Telangana High Court

Pingle Naresh Reddy vs Smt.Pingle Sita Reddy on 31 March, 2023

Bench: T.Vinod Kumar

      THE HON'BLE SRI JUSTICE T. VINOD KUMAR

     CRP(SR) No. 42495 OF 2022 AND CRP No.2036 of 2022
COMMON ORDER:


1.     As the present revisions are preferred against the common

order dated 27.07.2022 in I.A.No.1493 and 1492 of 2021 in

O.S.No. 201 of 2015 passed by the Principal Senior Civil Judge,

Medchal, Medchal-Malkajgiri District, they are being disposed of

by this common order.

2.     The petitioner is the defendant No.2 in the suit filed for

partition and separate possession.

3.     The Trial Court on account of non-appearance of the

petitioner herein and respondent Nos.2 & 3 who were defendants

No. 1 to 3 in the suit, had set them ex-parte vide order dated

22.04.2014. Subsequently, on 16.06.2016 the Trial Court had

passed ex-parte preliminary decree.

4. The petitioner herein claiming that the respondent No.1 had

prevented the service of summons on him, by taking advantage of

the fact that the petitioner and all the respondents herein had

common address, filed two interlocutory applications before the

Trial Court. I.A. No.1492 of 2021 was filed under Order IX Rule

13 of the Code of Civil Procedure, 1908 (hereinafter referred to as

'the Code') seeking to set-aside the ex-parte preliminary decree

dated 16.06.2016, whereas I.A. No. 1493 of 2021 was filed under

Section 5 of the Limitation Act, 1963 seeking condonation of 1972

days delay in filing the application under Order IX Rule 13 of CPC

to set-aside the ex-parte preliminary decree dated 16.06.2021.

5. The Trial Court while noting that signature of the petitioner

on endorsement of summons, the acknowledgement card filed in

proof of the registered post, was similar to his signature on the

affidavit of the instant applications had dismissed the said

applications holding that the petitioner herein was unable to make

out a case to set-aside the ex-parte preliminary decree dated

16.06.2021. Aggrieved by the same, the present revisions are

preferred.

6. C.R.P.No.2036 of 2022 arises from I.A.No.1493 of 2021

filed under Section 5 of the Limitation Act, 1963, whereas C.R.P.

(SR).No. 42495 of 2022 arises from I.A.No. 1492 of 2021 filed

under Order IX Rule 13 of the Code. Since orders under Order IX

Rule 13 of the Code are appealable under Order XLIII Rule 1 of

the Code, the office had raised a preliminary objection regarding

the maintainability of revision. The petitioner had contended that

the present revision was maintainable as the common order dated

27.07.2022 under challenge is an interlocutory order. Therefore,

the short question which arises for consideration is whether a

revision is maintainable against the common order dated

27.07.2022.

7. In order to examine the circumstances under which an order

can be revised, it is appropriate to consider Section 115 of the Code

which deals with revisional powers of the High Court:

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 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.

Explanation--.In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue in the course of a suit or other proceeding.

8. From a reading of the provision, it is clear that a revision

under Section 115 of the Code, would only lie when there is no

statutory appeal. Further the High Court can only interfere if the

order in challenge, had an effect of culminating the proceedings in

the suit, had it been granted in favor of the revision petitioner. In

other words, the order under challenge should be in the nature of a

final order. The Kerala High Court in Madhavan vs. Narayana

Das1, has held as under:

12. It follows that no revision would lie unless the order sought to be revised, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. Borrowing terminology from the precedents laid down under Section 397(2) of the Code of Criminal Procedure, not only interlocutory orders but also intermediate orders are not amenable to revisional correction under the amended Section 115 of the Code of Civil Procedure. All available indications compellingly point to that conclusion-that only final orders strictosensu will be revisable."

The above decision would indicate that, interlocutory or intermediate orders cannot be revised and the remedy of revision

AIR 2003 Ker 103

under the Code is only available for non-appealable final orders which have a bearing on the disposal of the suit.

