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Alice v. Thommen

Kerala High Court

Oct 23, 1982

Judgment

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Factual and Procedural Background

The plaintiffs own a 10-cent plot in Konthuruthy enclosed on all sides by compound walls. Defendants 1 and 2 occupy an adjacent property to the south. A private pathway about 20 feet wide runs northwards from Konthuruthy Church Road along the eastern boundary up to the northern boundary of defendants 1 and 2 and then turns east. Because the plaintiffs had no direct access to that pathway, they purchased by sale deed dated 7-2-1981 a small strip of land (the "plaint schedule item") adjacent to their eastern compound wall (dimensions: width 6 links, length 105 links), and since purchase they have used it as their only access from the private pathway to their house.

The fourth defendant constructed a basement and compound wall on 5-4-1982 on the eastern boundary of his property, which allegedly stopped drainage to low-lying lands on the east. Defendants 1 and 2 sought to drain stagnant water into the plaint schedule property and, it is alleged, influenced the third defendant (the Corporation of Cochin) to take a decision to open a drain through the plaint schedule property running south to north. The plaintiffs claimed such construction would cause severe inconvenience and hardship, and that representations to the third defendant were ineffective.

The plaintiffs instituted the suit seeking an injunction restraining defendants 1 and 2 from cutting or opening drainage through the plaint schedule property. As part of the suit they filed I.A. No. 1616/82 praying for a temporary injunction. The learned Munsiff, after hearing both sides, passed an interim order (the subject of this revision) and posted the petition for final hearing to another date. The plaintiffs (petitioners in the revision) challenge that interim order before the High Court.

Legal Issues Presented

Whether a revision under Section 115 of the Code of Civil Procedure is maintainable against the impugned order passed in the application under Order 39 Rule 1 CPC (i.e., whether the order is an appealable order under Order 43 Rule 1(r) and thus outside revisional jurisdiction under Section 115(2) CPC after the 1976 amendment).
Whether the impugned order, despite being an interim order in form, falls within the class of orders made under Order 39 Rule 1 (and therefore is appealable) or whether it is not appealable thereby permitting revisional interference.

Arguments of the Parties

Petitioners' (Plaintiffs') Arguments

The learned Munsiff passed the impugned order without properly and duly considering the plaintiffs' application for a temporary injunction.
The order purportedly allowed the third defendant to construct a drain through the plaint schedule property, even though none of the defendants had filed an application seeking such relief.
The plaintiffs' application was strictly for a temporary injunction restraining defendants from cutting open any drain through the plaint schedule item; permitting the drain was therefore contrary to the application made.
The learned Munsiff failed to take into account that rainwater from defendants' property could be drained to low-lying lands on the eastern side of the pathway, a solution reportedly suggested by the commissioner in the case.
The petitioners contended the order under challenge is an interim order and not appealable, and therefore revisional jurisdiction of the High Court is not ousted; any doubt should be resolved in favour of allowing the revision.

Respondents' (Defendants') Arguments

The revision is not maintainable because the impugned order is an appealable order under Order 43 Rule 1(r) (as it was an order made under Order 39 Rule 1), and Section 115(2) CPC contains a specific prohibition against entertaining revision against such appealable orders.
On the merits, the respondents contended that the petitioners have no case deserving interference, and thus the revision should be dismissed.
The respondents cited several reported decisions in support of the non-maintainability contention.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in this Opinion
Hamid Husain Khan (Defendant) v. Masood Husain Khan (Plaintiff) (AIR (39) 1952 All. 279)	Cited by respondents (specific principle not detailed in the opinion text).	The Court recorded that this decision was cited by respondents in support of the proposition that the revision is not maintainable; no further analysis of the case's principle is given in the opinion.
Audul Rahiman Saheb v. Vanappathi Bhatta (ILR. 23 Madras 517)	Cited by respondents (specific principle not detailed in the opinion text).	The Court noted the citation as part of respondents' reliance on authority to show non-maintainability; the opinion does not extract a particular rule from it.
Bhaskaran v. Ambika (1977 KLT. 476)	Held that an order of injunction, whether interim or final, is an order falling within Rule 1 or 2 of Order 39 and therefore is appealable.	The Court expressed respectful agreement with this decision and treated it as supporting the conclusion that the impugned order (being under Order 39 Rule 1) is appealable and not revisable under S.115 CPC.
Khem Chand v. Harl Singh (AIR. 1979 Delhi 7)	Considered the effect of the amendment to Section 115 CPC and observed that, despite an order being unsupportable in law, Section 115(2) prevents the Court from varying or reversing orders against which an appeal lies.	The Court relied on this reasoning to emphasize that the express prohibition in S.115(2) ousts revisional jurisdiction in respect of appealable orders, supporting dismissal of the revision petition.
Vasu v. Narayanan Nambooripad (1961 KLT. 946)	Following the Calcutta decision in Sourendra Nath Mitra, held that where there is a bona fide doubt whether an order falls under a particular rule, the benefit of that doubt should be given to the petitioner and civil revision may be allowed.	The Court acknowledged this authority but distinguished it on the basis that it preceded the 1976 amendment to S.115 CPC; the Court noted that Vasu supported allowing revision in cases of bona fide doubt before the amendment.
K. Virupakshiah v. M. Sivalingaiah (AIR. 1960 Andhra Pradesh 540)	Recognized situations in which High Courts entertained revision where the existence of an alternative remedy was doubtful, inconvenient, ineffectual, or barred, or where non-interference would cause multiplicity of proceedings, expense, delay or grave injustice.	The Court observed the earlier approach of Virupakshiah's case but held that the position was changed by the insertion of sub-section (2) to Section 115 CPC in 1976, limiting the precedent's present relevance to pre-amendment law.
M.L. Gowda v. Channamma (AIR. 1974 Karnatak 63)	On the facts of that case it was found that there was no order passed under Order 39 Rule 1 CPC (as relied upon in that case).	The Court stated that Gowda's case did not assist the petitioners' position on the present facts and noted it was decided before the 1976 amendment to S.115 CPC.
Sourendra Nath Mitra v. Sreemathi Tarubala Dasi (AIR. 1927 Cal 354)	Principle that where there is doubt whether a particular order falls under a specified rule, the benefit of doubt should be given to the petitioner (as relied on in Vasu).	The Court noted that Vasu followed this Calcutta decision; however, the opinion emphasized that the later statutory amendment to S.115 CPC altered the legal landscape affecting such doubts.

