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S. Bishan Singh v. Murti Shivji
Structured Summary of the Opinion
Factual and Procedural Background
This revision petition challenges the order dated 15-12-1967 of the Sub Judge, Jammu, in a suit for possession instituted by Murti Shivji (plaintiff-respondent) against S. Bishan Singh and another. The trial court had framed issues in the suit. On 16-11-1967 the defendant-applicant filed an application in the court below seeking amendment and recasting of certain issues. The trial court invited objections from the plaintiff, heard arguments and rejected the defendant's application, holding there was no necessity to amend or add any issue. The defendant thereupon filed the present revision petition in the High Court. The plaintiff-respondent raised a preliminary objection that the revision was not competent because the impugned order was not a "case decided" within the meaning of Section 115 of the Code of Civil Procedure.
Legal Issues Presented
- Whether the present revision is competent under Section 115 of the Code of Civil Procedure when it challenges an interlocutory order (the dismissal of an application to amend or recast issues) passed by the trial court.
- On the merits, whether the trial court erred in refusing to amend or recast the issues — specifically, whether the issues framed failed to address the real controversy between the parties and whether the trial court did not properly consider the pleadings, thereby occasioning material irregularity or failure of justice.
Arguments of the Parties
Plaintiff-Respondent's Arguments
- The plaintiff raised a preliminary objection asserting that the revision is not competent because the impugned order does not constitute a "case decided" within the meaning of Section 115 of the Code of Civil Procedure.
- On the merits, the plaintiff argued that his client could not sue for possession against Defendant No. 1 during the continuance of Defendant No. 2's tenancy and that the plaintiff was constructively holding the property through Defendant No. 2 (i.e., the plaintiff's possession was through the tenant).
Defendant-Applicant's Arguments
- The defendant contended that the trial court should have allowed the application to amend and recast the issues because the issues as framed did not deal with the real controversy between the parties.
- The defendant argued that the trial court did not consider the pleadings properly and, in dismissing the application, acted with material irregularity and thereby occasioned a failure of justice.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| AIR 1958 Mad 496 | That an order by a trial court dismissing a party's application for deletion (or amendment) of an additional issue can amount to a material irregularity and be amenable to revision; the word "case decided" includes part of a proceeding. | Used to support the proposition that a trial court's refusal to amend issues may be revisable when the court has acted with material irregularity. |
| AIR 1967 Punj 389 (Full Bench) | The Full Bench held that Section 115 should be construed to advance justice and that interlocutory orders affecting the decision of the case are open to revision; the word "case" includes part of a case. | Relied upon to show that Section 115 covers interlocutory orders and that the High Court may entertain revision against such orders where justice so requires. |
| AIR 1953 Bilaspur 33 | Decision of a lower court rejecting an application for framing an issue is a decision on a substantial question in controversy affecting rights and thus amounts to a "case decided". | Applied to reinforce that refusal to frame necessary issues can be treated as a "case decided" for the purposes of Section 115. |
| AIR 1964 SC 497 | The Supreme Court's discussion that the High Court's power under Section 115 is exercisable in respect of "any case" decided, and that once "case" includes part of the case, revisional jurisdiction can be exercised irrespective of appealability. | Used to support the broader construction of Section 115 so as to permit revision of interlocutory orders when necessary for justice. |
| AIR 1968 Mys 1 (Full Bench) | In a possession suit where the defendant repudiated that he was a tenant and set up title, the plaintiff must prove title and that he had been in possession of the property within 12 years prior to suit; Article 142 of the Limitation Act applied. | Relied on to indicate that in a suit for possession the plaintiff must establish possession (independently or constructively) and that limitation considerations (12 years) are material to such claims. |
Court's Reasoning and Analysis
The court first addressed the preliminary objection as to competence of revision under Section 115 CPC. Noting that the phrase "case decided" is not defined in the Code, the court adopted a broad construction that "case decided" may include a part of the proceedings and not only the entire suit. The court observed that when a lower court decides a part of the proceeding in which some claim or right is decided, that order may be amenable to revision under Section 115 if the trial court exercised jurisdiction illegally, failed to exercise jurisdiction, or its order occasioned failure of justice under clause (d) of Section 115.
To support this interpretation the court cited authorities (including Madras, Punjab Full Bench, Bilaspur and Supreme Court decisions) holding that interlocutory orders which decide substantial questions affecting rights can be regarded as "cases decided" and thus fall within the High Court's revisional jurisdiction. The court emphasized that Section 115 must be construed so as to advance the cause of justice and should not be limited to only final or appealable orders.
The court then specifically considered orders under Order 14, Rule 5 of the Code (the provision under which the defendant's application to amend issues was brought). It compared the language of Order 14, Rule 5 with Order 6, Rule 17 (the latter already recognized as subject to revision) and concluded that there is no sound basis to exempt orders under Order 14, Rule 5 from revision where they were passed in exercise of illegal jurisdiction or occasioned a failure of justice.