9. In order to overcome the bar created by the proviso to

Section 115 of the Code, a practice of filing revisions under Article

227 of the Constitution of India had developed. The erstwhile High

Court of Andhra Pradesh in Mohammed Abdul Sattar Vs.

Shahzad Tahera and Ors2, had held that a revision under Article

227 of the Constitution of India was maintainable provided the

relief sought was revisable. Therefore, it is no more res integra

that an aggrieved party can approach the High Court for exercise of

its revisional jurisdiction either under Section 115 of the Code or

under Article 227 of the Constitution of India.

10. The erstwhile High Court of Andhra Pradesh in Todendula

Venkata Krishnaiah Vs. Uppu Gangaiah3, while examining the

scope of revisional powers of the High Court under Article 227 of

the Constitution of India held as under:

"22. The conspectus of various decisions would lead to the following principles in relation to exercise of power under Article 227 of the Constitution.

2012 (2) ALT 230

2003 (4) ALT 601

(i) In exercise of power under Article 227 of the Constitution, the High Court cannot assume appellate powers to correct every mistake of law (Satyanarayan v, Mallikarjun, MANU/SC/0169/1959 : [1960]1SCR890 );

(ii) Assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality -procedural or any breach of any rule of natural justice - are some of the grounds which might warrant exercise of jurisdiction, provided that such illegal assumption, illegality or irregularity results in miscarriage of justice {Satyanarayan v. Mallikarjun (supra)};

(iii) In exercise of powers under Article 227, the High Court will not review or re-weigh evidence upon which determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision. If elaborate reasons become necessary for the conclusion that the decision or finding of the lower Court is incorrect or wrong, so such an error cannot be treated as apparent on the face of the record (Mohd. Yunus v. Mohd. Mustaqim, - MANU/SC/0066/1983 : [1984]1SCR211 ):

(iv) If two views are conceivably possible on a question of fact, merely because the High Court feels that its view is correct, the same cannot be a ground for exercising jurisdiction under Article

227. The decision of the lower Court must receive imprimatur {Satyanarayan v. Mallikarjun (supra)};

(v) If, by a special enactment, the Legislature, in its wisdom, specifies the principles of appeal or revision against the decision or a finding, the power of superintendence under Article 227 cannot be exercised by assuming un-limited prerogative to correct all species of hardship and wrong decision [Laxmikanth R. Bhojwani v. PratapsingM.Pardeshi, MANU/SC/0828/1995 : (1995)6SCC576 ;

(vi) A revision under Article 227 of the Constitution is maintainable only when the remedy of revision under Section 115 is expressly barred by the State enactment and even in such a case, the supervisory jurisdiction of the High Court is confined only to see that the inferior Court or Tribunal proceeded within its parameters and not to correct an error apparent on the face of the record, much less an error of law. The High Court is not an appellate forum under Article 227 and, therefore, it is not permissible to review or re-weigh the evidence (Mohd. Yunus v. Mohd. Mustaqim and Sadhana Lodh v. National Insurance Co., Ltd., 2003 AIR SCW 930);

(vii) When an alternative remedy is available, judicial prudence demands that the High Court should refrain from exercising jurisdiction under Article 227 of the Constitution {Punjab National Bank v. O.C. Krishnan(2001)107 CompCases 20 };

(viii) The High Court in exercise of power under Article 227 of the Constitution is not to pick out any error of law and correct it when justice became the by product of such erroneous view of law (Roshan Deen v. Preeti Lal, MANU/SC/0701/2001 : (2002)ILLJ465SC ); and

(ix) Whether or not a decision of the lower Court is incorrect or clearly wrong, unless and until gross error resulting in miscarriage of justice is shown, the power under Article 227 cannot be exercised (Roshan Deen v. Preeti Lal)."

