M.A. JOSEPH Vs. VARADARAJAN AND ORS.

JUDGEMENT

(1.) THE plaintiff is the petitioner in this Civil Revision Petition. He filed O.S. No. 24 of 1965 on the file of the Court of the Subordinate Judge ,Salem, for a decree for specific performance of a contract, dated 23rd April, 1960, for a transfer or release of the "A" Schedule property, of which it is claimed that the plaintiff was in possession from 5th July, 1963, including the flour mill situate thereon. As the plaint was insufficiently stamped, the petitioner was directed on a check -slip by the Court -fee Examiner to pay an additional Court -fee of Rs. 613. The petitioner thereafter applied, under Order 33, Rule 2, Civil Procedure Code, in I.A. No. 300 of 1967 in the main suit, for permission to continue the suit in forma pauperis. On the respondent objecting to the said course the lower Court enquired into the pauperism of the petitioner and the other merits in the application and came to the conclusion that the petitioner was not a pauper as he was running a flour mill and earning income thereon and was in possession of the properties which were the subject -matter of O.S. No. 24 of 1965; that the cause of action for the suit is barred by limitation, as the suit was filed on 3rd February, 1965, to enforce an agreement dated 22nd April, 1960; that there was no proper presentation of the pauper petition in accordance with Order 33, Rules 2 and 3 (1) of the Code of Civil Procedure. This Order was made on 3rd August, 1967, and the petitioner was given a week's time for payment of the deficit Court -fee. From time to time, to pay the additional Court -fee was extended till 31st August, 1967. As the petitioner failed to comply with the above direction, as a consequence thereof, O.S. No. 24 of 1965 was dismissed and the plaint therein was rejected on 1st September, 1967. Aggrieved primarily against the basic order dated 3rd August, 1967, in I.A. No. 300 of 1967, the petitioner has filed the present Civil Revision Petition.

(2.) ON the merits it was submitted that the lower Court went wrong in taking into consideration the subject -matter of the suit for assessing the capacity of the petitioner to pay the additional Court -fee. Again, the plaint allegation that the petitioner was in possession of the suit property since 1963 pursuant to the agreement, was not considered and referred to by the learned Judge, when he found that the cause of action was barred on the date of institution of the suit. On the other conclusion that certain prescribed formalities were not observed in the matter of the presentation of the pauper application, it was submitted that they were too trivial and faded into insignificance when once the petition was taken up, fully heard and adjudicated upon. In fact, even Mr. T.R. Srinivasa for the respondent does not seriously contend that the order of the lower Court has to be sustained on the last ground On the two other surviving grounds on which this Civil Revision Petition is sought to be rested, learned Counsel for the respondent would say that prima facie, the cause is barred and there has been a suppression of details by the petitioner and therefore the lower Court was right in rejecting the application. I shall refer to the contentions on merits, of either Counsel after noting the more formidable legal objection of the respondent as to the maintainability of this Civil Revision Petition by this Court.

(3.) THE jurisdiction exercised by the High Court under Section 115 of the Code of Civil Procedure is wholesome, supervisory and visitorial The High Court has the power in the circumstances set out in the section to correct errors in orders of Courts subordinate to it and "in which no appeal lies thereto". The parenthesis is of considerable import and significance. The interdict against the maintainability of a Civil Revision Petition under Section 115, Civil Procedure Code, is only in cases where there is a provision for appeal to the High Court against the impugned order. The availability of a remedy by way of an appeal to the District Court or any other subordinate Court, is not a general bar to the entertainability of an application for revision. It cannot invariably be said as a matter of routine that the High Court has no jurisdiction to entertain a petition in revision under Section 115, on the sole ground that another remedy is open, except it be an appeal to the High Court itself. Ordinarily the High Court may refuse ultimately the petition as it has the option to do under Section 115, which says that the High Court may make such order as it thinks fit. This does not mean that the High Court cannot consider such a petition. Even so in a case like the one under consideration, where a part of the order passed under Order 33, Rule 5(d -1) is appealable under Order 43, Rule 1(nn), Section 115 does not compulsorily envisage the filing of such an appeal to the District Court or for the matter of that, even if such an appeal is preferred, it is only the order of the District Judge that can be revised. The rule of practice set out in the section enables the High Court to entertain a revision against the original order, even though an appeal is provided to the District Court, provided no appeal lay against the appellate order of the District Judge. It is so in this case. Having regard to the powers of the High Court in Section 115, Civil Procedure Code, which empowers it to call for the record of any case which has been decided by any subordinate Court, if no appeal lies thereto to the High Court, it appears that such a subordinate Court referred to therein would include a trial Court as well. The availability of an appeal against the order to the higher hierarchy but not to the High Court, will not make any difference. Shah, J., speaking for the majority, after interpreting the word ' case . in Section 115, Civil Procedure Code, as including a part of a case, in S. S. Khanna V. F. V. Dillon : [1964]4SCR409 , observed as follows ::