*THE HON’BLE SRI JUSTICE K.G. SHANKAR +C.R.P.No.5335 of 2006 % 11.02.2011 Between: #Masina Sriramulu … Petitioner Vs. $Pasagadagula pydaiah and another … Respondents ! Counsel for the appellants : M. Jagannadha Sarma Counsel for the Respondents: E.V.V.S. Ravi Kumar for R-1. <Gist: >Head Note: ? Cases referred: 1. AIR 1917 PC 71 2. AIR 1949 PC 156 3. AIR 1964 SC 497 4. AIR 1953 SC 23 5. AIR 1977 HP 18 6. (1885) 11 ILR Calcutta 6 (PC) 7. (1900) 27 IA 216 8. AIR 1966 SC 153 9. AIR 1970 SC 406 10.AIR 73 SC 76 11.AIR 1987 SC 203 12.AIR 1983 SC 504 13.AIR 1991 SC 445 14.AIR 1987 SC 2179 THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.5335 of 2006 Date: .02.2011 Between: Masina Sriramulu … Petitioner AND Pasagadagula Pydaiah and another … Respondents THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.5335 of 2006 ORDER: The power of the revisional Court is the primary consideration in this case. Indeed, other important questions of law have arisen for consideration. But, especially the preliminary question as to the powers of the revisional Court under Section 115 of the Code of Civil Procedure (‘CPC’, for short) would rise in this case. 2. This revision arises from the judgment in A.S.No.59 of 2004 on the file of the III Additional District Judge, Kakinada, which in turn is an appeal from the judgment and decree in O.S.No.607 of 1999 on the file of the Principal Junior Civil Judge, Kakinada. Section 102 CPC proscribes a second appeal from any decree when the subject matter of the original suit is for recovery of money not exceeding Rs.25,000/-. The value of the suit laid by the plaintiff before the trial Court was Rs.11,500/-. As such, a second appeal would not lie in view of Section 102 CPC. The plaintiff laid the present revision on the ground that u/s.115 CPC, a revision would lie when no appeal lies from an order of a Court subordinate to the High Court. 3. Sri M. Jagannadha Sarma, learned counsel for the plaintiff submitted that in view of Section 115 CPC read with Section 102 CPC, this revision would lie. On the other hand, Sri E.V.V.S. Ravi Kumar, learned counsel for the first defendant contended that Section 115 CPC has no application and that as the second appeal is prohibited u/s.102 CPC, the plaintiff was not be entitled to lay either an appeal or a revision from the judgment and decree in A.S.No.59 of 2004. 4. The learned counsel for the plaintiff referred to the famous maxim Ubi jus ibi remedium recognized in the famous Ashby v. White (1 Smit L.C. 251) and contended that when the rights of the plaintiff are violated, the plaintiff must have a legal right to proceed against the aggressors who disturbed his right. 5. Section 115 CPC has a long legislative history. It would appear that the Code of Civil Procedure, 1859 did not contain any provision relating to the revisional jurisdiction. When High Courts were constituted at the 3 Presidency Towns under the Charter Act, 1861, the 3 High Courts were conferred the power of superintendence over Courts subordinate thereto. The revisional jurisdiction of the 3 High Courts was confined to (a) failure to exercise jurisdiction and (b) exercising of jurisdiction, which did not vest in the subordinate Court, subjecting those questions alone to the revisional jurisdiction of the High Court. Subsequently, another clause relating to the exercise of the jurisdiction illegally or with material irregularity by the subordinate Court was included within the revisional jurisdiction by Amendment Act, 1879. When the Code of Civil Procedure, 1882 was enacted, Section 622 provided for the revisional jurisdiction which verbatim was incorporated as Section 115 of the present Code of Civil Procedure, 1908. 6. In 1976, when extensive amendments were brought to the Code of Civil Procedure, Section 115 CPC was amended bringing out an explanation and a proviso to sub-section (1) to the original Section 115 CPC. The substantial amendments undertaken by the Amendment Acts of 1999 and 2002 drastically amended the Court of Civil Procedure. So far as Section 115 is concerned, Section 12 of the Code of Civil Procedure (Amendment) Act, 1999 incorporated amendments to Section 115 CPC. The proviso brought in through the amendment in 1976 was redrafted. A new sub-section 3 of Section 115 CPC was added by way of a clarification. 