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KOUSALYA EDUCATIONAL TRUST versus K. VIJAYAKUMARI

High Court of Madras

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Kousalya Educational Trust v. K. Vijayakumari - CIVIL REVISION PETITION.NO.1350 OF 2002 [2003] RD-TN 685 (14 August 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 14/08/2003

CORAM

THE HONOURABLE MR. JUSTICE P.K. MISRA

CIVIL REVISION PETITION.NO.1350 OF 2002

and

CMP.NO.11408 OF 2002

Kousalya Educational Trust

Rep. by its Chairman

Kumaran K. Pandiyan

Office at 24-A,New Street,

Sendorkuppam, Ambur,

Vellore District. .. Petitioner -Vs-

1. K. Vijayakumari,

W/o. Kannian

2. Pandian Educational Trust,

Tirupattur, rep. by its Secretary

V.K. Kamalakannan,

S/o. Kandasamy, Office at

Sama Nagar, Tirupattur

3. T.V. Mohamed Ali,

S/o. Vellaiya Rowther,

Sama Nagar, Tirupattur. .. Respondents Civil Revision Petition filed under Section 115 of the Civil Procedure Code against the order passed in I.A.No.160 of 2002 in O,.S.No.3 of 2001, on the file of Subordinate Judge, Tirupattur dated 8.7.2002. For Petitioner : Mr.T.R. Rajagopalan for

Mr.T.R. Rajarama

For Respondents : Mr.A.L. Somayaji

Senior Counsel for

M/s. Aiyar & Dolia

:O R D E R



The aforesaid Revision was filed on 25.7.2002 against the order dated 8.7.2002 in I.A.No.160 of 2002 in O.S.No.3 of 2001, on the file of Subordinate Judge, Tirupattur, rejecting the application of the petitioner for being impleaded as a party.

2. The suit was filed by the present respondent No.1 against the respondents 2 & 3 for a direction to the defendants not to restrain the plaintiff from taking part in the General Body Meeting of the Pandiyan Educational Trust and for directing them to convene the General Body of the Pandiyan Trust. During pendency of the aforesaid suit, the present petitioner filed an application under Order I Rule 10(2) C. P.C for being impleaded as third defendant in the suit. Such application was resisted by all the parties to the suit and ultimately rejected by the trial court by order dated 8.7.2002.

3. Section 115 of the Civil Procedure Code has been recently amended. The relevant provision as contained in Section 115(1) is extracted hereunder :-

 Section 115 (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 in 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 irregularly,

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 order 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 proceeding.

4. While the main provision in Section 115(1) has remained unaltered, the proviso has undergone significant change. Before amendment, the provisos which was for the first time incorporated in 1976 were as follows :

 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 order proceeding, except where -

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

5. A comparison of the proviso before 1999 amendment and after 1999 amendment makes it clear that clause(b) of the proviso has been deleted and clause (a) of the proviso has been included as part of the proviso.

6. A bare reading of the aforesaid proviso after 1999 amendment makes it clear that the High Court shall not vary or reverse any order 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 proceeding.

7. The intention of the Legislature seems to exclude the revisional jurisdiction of the High Court in all Interlocutary matters, which, though may have an ultimate bearing in the suit, would not have brought the suit or other proceeding to an end.

8. The above position is now clear in view of the decision of the Supreme Court reported in Shivshakthi cooperative Society, Nagpur Vs. M/s.Swaraj Developers(2003(2) CTC 564)

9. In the present case, if the application under Order I Rule 10 would have been allowed, such order would not have brought the suit to an end. The question then arises if application under Order I Rule 10 is to be considered as a proceeding and in such event, the application if allowed, would have brought such proceeding to an end.

10. The expression proceeding has not been defined in the Code of Civil Procedure. However, keeping in view the intention of the Legislature reflected in the amendment made in the year 1976 and subsequently made in 1999, it is obvious that the Legislature intended to restrict the scope of revision in all interlocutory matters, which while being entertained had the effect of delaying the disposal of the suit. Applications like summoning documents or witnesses, appointment of Commissioner under Order XXVI Rule 1, though are steps in course of a suit for facilitating disposal of the suit one way or the other; such matters if disposed of illegally can be made a ground of attack in the appeal against the ultimate decision as per Section 105 of C.P.C. The clear intention seems to be that such matters which can be challenged in appeal against decree as envisaged under Section 105(2) should not be subjected to revisional jurisdiction of the High Court. Any error or defect or irregularity in any such order affecting the decision of the case may be setforth as a ground of objection in the Memorandum of appeal as specifically envisaged under Section 105(2) C.P.C.

11. While considering the question as to whether an application under Order 39 Rule 1 and 2 can be considered as Proceeding within the meaning of Section 141 CPC, Justice Kasliwal of Rajasthan High Court as his Lordship then was observed :

9.The wordings of section 141 are clear to the effect that the procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable in all the proceedings. The words  as far as it can be made applicable cannot be given a narrow interpretation. The procedure provided both for the trial of the suit or miscellaneous proceeding is meant for finding out the truth and to do justice and full opportunity should be given to the parties to bring forth their case before the Court, unless such procedure is specifically prohibited under the law. So far as the explanation to Section 141 is concerned the proceedings under O.IX have been included within the expression proceedings and any proceeding under Article 226 of the Constitution has been specifically excluded. Thus, if proceeding under O.IX has been included then it does not mean that it would not include other miscellaneous proceedings. The only restriction in applying the procedure provided for the suits to the miscellaneous proceedings would be to see as far as it can be made applicable.

10. If we consider the problem from another angle then also the result would be same. The Court may ask the defendant to file the written statement first before passing any order on the application for temporary injunction. In such a case the plaintiff becomes entitled to file subsequent pleading under O.8 R.9 itself and that being so I see no reason as to how the plaintiff can be denied his right to file a rejoinder in the case of proceedings for temporary injunction by resorting to the provisions of O.8 R.9 read with Section 141 CPC.

12. Eventhough I am inclined to accept this meaning of the expression proceeding for the purpose of Section 141 CPC is also carries the same meaning for the purpose of Section 115, an application under O.10 R.1 CPC cannot be considered as proceeding even by applying the aforesaid extended meaning viewed in the background of the amended provision as interpreted by the Supreme Court in Shivshakthi cooperative Society, Nagpur Vs. M/s.Swaraj Developers(2003(2) CTC 564), the revision is not maintainable.

13. Learned senior counsel appearing for the respondents has submitted that the question of addition of parties under Rule 10 of Order I of the Code of Civil Procedure is not one of initial jurisdiction of the court, but of a judicial discretion and such discretionary order cannot be interfered with in a Revision. For the aforesaid purpose, he has placed reliance upon the decision reported in A.I.R. 1958 SC 886 (RAZIA BEGUM v. SAHEBZADI ANWAR BEGUM AND OTHERS). In view of the opinion expressed regarding maintainability of the petition, it is unnecessary to delve into this question in the present case.

14. In the result, the Civil Revision Petition is dismissed as not maintainable. No costs. Consequently, CMP.NO.11408 of 2002 is closed. Index : Yes

Internet : Yes

dpk/ksr

To

1. K. Vijayakumari,

W/o. Kannian

2. Pandian Educational Trust,

Tirupattur, rep. by its Secretary

V.K. Kamalakannan,

S/o. Kandasamy, Office at

Sama Nagar, Tirupattur

3. T.V. Mohamed Ali,

S/o. Vellaiya Rowther,

Sama Nagar, Tirupattur.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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