Jaswinder Kaur And Ors. vs Jatinder Pal Singh Etc.
1995 Latest Caselaw 806 Del

JUDGMENT

Mohd. Shamim, J.

(1) This is an application under Order XLl Rule 19 read with Section 151 of the Cods of Civil Procedure for setting aside the order dated February 10, 1992 passed by the learned predecessor of this Court whereby the revision petition was dismissed. The application is supported by an affidavit.

(2) The facts which gave rise to the presentation of the present application are as under : that the present case was enlisted for hearing on February 10, 1992. The name of the counsel for the petitioner was not shown in the cause list of the said date. However. Shri Ashok Kashyap, counsel for the petitioner] applicant and Shri Raminder Pal Singh, one of the applicants, were present in the High Court on the said date. Shri Ashok Kaishyap, counsel for the petitioner, was on his legs before Hon'ble Mr. Justice Arun Kumar when the case was called out. Shri Raminder Pal Singh who was present in the Court requested some other counsel to request the Court for a pass over. Later on, when Shri Ashok Kashyap came to the Court at 12.20 p.m. he found that the revision petition had already been dismissed in default by the Court. Thus, the absence of Shri Ashok Kashyap was not intentional but due to the fact that he was busy before another Bench. It has thus been prayed that the above order be set aside the petition be restored to its original number.

(3) The respondent have resisted the case of the applicants, inter alia, on the following grounds: that the petitioners got the revision petition dismissed initially with ulterior motives. The dismissal of the petition led to the vacation of the stay order dated February 11, 1992 as a corollary whereof the petitioner No. 5 was in a position to induct his brother Shri Prithipal Singh as a tenant in the portion vacated by Smt. Avtar Kaur on a monthly rent of Rs. 250.00. The aforesaid transaction is Sham and bogus one entered into' with the sole purpose of delaying the disposal of the suit. The petitioners/ applicants have not approached this Court with clean hands and thus this application is liable to be dismissed. The application is false and frivolous. It is liable to be dismissed.

(4) Learned counsel for the applicant Bawa Shiv Charan Singh has contended that there is no Chapter in the Civil Procedure Code dealing with the procedure to be followed in case of a revision petition, hence the Courts will have to fall back on and take recourse to Section 141 of the Code of Civil Procedure. Consequently, the provisions of Order Xli relating to appeals would also mutates mutants apply to the revision petitions. In this connection, the learned counsel has led me through Order Xli Rule 17 of the Code of Civil Procedure on the basis whereof he has contended that the present revision petition should not have been dismissed on merits. Thus, according to the learned counsel the impugned order dated February 10, 1992 passed by the learned predecessor of this Court would be deemed to be simply as an order dismissing the revision petition, in default within the domain of Order Xli Rule 17 of the Code of Civil Procedure. Hence the said order can be set aside under Order Xli Rule 19 of the Code of Civil Procedure.

(5) Learned counsel for the respondent Mr. S. N. Kumar, on the other hand, has contended that a petition of revision is altogether different from an appeal and, as such, the provisions of Order Xli Rule 19 cannot be made applicable to the cases of dismissal in default of the revision petition. Thus, the said provision of law cannot come to the rescue of the petitioners in the instant case. There is no provision of law in the Civil Procedure Code whereunder once a revision petition is dismissed in default can be restored. In the light of the above submissions two very important and interesting points which emerge for the adjudication of this Court are: (A)Whether there is no distinction in between an 'appeal' and 'revision' and as such the same principles are to be made applicable to a revision petition which come into play while disposing of an appeal? (b) Whether the provisions of Order 41 which lay down a procedure for dealing with appeals also govern the procedure which is to be adopted by the Courts while disposing of and dealing with the revision/petitions ?

(6) It is manifest from above that the two questions formulated above are inter-connected. Hence they are being taken up together tor the pin-pose of decision. Since the fate of the present application hinges on the interpretation of provisions relating to the appeals and revisions, the same can be adverted to with profit before proceeding any further in the matter. Section 96 of the Code of Civil Procedure deals with appeals from B original decrees which a' party can prefer before a superior court from the lower court. It envisages a.s under ;- "(1)Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. (2) .......... (3).......... Section 100 of the Code of Civil Procedure deals with second appeals. It is in the following words :- "(l) Save as otherwise expressly provided in the bode of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2).......... (3).......... (4).......... (5) .........."

(7) Order Xli, on the other hand, provides the procedure which a Court of Law has to .adopt while dealing with appeals. I am tempted here to reproduce the provisions of the said Order only to the extent which are necessary for the adjudication of the points in controversy before this Court.

(8) Order Xli Rule 17 lays down : (1) Where on the day fixed, or on any other day to which the hearing may be adjourned. the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. ... Explanation: Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits."