On the merits, the court examined the pleadings. It found force in the applicant's contention that the issues framed by the trial court did not address the real controversy. The court noted several deficiencies in the plaint: it did not state how, when, or in what capacity Defendant No. 1 came to occupy the suit property; it did not allege that Defendant No. 2 sublet the property to Defendant No. 1; and it did not attach a copy of the High Court judgment so as to show what observations were made inter partes about Defendant No. 1's possession. The defendant had expressly repudiated the plaintiff's title in the written statement.
The court observed that, given the state of pleadings, the trial court should have examined the parties to elicit material facts and then framed issues reflecting those facts. Because the trial court did not do so and dismissed the amendment application without such consideration, the court concluded that the trial court had acted with material irregularity and that this had occasioned a failure of justice.
Holding and Implications
Holding: The High Court overruled the preliminary objection and held that the revision is competent under Section 115 CPC. The court allowed the revision petition and directed the trial court to first examine the parties and thereafter recast the issues in the light of the observations made in the opinion.
Implications:
- Direct effect on the parties: The trial court's order rejecting the defendant's application to amend/recast the issues is set aside and the trial court is directed to conduct examinations of the parties and to reframe the issues so as to address the real controversy arising from the pleadings.
- Broader legal consequence: The opinion applies and reiterates existing principles (as reflected in cited precedents) that Section 115 can embrace interlocutory orders which decide part of a case, especially where there has been material irregularity or failure of justice. The court did not purport to lay down a novel precedent but applied established authorities to the facts before it.
GGM/D.V.C
Note: This summary is confined to the matters expressly presented and discussed in the provided opinion. No information has been added beyond the opinion's text.
1. This revision petition is directed against the order dated 15-12-1967 passed by the Sub Judge, Jammu in a suit for possession brought by Murti Shivji plaintiff respondent against S. Bishan Singh and another. The trial court raised issues in the case and thereafter an application was moved on 16-11-1967 by the defendant applicant in the court below seeking amendment of the issues ??? indicated in the application. Objections were invited by the trial court from the plainer and after hearing arguments it decided the application against the defendant-applicant holding that there was no necessity to amend or add any more issue in the case. Against this order the defendant has come up in revision before this Court. A preliminary objection has been ??? on behalf of the plaintiff respondent that the revision is not competent inasmuch ??? the order passed by the trial court does not purport to be a case decided within the meaning of Section 115 of the Code of ??? Procedure.
2. Elaborate arguments were advanced on both sides respecting the preliminary objection and a number of authorities were cited for and against the proposition. I will first of all deal with the preliminary objection raised before me.
3. It is true that the expression ‘case decided’ is not defined in the Code of Civil Procedure but upon a general construction all the expression it would follow that the words “case decided” as used in Sec. 115 of the Code do not mean the entire proceeding concluded but it includes within its ambit a part of the proceeding as well. Thus where the court below decides a part of the proceeding in a suit in which some claim or right to decided that order is amenable to the revisional jurisdiction of the High Court and the High Court will undoubtedly interfere, if ??? finds that the trial court, has exercised if jurisdiction in an illegal way or has omitted to exercise its jurisdiction, or the order passed has occasioned failure of justice as contemplated in clause (d) of Section 115 of the Code. The same point arose for consideration before Subramanyam, J. in AIR 1958 Mad 496. That was a case where the ??? court had dismissed the application of the defendants for deletion of an additional issue. It was held that the District Munsiff (the trial Court) had acted with material irregularity in the exercise of his jurisdiction in framing an issue necessitating the determination of the dispute which appears to exist inter is as between the defendants. The revision in the case was entertained and allowed.
4. Again in AIR 1967 Punj 389 (FB) ???, J. who delivered the judgment on behalf cu the Full Bench observed that “the scheme of the Civil Procedure Code, read as a whole seems to negative the legislative intendment that the revisional jurisdiction should not be exercised against interlocutory orders where an appealable decree can ultimately be passed. Under Section 115 of the Code every non-appealable order affecting the decision of the case is open to challenge in appeal from the final decree. If the legislative intendment is to the said effect, then ???, can the High Court call for the ??? Page: 51??? to an interlocutory order or entertain a revision against an interlocutory order God the High Court must withhold its hands on the simple ground that the order impeached is interlocutory. This legal position is unacceptable for it can be sustained neither on principle nor on authority.” From this the proposition deducible is that Section 115 of the Code is to be construed for advancing the cause of justice and in this manner there is a material legal infirmity in the order passed by the trial court section 115 can be invoked so as to cover such interlocutory orders. “The word ‘case’, the learned Judge proceeded to observe “used in Section 115 includes part of the case also and Section 115 is, therefore, applicable to such interlocutory orders.”
