MICHAEL MASCARENHAS Vs. JOHN MASCARENHAS

JUDGEMENT

(1.) Though this matter was listed for preliminary hearing, the same was taken-up for final disposal by consent of both sides.

(2.) This is a revision petition filed by the defendants in O.S. No.10182/85, on the file of the IV Addl. City Civil Judge, Bangalore, under Sec.115 of C.P.C., challenging the validity of the order passed by the Addl. City Civil Judge, Bangalore, on 27-2-96 in O.S. No.10182/85, rejecting the request of the petitioner's Counsel to exhibit an affidavit sworn to by P.W.1 (the respondent/plaintiff): The respondent is the plaintiff in O.S. No.10182/85, on the file of the IV Addl. City Civil Judge, Bangalore. The plaintiff has filed the suit for a declaration declaring the plaintiff and his family members have a right of common enjoyment of the suit schedule property and usufruct froth the coconut and other fruit yielding trees, directing the defendant to pay regularly the plaintiff's share of usufruct from coconut and fruit trees and on their failure, the plaintiff to exclusively take 3 out of 12 coconut trees and also for a permanent injunction restraining the defendants, their agents etc. from keeping any boarders, lodgers or any other person except those whose names have been mentioned in the 'Will' and from preventing or interfering with and his family members of their peaceful possession and enjoyment of the suit schedule property and to remove the boarders presently occupying a portion of the suit property and not to let out any portion of the suit to any person whatsoever and restraining from alienating, encumbering or disposing of the suit schedule property in any manner.2A. At the trial of the suit, when the plaintiff was being cross-examined by the Counsel for the defendants, after putting certain preliminary questions with respect to an affidavit said to have been sworn by the plaintiff on 22-9-82, wanted to get the said affidavit marked through P.W.1 and at that stage the other side took objection for marking of the affidavit. Thereupon, the learned Addl. City Civil Judge heard the learned Counsel for the parties in detail on this aspect of the case and passed an order rejecting the request of the Advocate for the defendants for making the affidavit, being of the view that the affidavit sworn to by the plaintiff cannot be marked in evidence. This order of the Court-below is the subject-matter of challenge in this revision petition.

(3.) Learned Counsel for the petitioner contended before me that the impugned order made by the Court below is opposed to law and the facts of the case. According to the learned Counsel for the petitioners, the Trial Court while interpreting the law of evidence which excludes affidavits, failed to note that in this case, the maker of the affidavit P.W.1 in his deposition on 16-10-95 has deposed about the affidavit confronted to him that the affidavit shown to him bears his signature on each of the pages and this according to the learned Counsel clearly amounts to consent to mark the affidavit as per the decision reported in M/s. Parekh Brothers v. Kartik Chandra Saha, AIR 1968 Cal 532. The learned Counsel contended that the Trial Court ought to have relied upon the admission of P.W.1 in regard to his signature put on the affidavit and mark the affidavit as an exhibit. He also contended that the Trial Court failed to note the relevancy of the said affidavit in regard to issue Nos.7 and 12 raised in the suit as P.W.1 wants to challenge the will made by his mother Mrs. Rosie Mascarenhas on the ground that the petitioners 1 and 2 herein being executors of the Will have attested it, which, fact has been disproved in. the affidavit of P.W.1 and the suit O.S. No.10182/85 is not maintainable without revoking the Will and the probate granted in P and SC.10075/82 dated 28-7-83, wherein he had no objection for grant of the probate. He, therefore, contended that the Trial Court failed to exercise the jurisdiction duly vested in it in law by not properly interpreting the admitted signature of P.W.1 on the affidavit which has been Sworn to by him. Further, he, contended that the petitioners are greatly prejudiced in the Trial Court's refusing to mark the affidavit admitted P.W.1.3A. Learned Counsel for the respondent I contended that the order of the Court-below will not fall within the category of "a case decided" and hence it is not amenable to revision under Sec.115 of C.P.C. He also contended that the affidavit is not an evidence I within the meaning of Section 4 of the Evidence Act and it cannot be treated as evidence d in the suit. He, therefore, contended that the Trial Court was well within its powers in passing the order under revision and it does h not suffer from any illegality so as to call for interference by this Court under Sec.115 of the C.P.C. In support of his contentions, he relied upon the following decisions:(1) (1980) 2 Kant LJ305; (2) 1988 (3) Suppl Kant LJ 208 (K.N. Venkataramanaiah Setty v. B.N. Srinivas); (3) AIR 1977 Kant 111 (Murigappa v. Channappa); (4) AIR 1968 Cal 532 (M/s. Parekh Brothers v. Kartick Chandra Saha).3B. There could be no dispute that the revisional powers of this Court under Sec. 115, C.P.C. cannot be invoked unless the following conditions exist:(1) There must be a case decided by a Court; (2) The Court deciding the case must be subordinate to the High Court, and (3) No appeal must lie (to the High Court) against the decision; and (4) In deciding the case, the subordinate Court must appear to have-(a) exercised a jurisdiction not vested in it by law, or(b) failed to exercise a jurisdiction vested in it by law, or(c) acted in the exercise of its jurisdiction illegally or with material irregularity.