(9) Order Xli Rule 19 lays down. as under -    "WHERE an appeal is dismissed under rule Ii, sub-rule (2), or rule 17 or rule 18, the appellant may apply to the Appellate-Court for the re-admission of the appeal; and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall readmit the appeal on such terms as to costs or otherwise as it thinks fit."  

(10) Section 115 of the Code of Civil Procedure, on the other hand. deals with provisions relating to revisions. It reads as under:-    

 "(1)The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears :-   (A)to have exercised a jurisdiction not vested in it by law. or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregulartiy, the High Court may make such order in the case as it thinks fit. ."    

A close scrutiny of the provisions of the Code Civil Procedure reveals that there is no corresponding .procedure provided for the disposal of the revision petitions as in the case of appeals, alluded to above. It was in the above circumstances that the learned counsel for the petitioners contended that the procedure provided under Order Xli relating to the appeals would have to be -fallowed in the case of revisions also in the absence of any procedure in the Code. To my mind, the learned counsel has construed amiss the provisions of Order XLI. The said procedure as already discussed above is meant to be fallowed in case of appeals and the same can be made applicable to revisions if it is concluded that there is no difference in between the two i.e. an appeal and a revision and they are synonymous and interchangeable terms. However, this is not so. The two i.e. an appeal and a revision are different concepts and have been enacted for different purposes. Their goals are different and they serve different purpose's and operate in different spheres. 251 'Appeal' and 'Revision' are both creations of a Statute. Appeal is a genus and revision is a species thereof. An appeal covers a wider field. A party can approach a superior Court by way of an appeal en a point of law as well as on facts. Once an appeal is dismissed party has got right to prefer a second appeal. However, this is not the case with the revision. The scope of revision is narrower in comparison to an appeal. A party can prefer a revision petition only on the question of law i.e. only in those discerning few cases which have been enumerated in Section 135 of the Code of Civil Procedure i.e. (a) where the lower court has exercised its jurisdiction not vested in it by law (b) where it has failed to exercise the jurisdiction which has vested in it; and (c) where it has acted in the exercise of its jurisdiction illegally or with material irregularity. The provisions of Section 115 of the Code of Civil Procedure are meant for the superintendence ar.d guidance of the lower courts to rectify the error which they are likely to commit while disposing of the cases. With the above end in view the superior courts have also been entrusted with the powers to take cognizance of a matter suo motu in case they conclude from the facts and circumstances of a given case that a lower court has committed an error while exercising its jurisdiction or has failed to exercise its jurisdiction vested in it. However, the High Court under its jurisdiction under Section 115 of the Code of Civil Procedure would not. be justified in interfering with the orders passed by lower courts simply because it would have come to a different conclusion on the facts and circumstances of case from that of the finding of the lower court. Furthermore, the High Court would be reluctant to upset an order passed by the court below even if there is a mistake' in case it comes to the conclusion that substantial justice has been done..

(11) I am supported in my above view by the observations of their Lordships of the Supreme Court as reported in Hari Shankar and others v. Rao Girdhari Lal Chowdhury (AIR 1963 Sc 698)........" (1) The distinction between an appeal and a revision is a real one. A right of appeal carries with it a' right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in same way. as has been done in. second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given I to a superior Court so that it may satisfy itself that a particular case has been decided according to law. Under S. 115 of the Civil Procedure Code the High Court's powers are. limited to see whether in in case decided, there has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise oi that jurisdiction, The right there is confirmed to jurisdiction and jurisdiction alone.

(12) To illustrate the above point, I am. further tempted to cite the observations of a Division Bench of the Punjab and Haryana High Court in T. N. Mahajan v. Janta Steel and Metal Co-op. Industrial Society Ltd. and another, . Unlike the exercise of appellate jurisdiction revisional jurisdiction can be exercised even suo motu. it is precisely for this reason, that an express provision had to be made in Order XLI. Rule 1, enabling the appellate Court to dispense with the copy of the judgment appealed against. In view of the wide ambit and scope of the revisional power, it was not considered necessary to make such a provision in Rule 7 of the Punjab High Court Rules and Orders. There is no express provision in the rules which debars a Court of revision to dispense with the " reduction of the copy of the order or judgment sought to be revised."

(13) HON'BLE Mr. Justice I. D. Dua of Delhi High Court (as he then was), has opined in Sham Mohan Lal v. Jai Gopal and another, . It is true that this Court has full power to treat an appeal as a revision and a revision as an appeal when there is no statutory or other impediment in the way and when the interests of justice demand it. It, however, must not he forgotten that interference on revision has an element of discretion and even though there may be some legal infirmity in the order of the Court below. this Court may appropriately decline interference if it comes to the conclusion that the impugned order is substantially just and the exercise of the revisional powers is not called for in the larger interests of substantial justice."