7. The impugned judgment in the present case was passed on 27.07.2006 in A.S.No.59 of 2004. The amendments have come into force with effect from 01.07.2002. Hence, Section 115 CPC as it stands today is liable to be considered to determine whether the revision is maintainable or not. 8. The learned counsel for the first defendant inter alia urged that Section 115 CPC would apply to the orders in interlocutory applications only and that no revision would lie from a judgment in an appeal suit. 9. The learned counsel for the first defendant placed reliance upon Section 115 (1) proviso, which is to the effect that the High Court shall not vary or reverse any order except where the order impugned would have finally disposed of the suit or other proceedings if the order was made in favour of the revision petitioner. The learned counsel for the first defendant inter alia contended that the purport of the proviso is that the revision can be against any order in a suit or proceeding and not an order disposing of the very suit itself. He also pointed out that when a suit is disposed of, it is not an order, but is a decree and that when the proviso conspicuously did not refer to a decree, Section 115 CPC cannot be invoked questioning any decree whether in a suit or an appeal. 10. In proceedings other than suits, issues are not settled. The controversies between rival claims are usually framed at the time of disposal of the matter. Even otherwise, when the controversies are crystallized before both sides let in evidence, they are referred to usually as points for consideration and not issues. The learned counsel for the plaintiff drew my attention to reference of an issue in Section 115 (1) proviso CPC. For the purpose of clarity, I may extract the proviso to Section 115 (1) CPC. Proviso to Section 115 (1) reads: “…………………….. 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………………………………….” Referring to the word ‘issue’ in the proviso, it is contended that a revision arises even from the decree in a suit. I am afraid that the whole proviso and indeed the whole section shall be read as a whole and not piecemeal. Picking out a stray word ‘an issue’ from the proviso, it cannot be contended that a revision is maintainable from the final orders or from the orders in a suit or an appeal. 11. A reading of the proviso points out that the Court shall examine hypothetically whether the impugned order finally disposes of the suit or proceeding. If the answer to this question is in the positive, a revision would lie and otherwise not. 12. In the present case, the plaintiff made a monitory claim. The trial Court granted a decree for part of the monitory claim made by the plaintiff. The appellate Court reversed the same. I may put two situations hypothetically. The order under impugnment is the judgment of the appellate Court. It was passed in favour of the first defendant. Did it finally dispose of the suit laid by the plaintiff? Indeed, by the judgment of the appellate Court, the suit filed by the plaintiff was dismissed. Thus, the judgment of the appellate Court finally disposed of the suit. The other hypothetical situation is to consider as to what would happen had the appellate Court passed judgment/order in favour of the plaintiff who laid the revision. In other words, the appellate Court must have dismissed the appeal confirming the judgment of the trial Court granting a money decree in favour of the plaintiff. Again the judgment of the appellate Court would have finally disposed of the suit laid by the plaintiff. Viewed either in the angle of the plaintiff or in the angle of the first defendant, the situation satisfies the proviso of Section 115 (1) CPC. 13. In view of the language deployed in the proviso that the order must have been passed in the course of a suit or other proceeding, there is no bar for a revision from the judgment passed by the appellate Court. The other embargo is provided by the beginning of Section 115 (1) that where no appeal lies from the impugned order/judgment, the party can resort to revision. In view of Section 102 CPC, admittedly no second appeal would lie. This part of the condition imposed by Section 115 (1) CPC is satisfied in the present case. So far as the other condition imposed by the proviso incorporated by 1976 amendment and modified by 1999 amendment is concerned, viz., where the impugned order finally disposed of the suit and would have disposed of the suit finally even if the order were in favour of the plaintiff, the revision is maintainable. I, therefore, answer this question raised by Sri Ravi Kumar, learned counsel for the first defendant-first respondent that this revision prima facie is maintainable in view of Section 115 (1) CPC including the proviso thereto. 