Bombay High Court
Mehar Tabassum W/O Ashfaque Ahemad Thr. ... vs Mohd. Yunus Sk. Budhan And Others on 22 July, 2025
2025:BHC-NAG:7037
1 cra.121.24-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CIVIL REVISION APPLICATION NO. 121 OF 2024
Mehar Tabassum w/o. Ashfaque Ahemad,
Aged about 63 years, Occupation: Agriculturist,
through her power of attorney holder namely
Mohd. Ashfaque Ahmad Mohd. Abdul Qadar,
Aged about 64 years, Occupation : Retired, ... APPLICANT
R/o. Washim By-pass Road, Near Hussaini (Ori. Defendant)
Madarsa, Akola, Tah. and Dist. Akola.
...VERSUS...
1. Mohd. Yunus Sk. Budhan,
Aged about 40 years,
Occupation : Agriculturist and Businessman,
R/o. Firdos Colony, Near Malipura, Akola,
Tah. and Dist. Akola.
2. Sameer S/o. Dadarao Patil,
Aged about 39 years,
Occupation : Legal Practitioner,
R/o. Amankhan Plots, Near Khandelwal City Scan
Centre, Akola, Tah. and Dist. Akola.
3. Mohd. Jawed Mohd. Qumar,
Aged about 40 years, Occupation : Businessman,
R/o. Jai Hind Chowk, Near Masjid, Old City, ...NON-APPLICANTS
Akola, Tah. and Dist. Akola. (Ori. Plaintiffs)
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Mr. N. B. Kalwaghe, Advocate for the Applicant.
Dr. Renuka Sangram Sirpurkar a/w. Mr. K. R. Giripunje, Advocate for
Non-applicants.
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CORAM : MRS. VRUSHALI V. JOSHI, J.
JUDGMENT RESERVED ON : 16.07.2025
JUDGMENT PRONOUNCED ON : 22.07.2025
JUDGMENT :
1. Rule. Rule is made returnable forthwith. Heard finally by
consent of learned Counsel appearing for the parties.
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2. The applicant has challenged the order dated 27.03.2024
passed by 5th Jt. Civil Judge Senior Division, Akola thereby allowing the
application filed by the non-applicants for restoration of the Civil Suit.
3. The facts in brief are as under :
The non-applicants have filed a civil suit for specific
performance of contract and alternatively for refund of earnest money.
Special Civil Suit No.2/2020 was pending before the Trial Court for
evidence. As the non-applicants failed to lead the evidence, on
14.10.2022, the Trial Court has adjourned the matter as a last chance,
otherwise, the matter would be disposed of for want of prosecution. On
19.10.2022, the non-applicants failed to appear and lead the evidence.
On that day, the Court has passed the order and dismissed the suit for
want of prosecution. Thereafter, the non-applicants have filed
application under Order 9 Rule 9 of the Code of Civil Procedure for
restoration of civil suit. In said matter, the notices were issued, the said
application was proceeded ex parte. The Counsel for the applicant was
not aware about it. The ex parte order was passed on 10.01.2023. After
the said order, on 12.01.2023, the non-applicants have withdrawn said
application and on 12.01.2023, the said application was disposed of as
withdrawn. Another application bearing M.J.C. No.768/2023 was filed
by the non-applicants thereby giving different reasons for non-
appearance in the proceedings. The said application was contested by
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the applicant. At that time, the non-applicant was aware about pendency
of the earlier application and withdrawal of said application. Said fact
was concealed by the non-applicants and the Trial Court has allowed the
application. As the Court has passed the order and restored the
application, the applicant has filed this revision application.
4. The learned Counsel for the applicant has stated that,
though earlier application was pending, another application was filed by
giving totally different reasons for restoration. In second application, the
non-applicants have stated that there was a settlement between the
parties and due to medical problem of non-applicant No.3, they failed to
appear before the Court. Considering the reasons given by the non-
applicants, the application was restored.
5. The learned Counsel for the applicant has stated that though
the order was obtained by the non-applicants by suppressing the fact
about filing of the earlier application and withdrawal of it, the restoration
application was allowed. Challenging the said order, the applicant has
filed this application.
6. The non-applicants have opposed the application and denied
the contents of the application. Though the non-applicants have denied
about suppression of the fact of the earlier application, the non-applicants
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have admitted that during the pendency of the earlier application, the
another application for restoration was filed and, therefore, the earlier
application was withdrawn. At that time, the non-applicants were
contesting the said application. The applicant has not raised any
objection about earlier application. The non-applicants in this case have
challenged maintainability of Civil Revision Application against the said
order. The preliminary objection was raised about the maintainability of
the present Civil Application.
