Bombay High Court
Nilkanthrao S/O Bhujangrao ... vs Kausalyabai Janrao Deshmukh And ... on 6 June, 2022
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CIVIL REVISION APPLICATION NO. 108 OF 2017
Nilkanthrao s/o Bhujangrao Deshmukh -- Applicant
Vs.
Kausalyabai Janrao Deshmukh and others -- Non-applicants
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. R.G. Kavimandan, Advocate for Applicant
Mr. V.B. Bhise, Advocate for Non-applicant Nos.1,2, 4 & 5
CORAM : MANISH PITALE, J.
DATE : 06th JUNE, 2022
By this Revision Application, the original plaintiff
before this Court has challenged judgment and order dated
01/02/2017, passed by the Court of Civil Judge, Junior
Division, Akot, whereby a suit filed by the applicant under
Section 6 of the Specific Relief Act, 1963, stood dismissed.
2. It was the case of the applicant that he was in
possession of the suit property and that in May / June, 2005,
he stood illegally dispossessed at the hands of the non-
applicants i.e. original defendants. It was claimed that on
07/06/2005, a First Information Report (FIR) was registered
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at the behest of the applicant, wherein an incident of assault
on the photographer deputed by the applicant was recorded.
It was submitted that there were sufficient pleadings in the
plaint, read with the plaint map and other documents on
record to indicate that the applicant was indeed in possession
of the suit property and that he was illegally dispossessed
therefrom in May / June, 2005.
3. The non-applicants disputed the claim made on behalf
of the applicant and it was contended that they had been in
possession of the suit property on the basis of their claim to
the suit property through their ancestors. The parties led
oral and documentary evidence in support of their respective
stands.
4. By the impugned judgment and order dated
01/02/2017, the Court below came to a conclusion that the
applicant had failed to satisfy the requirements of Section 6
of the aforesaid Act and that no case was made out for
granting any relief to the applicant.
5. The applicant filed the present Revision Application,
wherein notice was issued for final disposal and record and
proceedings were called.
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6. Mr. Kavimandan, learned counsel appearing for the
applicant extensively referred to the findings rendered in the
impugned judgment and order, in the context of oral and
documentary evidence available on record along with the
pleadings. It was claimed that a proper appreciation of the
material on record would indicate that the findings rendered
by the Court below were perverse and in the teeth of the
evidence available on record. It was submitted that the
applicant had not only pleaded about having been in
possession of the suit property and thereafter being illegally
dispossessed by the defendants within six months of the
filing of the suit, but sufficient evidence was also placed on
record to support such claim made on behalf of the applicant.
7. It was submitted that although the jurisdiction of this
Court under Section 115 of the Code of Civil Procedure
(CPC) is indeed limited, the applicant had indeed made out
a case for interference in the impugned judgment and order.
Specific reliance was placed on the judgments of the Hon'ble
Supreme Court in the cases of Yunus Ali (Dead) through his
L.Rs. Vs. Khursheed Akram, 2008(7) SCC 293 and
Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh,
2014 (9) SCC 78.
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8. On the other hand, Mr. V.B. Bhise, learned counsel
appearing for the contesting non-applicants submitted that a
proper and reasonable view had been taken by the Court
below on the basis of pleadings, evidence and material on
record. It was submitted that the findings could not be said
to be perverse as claimed on behalf of the applicant. The
learned counsel further submitted that while exercising
jurisdiction under Section 115 of CPC, this Court ought not
to interfere, even if the Court below had erred in its decision
on a question of fact or law, which had no relation to the
question of jurisdiction of that Court. It was submitted that
considering the restricted jurisdiction available under
Section 115 of CPC, no case was made out by the applicant
for interference in the impugned judgment and order.
9. The learned counsel for the contesting non-applicants
relied upon the judgments of the Hon'ble Supreme Court in
the cases of Major S.S. Khanna Vs. Brig. F.J. Dillon, AIR
1964 SCC 497; Sher Singh (dead) by Lrs Vs. Joint Director
of Consolidation and others (1978) 3 172 and Sanjay Kumar
Pandey and others Vs. Gulbahar Sheikh and others (2004) 4
SCC 664.
10. In order to appreciate the rival contentions, it would be
necessary to appreciate the position of law as regards the
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extent of jurisdiction available to this Court under Section
115 of CPC. As far back in the year 1964, the Hon'ble
Supreme Court in the case of Major S.S. Khanna Vs. Brig.
F.J. Dillon (supra), held that the power under Section 115 of
CPC available to this Court is limited to keep the
Subordinate Courts within the bounds of their jurisdiction.
It is held that the aforesaid power is also not a full power
akin to certiorari and that interference would be warranted
only if a question of jurisdiction arises in the matter and this
Court would be justified in refusing to exercise jurisdiction
where merely a factual error is sought to be made out, as long
as the view adopted by the Subordinate Court is a possible
view.