11. In Shaik Abdul Haq Vs. AiswaryaNilaya Chit Fund Pvt.

Ltd. and Ors4, the erstwhile High Court of Andhra Pradesh had yet

2005 (3) ALD 513 : 2005 (3) ALT 676,

again considered the scope of supervisory jurisdiction of the High

Court, as under:

"17. From a perusal of the judgments YeshwantSakhalkar v. HirabatKamatMhamai and Babhutmal v. Laxmi Bhai (supra), relied upon by the learned Counsel appearing on behalf of the plaintiff, the consistent view of the Apex Court conspicuously appears to be - - firstly that when the Trial Court passes as interlocutory order, notwithstanding, an embargo under Section 115 of the Code of Civil Procedure, if patent error, which is self-evident, is found under the following circumstances: Firstly; against the interlocutory orders, passed by the Courts subordinate to the High Court, against which a remedy of revision is excluded by the Code of Civil Procedure Amendment Act 46 of 1999 are nevertheless are open to be challenged before the High Court, which has supervisory jurisdiction.

Secondly; the object of exercising supervisory jurisdiction under Article 227 of the Constitution of India is to keep the subordinate Courts within the bounds of their jurisdiction or in cases where subordinate Courts refuse to exercise their jurisdiction or assume jurisdiction where there is no jurisdiction at all; and Thirdly; where a patent error is self-evident, which can be perceived or demonstrated without going into any lengthy or complicated argument or a long-drawn process of reasoning, the same can be interfered with under Article 227 of the Constitution of India and most importantly the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution will not convert itself into a Court of appeal and indulge in reappreciation or evaluationof evidence on record or to correct the errors, if any, in drawing inferences."

12. Though not exhaustive, the above decisions aid in outlining

the powers and limitations on the powers of the High Court while

exercising supervisory jurisdiction under Article 227 of the

Constitution of India. Thus, while the High Court can revise both

interlocutory and final orders under Article 227 of the Constitution

of India, the existence of a regular right of appeal is a clear bar to

such exercise of powers.

13. The above position also finds support from the case of Deep

Industries Limited vs. Oil and Natural Gas Corporation Limited

and Ors5, where the Supreme Court has held that the supervisory

powers of the High Court under Article 227 of the Constitution of

India are to be exercised in accordance with the powers conferred

under Section 115 of the Code:

"18. Mr. Rohatgi is also correct in pointing out that the legislative policy qua the general revisional jurisdiction that is contained by the amendments made to Section 115 Code of Civil Procedure should also be kept in mind when High Courts dispose of petitions filed Under Article 227. The legislative policy is that no revision lies if an alternative remedy of appeal is available. Further, even when a revision does lie, it lies only against a final disposal of the entire matter and not against interlocutory orders. These amendments were considered

(2020) 15 SCC 706

in Tek Singh v. Shashi Verma and Anr. MANU/SC/0169/2019 in which this Court adverted to these amendments ..."

14. The question of when an order is a final order has to be

decided by reverting to the proviso of Section 115 (1) of the Code.

In the present case, had the Trial Court allowed the applications

setting-aside the ex parte decree dated 16.06.2016, the proceedings

in the suit would be continued. Thus, as per the proviso to Section

115 (1) of the Code, an order allowing an application under Order

IX Rule 13 of the Code is not a final order. While an order

reopening the proceedings in the suit, could be revised by this

Court in exercise of its powers under Article 227 of the

Constitution of India, an order rejecting the same is not revisable as

the rejection of an application made under Order IX Rule 13 is

specifically made it appealable under Order XLIII Rule 1(d) of the

Code.

15. The only question that now remains to be examined is

whether revision against an order under Section 5 of the Limitation

Act, 1963 seeking to condone the delay in filing an application

under Order IX Rule 13 of the Code is maintainable. The present

issue was directly in consideration before the Division bench of the

Calcutta High Court in Md. Ali Sardar and Ors. Vs. Hossain Ali

Mondal being dead6, wherein the Court has held as under:

"13. While reading all the judgments quoted including that in Shyam Sundar Sarma's case, and Full Bench of this Court in case of MamudaKhateen v. Beniyan Bibi, we think that the effect of dismissal of the application under section 5 of the Limitation Act would depend upon the nature of the proceeding in connection to which it is filed. The proceeding under section 5 itself has no relevance but it gets relevancy and importance the moment it is sought to be applied in connection with the proceedings brought underneath it.