(14) The upshot of the above discussion is that appeal stands on a' different footing from 'revision'. Appeal operates in a different domain whereas the revisional jurisdiction of superior Court gets operational under a different set of circumstances. I thus conclude from above that the provisions of Order Xli are not attracted to the facts and circumstances of the present case.

(15) Now, the most crucial question which is hovering on the tip of the tongue is as to whether the present applicant is bereft of any remedy and there is no panacea for the malady which he is suffering from ? "Laws are response of the men to the problems which they face in their day to day lives in order to enable them to lead a peaceful and orderly life. They are ment to meet each -and every situation which a party faces luring the course of the litigation: and no party should suffer on account of certain circumstances which upsurge and are beyond his control. It is to meet such situations that legislators in their wisdom enacted Section 151 of the Code of Civil Procedure which deals with the inherent powers of the Court. Thus, a Court under Section 151 of the Code of Civil Procedure can set aside an order and restore the revision petition to its file which has been dismissed in the absence of a party without any order on merits."

(16) A case very much akin to the case in hand came up for heating before their Lordships of the Supreme Court as reported in Savithri Amma Seethamma v. Aratha Karthy and others, .'(4) Their Lordships while disposing of the said appeal observed as under :- "NOW it is obvious that the appellant could not. appear at the hearing of the revision application preferred by the first respondent because the Advocate engaged by him was occupied in another Court and this fact was staled by the learned Advocate in the affidavit made by him in support of the application for rehearing. We are, therefore, of the view that on the facts and circumstances of the present case. the appellant had sufficient cause for not being present at the hearing of the revision application and the learned single Judge of the High Court ought in the circumstances, to have allowed the application and re-heard the civil revision petition applying the principle underlying Order Xli Rule 21 of the Code of Civil Procedure. We accordingly allow the appeal, set aside the orders dated 30th March, 1982 and 22nd June, 1982 passed by the learned single Judge of the High Court and remit the C.R.P. No. 766 of 1981 to the High Court for disposal on merits in accordance with law. . . . . ."

(17) To the same effect are the observations of a Division Bench of Na.spiir High Court as reported in Dhondiba Appasaheb and another v. Wasudeo Anant Sherlekar and another, (AIR 1957 Nagpur 83) (5) ........"A revision petition dismissed tor default of appearance can be restored by the High Court in exercise of its inherent jurisdiction under S. 151."' Same view was also given vent to in Kanshi Ram v. Mst. Dharmi. . (6)

(18) With the above background let us now see as to whether the impugned order can be set aside ?

(19) The case of the petitioners is that the name of their counsel was not shown in the cause list of the date i.e. February 10, 1992 on which date the petition was dismissed, "the aforesaid averment has not been refuted in the reply by the opposite party. Hence it would be deemed to be correct.

(20) It has next been urged that the counsel for the petitioners Mr. Ashok Kashyap was busy on that date in the court of Hon'ble Mr. Justice Arun Kumar when the case was celled out and as such. he was unable to respond to the calls. This has also neither been disputed not challenged. Thus it remains un-rebutted. In view of the above, I conclude that the absence of the counsel for the petitioners has been sufficiently explained.

(21) One of the factors which weighed with the Court while dismissing the revision petition was that the petitioners have failed to place on record the power of attorney of their learned counsel. Bawa Shiv Charan Singh, learned counsel for the petitioners, in connection therewith has led me through a note given at the bottom of the memo of parties to the effect that the power of attorney is on the file of the lower court. I thus think that the said fact wa.s not brought to the notice of the Court at the time of the impugned dismissal. I am thus of the view that the dismissal order was passed inadvertently on the said score.

(22) The second point which the Court took into consideration while dismissing the revision petition was the failure of .the petitioners to. file the certified copy of the impugned order passed by the court below within the time allowed. Now, the question which arises is as to whether the revision petition could have been dismissed oil the said score ? My answer to the said question is an emphatic 'no'. It has already been held above that the provisions of Order 41 of the Code of Civil Procedure relating to appeals are confined in their application to appeals only. They are not attracted in case of revision petitions. Thus I feel that there is no provision in the Civil Procedure Code which makes it obligatory on a party who approaches the Court under Section 115 for redressal of the grievances to file a certified copy of the impugned order before hearing the revision petition. In any case. the Court can always dispense with the same. However, the Courts in a particular set of circumstances and when they think, that for certain reasons it is necessary may direct the petitioner to file a certified copy of the impugned order to go through the same and in order to facilitate the disposal of the case. Furthermore, a perusal of the impugned order reveals that the certified true copy of the order was filed but ret within the time allowed by the Court.

(23) In the circumstances stated above, I conclude that the dismissal of the revision petition in the above circumstances was a punishment out of all proportions. The application is thus allowed on payment of Rs. 2000.00 as costs to the opposite party, Consequently, the order dated February 10, 1992 dismissing the revision petition is set aside and the revision petition is restored to its original number.