5. The Bilaspur High Court has also pronounced upon this question vide AIR 1953 Bilaspur 33 where it has laid down that “the decision of the lower Court in rejecting the defendant-petitioner's application Bar framing the necessary issue is a decision on a substantial question in controversy between the parties affecting their rights and therefore amounts to a case decided”. The point it seems was also elaborately discussed by their Lordships of the Supreme Court in AIR 1964 SC 497. The principle enunciated in the said authority is that the power of the High Court under Section 115 exercisable in respect of “any case” which has been decided. Their Lordships proceeded to observe that once it is granted that the expression “case” includes a part of the case there is no escape from the conclusion that the revisional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal lies from the interim decree or order passed in the suit. Any other view would impute the legislature an intention to restrict the exercise of this salutary jurisdiction to those comparatively unimportant suits and proceedings in which the appellate jurisdiction of the High Courts: is excluded for the reasons of the public policy.
6. It would thus appear that the scope of Section 115 is extended even to interlocutory orders in which no appeal lies but where the lower court has exercised jurisdiction illegally or with material irregularity or has assumed jurisdiction which it has none while passing the impugned order in which some claim or right is decided. Thus an order passed under Order 14, Rule 5 of the CPC can be said to be a part of proceeding and a case decided within the meaning of Section 115 of the Code. It would be pertinent to compare the language employed in Order 14, Rule 5 with O. 6, K. 17. Almost the same words are used in both the rules. There is ample authority for the proposition that the orders passed under Order 6, Rule 17 are revisable. There is thus nothing to assume that orders passed under Order 14, Rule 5 are not revisable ??? they have been passed in exercise of illegal jurisdiction or if the same has occasioned failure of justice to a party.
7. Judged from this, it would appear that the present revision petition which has been directed against the interlocutory order passed by the court below in dismissing an application under Order 14, Rule 5 of the CPC is revisable. Here the grievance of the applicant is that his application for amendment and recasting of the issues has not been decided on merits. The court below has not considered the pleadings of the parties and has failed to frame issues in the case in accordance with the averments made in the pleadings. Thus while dismissing the application the court below has acted with material irregularity in the exercise of its jurisdiction and this has occasioned failure of justice.
8. I therefore, overrule the preliminary objection and hold that the revision is competent.
9. As regards the merits of the revision I find that there is considerable force in the argument of the learned counsel for the applicant that the issues framed by the trial court do not deal with the real controversy between the parties and that it is necessary to recast and amend the issues with a view to determine the material propositions of fact and law at which the parties are at issue. I had the occasion or perusing the pleadings of the parties. The plaintiff does not say in his plaint as to how and when and in what character did the defendant No. 1 come to occupy the suit property not is it in the plaint that the property was sublet by the defendant No. 2 to defendant No. 1 during the continuance of the tenancy of the defendant No. 2, in violation of the terms of the original tenancy. Nor has a copy of the judgment of the High Court been attached along with the plaint so that it could be found out as to what were the precise observations made by the High Court regarding the character of the possession of the defendant No. 1 in the judgment inter partes. The defendant appellant has, in his written statement, categorically repudiated the title of the plaintiff and has in so many words pleaded that the plaintiff was never in possession of the suit property.
10. It would appear from the plaint, when read as a whole, that the possession of the defendant No. 1 over the suit property does not arise from any contractual obligation. The case of the plaintiff lies in a narrow compass so far as the plaint is concerned. It would have been well for the trial court to have examined the parties in elucidation of the pleadings so that the all material propositions of tact could have been brought to light and the position clarified. But this has not been done. The argument of the learned counsel for the plaintiff respondent that his client could not sue for possession of the suit property against the defendant Page: 52No. 1 during the continuance of the tenancy of the defendant No. 2 and that the plaintiff was constructively holding the property through the defendant No. 2, is understandable. But even then, the plaintiff must show as to when and how did the defendant No. 1 enter upon the premises and in what character. The plaintiff (in a suit for possession) has to prove his case independently against the defendant No. 1 who has set up a title in himself. In such a situation the plaintiff must also prove that his possession over the suit property whether independently or constructively through defendant No. 2 dated back 12 years from the institution of the suit. If any authority is meant for the proposition it is AIR 1968 Mys 1 (FB). That was a suit for possession where the plaintiff had alleged that the defendant was the tenant but the defendant on the other hand had repudiated this allegation and had set up title in himself. Hegde, J. who delivered the judgment on behalf of the Full Bench, proceeded to observe that the plaintiff had to prove not only his title in the property but also that he had been in possession of the property within 12 years next before the institution of the suit. The argument of the plaintiff in that case that Article 144 of the Limitation Act was applied to the case was repelled and it was held that the appropriate Article applicable to the case was 142 of the Limitation Act. There is no necessity for me to quote any other authority in support of the proposition enunciated above. I would, therefore, allow this revision petition and direct that the trial court to first examine the parties and thereafter recast the issues in the light of the observations made above.
GGM/D.V.C
11. Revision petition.
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