Allahabad High Court
Bishun Lal And Another vs Additional District & Sessions ... on 23 August, 2012
Bench: Saeed-Uz-Zaman Siddiqi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 8
Case :- CIVIL REVISION No. - 76 of 2012
Petitioner :- Bishun Lal And Another
Respondent :- Additional District & Sessions Judge Court..4 Lko. & Another
Petitioner Counsel :- A.K.Kushwaha
Hon'ble Saeed-Uz-Zaman Siddiqi,J.
Heard learned counsel for the revisionists and perused the records.
This revision petition has been preferred under Section 115 of the Code of Civil Procedure against the order dated 28.05.2012 passed by Additional District Judge, Court No.4, Lucknow in regular civil appeal no.162 of 2009.
Brief facts, giving rise to this revision, are that R.S. No.493 of 2004 was dismissed by learned Civil Judge (J.D.) Court no.34, Lucknow. Plaintiff preferred a regular civil appeal. During the pendency of appeal, learned Appellate Court allowed application for amendment Paper No.A-16 which has been challenged by the defendants through this revision petition.
A perusal of the judgment of the learned Trial Court shows that a family partition was claimed and adjudicated upon by the learned Trial Court and the suit was dismissed on the ground that the plaintiff has failed to prove specific portion and its location and area and, as such, the discretionary relief of permanent injunction was refused on the ground that no permanent injunction can be issued regarding piece of land which is not fixed. In view of this averment in the judgment, the appellants moved amendment application by which they have sought for to delete para 2 of plaint and, incorporate, in its place amended para 2, 2-A and 2-B by which the plaintiff has sought for to describe the disputed property and certain facts regarding construction, which are necessary for the determination of real controversy, finally, between the parties.
Learned counsel for the revisionists relied upon the law laid down by this Court in Ajay Nigam and another v. Km. Asha Nigam reported in 2010 (82) ALR 69]and Gulam Ghaus v. Smt. Fatima Bibi reported in 2010 (83) ALR 292. These authorities might have been considered by the learned Appellate Court which has allowed the amendment application.
As far as the powers conferred upon this Court under Section 115 of Code of Civil Procedure, the law has been settled by the Hon'ble Apex Court in Pandurang Dhondi Chougule and others v. Maruti Hari Jadhav and others, reported in (1966) 1 SCR 102 : AIR 1966 SC 153 in which the Hon'ble Apex Court has held as under:-
"The provisions of Section 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross they may, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As clauses (a), (b) and (c) of s. 115 indicate, it is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction. It is well-settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the Jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview ofSection 115 of the Code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court, cannot be corrected by the High Court under Section 115."
In Shiv Shakti Cooperative Housing Society, Nagpur v. Swaraj Developers and others, reported in (2003) 6 SCC 659, the Hon'ble Supreme Court has held as under:-
"If the impugned order is interim in nature or does not finally decide the lis, the revision under Section 115 will not be maintainable. The legislative intent is crystal clear."
It was further held:-
"Right of appeal is statutory. Right of appeal inherits in no one. When conferred by statute it becomes a vested right. In this regard there is essential distinction between right of appeal and right of suit. Where there is inherent right in every person to file a suit and for its maintainability it requires no authority of law, appeal requires so. As was observed in The State of Kerala v. K.M. Charia Abdulla and Co. (AIR 1965 SC 1585), the distinction between right of appeal and revision is based on differences implicit in the two expressions. An appeal is continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to statutory limitations prescribed. But in the case of revision, whatever powers the revisional authority may or may not have, it has no power to review the evidence, unless the statute expressly confers on it that power. It was noted by the four-Judges Bench in Hari Shankar and others vs. Rao Girdhari Lal Chowdhury (AIR 1963 SC 698) that the distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of re-hearing on law as well as fact, unless the statute conferring the right of appeal limits the re-hearing in some way, as has been done in second appeals arising under the Code. The power of hearing revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law. Reference was made to Section 115 of the Code to hold that the High Court's powers under the said provision are limited to certain particular categories of cases. The right there is confined to jurisdiction and jurisdiction alone."
In view of law as discussed above, the learned Trial Court has exercised its jurisdiction, vested in it by law. Moreover, after allowing of the application of amendment all the disputes between the parties shall be adjudicated upon finally and multiplicity of litigation shall be avoided, which is to be borne in mind while administering law. By the impugned order the learned Trial Court has not finally decided the list nor any party has been ousted and, as such, even an erroneous decision cannot be corrected in exercise of powers conferred upon this Court under Section 115 of C.P.C. In exercise of such jurisdiction neither the High Court nor Revisional Court is required to be too astute to interfere with exercise of jurisdiction by the learned Trial Court at interlocutory stages. This Court is cautious enough to make a distinction between review, revision and appeal which have their specific arena. While dealing with the revision, the Revisional Court cannot function as an Appellate Court so as to travel beyond the scope of Section 115 of the Code of Civil Procedure.
With these observations, revision petition is dismissed.
Order Date :- 22.8.2012
Ram.