Court's Reasoning and Analysis

The Court approached the matter primarily as a question of jurisdiction under Section 115 CPC after the 1976 amendment. The analysis proceeded in these steps:

Identification of the statutory framework: The Court noted that Order 43 Rule 1(r) expressly treats an order made under specified provisions of Order 39 — including Rule 1 — as an appealable order. The plaintiffs had filed their interlocutory application under Order 39 Rule 1.
Characterisation of the impugned order: Although no temporary injunction was actually granted in the sense contemplated in the first part of Order 39 Rule 1, the order was made on the application under that rule and the learned Munsiff adjourned the application for final hearing. The Court held there is nothing in Order 43 Rule 1(r) to suggest that only final orders (and not interim or temporary orders) under Order 39 Rule 1 are appealable; any order passed or purported to be passed under Rule 1 is appealable.
Effect of the 1976 amendment to Section 115 CPC: The Court emphasized that sub-section (2) of Section 115 CPC, introduced by the 1976 amendment, contains an express ouster of the High Court's revisional jurisdiction in relation to orders against which an appeal lies. That provision states the High Court shall not, under Section 115, vary or reverse any decree or order against which an appeal lies.
Consideration of precedents: The Court reviewed earlier decisions that had permitted revision in certain circumstances (for example, where the existence of an alternative remedy was doubtful or where there was bona fide doubt as to whether an order fell within a rule). The Court observed that many of those decisions pre-dated the 1976 amendment to Section 115 and therefore do not support entertaining the present revision. The Court expressly accepted Bhaskaran v. Ambika's proposition that injunction orders (interim or final) fall within Order 39 Rule 1 and are appealable, and it accepted the view expressed in Khem Chand that even an order not supportable in law cannot be revised under Section 115(2) if an appeal lies.
Application to the present case: Even though the impugned order may have in effect decided part of the suit and even though none of the defendants had filed an application seeking permission to open a drain through the plaint property, the express statutory bar in Section 115(2) prevented the High Court from entertaining revision of an order under Order 39 Rule 1. Consequently, the Court concluded the proper remedy against the impugned order is by way of appeal, not revision.
Ancillary procedural disposition: At the close of arguments, both parties requested that the petition need not be pursued further and that it would suffice to direct the trial court to dispose of the suit expeditiously. The Court acceded to that request in addition to dismissing the revision.

Holding and Implications

Holding: The High Court held that the revision petition is not maintainable and accordingly DISMISSED the petition.

Implications:

The Court determined that the impugned order — being made under Order 39 Rule 1 — is an appealable order under Order 43 Rule 1(r), and therefore Section 115(2) CPC bars the High Court from varying or reversing it in revision proceedings.
The appropriate remedy against the impugned order is an appeal; revisional jurisdiction under Section 115 cannot be invoked to obtain the relief sought in this petition in respect of appealable orders.
The Court directed the trial court to dispose of the underlying suit as expeditiously as possible. The Court ordered dismissal of the revision petition and recorded that there would be no costs in the circumstances; a carbon copy of the order was to be furnished to counsel appearing for the parties.
The opinion does not purport to set a new principle beyond applying the statutory bar in S.115(2) CPC and existing case law; its effect is to confirm that, post-1976 amendment to S.115 CPC, orders under Order 39 Rule 1 must be challenged by appeal rather than by revision under Section 115.