14. The next question is whether the order of the appellate Court deserves to be revised. This question is a mixed question of fact and law. The law regarding the interference by the High Court u/s.115 CPC is that the High Court is entitled to interfere with the order of a subordinate Court in the event of fulfillment of one of the three conditions mentioned in Section 115 (1) CPC only, viz., the Court exercised the jurisdiction not vested in it by law or b) the Court failed to exercise the jurisdiction which is vested in it or c) the Court acted illegally or with material irregularity in exercise of the jurisdiction vested in it. One of the old cases in respect of powers u/s.115 CPC is Balakrishna Udayar v. Vasudeva Iyar[1]. It was reiterated with approval by the Prevy Council in N.S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board[2]. The Privy Council considered that the revisional powers are exercisable when the subordinate Courts irregularly exercise or did not exercise or illegally assumed powers to exercise jurisdiction and that a revision cannot be directed against the conclusions of law and fact in which the question of jurisdiction is not involved. 15. One of the leading authorities on the powers u/s.115 CPC is Major S.S. Khanna v. Brigadier F.J. Dillon[3]. In that case, Shah.J as then he was held: “The section consists of two parts, the first prescribes the conditions in which jurisdiction of the High Court arises, i.e., there is a case decided by a subordinate Court in which no appeal lies to the High Court, the second sets out the circumstances in which the jurisdiction may be exercised.” 16. It was clarified that if there was no question of jurisdiction, the decision could not be corrected by the High Court in the exercise of the revisional powers, since a Court has jurisdiction to decide wrongly as well as rightly. 17. Way back in Keshardo Chaneria v. Radha Kissan[4], it was observed that the judges of the subordinate Courts have perfect jurisdiction to decide the case and that even if they decided the case wrongly it could not be said that the subordinate Courts exercised the jurisdiction illegally or with material irregularity. The Himachal Pradesh High Court clarified in Ramdas v. Subhash Bakshi[5] that the revisional jurisdiction is residual jurisdiction conferred so as to ensure that errors of grave nature should be corrected when they are brought to the notice of the Court. 18. I may briefly note the march of law relating to the revisional powers of the High Court at this stage. 19. I n Amir Hassan Khan v. Sheo Baksh Singh[6], the judicial committee of the Privy Council observed that where the Court has jurisdiction to determine a question, it could not be held that the Court had acted illegally or with material irregularity in exercise of its jurisdiction by giving an erroneous decision. I n Malkarjun v. Narahari[7], the Privy Council held that a Court had jurisdiction to decide wrongly as well as rightly and that if the case was wrongly decided, the wronged party could take the course prescribed by law for setting the matters right and that the jurisdiction of the High Court u/s.115 CPC could not be invoked in such an event. The Privy Council’s next two leading decisions are Balakrishna Udayar (supra) and N.S. Venkatagiri Iyyangar (supra), both of which were already referred to. 20. After independence, one of the first cases arising before the Supreme Court relating to the powers u/s.115 CPC is Keshardeo’s case (supra). In Pandurang v. Maruthi Hari[8], it was observed that it was not competent for the High Court to correct errors of fact, however patent they be u/s.115 CPC and that even errors of law could not be rectified unless such errors have been in connection with the jurisdiction of the Court to try the dispute. It was clarified by Gajendragadkar, J as he then was, in that case that an erroneous decision on a question of law reached by the subordinate Court which had no relation to questions of jurisdiction of the Court could not be corrected by the High Court u/s.115 CPC. As already pointed out, the leading authority, however, is the decision in Major S.S. Khanna’s case (supra). 21. In Baldevdas Shivlal v. Filmistan Ditributors (India) (P) Ltd.