11. In the case of Sher Singh (dead) by Lrs Vs. Joint
Director of Consolidation (supra), the Hon'ble Supreme
Court in the context of Section 115 of CPC held as follows :
"The position that emerges from these decisions is
that section 115 of the Code of Civil Procedure
empowers the High Court to satisfy itself on three
matters : (a) that the order of the subordinate
court is within its jurisdiction;
(b) that the case is one in which the court ought to
have exercised jurisdiction; and failed to do so (c)
that in exercising jurisdiction the Court has not
acted illegally, that is, in breach of some provisions
of law, or with material irregularity by committing
some error of procedure in the course of the trial
which is material in that it may have affected the)
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ultimate decision. And if the High Court is
satisfied that there is no error in regard to any of
these three matters, it has no power to interfere
merely because it differs from the conclusions of
the subordinate court on questions of fact or law.
A distinction must be drawn between the errors
committed by subordinate courts in deciding
question of law which have relation to, or are
concerned with, questions of jurisdiction of the
said courts, and errors of law which have no such
relation or connection. An erroneous decision on a
question of fact or of law reached by the
subordinate court which has no relation to
question of jurisdiction of that court, cannot be
corrected by the High Court under Section 115".
12. The said position was further clarified by the Hon'ble
Supreme Court in the case of Sanjay Kumar Pandey and
others Vs. Gulbahar Sheikh and others (supra) as follows :
"A suit under Section 6 of the Act is often called a
summary suit inasmuch as the enquiry in the suit
under Section 6 is confined to finding out the
possession and dispossession within a period of
six months from the date of the institution of the
suit ignoring the question of title. Sub-Section (3)
of Section 6 provides that no appeal shall lie from
any order or decree passed in any suit instituted
under this Section. No review of any such order
or decree is permitted. The remedy of a person
unsuccessful in a suit under Section 6 of the Act is
to file a regular suit establishing his title to the suit
property and in the event of his succeeding he
will be entitled to recover possession of the
property notwithstanding the adverse decision
under Section 6 of the Act. Thus, as against a
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decision under Section 6 of the Act, the remedy
of unsuccessful party is to file a suit based on title.
The remedy of filing a revision is available but
that is only by way of an exception; for the High
Court would not interfere with a decree or order
under Section 6 of the Act except on a case for
interference being made out within the well
settled parameters of the exercise of revisional
jurisdiction under Section 115 of the Code."
13. The aforesaid view in the case of Sanjay Kumar Pandey
and others Vs. Gulbahar Sheikh and others (supra), was
specifically rendered by the Hon'ble Supreme Court in the
context of the suit filed under Section 6 of the Specific Relief
Act.
14. Thus, it becomes clear that interference in an order
while exercising revisional jurisdiction under Section 115 of
CPC, would not be justified even if there is an error on a
question of fact or law so long it has no relation to question
of jurisdiction of that Court.
15. There cannot be any quarrel with the proposition
relied upon on behalf of the applicant that in the case of
perversity of findings, this Court could be justified in
exercising power under Section 115 of CPC. To that extent
reliance placed on the judgments in the cases of Yunus Ali
(Dead) through his L.Rs. Vs. Khursheed Akram and
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Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh,
(supra) can be justified. The learned counsel for the
applicant also sought to rely upon the judgment in the case
of S.F. Engineer Vs. Metal Box India Ltd. And Anr. 2014 (6)
SCC 780, for the very same proposition.
16. Thus, it becomes clear from the position of law
clarified by the Hon'ble Supreme Court in the context of
Section 115 of CPC that orders of the subordinate Courts can
be interfered with only if an error of jurisdiction is pointed
or there is perversity in the findings rendered by the Court
below.
17. Thus, it becomes clear that the applicant before this
Court has to satisfy a stringent test for successfully invoking
jurisdiction of this Court under Section 115 of CPC.
18. Applying the aforesaid stringent standards to the facts
of the present case, this Court is of the opinion that the
applicant has failed to make out a case for interference. A
perusal of the impugned judgment and order shows that
there is no question of any error of jurisdiction by the Court
below. In fact, the Court below was clearly aware of the
parameters in which jurisdiction was to be exercised under
Section 6 of the aforesaid Act. After quoting the aforesaid
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provision in paragraph 19, the Court below has correctly
enumerated the factors necessary to be proved for the
plaintiff to claim relief under Section 6 of the aforesaid Act.
Thereafter, the Court below has extensively considered the
pleadings, as also the oral and documentary evidence on
record.
19. On the basis of appreciation of the material on record,
the Court below has found that the applicant i.e. the original
plaintiff has failed to successfully prove the exact portion
which was in his possession and from which he was allegedly
dispossessed in May / June, 2005. The pleadings, as also the
oral and documentary evidence and the plaint map were
taken into consideration to reach conclusions against the
applicant. The conclusions reached by the Court below can
be said to be a possible view in the matter.
20. The applicant has not been able to demonstrate how
the findings rendered by the Court below could be said to be
perverse or that the findings could be said to be in the teeth
of material available on record.
21. So long as the view adopted by the Court below on the
basis of material available on record can be said to be a
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reasonable and possible view, it cannot be said that a case is
made out for interference under revisional jurisdiction.
22. In that view of the matter, the Revision Application is
dismissed.
JUDGE
Digitally signed by:MILIND
P DESHPANDE
Signing Date:08.06.2022
18:28
MP Deshpande