Disposition: Dismissed. The trial court is directed to dispose of the suit expeditiously. No costs.

Show all summary ...

1. This revision filed by the plaintiffs arises from an order passed on I.A No. 1616/82 in O.S 411/82 on the file of the II Addl. Munsiff's Court, Ernakulam. The plaintiffs are residing in a plot of 10 cents situated in Konthuruthy. It is said that the property of the plaintiffs is enclosed by compound walls on all the four sides. The defendants 1 and 2 are residing in the property lying adjacent to the plaintiff's property on the south. It is said that there is a private pathway about 20 feet wide proceeding northwards from Konthuruthy Church Road running along the eastern boundary upto the northern boundary of the property of defendants 1 and 2 and thereafter this pathway turns to the east. According to the plaintiffs, as they had no access to the pathway from their property they purchased the plaint schedule item lying adjacent on their eastern compound wall under a sale deed dated 7-2-1981. The plaint schedule item is said to be a small strip of land having width of 6 links and a length of 105 links. The plaintiffs allege that ever since they purchased the plaint schedule item they have been using it as the only way to their house from the private pathway referred to above. The third defendant in this case is the Corporation of Cochin and the fourth defendant is a neighbour. The fourth defendant put up a basement and compound wall on 5-4-1982 on the eastern boundary of his property and as a result of this, the drainage of water to the low lying lands on the east was stopped. Defendants 1 and 2 therefore wanted to drain the water to the plaint schedule property. They influnced the third defendant and succeeded in persuading it to fake a decision to open a drain through the plaint property running south to north. The construction of such a drain would cause severe inconvenience and hardship to the plaintiffs. The representations made to the third defendant in this regard had no effect. It was in these circumstances that the plaintiffs instituted the suit for an injunction restraining defendants 1 and 2 from cutting out or opening drainage through the plaint schedule property. In the suit, I.A No. 1616/82 was filed by the plaintiffs praying for the issue of a temporary injunction. The learned Munsiff after hearing both parties passed an order as an interim arrangement, and posted the petition for final hearing to some other day. It is this order that is strongly assailed before this Court on several grounds.

2. The learned advocate appearing for the petitioner, Mr. John Mathew, submitted that the order passed by the learned Munsiff without properly and duly considering the application filed by the plaintiffs and passing a final order therein, allowing the third defendant to construct the drain by putting up pipes through the plaint schedule property, is clearly illegal and that the learned Munsiff failed to note that none of the defendants has put in any application praying for such an order and the application filed by the plaintiffs was for issue of a temporary injunction restraining the defendants from cutting open any drain through the plaint schedule item. The counsel also submitted that the rain water and other water stagnated in the property of defendants 1 and 2 could be very conveniently drained out to the low lying lands on the eastern side of the pathway, that this has been actually pointed out and suggested by the commissioner appointed in the case and that it was without considering any of these things that the learned Munsiff passed the order under challenge.

3. Smt. Seemanthini, learned advocate appearing for the respondents, with equal vehemence supported the order and contended that the revision itself is not maintainable as the order in question is an appealable order under Order 43 rule 1(r); that there is a specific prohibition in sub-section (2) of S. 115 of the Code of Civil Proceedure against entertaining a revision against such orders and that on merits also the petitioners have no case and this petition therefore only deserves to be dismissed.

4. In support of her contention that the revision is not maintainable the counsel for respondents 1 and 2 cited the decisions in Hamid Husain Khan…(Defendant); v. Masood Husain Khan…(Plaintiff). (AIR. (39) 1952 All. 279); Audul Rahiman Saheb v. Vanappathi Bhatta (ILR. 23 Madras 517); Bhaskaran v. Ambika (1977 KLT. 476) and Khem Chand v. Harl Singh (AIR. 1979 Delhi 7); while the learned counsel for the petitioners wanted to place reliance on Vasu… v. Narayanan Nambooripad…. (1961 KLT. 946); K. Virupakshiah v. M. Sivalingaiah (AIR. 1960 Andhra Pradesh 540) and M.L Gowda v. Channamma (AIR. 1974 Karnatak 63).

5. It was argued on behalf of the petitioners, that the order sought to be revised is not a final order passed under Order 39 rule 1; that it is only an interim order and therefore it is not an appealable order; that the petitioners bona fide believed on the facts and circumstances of the case that this is only an interim order, which is not appealable and that in such a case the revisional jurisdiction is not ousted and that if there is any doubt on this question the benefit of that should be given to the revision petitioners.

