Case: Rami Manprasad Gordhandas &amp; Others Vs. Gopichand Shersing Gupta &amp; Others

not confer on the High Court any power of revision. Shri shroff rightly conceding that he was bound by this decision relied on it for the submission that we should send the case back to the High Court for considering whether there were cogent grounds for interference under Section 115, Code of Civil Procedure. In the reported case in a suit for ejectment and arrears of rent instituted under the Act with respect to certain premises in Ahmedabad, the trial Court had disallowed the claim for ejectment but had inter alia granted a decree for arrears of rent. That decree was confirmed on appeal on February 25, 1963 under Section 29. The aggrieved tenant moved the High Court under Section 115, C. P. C for revision of the appellate decree. During the pendency of that revision Section 29 (2) of the Act was amended by Gujarat Act 18 of 1965. The new sub-section (2), while retaining the prohibition against further appeal, expressly conferred power of revision on the High Court. The new sub-section (2) provides :"No further appeal shall lie against any decision in appeal under sub-section (1), but the High Court may for the purpose of satisfying itself that any such decision in appeal was according to law call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit."The High Court, when considering the revision originally preferred under Section 115, Code of Civil Procedure assumed that the amendment governed pending cases as well, and, therefore, empowered it to treat the pending revision also to be governed by Section 29 (2). On this assumption the High Court exercised the wider power of revision conferred on it by the amended Section 29 (2) and varied the impugned judgment on that basis. In this Court the view taken by the High Court was successfully challenged. This Court observed that the amended Section 29 (2) was not retrospective in its operation, adding that it did not merely explain the scope of the existing revisional power of the High Court as contended in support of the order appealed against. Allowing the appeal this Court set aside the order of the High Court and remanded the case back to it for disposing of the revision on the footing that it was governed by Section 115 of the Code of Civil Procedure under which it had been filed.8. Before us also Shri Shroff contended that although no provision of law was mentioned in the memorandum of revision presented by the appellant in the High Court, it must be assumed to have been filed under Section 115, C. P. C. under which it could have been filed, and, therefore, the case should be sent back to the High Court for disposing of the revision on the footing that it was governed by Section 115, C. P. C. Shri Shroff did not, as indeed, he could not, in face of the language of unamended Section 29 (2) which governs the present case contend that any revisional power vested in the High Court under this sub-section.9. We are unable to accept this submission. In the reported case the revision expressly purported to have been filed under Section 115, C. P. C. Such is not the case before us. No request was made to the High Court to treat the revision under Section 115, C. P. C. and the only provision of law under which the revision was understood both by the plaintiff-appellant and the High Court to have been filed was Section 29 (2). No doubt the lable under which a revision is filed, if erroneous, does not estop the party from paying that the revision may be dealt with under the proper law applicable to the case and such a prayer is open to consideration by the Court. But such a prayer has, as a rule, to be made in the Court which is requested to exercise its judicial discretion for that purpose. Section 115, C. P. C., it is plain, vests the High Court with a discretionary power to be exercised judicially to interfere only when the cause of justice demands it. The High Court is not bound to interfere merely because the conditions in clause (a), (b) or (c) of Section 115 are satisfied. The appellant never requested the High Court to exercise its power under Section 115 of the Code and the High Court also did not consider the question of exercising its discretionary power thereunder. In this Court also no ground seems to have been taken in the special leave application complaining that the High Court was in error in failing to exercise the power conferred on it under Section 115, C. P. C.We are, therefore, unable to find any cogent ground for permitting the appellant now to make out this new case in this Court with the result that the order of the High Court dismissing the appeal must be considered to be unexceptionable though we confine our decision only to the ground that no revision was competent in that Court under Section 29 (2) of the Act.10. On the view that we have taken it is unnecessary to refer to the decision of this Court in Mrs. Manorama S. Masurekar v. Mrs. Dhanlaxmi G. Shah, 7 Guj LR 1061 = (AIR 1967 SC 1078 ) dealing with the scope of the various sub-sections of Section 12 of the Act. It is equally unnecessary to refer to the unreported decision of this Court in Raghunath Ravji Dandekar v. Anant Narayan Apte, C. A. No. 387 of 1964, D/- 5-4-1966 (SC) also dealing with the scope of Section 12 (2) of the Act, though it may be pointed out that this Court disallowed the respondent in the unreported case to raise for the first time in this Court the point that the High Court had no jurisdiction to interfere in revision under Section 115, C. P. C. there being no question of jurisdiction involved.