7. The learned Counsel for the applicant has stated that as per
the provisions of Section 115 of the C.P.C., the revisional jurisdiction of
this Court is limited to three specific contingencies. (i) when the
subordinate Court has exercised a jurisdiction not vested in it by law, or
(ii) when a subordinate Court has failed to exercise a jurisdiction i.e.
lawfully vested in it and (iii) when subordinate Court while exercising of
its jurisdiction has acted illegally or with material irregularities. None of
the aforementioned contingencies arise in the present case so as to
warrant invocation of revisional jurisdiction by this Court. It will not
cause grave prejudice to the non-applicants but would also result in an
undue enrichment to the applicant contrary to the principles of equity,
justice and good conscience. Hence, prayed to reject the application.
8. Heard both the learned Counsel for the parties.
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9. The preliminary objection is raised by the non-applicants
about the maintainability of the Civil Revision Application. The order is
challenged on the ground that there is suppression of material fact and
the non-applicants have played fraud on the Court. To challenge the
order on this ground, the alternate remedy i.e. review is available to the
non-applicants. On perusal of the order, it appears that there is no any
jurisdictional error. Though the earlier application was filed, summons
were issued to the applicant and ex parte order was passed against the
applicant, the applicant remain absent before the Court.
10. The learned Counsel for the non-applicant has relied on the
judgment of the Hon'ble Apex Court in the matter of Pandurang Dhoni
Chougule Vs. Maruti Hari Jadhav [Civil Appeal No.163/1963], wherein
it is held in paragraph Nos.11 and 12 as under :
"11. The provisions of s.115 of the Code have been
examined by judicial decisions on several occasions. While
exercising its jurisdiction under s. 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
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which concerns the jurisdiction of the court which tries the
proceedings.
A finding on these plea 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 of s. 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 s.
115.
12........ Sometimes, however, no such specific provision is
made, and the questions raised in regard to the construction
of the provisions of such a statute reach the High Court
under its general revisional jurisdiction under s. 115 of the
Code. In this class of cases, the revisional jurisdiction of the
High Court has to be exercised in accordance with the limits
prescribed bu the said section. It is true that in order to
afford guidance to subordinate courts and to avoid
confusion in the administration of the specific law in
question, important questions relating to the construction of
the operative provisions contained to such an Act must be
finally determined by the High Court; but in doing so, the
High Court must enquire whether a complaint made against
the decision of the subordinate court on the ground that it
has misconstrued the relevant provisions of the statute,
attracts the provisions of s. 115. Does the alleged
misconstruction of the statutory provision have relation to
the erroneous assumption of jurisdiction, or the erroneous
failure to exercise jurisdiction, or the exercise of jurisdiction
illegally or with material irregularity by the subordinate
court ? These are the tests laid down by s. 115 of the Code
and they have to be borne in mind before the High Court
decides to exercise its revisional jurisdiction under it."
11. This Court has observed that the errors committed by the
Subordinate Court in deciding question of law which have relation to, or
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are concerned with, questions of jurisdiction of the said Court, and errors
of law have no such relation. It is observed by the Hon'ble Apex Court
that an attempt to define this position with precision or to deal with it
exhaustively may create unnecessary difficulties. It is clear that in actual
practice, it would not be difficult to distinguish between cases where
errors of law affect, or have relation to the jurisdiction of the Court
concerned, and where they do not have such a relation. In Ratilal
Balabhai Nazar Vs. Ranchhodbhai Shankarbhai Patel and Ors.