6. As stated earlier, it was the plaintiffs, the petitioners herein, who moved the trial court for issue of a temporary injunction restraining defendants I and 2 from cutting out or opening a drainage through the plaint schedule property. It may be noted that neither the first defendant nor the second defendant filed any application praying for the issue of any order in their favour permitting them to make an opening or to construct a drainage through the plaint schedule property for letting out rain water collected and stagnated in the property of the first defendant. The third defendant, the Corporation, has also not made any application. In a way the suit itself has been partly decided by this order. In the circumstances, it cannot be said that the attack made against the impugned order is without any basis or foundation. But in view of the legal bar ousting jurisdiction of this Court, in a matter like this, this Court should not alter or modify or reverse any decree or order sought to be revised.

7. By virtue of the provisions in Order 43 rule 1(r), an order under rule 1, rule 2, rule 2A, rule 4 or rule 10 of Order 39 is an appealable order. The application for temporary injunction was filed by the revision petitioners admittedly under Order 39 rule 1 and it was on that application the order under attack was passed. It is true that no temporary injunction has been granted as contemplated in the first part of that rule and instead, only the order to question has been passed and after passing the impugned order the learned Munsiff has adjourned the application for issue of temporary injunction for final hearing to another date. It was relying on these facts that the counsel for the petitioners contended that the order in question is not a final one and therefore it is not appealable. There is nothing in Order 43 rule 1(r), either expressly or impliedly showing or indicating that the order contemplated therein is only a final order and not an interim or temporary order. Any order, whether final of interim or temporary passed or purported to have been passed under Order 39 rule 1 is an appealable order. The grant of remedy under S. 115 is in the discretion of the High Court and as a rule of practice, this discretionary power will not be exercised in favour of interference, where there was another remedy open to the party which he did not avail of. The view taken by the various High Courts on the question of entertaining a revision under S. 115 CPC. as it stood before amendment, where the order sought to be revised is appealable, was that it would be proper to interfere in revision where the existence of alternative remedy is doubtful or where the alternative remedy is inconvenient or is not efficacious or is barred or where non-interference will lead to multiplicity of proceedings and unnecessary expense and delay or results in grave injustice, (vide K. Virupakshiah v. M. Sivalingaiah : AIR. 1960 Andhra Pradesh 540), There has been drastic change brought about by introducing sub-section (2) to S. 115 CPC. by the amendment in 1976. Under S. 115(2) CPC. there is an express ouster of jurisdiction of this Court in the case of appealable orders. Sub-section (2) of S. 115 CPC. clearly states that 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. This Court in Vasu… v. Narayanan Nambooripad…. (1961 KLT. 946), following a decision of the Calcutta High Court in Sourendra Nath Mitra v. Sreemathi Tarubala Dasi (AIR. 1927 Cal 354) held that when there is a doubt whether a particular order would fall under a particular rule or not the benefit of that doubt should be given to the petitioner and civil revision petition should be allowed to be proceeded with. That was a case where there was a bona fide doubt whether the order under attack in that case really fell under rule 5 or rule 6 of Order 38 CPC. The decisions reported in Virupakshiah's case (AIR. 1960 Andhra Pradesh 540) and Gowda's Case (AIR. 1974 Karnatak 63) do not in any way support or improve the case. In Gowda's Case (AIR. 1974 Karnatak 63) on the facts it was found that there was no order passed under Order 39 rule I CPC. It may be noted that these decisions were rendered before the CPC. was amended in 1976. As stated earlier, even if the order in question is an interim order passed under Order 39 rule 1, no doubt it is appealable being an order passed under this rule. This aspect has been fully considered by Balagangadharan Nair, J. in Bhaskaran v. Ambika (1977 KLT. 476) where it has been held that an order of injunction, whether interim or final, is an order falling within rule 1 or 2 of Order 39 and therefore appealable as it is an order passed under a particular rule. I am in respectful agreement with this decision and in the light of the decision of this Court there cannot be any doubt that the order under attack is appealable and not revisable in exercise of the powers of this Court under S. 115 C.P.C In Khem Chand's case (AIR. 1979 Delhi 7) the effect of the amendment to S. 115 C.P.C has been duly considered and the learned Judge who rendered the decision observed that although the order under attack was not supportable in law and was not in accordance with equity and good conscience, in view of the express prohibition in S. 115(2) C.P.C the Court has no jurisdiction to interfere with the order.

8. For the aforesaid reasons, it is clear that the remedy against the order in question is by way of an appeal and this revision is not maintainable. The proper procedure is to return the petition to the petitioner for presentation before the proper court. But at the fag end of the arguments on the points involved in the petition, the counsel appearing for both parties submitted that this petition need not be further pursued and it is enough if the trial court is directed to dispose of the suit as expeditiously as possible.

9. In the result this petition is dismissed; and the trial court is directed to dispose of the suit as expeditiously as possible. No costs in the circumstances of the case. Carbon copy of this order will be given to the counsel appearing for the parties on the usual terms.

10. Dismissed.