[9], the Supreme Court explained the ambit and scope of Section 115 CPC that the exercise of the power u/s.115 CPC was broadly subject to three important conditions viz., i) that the decision must be of a Court subordinate to the High Court, ii) that there must be a case which has been decided by the subordinate Court, and iii) that the subordinate Court must appear to have exercised jurisdiction not vested in it by law or has failed to exercise the jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity. 22. In Managing Director (MIG) Hindustan Aeronautics Ltd., v. Ajit Prasad[10], it was held that the High Court had no jurisdiction u/s.115 CPC to interfere with the order passed by the first appellate Court whether the order of the first appellate Court is right or wrong and whether the order might be in accordance with law or not in accordance with law as long as the first appellate Court has jurisdiction to make such an order. 23. I may point out that all these decisions were passed prior to the amendment of 1999 or the amendment of 1976. 24. With reference to the powers u/s.115 CPC and under Article 227 of the Indian Constitution, the Supreme Court observed in Anndal Ammal v. Sadasivan Pillai[11] that the procedure u/s.115 CPC and Article 227 of the Indian Constitution are different and are not interchangeable. 25. I may, however, point out that in Hukumchand Amolikchand Longde v. Madhava Balaji Potdar[12], the Supreme Court held that once a revision u/s.115 CPC was admitted, it had to be disposed of on merits. I n Masjid Kacha Tank, Nahan v. Tuffail Mohammed[13], even though there were concurrent findings from the trial Court and the appellate Court, the Supreme Court considered that the High Court in its revisional jurisdiction would be entitled to interfere with the findings of fact if the findings are perverse or there had been a non-appreciation or non-consideration of material evidence on record by the trial Court or the appellate Court. In Vinod Kumar Arora v. Smt. Surjit Kaur[14], the Supreme Court held that the High Court would be justified in interfering with the orders of a subordinate Court by exercise of the revisional jurisdiction where the decision of the order under impugnment was based on conjectures and surmises and that the Court which passed the impugned order lost sight of relevant evidence. Thus, although the view of the Privy Council and the Supreme Court by and large is that the scope of a revision is very limited and that a revision can be entertained only when there is incorrect exercise of the jurisdiction conferred upon the Court, the Supreme Court also expressed the view that where the order sought to be revised is perverse and is without any basis whatsoever, such an order deserves to be revised. This view of the Supreme Court indeed is in tune with the famous maxim Ubi jus ibi remedium. The revision petitioner herein is prevented from moving a second appeal as the amount involved is less than Rs.25,000/-. I am afraid that the plaintiff, who is the revision petitioner, nevertheless, cannot be shut off if the order passed by the appellate Court is wholly unjust. It is not as though the plaintiff has no remedy even though his rightful claim is rejected. At any rate, the learned counsel for the plaintiff contended that the order of the appellate Court was perverse and needed to be rectified through the revision. 26. I shall now examine the concrete controversy. I shall also inter alia consider whether it is a controversy which deserves to be entertained in exercise of the revisional jurisdiction of the Court or not. 27. The second defendant is the younger brother of the plaintiff. The plaintiff, the first defendant as well as the second defendant are all senior citizens. While the plaintiff is described to be 74 years old, the second defendant is shown to be 69 years old. The first defendant was 63 years old by the date of the revision. The plaintiff laid O.S.No.607 of 1999 on the file of the Principal Junior Civil Judge, Kakinada seeking for a decree over a sum of Rs.11,500/- together with interest primarily from the first defendant. The second defendant remained ex parte in the suit. 28. The case of the plaintiff is: a) The plaintiff owned Acs.2.08 cents of land in R.S.No.458/5 situate at G. Medapadu village. The plaintiff has been presently cultivating the same. The first defendant was engaged by the plaintiff as a daily wage labourer to assist the plaintiff in his cultivation of the lands. During 1998-99, the plaintiff laid IR-64 crop in Ac.1.08 cents of land. He raised Bondalu crop in the remaining one acre of land. b) The plaintiff thrashed IR-64 crop during the first week of May, 1999 and realized 30 bags of paddy. As the plaintiff and the members of his family were to attend a marriage, he entrusted Bondalu crop to the first defendant on 08.05.1999 with a request to thrash the same and to handover the realized paddy to the rice mill. c) The first defendant, under the instigation of the second defendant thrashed the crop on 10.05.1999, realized 