[MANU/SC/0393/1965] in exercise of jurisdiction under Section 115, it
is observed by the Hon'ble Apex Court in paragraph 3 as under :
3. ......Prima facie the decision of this Court supports the
contention of the appellant; but even so, we are constrained to
hold that the High Court was not, in the exercise of its
jurisdiction under Section 115, Code of Civil Procedure which
was invoked by the appellant, competent to interfere and that the
limitations placed upon the powers of the High Court under that
section would also circumscribe the power of this Court to
interfere under Article 136of the Constitution. No doubt, by an
erroneous construction of the relevant provisions the Principal
Judge of the City Civil Court granted relief of possession to the
respondent to which he would not have been entitled had the
provision been rightly construed. Even so, as observed by this
Court in Abbasbhai v. Gulamnabi, an erroneous construction
placed upon the relevant provision would not furnish a ground
for interference under Section 115 of the Code. It may be
mentioned that in that case also the question was about the
construction of Section 12(3)(b) of this very Act, and an
argument similar to the one advanced before us was addressed in
it. Rejecting that argument this Court observed:
"The District Court on an erroneous view of Section
12(3)(b) held that the requirements of that provision were
complied with by the defendant, but it also held that
having regard to the circumstances the readiness and
willingness contemplated by Sub-section (1) was otherwise
established. The High Court had, in exercise of its powers
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under Section 115, Code of Civil Procedure, no authority
to set aside the order merely because it was of the opinion
that the judgment of the District Court was assailable on
the ground of error of fact or even of law. Jurisdiction to
try the suit was conferred upon the Subordinate Judge by
Section 28(1)(b) of the Act, and the decree or order passed
by the Subordinate Judge was by Section 29(1)(b) subject
to appeal to the District Court of the District in which he
functioned; but all further appeals were by Sub-section (2)
of Section 29 prohibited. The power of the High Court
under Section 115, Code of Civil Procedure was not
thereby excluded, but the exercise of that power is by the
terms of the statute investing it severely restricted."
After referring to the decision of the Privy Council in Balakrishna
Udayar v. Vasudeva Aiyar, 44 Ind App 261: AIR 1917 PC 71, and
quoting a portion therefrom this Court observed:
"Therefore, if the Trial Court had jurisdiction to decide a
question before it and did decide it, whether it decided it
rightly or wrongly, the Court had jurisdiction to decide the
case and even if it decided the question wrongly, it did not
exercise its jurisdiction illegally or with material
irregularity."
On behalf of the plaintiff in that case Mr. Chatterjee relying upon
the decision in Joy Chand Lal v. Kamalaksha Chaudhury, 76 Ind
App 131: had contended that the District Court in declining to
pass a decree in ejectment refused to exercise a jurisdiction
vested in it by law and, therefore, the case fell within the terms of
Clause (b) of Section 115, C. P. C. This contention was negatived
by the Court after citing the following passage from the opinion
of Sir John Beaumont in that case. The passage runs thus:
"There have been a very large number of decisions of
Indian High Courts on Section 115 to many of which their
Lordships have referred. Some of such decisions prompt
the observation that High Courts have not always
appreciated that although error in a decision of a
subordinate court does not by itself involve that the
subordinate court has acted illegally or with material
irregularity so as to justify interference in revision under
Sub-section (c), nevertheless, if the erroneous decision
results in the Subordinate Court exercising a jurisdiction
9 cra.121.24-J.odt
not vested in it by law, or failing to exercise a jurisdiction
so vested, a case for revision arises under Sub-section (a)
or Sub-section (b), and Sub-section (c) can be ignored."
This Court then observed that the Privy Council had distinguished
between cases in which on a wrong decision the Court assumes
jurisdiction which is not vested in it or refuses to exercise
jurisdiction which is vested in it b y law and those in which in
exercise of its jurisdiction the Court arrives at a conclusion
erroneous in law or in fact, and that while in the former class of
cases exercise of revisional jurisdiction by the High Court is
permissible it is not permissible in the latter class of cases."
12. The learned Counsel for the applicant has stated that
suppression of the material before the Trial Court resulted in material
irregularities, if appeal is not provided to challenge the order, then,
revision is maintainable. The applicant has relied on the judgment of the
Hon'ble Apex Court in the case of Union of India and Ors. Vs. Ramesh
Gandhi reported in (2012) 1 SCC 476, wherein it is observed in
paragraph 27 as under :
"27. If a judgment obtained by playing fraud on the Court is a
nullity and is to be treated as non est by every court, superior or
inferior, it would be strange logic to hear that an enquiry into the
question whether a judgment was secured by playing fraud on
the court by not disclosing the necessary facts relevant for the
adjudication of the controversy before the court is impermissible.
From the above judgments, it is clear that such an examination is
permissible. Such a principle is required to be applied with
greater emphasis in the realm of public law jurisdiction as the
mischief resulting from such fraud has larger dimension affecting
the larger public interest."
13. It is revealed from the record that in earlier application, the
summons were issued, it was proceeded ex parte. The applicant has not
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taken any action, then it acts as of waiver. The applicant has not brought
it to the notice of the Court. As the review is the remedy available to the
applicant and it does not come under the purview of Section 115 of the
C.P.C. Hence, the application is rejected.
Rule is discharged.
(MRS. VRUSHALI V. JOSHI, J.)
RGurnule
Signed by: Mrs. R.M. MANDADE
Designation: PA To Honourable Judge
Date: 22/07/2025 18:00:24
