TaxTMI 
TaxTMI 
1996 (2) TMI 612
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.... the plaintiffs claim, they may be exempted from costs. Subsequently the plaint was amended to the extent that after the filing of the suit, the defendant had raised unauthorised construction at the end of the red colour lane towards north and towards east of the open land which is used as passage. The said amendment was allowed on 12th November 1991. The plaintiff filed an application for restraining the defendants from making any construction on the east add north of the red colour passage. The said application is still pending. Subsequently the plaintiff filed another application which has been numbered as 57 C for directing the defendants to remove the newly constructed wall on the north and east of the red colour passage. That application was allowed ex parte against which a revision was moved unsuccessfully. In an order dated 12th May 1993 passed in Writ petition No. 35576 of 1992 against the said orders, it was found as under: In my opinion, in view of the finding recorded by the revisional court that land on the south of Bada Ghar is not a passage, the direction for demolition of the walls raised by petitioner could not be given. The order impugned dated 14.9.92 th....
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....nto the past conduct. The court would have acted on the basis of the explanation given for the default made on a particular date. He further contends that in view of the total illegality in the order dated 16th April 1994 which appears to be wholly without jurisdiction since the property on which the said construction was raised is not subject matter of the suit, therefore, in order to prevent total failure of justice, the petitioner should have been allowed to contest the case. 4. Mr. P.K. Shukla, learned counsel for the respondent No. 3 to 10, on the other hand, vehemently opposes the contention of Mr. Sharma. He points out that there is no infirmity of illegality in the order dated 16th April 1994. He further contends and draws my attention to the fact that the plaint was amended by incorporating the impugned construction at paragraph 10 of the plaint. Therefore, it cannot be said that it was outside the Scope of subject matter of the suit. He further claims that the property of defendant No. 11 is also used as passage by the plaintiff. According to him, by reason of the alleged construction made by defendant No. 11, the ingress and egress from the plaintiff's property ha....
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....ng any relief against them. It is apparent from the statement made in paragraph 11 of the plaint. Then again by way of amendment, a fact was incorporated that construction is being made at the end of the red colour towards north and towards east of the open land and very feebly a case has been sought to be made out that the said open land is used as passage. But no amendment appears to have been made in respect of prayer where the prayers were confined only to the removal of the obstruction shown as OPQR in the red colour passage and STUV in the blue colour passage. However, it has also not been pointed out as to how the plaintiff claims right of passage over the land of defendant No. 11 when in the map annexed with the plaint it has been specifically shown by arrow to mark the passage which is being used by the plaintiffs for reaching the Municipal road. It has not been indicated in the said map that the land of defendant No. 11 as passage. Even from the copy of the amended plaint which has been produced by Mr. Shukla, it appears that no passage is shown on the land of defendant No. 11. The door D-2 as shown in the said plaint also does not open on the land of the defendant No. 11....
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....e said finding is perverse. The orders passed in interlocutory matters is to be treated as final for interlocutory orders for the same relief but at the same time treating the same as tentative for the final outcome of the suit itself. Otherwise there would be complete contradiction and chaos and reversal of the situation every now and then tilting this position one way and the other by reversing the same finding cannot be allowed to continue. (See G.H. Hook v. Administrative General AIR 1921 PC 11, Satyadhar v. Deoranjan AIR 1960 SC 941 and Arjun v. Mahindra AIR 1964 SC 993). 8. Both the courts below, while deciding the case, appears to have either misread or overlooked the implication of me order dated 12th May 1993 while passing the order dated 16th April 1994. Therefore, it appears that there would be a total failure of justice in case such an order is allowed to continue, when it is brought to the notice of the revisional court. While exercising power under Article 227 of the constitution, namely, the power of superintendence over the subordinate courts, neither the High Court is powerless nor should it close its eyes when it is brought to its notice that there has been gro....
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.... it does not revise the same simply because this point of jurisdiction was not taken in the trial court. It is, of course, true the exercise of the revisional power of this court is a matter of discretion and this discretion should be exercised in favour of the petitioner only in appropriate cases. But it will be wholly inequitable and wholly against established principle, it the exercise of the discretion is to be refused merely on the ground that a point of jurisdiction, going to the root of the matter, cannot be entertained or allowed by this court, simply because it was not taken in the trial court. It seems to us that when the rule comes up for final hearing before this court it is open to this court, if it finds that the rule should succeed on some ground, not initially taken or on a ground, which it was not issued, that is, on a ground, other than the one, on which it was issued, to consider the same and allow the application after of course, giving other party proper opportunities to meet the said objection This court, it seems to us, is not so powerless and its powers are not so limited as to preclude it from doing justice between the parties in the exercise of it....