14. According to us the provision of section 5 of the Limitation Act is like what is called in Sanskrit language 'mritosanjiboni' (which brings back the life). If section 5 is allowed then obviously a dead matter gets life if not then matter remains at rest.

15. Therefore, the task of the Court is to find whether the order or decree sought to be impugned invoking section 5 of the Limitation Act is appealable or not. If it is so obviously on dismissal of application under section 5 of the Limitation Act consequent upon dismissal of the proceeding underneath, by which order or decree is sought to be impugned becomes appealable automatically, applying the principle of merger most appropriately termed as doctrine of fictional merger.

16. Order of dismissal of proceedings under Order 9 Rule 13 of the Code of Civil Procedure is an appealable under Order 43 of the Code of Civil Procedure, therefore application for dismissal of section 5 in connection thereto will obviously be an appealable but order of dismissal of section 5 application simpliciter is of no effect. ...

AIR 2012 Cal 171

18. Rejecting a time barred application under Order IX Rule 13 of the Code by not condoning the delay in its presentation nonetheless results in the Court not accepting the plea for setting aside the ex parte decree and such an order would be appealable within the meaning of Section 104 of the Code read with Order XLIII Rule 1(d) thereof.

19. Therefore, by necessary implication refusing to set aside the decree under Order IX Rule 13 the Court keeps the decree untouched, so it becomes unassailable the moment it is dismissed."

16. A similar view was expressed by the Division bench of the

High Court of Himachal Pradesh in Isotech Electrical & Civil

Projects (P) Ltd. and Ors. Vs. Sturdy Industries Ltd7, while

holding that the appeal against an order rejecting condonation of

delay under Section 5 of the Limitation Act, 1963 filed along with

an application seeking to set-aside an ex parte decree is

maintainable, as under:

"4. The High Court of Jammu & Kashmir in a case titled as Union of India v. Nek Ram Sharma, reported in MANU/JK/0232/2003 : 2004 (1) JKJ 280, has laid down the same principle. It is apt to reproduce paras 6 and 11 of the judgment herein:

"6. Now the question that becomes important is where an application has been filed and rejected whether the consequence will be the same or different. Section 5 cannot be read in isolation.

It has to be read conjunctively with Section 3. Where application under Section 5 is not filed or where application has been filed and

ILR 2017 II HP 815

rejected the natural consequence would be the dismissal of appeal or application as provided under Section 3 of the Limitation Act. If the final out-come of the rejection of application under Section 5 is dismissal of application under Order 9 Rule 13 of Code of Civil Procedure and the order of dismissal is appealable under Order 43 CPC, there is no reason why such an order will not become appealable, merely because the Court has only rejected application under Section 5 of the Limitation Act. ...........

11. After considering the ratio of the judgments referred to above, I am of the opinion that an order rejecting the application under Section 5 of the Limitation Act or for that matter condonation under any other law merges with the order that may be ultimately passed in application or the appeal. The consequence of dismissal of condonation application is rejection of an application or the appeal as the case may be. Therefore, the out-come of such rejection is up-holding an order subject matter of appeal or the application. In the present case, rejection of application for condonation of delay has culminated into rejection application under Order 9 Rule 13 CPC. Admittedly an order rejecting application under Order 9 Rule 12 CPC is appealable under Order 43(d). Thus, I am of the considered opinion that the order under appeal is appealable under Order 43(d) Code of Civil Procedure. The appeal is accordingly admitted to hearing."

17. This Court is in respectful agreement with the views

expressed above, that an order rejecting condonation of delay

under Section 5 of the Limitation Act, 1963, cannot be considered

independently, as rejection of the same would ultimately affect the

result of the underlying application, it sought to explain the delay.

Therefore, whether such an order is revisable would depend on the

remedy available on rejection of the underlying application.

18. In the present case, the reasons stated for set aside of the ex

parte preliminary decree and condonation of delay under Section 5

of the Limitation Act, 1963 are same, considering which the Trial

Court had passed a common order rejecting to set aside the ex

parte preliminary decree dated 16.06.2021. As a result of the