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]4. Shri S. T. Desai has raised a preliminary objections to the competence of the appeal. According to him, on the date of the appellate judgment of the City Civil Court, the said judgment was neither open to further appeal nor was there any provision in the Act under which the High Court could be approached for revising the said judgment, with the result that the revision preferred by thehad in any event to be dismissed as incompetent.The ground on which the High Court dismissed the revision is, therefore, immaterial because under the law it is not open to theto urge that the High Court could or should have granted any relief on an incompetent revision. In our view, this point is relevant more to the merits than to the competency of the appeal.n (2) of this section plainly does not provide for revision to the High Court. It merely prohibits further appeal from the decision given on appeal under(1) of Section 29.It is thus clear that the High Court was under some mistaken impression when it observed that the revision before it was under Section 29 (2) of the Act. Right of appeal and revision, it is nowas a creature of statute and there can be no inherent right either of appeal or of revision against a judgment or order of a Court.7.Shri Desai has referred us to Keshavalal Jethalal Shah v. Mohanlal Bhagwandas, (1968) 3 SCR 623   = (AIR 1968 SC 1336  ) for the view that Section 29 (2) in its unamended from did not confer on the High Court any power of revision. Shri shroff rightly conceding that he was bound by this decision relied on it for the submission that we should send the case back to the High Court for considering whether there were cogent grounds for interference under Section 115, Code of Civil Procedure.We are unable to accept this submission. In the reported case the revision expressly purported to have been filed under Section 115, C. P. C. Such is not the case before us. No request was made to the High Court to treat the revision under Section 115, C. P. C. and the only provision of law under which the revision was understood both by theand the High Court to have been filed was Section 29 (2). No doubt the lable under which a revision is filed, if erroneous, does not estop the party from paying that the revision may be dealt with under the proper law applicable to the case and such a prayer is open to consideration by the Court. But such a prayer has, as a rule, to be made in the Court which is requested to exercise its judicial discretion for that purpose. Section 115, C. P. C., it is plain, vests the High Court with a discretionary power to be exercised judicially to interfere only when the cause of justice demands it. The High Court is not bound to interfere merely because the conditions in clause (a), (b) or (c) of Section 115 are satisfied. The appellant never requested the High Court to exercise its power under Section 115 of the Code and the High Court also did not consider the question of exercising its discretionary power thereunder. In this Court also no ground seems to have been taken in the special leave application complaining that the High Court was in error in failing to exercise the power conferred on it under Section 115, C. P. C.We are, therefore, unable to find any cogent ground for permitting the appellant now to make out this new case in this Court with the result that the order of the High Court dismissing the appeal must be considered to be unexceptionable though we confine our decision only to the ground that no revision was competent in that Court under Section 29 (2) of the Act.10. On the view that we have taken it is unnecessary to refer to the decision of this Court in Mrs. Manorama S. Masurekar v. Mrs. Dhanlaxmi G. Shah, 7 Guj LR 1061 = (AIR 1967 SC 1078  ) dealing with the scope of the variousof Section 12 of the Act. It is equally unnecessary to refer to the unreported decision of this Court in Raghunath Ravji Dandekar v. Anant Narayan Apte, C. A. No. 387 of 1964, D/(SC) also dealing with the scope of Section 12 (2) of the Act, though it may be pointed out that this Court disallowed the respondent in the unreported case to raise for the first time in this Court the point that the High Court had no jurisdiction to interfere in revision under Section 115, C. P. C. there being no question of jurisdiction involved.