25 bags of paddy and appropriated the produce without making it over to the rice mill as requested by the plaintiff. The plaintiff came to know of the same on 12.05.1999 when he returned after the marriage. The plaintiff came to know the conduct of the first defendant through Gunnam Pedakapu @ Appa Rao, Paka Subba Rao, Miryala Veeraiah and the son of Miryala Veeraiah, all of whom attended the thrashing work in the fields of the plaintiff as agricultural labourers. When the first defendant did not bother to respond to the demand of the plaintiff to offer explanation or to pay the cost of the paddy, the plaintiff laid the suit. As the market value of the paddy was Rs.460/- per bag in May, 1999, the plaintiff claims that the first defendant shall pay Rs.11,500/- to the plaintiff towards the cost of 25 bags of paddy. The plaintiff indeed also seeks for interest over the same. 29. The second defendant, as already pointed out, remained ex parte. The first defendant laid the written statement. The defence of the first defendant is: a) The second defendant is not the owner of the Acs.2.08 cents of land in RS No.458/5. The mother of the plaintiff, who was the owner of the agricultural lands, bequeathed the same to the sister of the plaintiff and to the children of the sister of the plaintiff. The plaintiff laid a tenancy case against his sister. When the plaintiff requested the first defendant to help the plaintiff in the tenancy case (perhaps by falsely deposing in favour of the plaintiff), the first defendant refused to concede to the request of the plaintiff. The plaintiff consequently bore grudge against the first defendant and laid this false case against him. b) The question of the plaintiff cultivating/harvesting and thrashing the crop in the lands in S.No.458/5 did not arise, as the plaintiff never own or possess these lands. The question of the plaintiff entrusting the thrashing in one acre of land to the first defendant did not arise. The plaintiff is not entitled to any relief as claimed by him. 30. The plaintiff examined himself as PW.1. He examined Gunnam Pedakapu, @ Appa Rao as PW.2. As against the evidence on the plaintiff’s side, the first defendant examined himself as DW.1. He examined one Akkireddi Veera Raju, a resident of the same village as DW.2. The plaintiff also exhibited as Exs.A.1 to A.5. The first defendant marked Ex.B.1. The trial Court concluded that the plaintiff is the owner of the property, that he entrusted Bonalu crop in Ac.1.00 cents of land to the first defendant and that after realizing 25 bags of paddy, the first defendant appropriated the same. Regarding the value of the crop, the learned trial Judge determined the value of the crop at Rs.350/- per bag as against the cost of paddy at Rs.460/- per bag, as claimed by the plaintiff and granted a decree in favour of the plaintiff for a sum of Rs.8,500/-. He also granted interest at 6% per annum from the date of the suit till realization. 31. Aggrieved by the same, the first defendant preferred appeal in A.S.No.59 of 2004 before the III Additional District Judge, Kakinada. As in the trial, the second defendant, who is the brother of the plaintiff, remained ex parte. The appellate Court considered that the plaintiff failed to establish his title to the property largely on the ground that the plaintiff failed to produce No.10(1) account or the adangals and that there were corrections in Ex.A.4 pattadar passbook. The learned appellate Judge consequently concluded that the plaintiff failed to establish his title to the property. The question of the first defendant appropriating the produce, therefore, did not arise. The appellate Court consequently allowed the appeal and dismissed the suit. Hence, this revision. As already pointed out, where the value of the suit was less than Rs.25,000/-, second appeal is proscribed u/s.102 CPC. Hence, this revision. 32. The first defendant raised a fundamental question whether the plaintiff is the owner of the plaint schedule property. Indeed, the burden lies upon the plaintiff to show his title to the property. If the plaintiff is not the owner of the property, the question of his entrusting the crop to the first defendant and the first defendant wrongly appropriating the same for himself would not arise. Consequently, whether the plaintiff is the owner of the property becomes more or less a preliminary question. 33. As already pointed out, it is the case of the first defendant that the property was owned by the mother of the plaintiff and the mother of the plaintiff bequeathed the same to the sister of the plaintiff. The