Varma Leather Factory And Tannery ... vs S.N. Varma And Anr.
2004 Latest Caselaw 798 Del

JUDGMENT

O.P. Dwivedi, J.

1. On 11.12.87, the appellant herein, who was plaintiff in the suit No. 886/87, instituted the suit for permanent and mandatory injunction. It was claimed in the suit that plaintiff/appellant herein is tenant in respect of property No. 1426, Kashmere Gate under Sh. Brij Narayan Khanna . S.N.Verma respondent No.1 who was defendant No.1 in the suit is the real brother of R.N.Verma, the Managing Director of the plaintiff company. Defendant No.1 S.N. Verma who is Advocate by profession had his office in a portion of the suit property as licensee of the plaintiff in the portion marked A and B as shown in the plan attached with the plaint. Defendant No.1 expressed desire to vacate the said portion as it did not suit his professional requirement. The plaintiff thereupon demanded vacant possession but the defendant No.1 instead of handing over possession to the plaintiff, is trying to transfer the possession to defendant No.2 illegally on receiving a huge pagree amount. It was alleged in the plaint that defendant No.1 has absolutely no right title and interest in the property to transfer possession to defendant No.2 or anybody else. On these allegations plaintiff filed the suit seeking permanent injunction restraining defendant No.1 from handing over illegal possession of the said portion to defendant No.2. A decree for mandatory injunction was also sought directing defendant No.1 to remove his goods from the said portion and hand over vacant peaceful possession to the plaintiff. It appears from the record that both the defendants were proceeded ex parte. Ex parte evidence was recorded on 22.4.1991. Arguments were heard on 28.5.91 and when the case was posted for orders on 10.7.91, the learned Sub-Judge noticed that in the garb of mandatory injunction , the plaintiff is actually seeking relief of possession of the said property. Therefore, on 10.7.91, learned Sub-Judge passed the following order :-

" 10.7.91. Present Counsel for the plaintiff.

The case was fixed for Ex-parte judgment. From the perusal of the file it is revealed that the plaintiff has sought two relief one for permanent injunction and the other for mandatory injunction. The plaintiff has paid Court fees of Rs.26/- for these two reliefs. The relief of mandatory injunction is not relief for mandatory injunction simpliciter but the plaintiff has sought possession of property No. 1426, Kashmiri Gate, Delhi. So the plaintiff must pay court fees for the relief on the basis of market value of the property. Let the plaintiff assess the value of the property and then pay the court fee thereon. Put up on 1.8.1991 for further proceedings."

2. On 1.8.91 none appeared for the parties so the case was adjourned to 2.9.91. It appears that case was adjourned on many subsequent dates without any progress. In the meantime, Presiding Officer was changed. On 23.4.92 arguments were heard and an ex parte judgment was announced by Smt. Kamlesh Shabharwal, Civil Sub-Judge on 7.5.92. The suit of the plaintiff was decreed. Then in execution proceedings plaintiff/ DH took possession of the property in question by executing warrant of possession. The defendants/ JDs on coming to know of the decree, filed an application under O. 9 Rule 13 CPC for setting aside the ex parte decree. When the said application was still pending, the defendants filed another application under sections 151/152 and 153 CPC dated 3.7.95 for setting aside ex parte decree dated 7.5.92 on the ground that the same has been obtained by fraud in as much as the earlier order dated 10.7.91whereby the plaintiff was directed to assess the market value of the property and pay Court fee accordingly, was not complied with and this fact was withheld from the Presiding Officer who passed the impugned ex parte decree. The application under sections 151/152 and 153 was opposed and after considering the respective submissions of the learned counsel for the parties, learned Civil Judge Ms. Nivedita Anil Sharma passed a detailed order dated 4.1.96 holding that ex parte decree dated 7.5.92 has been obtained by suppression of the facts and ignorance of the earlier order dated 10.7.91and the Court is competent rather obliged to correct its mistake so that nobody suffers from mistake of the Court. Accordingly, learned Civil Judge allowed the application and set aside the ex parte decree dated 7.5.92 and rejected the plaint for non-compliance of order dated 10.7.91. Simultaneously the Court also ordered that the possession of the property in question be restored to the applicant JD No. 2.

3. Against the aforesaid order dated 4.1.96 of the learned Civil Judge, the appellant herein filed a civil revision number 80/96 before this Court. The said revision was dismissed by Hon'ble Mr. Justice Mohd. Shamim on 24.1.1996 with the following order :-

" Present: Mr. S.H. Nizami, for the petitioner.

Heard the learned counsel for the petitioner, perused the impugned order.

Admittedly, no court fee was paid despite the order of the Court, yet the decree was obtained.

In view of the above I do not see any justification to interfere with the impugned order passed by the learned lower Court. Dismissed."

4. After the dismissal of the revision petition by this Court, the appellant herein filed an appeal RCA NO. 14/96 before Sr. Civil Judge. This appeal was filed on 29.1.96. The appellate Court while upholding the order regarding reversal of the decree dated 7.5.92 observed that the plaint should not have been rejected outrightly. Rather some time should have been fixed by the Court for the plaintiff to comply with the order dated 10.7.91. Accordingly, the first appellate Court vide order dated 13.5.96 remanded the case to the trial Court giving one month's time to the appellant to comply with the order dated 10.7.91.

5. Feeling aggrieved by the aforesaid order dated 13th May 96 of the appellate Court upholding the reversal of ex parte decree, the plaintiff/appellant has preferred this appeal.

6. I have heard learned counsel for the parties and perused the record.

7. The order passed dated 13.5.96 by learned Senior Civil Judge has to be set aside as a whole for the simple reason that the appeal before the Senior Civil Judge against the order dated 4.1.96 of learned Civil Judge, was not maintainable. With the dismissal of CR 80/1996 by this Court on 24.1.96 the order dated 4.1.96 passed by learned Civil Judge stood merged in the order of the High Court and therefore no appeal could have been filed against this order before the Senior Civil Judge after dismissal of revision by the High Court. In the case of Shanker Ramchandera Abyankar Vs. Krishnaji Dattatraya Bapat- , the apex Court examined the scope and nature of the revisional jurisdiction of the High court and after considering the case law exhaustively in para 6 observed as under :-

" Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not therefore, consider that the principle of merger of orders of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal.

8. The Supreme Court took the note of some earlier decisions on the point including one in the case of UJS Chopra Vs. State of Bombay, , wherein it was observed that a judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing, in the presence of both the parties would replace the judgment of the lower Court thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Court below.

9. It must therefore be held that with the dismissal of revision on 24.1.96 by this Court, the order dated 4.1.96 passed by the learned Civil Judge stood merged with the revisional order of the High Court which could not be challenged before the Senior Civil Judge by way of appeal.

10. In the result, this appeal is accepted and the order dated 13th May 1996, passed by the learned Civil Judge, is hereby set aside.

11. Net result is that the order dated 4.1.96 passed by the leaned Civil Judge setting aside the ex-parte decree dated 7.5.1992 and for restoration of the possession remains intact and valid.

CR 124/1997

12. The direction of the first appellate Court granting one month's time to the appellant to pay the Court fee will perish as the said order has been set aside as a whole. So the connected revision petition No. 124/1997 which is directed against order dated 14.1.97 passed by the leaned Civil Judge becomes infructuous and is dismissed as such.