BALAKRISHNA PODUVAL Vs. THAMPAN

JUDGEMENT

(1.) The revision petitions are heard together and are disposed of by a common order.

(2.) The revisional jurisdiction of this Court under S.115 of the Code of Civil Procedure is different from the appellate jurisdiction exercised in first appeal (different in nature, quality and extent). The limits of revisional jurisdiction are prescribed and its boundaries defined by S.115 of the Code of Civil Procedure. Revisional jurisdiction is to be exercised by the High Court in a case in which no appeal lies to it from the decision of a subordinate Court if it appears to it that the subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction vested in it by law or has acted in the exercise of its jurisdiction illegally or with material irregularity. The exercise of revisional jurisdiction is thus confined to questions of jurisdiction. In a first appeal the court is free to decide all questions of law and fact which arise in the case. In the exercise of its revisional jurisdiction the High Court is not entitled to reexamine or reassess the evidence on record and substitute its own findings on facts for those of the subordinate Court (see Manick Chandra Nandy v. Debdas Nandy, AIR 1986 SC 446 ). Bearing in mind the above laid down principles I have to consider in these revisions the question whether the court below failed to exercise a jurisdiction which is vested in it or has acted in the exercise of its jurisdiction illegally or with material irregularity or exercised jurisdiction not vested in it.

(3.) The revision petitioners filed O. S. No. 185 of 1995 on the file of Munsiff's Court, Payyannur for granting them permanent prohibitory injunction restraining the defendants 1 and 2 in that suit from destroying or demolishing the road passing through the plaint 'B' schedule property and also for a mandatory injunction directing the 1st and 2nd defendants to remove the laterite stones and foundation of the compound wall constructed extending to the road and other structures projected into the 'B' schedule road. That suit happened to be dismissed on account of non prosecution on 25.8.1995. To be more precise, the dismissal was on the ground that plaintiffs were absent when the suit was called on 25.8.1995. Alleging that subsequently respondents 1 and 2 illegally started construction and completed the compound wall quite contrary to the oral agreement between revision petitioners and respondents they (revision petitioners) filed O. S. 36/96 before the Munsiff Court, Payyannur and their assertion in that suit was that there arose a fresh cause of action for them to file that suit. The prayer made in that suit was to grant a mandatory injunction against the defendants therein. That suit was dismissed by the court below on 6.4.1997 on the ground that that suit was barred under O.9 R.9 of the Civil Procedure Code.