PURASTAM ALIAS PUROSOTTAM Vs. CHATRU ALIAS CHATRUBHUJA

JUDGEMENT

(1.) THIS case was referred to a larger Bench to consider the question if an erroneous decision of the trial Court as regards the party having right to begin is a case decided within the explanation to Section 115 of the Code of Civil Procedure.

(2.) PRIOR to the amendment of Section 115 by the Code of Civil Procedure (Amendment) Act, 1976 (Central Act, 104 of 1976), the revisional jurisdiction of this Court was attracted in a case decided by the Subordinate Court from which no appeal lay to the High Court if jurisdiction not vested in it by law has been exercised or the subordinate Court has failed to exercise jurisdiction so vested or acted in the exercise of jurisdiction illegally or with material irregularity. There was a clamour for omission of Section 115 from the Code. The proposal of the Law Commission that in view of Article 227 of the Constitution of India, Section 115 of the Code was no longer necessary was not accepted by the Joint Committee. It was of the view that remedy provided under Article 227 was likely to cause more delay and more expenditure whereas the remedy provided under Section 115 was cheap and easy. It suggested imposition of additional restriction on the exercise of revisional jurisdiction by the High Court by providing that revision would not lie if an appeal lay either to the High Court or to any subordinate Court and unless (a) the order if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings, or (b) if the order is allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made. It suggested addition of an explanation to the section providing that a 'case decided' would include an interlocutory order though the controversy had been resolved by the Supreme Court in Khanna v. Dillon, AIR 1964 SC 497 and in Baldevdas v. Filmistan, AIR 1970 SC 406, that revision was maintainable against an interlocutory order which adjudicated the rights of the parties in controversy.

(3.) IT cannot be disputed that placing of onus correctly on the party is an important and valuable aspect in procedural law. 'Right to begin' is determined by the rules of evidence. The party on whom lies the onus probandi should begin. In Debara v. Suryakumari, ILR 1976 Cut. 879, R. N. Misra, J. (as he then was) followed the cases in Ratti Lal v. Raghun, AIR 1924 V.P. 53 and Bir Babu v. Raghubar Babu, AIR 1947 Patna 469 where it was held that if the order is of a type as to cause irreparable loss to the injured party and there was no right of appeal and no remedy available to the party, it would be indeed an irregularity which had to be rectified in exercise of jurisdiction under Section 115 of the Code and held that an erroneous decision as to 'right to begin' was available to be corrected in exercise of jurisdiction under Section 115. The said learned Judge again in a similar matter (Hajaru Ganda v. Kalia Pati, 1976 (1) CWR 481) where the controversy was whether the plaintiff or the defendant had the right to begin, took note of the decision in K.L. Subudhi Brothers v. D. Bhaskar Rao, 1972(2) CWR 1044 where a Division Bench of this Court had stated one of the requirements for exercise of jurisdiction under Section 115 as under: