Jammu & Kashmir High Court - Srinagar Bench
Reserved On 23.09.202 vs Through:-Mr B. A. Bashir on 28 September, 2021
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Civil Revision No. 22/2021
CM no 6034/2021
Reserved on 23.09.2021
Pronounced on: 28.09.2021
Mohammad Ashraf Shah and anr.
...Petitioners
Through:-Mr B. A. Bashir, Sr. Advocate with
Ms Falak Bashir, Advocate
v.
Zahoor Ahmad Shah
...Respondent(s)
Through:-Respondent in person
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
JUDGMENT
1. By this Civil Revision, the petitioners challenge and seek setting aside
the order dated 16.08.2021, for short impugned order, passed by the court of
learned City Judge (Sub Judge), Srinagar, for short Trial Court, in a suit
titled Zahoor Ahmad Shah v. Mohammad Shafi Shah and others, by virtue of
which the trial court has granted permission to the respondent/ plaintiff to
amend the suit despite the fact that the main suit was not maintainable, on
the grounds detailed out in the civil revision. The petitioner has further
prayed that the suit be dismissed for want of cause of action and other legal
grounds which the trial court has failed to appreciate for the last 17 years.
2. Briefly put the case of the petitioners is that in the year 1992 the
respondent asked for his share of inheritance during the lifetime of his father,
which was not legally permissible, however, on humanitarian grounds and
due to intervention of family friends the petitioner no. 1, the mother of the
petitioner no. 1, the late father of petitioners and the respondent entered into
a settlement which was reduced into writing through a Surrender/
Renunciation Deed duly registered by the Sub Registrar, Srinagar, in
January, 1994. In terms of the said settlement the respondent was paid an
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amount of Rs. 4,50,000/- by the petitioner no. 1/ defendant no. 2 in the suit
for and on behalf of his father (defendant no. 1 in the suit) from his personal
resources.
3. The respondent remained contended for almost a decade and thereafter
filed a vague, vexatious, ambiguous and a preposterous suit in the year 2004
challenging all the documents like sale deed; rent deed; surrender deed being
against the rights of the plaintiff/ respondent herein; declare the plaintiff/
respondent herein to be entitled to receive his due share out of the whole
property in suit in terms of inheritance and succession besides, the
respondent also sought a prohibitory injunction against the petitioners herein
from causing any interference in the possession and occupation of plaintiff/
respondent herein over the orchard mentioned in the suit.
4. During the pendency of the suit, the respondent herein filed an
application seeking certain amendments to the plaint which was granted by
the trial court in terms of the impugned order. Aggrieved of the impugned
order, the petitioners challenge the same by the instant revision petition.
5. The Respondent had prayed for the following reliefs in the civil suit:
"1. A decree in the nature of declaration be issued in
favour of plaintiff and against the defendants, declaring
the documents (1) Sale Deed (2) Rent Deed (3) Surrender
Deed filed as part of pleadings as invalid, and be further
declared opposed to rights of plaintiff and public policy,
further decree be issued in favour of plaintiff and against
the defendant declaring the sale and purchase of land/
orchard at Badampora, Kurhama Ganderbal, Srinagar as
benami.
2. A decree for declaration be issued in favour of 01
plaintiff and against defendants declaring him to be
entitled to receive his due share out of whole property
mentioned in suit in accordance with rights of inheritance
and succession.
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3. A decree for prohibitory injunction be issued in
favour of plaintiff and against defendants restraining them
from causing any inheritance in the possession and
occupatioin of plaintiff over the orchard mentioned."
6. The petitioners had filed a written statement in opposition to the suit
stating therein that the suit being frivolous and vexatious deserves to be
dismissed as the plaintiff/ respondent herein, has absolutely no cause of
action to file the suit. For instance relief (b) of the suit was stated to be
frivolous because the defendant no. 1, late father of petitioners and
respondent herein was alive when the relief of succession and inheritance
was prayed for.
7. On the averments recorded in the written statement and taken note of,
in brief, hereinbefore, the defendants/ petitioners herein had sought dismissal
of the suit.
8. The trial court while considering the matter observed that the
amendment sought for will not amount to changing the nature of the plaint,
therefore, allowed the application for amendment in terms of impugned
order.
9. The respondent had filed a Caveat application, therefore, there was no
occasion to issue notice to him as he was present and was heard on the date
the matter was taken up for consideration. The respondent raised a
preliminary objection as regards the maintainability of the revision petition;
therefore, the parties were heard on the maintainability part only.
10. Heard learned counsel for the parties.
11. Before recording the submissions of the learned counsel for the
parties, it would be quite appropriate to refer to the dispute more elaborately
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12. The respondent and the petitioners are the children of Late
Mohammad Shafi Shah son of Late Gh. Mohammad Shah Resident of Chota
Bazar, Kani Kadal, Srinagar. The said Mohammad Shafi Shah had married
twice. Out of his first wedlock the respondent is born and the petitioners are
begotten out of his second marriage. Since the said Mohammad Shafi had
divorced his first wife, the mother of the respondent, therefore, the
petitioners were living with his father afterwards and the respondent was
living with his mother who also remarried and has two children out of said
wedlock. The respondent claims share of inheritance out of the property
which the respondent believes to be is of his father. However, the petitioners
refute such contention and plead that the property, mention of which is made
in the suit, solely belongs to the petitioners and respondent has nothing to do
with it. The petitioners have averred in the revision petition that in the year
1992 the respondent was shot at in his leg and when he raised a claim for his
share, although not entitled to, he was paid on humanitarian grounds and
with the intervention of family friends an amount of Rs. 4,50,000/- and a
renunciation deed, in this behalf, has been duly executed before the Sub
Registrar Srinagar.
13. The respondent, subsequently in the year 2004 filed a civil suit
seeking the reliefs taken note of hereinbefore.
14. The suit has been resisted by the petitioners by filing written
statement.
15. Subsequently, the respondent filed an application seeking permission
to effect certain amendments to the suit, which the trial court by order dated
16.8.2021 allowed.
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16. This is the narration as regards the proceedings of the case before the
trial court.
17. Mr B. A. Bashir, learned senior counsel for the petitioners, submits
that the order impugned is passed without proper application of mind and
without considering the objections of the petitioners. He further submits that
the order impugned has been passed by the Trial Court in disregard of the
Order 6 Rule 17 of the CPC.
18. The learned senior counsel for the petitioners further submits that by
the impugned order the Trial Court has caused serious prejudice to the rights
of the petitioners. He submits that the impugned order is unreasonable and
mechanical as it allowed amendment in a hopelessly time barred claim. He,
therefore, prays that the impugned order be set-aside and the suit of the
respondent be also dismissed being not maintainable. In support of his
submissions the learned senior counsel referred to and relied upon the case
law reported as AIR 1992 Raj, 1; AIR 1992 A.P. 183; AIR 2002 Kant 387;
AIR 2000 All 90; AIR 1987 MP 140; (2009) 5 SCC 162; AIR 2000 Bom 34;
(1998) 2 SCC 70; (2003) 1 SCC 557; (1977) 4 SCC 467; (1988) 3 SCC 57;
(2011) 9 SCC 223; (1973) 1 SCC 1; (1996) 7 SCC 486; and 1998 SLJ 22.
19. Mr Zahoor Ahmad Shah, respondent, while resisting the claim of the
petitioners raised a preliminary objection about the maintainability of the
revision petition against the order passed by the trial court in a pending civil
suit. The respondent questions the maintainability with the application of
proviso to Section 115 of the CPC which allows revision against the order of
the court below only when such an order culminates the proceedings or
decides the suit. In support of his submissions the respondent refers to and
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relies upon the case law reported as AIR 2003 2434; 2011 (3) JKJ 173; 2012
(1) JKJ 411 and 2010 (18) SCC 329.
20. Section 115 of the CPC, for facility of reference, is taken note of
hereunder:
"115. Revision.-[(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 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.]"
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21. In rebuttal the learned senior counsel submits that the revision petition
is well within the proviso referred to by the respondent as the impugned
order decides the whole issue. He further submits that even if the revision
petition is held to be not maintainable the court is competent enough to
convert the proceedings into writ petition under article 227 of the
Constitution. In support of his submissions the learned senior counsel places
reliance on case law reported as (2003) 6 SCC 675.
22. Considered the submissions made and went through the entire material
made available.
23. There are absolutely no two opinions about the maintainability of a
revision petition when it questions the order which is of interim nature and
does not decide the suit. The proviso to Section 115 CPC provides in
unambiguous terms that no revision will lie against an order that has not
decided the suit as a whole or by virtue of which the proceedings do not get
culminated.
24. The further interpretation of the proviso attached with Section 115 of
the CPC is made by this Court in case titled Manohar Lal v. Romesh
Chander reported as 2012 (1) JKJ 411 holding that no revision will lie
against an order which is interim in nature and does not finally decide the lis.
It would be profitable to reproduce relevant portion of paragraph 14 of the
judgment herein, thus:
"....Section 115 is essentially a source of power
for the High Court to supervise the subordinate
courts. It does not in any way confer a right on a
litigant aggrieved by any order of the subordinate
court to approach the High Court for relief. The
scope for making a revision under S.115 is not
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The Court making a comparison of Section 115
CPC as it stood before the amendment and after
the amendment held:
A comparison of two provisions of S.115
as they stood before amendment and
after the amendment of 1999 shows that
while proviso (a) of the unamended
provision has been retained in its
totality. In the amended provisions
clause (b) of the proviso has been
omitted. It is to be noted that prior to the
amendments to the Code by the old
Amendment Act, the power of revision
was wider. By the amendment, certain
positive restrictions were put on the High
court's power to deal with the revisions
under S.115. Prior to the said
amendment, it was not strictly necessary
that the impugned would have the result
of finally deciding the Lis or the
proceedings in the lower courts. In fact,
the power could be exercised in any case
where jurisdictional error was
committed by the original court or where
substantial injustice had resulted....
