TaxTMI 
TaxTMI 
2023 (9) TMI 1432
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....ibed in the second Schedule of the plaint. Additionally, possession of the said property was sought. In the alternative, it was prayed that, if the court concludes that she is not the exclusive owner of the property, her share therein be declared one-sixth and the same be partitioned accordingly. 4. The plaint case is that,-- the suit property was of Plaintiff's grandmother Fathima Beevi, which the Plaintiff purchased from her vide sale-deed dated 14.11.1990; the first Defendant (i.e., the Appellant No. 1) is the daughter-in-law of Fathima Beevi whereas Defendant Nos. 2 to 6 are her children; taking advantage of staying with Fathima Beevi, the husband of the first Defendant, namely, Khaja Mohideen, got a gift-deed executed in his favour from Fathima Beevi on 24.04.1982; the said gift-deed was obtained by exercising undue influence and coercion and was never acted upon and is therefore a nullity. In the alternative, it was pleaded that, if the gift-deed is accepted, since the husband of the first Defendant died on 31.05.1988 (i.e., before the death of his mother Fathima Beevi), Fathima Beevi had one-sixth share in the property which would come to the Plaintiff under the sale-de....
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.....S. No. 276 of 1992, on the file of the Ist Additional Sub Court, Tirunelveli, are modified to the effect that the Plaintiff is entitled for declaration that the second Schedule property belongs to her absolutely and consequently, she is entitled to recover the possession of the same from the Defendants... 10. Aggrieved by the judgment and order of the High Court, the Defendants are in appeal. 11. We have heard Mr. A. Sirajudeen, learned Senior Counsel for the Appellants and Mr. V. Prabhakar, learned Counsel, for the Respondents. Submissions on behalf of the Appellants 12. Learned Counsel for the Appellants submitted: (i) The High Court exceeded its jurisdiction by entertaining a revision against an order which declined review of an appealable decree; (ii) Assuming that the revision was maintainable, High Court could not on its own modify trial court's decree which was not the subject matter of challenge before the High Court; (iii) If the trial court had committed any jurisdictional error in rejecting the review application, the High Court should have remitted the matter back to the trial court for a fresh consideration of the review application; (iv) If the High C....
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....ised revisional power, the learned Counsel for the Respondent relied on several decisions enumerated and discussed below: (i) Major S.S. Khanna v. Brig. F.J. Dillon AIR 1964 SC 497; which we shall deal with at a later stage. (ii) Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat 1969 (2) SCC 74. This is a decision which lays down the conditions in which revisional powers could be exercised and clarifies that if there are two modes of invoking the jurisdiction of the High Court and one of them is chosen and exhausted it would not be proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court. It holds that though Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction exercised thereunder is a part of the general appellate jurisdiction of the High Court as a superior Court. Therefore, the principle of merger of orders of inferior courts in those of superior Courts would be applicable. (iii) Vinod Kumar Arora v. Smt. Surjit Kaur (1987) 3 SCC 711. This is a decision which deals with the general principles governing exercise of revisiona....
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....t. (x) B. Subbarao v. Yellala Maram Satyanarayana AIR 1961 AP 502. In this case the Plaintiff sought permission to sue as a pauper. On rejection of his prayer, he filed a review application. Against rejection of that review application, he filed a revision Under Section 115 of the Code of Civil Procedure. While rejecting the objection that revision is not maintainable against an order rejecting a review application, the High Court held that as there is no right of an appeal against rejection of a review application, the jurisdiction Under Section 115 of the Code of Civil Procedure can be invoked. (xi) Arya Insurance Co. Ltd. v. Lala Channoolal AIR 1957 All 400. In this case it was held by the Allahabad High Court that the Code of Civil Procedure does not provide for an appeal against refusal of a review though an appeal Under Order XLIII, Rule 1(w) from an order granting a review is maintainable. However, an order rejecting the review may be brought into question in a revision. [Note: In this case the order of which review was sought was not a decree but an order striking off defence and directing the suit to proceed ex parte.] (xii) Thakur Singh v. Bhaironlal AIR 1956 Raj ....
