Shiv Charan Dass & Sons vs Madan Lal & Ors
2012 Latest Caselaw 1130 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                Date of Judgment: 17.02.2012
+     C.R.P. 192/2008 and C.R.P. 193/2008

      SHIV CHARAN DASS & SONS                   ..... Petitioner
                      Through Mr. Naveen Kumar Chaudhary,
                              Adv.
               versus
      MADAN LAL & ORS.                     ..... Respondents
                      Through Mr. S.N. Gupta, Adv.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. Record shows that two suits for recovery of rent had been filed

by the landlord against his tenant; these two suits had been decreed by

judgments of even date i.e. 29.07.2005 which was for a sum of Rs.

852.84/- and Rs.1,000/- respectively. Against these judgments a first

appeal had been preferred under Section 96 of the Code of Civil

Procedure (hereinafter referred to as 'the Code'). These appeals had

been disposed of on 08.07.2008; the suits filed by the landlord had been

dismissed; conclusion arrived at by the appellate court was that the

defendant was not the tenant in the premises and thus is not liable to pay

any arrears of rent. This revision petition has impugned this order dated

08.07.2008.

2. Arguments have been addressed on the maintainability.

3. Learned counsel for the respondent has pointed out that there is a

clear embargo under Section 102 of the Code and no second appeal is

maintainable in cases where the amount is less than Rs. 25,000/- which

is clearly so in the instant case; the alternate remedy of revision which

has been invoked by the petitioner is only to circumvent the provision of

Section 102 of the Code; revision is also not maintainable.

4. Arguments have been addressed on the maintainability of the

petition.

5 Learned counsel for the petitioner has placed reliance upon the

judgment of High Court of Guwahati reported in 2007 (3) GLT 186

Ramdeo Sharma Vs. Assam State Electricity Board & others.;

contention being that although admittedly in that case the suit amounts

was less than Rs. 1,000/- and provision of Section 102 of the Code did

create a bar but the revisionary jurisdiction of the Code which is vested

under Section 115 does not take away the powers of the court to deal

with such a petition.

6. Section 102 reads hereinasunder:-

"102. No second appeal in certain cases.-No second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees".

7 This section prohibits a second appeal in respect of any decree

passed by a court; the subject matter of which does not exceed of

Rs.25,000/-.

8 By the Amendment Act 2002, this amount was last raised from

Rs.3,000 to Rs. 25,000/-; the object of this Section being to prohibit

second appeals for petty amounts which was with a view to curtail

litigation. There is no dispute to this proposition that a second appeal

was thus not maintainable. The submission of the learned counsel for the

petitioner is however that that the provisions of Section 115 are still

available to such a petitioner.

9 Section 115 of the Code reads hereinasunder:-

(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 irregularity, the High Court may make such order in the case as it thinks fit:

[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.]

[(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.]

[(3) A revision shall not operate as a stay of suit or other proceeding before the , Court except where such suit or other proceeding is stayed by the High Court.]

10 Sub-section (2) of Section 115 of the Code specifically stipulates

that the revisional court does not have the power to vary or reverse any

decree against which an appeal lies to any court subordinate to the High

Court. In the instant case the remedy of a first appeal has already been

availed of by the petitioner in the subordinate court. The scope of

revisional jurisdiction however does not empower the High Court under

this Section to correct errors of fact or law however gross they may be;

it has to confine itself only on a jurisdictional issue; this provision has

been engrafted only to ensure that a legal remedy is available to a person

for which remedy of appeal is not available; this remedy cannot

however be equated to an appeal.

11 The provisions of Section 102 of the Code have to be reconciled

with the provisions of Section 115 of the Code; the two sections have to

be harmoniously construed. Whereas Section 102 of the Code

specifically provides that no right of second appeal is available in suits

where the amount is less than Rs. 25,000/-; the object being to curtail

litigation at the second level as the amounts involved are small and

petty. If such a litigant is allowed to avail the remedy of revision it

would be nothing but circumventing the provisions of Section 102 of

the Code; it would in fact be nullifying the provisions of Section 102 of

the Code which was not the intent of the legislature.

12 This revision petition is not maintainable; it is dismissed.

FEBRUARY 17, 2012/rb                          INDERMEET KAUR, J