A plain reading of S.115 as it stands makes it
clear that the stress is on the question whether the order
in favour of the party applying for revision would have
given finality to suit or other proceeding, if the answer
is "yes" then the revision is maintainable. But on the
contrary, if the answer is "no" then the revision is not
maintainable. Therefore, if the impugned order is of
interim in nature or does not finally decide the Lis, the
revision will not be maintainable. The legislative intent
is crystal clear. Those orders, which are interim in
nature, cannot be the subject matter of revision under
S.115."
25/- In yet another case titled Kapil Dev Singh v. Raj Kumari, reported as
2011 (3) JKJ 172 this court has taken a similar view.
26/- Taking cue from the above position of law, the Revision petition in
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27/- Now as far as converting the proceedings into writ petition under
Article 227 of the Constitution is concerned, the said plea is also not
available to the petitioners as the order impugned does not come within the
contours of Article 227.
28/- It is well settled principle of law, that in the guise of exercising
jurisdiction under Article 227 of the Constitution of India, the High Court
cannot convert itself into a Court of appeal. It is equally well-settled, that the
supervisory jurisdiction extends to keeping the subordinate tribunals within
the limits of their authority and seeing that they obey the law. It has been
held, that though the powers under Article 227 are wide, they must be
exercised sparingly and only to keep subordinate Courts and Tribunals
within the bounds of their authority and not to correct mere errors. Reliance
in this respect can be placed on a catena of Judgments of this Court
including the ones in Satyanarayan Laxminarayan Hegde and Ors. V.
Millikarjun Bhavanappa Tirumale, Bathutmal Raichand Oswal v. Laxmibai
R. Tarta and Anr., M/s India Pipe Fitting Co. V. Fakruddin M. A. Baker and
Anr., Ganpat Ladha v. Sashikant Vishnu Shinde, Mrs. Labhkuwar Bhagwani
Shaha and Ors. V. Janardhan Mahadeo Kalan and Anr., Chandavarkar Sita
Ratna Rao v. Ashalata S. Guram, Venkatlal G. Pittie and another v. Bright
Bros (Pvt) Ltd., State of Maharashtra v. Milind and Ors., Ranjeet Singh v.
Ravi Prakash, Shamshad Ahmad and Ors. V. Tilak Raj Bajaj (Deceased)
through LRs, and Ors, Celina Coelho Pereira (Ms.) and others v. Ulhas
Mahabaleshwar Kholkar and Ors.
29/- The civil dispute between the parties, pending before the Court below,
out of which the impugned order has been passed, cannot by any stretch of
imagination be declared as order beyond the jurisdiction of the Court or
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having exceeded the limits of the authority and disobeying the law. In the
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view so taken, there is no scope for converting the civil revision into the
petition under Article 227 of the Constitution of India. Reference in this
regard has been made to the Judgment of Hon'ble Apex Court reported as
2010 (8) SCC 329. It would be profitable to reproduce paragraph 55 of the
judgment herein:
"55. In paragraph 38, sub-paragraph (4) at page 695 of the
report, the following principles have been laid down in
Surya Dev Rai (supra) and they are set out:
"38 (4) Supervisory jurisdiction under Article
227 of the Constitution is exercised for keeping
the subordinate courts within the bounds of their
jurisdiction. When a subordinate Court has
assumed a jurisdiction which it does not have or
has failed to exercise a jurisdiction which it does
have or the jurisdiction though available is being
exercised by the Court in a manner not permitted
by law and failure of justice or grave injustice has
occasioned thereby, the High Court may step in to
exercise its supervisory jurisdiction."
30/- The preliminary objection raised by the respondent, therefore, prevails
and is, accordingly, allowed holding the petitioners' Revision Petition as not
maintainable.
31/- For all what has been said hereinbefore, the court is of the considered
view that the revision petition is not maintainable, therefore, is dismissed
along with connected CM(s). Interim direction, if any, shall stand vacated.
32/- While taking note of the submission of learned senior counsel for the
petitioners that the suit is pending since 11 years and by the impugned order
the matter is further prolonged, the trial court is directed to take up the matter
and decide the same on merits expeditiously in accordance with law.
(Ali Mohammad Magrey)
Judge
Srinagar
28.09.2021
Amjad lone PS
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Whether the order is speaking: Yes
2021.09.28 15:23 Whether the order is reportable: Yes
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