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...., a revision was preferred before the High Court Under Section 115 of the Code of Civil Procedure. The High Court of Punjab set aside the order and directed that the suit shall be heard and disposed of according to law. Aggrieved by the order of the High Court, a Special Leave Petition was filed before this Court. Before this Court it was urged: (a) that the order under challenge before the High Court did not amount to "a case which has been decided" within the meaning of Section 115 of the Code of Civil Procedure; (b) that the decree which may follow would be subject to an appeal to the High Court therefore, the power of the High Court was, by the express terms of Section 115 of the Code of Civil Procedure, excluded; and (c) that the order did not fall within any of the three Clauses (a), (b) and (c) of Section 115 of the Code. In that context, this Court observed: 6...............The validity of the argument turns upon the true meaning of Section 115 of the Code of Civil Procedure, which provides: 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 Co....
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.... their number is legion - would serve no useful purpose. In every High Court from time to time opinion has fluctuated. The meaning of the expression "case" must be sought in the nature of the jurisdiction conferred by Section 115, and the purpose for which the High Courts were invested with it. xxxxxx xxxxxxxx xxxxxxxx xxxxxxxxx 10. The expression "case" is a word of comprehensive import; it Includes civil proceedings other than suits, and is not restricted by anything contained in the Section to the entirety of the proceeding in a civil court. To interpret the expression "case" as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence which the jurisdiction to....
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.... order, the same is amenable to the revisional jurisdiction Under Section 115 of the Code of Civil Procedure. However, at the same time, it cannot be overlooked that exercise of revisional powers cannot be claimed as of right. It is a discretionary power. The revisional Court is not bound to interfere merely because any of the three conditions, as laid down in Section 115 of the Code of Civil Procedure for exercise of such power, is satisfied. Rather, the Court, exercising revisional powers, must bear in mind, inter alia, whether it would be appropriate to exercise such power considering the interlocutory character of the order, the existence of another remedy to an aggrieved party by way of an appeal, from the ultimate order or decree in the proceeding, or by a suit, and the general equities of the case. 22. In Major S.S. Khanna (supra) the order impugned before the revisional court was an order by which the trial court while deciding a preliminary issue held the suit as not maintainable though, the suit itself was not decided. Therefore, there was no appealable decree in existence at the time when the revisional jurisdiction was invoked. Whereas, in the case at hand there was al....
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....alteration or modification. It is an order by which the review petition is dismissed thereby affirming the decree or order. In such a contingency there is no question of any merger and anyone aggrieved by the decree or order of the Tribunal or court shall have to challenge within the time stipulated by law, the original decree and not the order dismissing the review petition. Time taken by a party in diligently pursing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in the filing of the appeal, but such exclusion or condonation would not imply that there is a merger of the original decree and the order dismissing the review petition. (Emphasis supplied) 24. What is clear from the above observations is, that where the review is allowed and the decree/order under review is reversed or modified, such an order shall then be a composite order whereby the court not only vacates the earlier decree or order but simultaneous with such vacation of the earlier decree or order, passes another decree or order or modifies the one made earlier. The decree so vacated, reversed or modified is then the decree that is effective for the p....
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....urisdiction of the High Court as a superior court. It is only one of the modes of exercising power conferred by the statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not, therefore, consider that the principle of merger of orders of inferior courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal. (Emphasis supplied) 27. In the instant case, the trial court, which had jurisdiction to allow or dismiss the review application, dismissed the review application on merits. If it had granted the review, the aggrieved party would have had a right to file an appeal Under Order XLIII Rule 1(w) read with Order XLVII Rule 7 of the Code of Civil Procedure. And if it had allowed the review and simultaneously altered/modified/reversed the decree, the aggrieved party would have had a right to file an appeal against the said decree. But, if the revisional court does the same, as has been done by the High Court while passing the impugned order, an anomalous situation would arise. The decree pass....