

that the expression ""case"" includes a part of the case there is no escape from the conclusion that the revisional jurisdiction of the High Court may be

exercised irrespective of the question whether an appeal lies from the interim decree or order passed in the suit. Any other view would impute the

legislature an intention to restrict the exercise of this salutary jurisdiction to those comparatively unimportant suits and proceedings in which the

appellate jurisdiction of the High Courts is excluded for the reasons of the public policy.

It would thus appear that the scope of Section 115 is extended even to interlocutory orders in which no appeal lies but where the lower court

has exercised jurisdiction illegally or with material irregularity or has assumed jurisdiction which it has none while passing the impugned order in

which some claim or right is decided. Thus an order passed under Order 14, Rule 5, CPC can be said to be a part of proceeding and a case

decided within the meaning of Section 115 of the Code. It would be pertinent to compare the language employed in Order 14, Rule 5 with Order

6, Rule 17. Almost the same words are used in both the rules. There is ample authority for the proposition that the orders passed under Order 6,

Rule 17 are revisable. There is thus nothing to assume that orders passed under Order 14, Rule 5 are not revisable if they have been passed in

exercise of illegal jurisdiction or if the same has occasioned failure of justice to a party.

Judged from this, it would appear that the present revision petition which has been directed against the interlocutory order passed by the court

below in dismissing an application under Order 14, Rule 5 of the CPC is revisable. Here the grievance of the applicant is that his application for

amendment and recasting of the issues has not been decided on merits. The court below has not considered the pleadings of the parties and has

failed to frame issues in the case in accordance with the averments made in the pleadings. Thus while dismissing the application the court below has

acted with material irregularity in the exercise of its jurisdiction and this has occasioned failure of justice.

I, therefore, overrule the preliminary objection and hold that the revision is competent.

As regards the merits of the revision I find that there is considerable force in the argument of the learned Counsel for the applicant that the issues

framed by the trial court do not deal with the real controversy between the parties and that it is necessary to recast and amend the issues with a

view to determine the material propositions of fact and law at which the parties are at issue. I had the occasion of perusing the pleadings of the

parties. The Plaintiff does not say in his plaint as to how and when and in what character did the Defendant No. 1 come to occupy the suit

property not is it in the plaint that the property was sublet by the Defendant No. 2 to Defendant No. 1 during the continuance of the tenancy of the

Defendant No. 2, in violation of the terms of the original tenancy. Nor has a copy of the judgment of the High Court been attached along with the

plaint so that it could be found out as to what were the precise observations made by the High Court regarding the character of the possession of

the Defendant No. 1 in the judgment inter parties. The Defendant Appellant has, in his written statement, categorically repudiated the title of the

Plaintiff and has in so many words pleaded that the Plaintiff was never in possession of the suit property.

It would appear from the plaint, when read as a whole, that the possession of the Defendant No. 1 over the suit property does not arise from any

contractual obligation. The case of the Plaintiff lies in a narrow compass so far as the plaint is concerned. It would have been well for the trial court

to have examined the parties in elucidation of the pleadings so that the all material propositions of fact could have been brought to light and the

position clarified. But this has not been done. The argument of the learned Counsel for the Plaintiff Respondent that his client could not sue for

possession of the suit property against the Defendant No. 1 during the continuance of the tenancy of the Defendant No. 2 and that the Plaintiff was

constructively holding the property through the Defendant No. 2, is understandable. But even then, the Plaintiff must show as to when and how did

the Defendant No. 1 enter upon the premises and in what character. The Plaintiff (in a suit for possession) has to prove his case independently

against the Defendant No. 1 who has set up a title in himself. In such a situation the Plaintiff must also prove that his possession over the suit

property whether independently or constructively through Defendant No. 2 dated back 12 years from the institution of the suit. If any authority is

meant for the proposition it is AIR 1968 Mys 1 (FB). That was a suit for possession where the Plaintiff had alleged that the Defendant was the

tenant but the Defendant on the other hand had repudiated this allegation and had set up title in himself. Hegde, J. who delivered the judgment on

behalf of the Full Bench, proceeded to observe that the Plaintiff had to prove not only his title in the property but also that he had been in

possession of the property within 12 years next before the institution of the suit. The argument of the Plaintiff in that case that Article 144 of the

Limitation Act was applied to the case was repelled and it was held that the appropriate Article applicable to the case was 142 of the Limitation

Act. There is no necessity for me to quote any other authority in support of the proposition enunciated above.

I would, therefore, allow this revision petition and direct that the trial court to first examine the parties and thereafter recast the issues in the light

of the observations made above.