SHRI SHIV IDOL SHIV MANDIR, SECTOR 19, CHANDIGARH AND ANOTHER Vs. SANATAM DHARAM PRITINIDHI SABHA PUNJAB, NEW DELHI AND OTHERS

JUDGEMENT

(1.) FACTS giving rise to this revision petition are that Puran Nath Plaintiff No. 2 claiming himself to be the Mohtmim of Shiv idol, Plaintiff No. 1, Shiv Mandir, Sector 19, Chandigarh, filed a suit for a permanent injunction against Sanatan Daram Pratinidhi Sabha, Defendant No. 1 and others praying that they be restrained from interfering -with the possession of the Plaintiffs on the Shiv temple building and the land attached thereto. The suit was resisted by the Defendants. During the pendency thereof. Puran Nath died on 23rd March, 1974. Kidar Nath alleging himself to be the chela of the deceased filed an application for being brought on the record as his legal representative and also for permission to represent the Shiv idol. The application was opposed by the Defendants. The trial Court framed the following issues: -

(2.) To the maintainability of the revision petition Mr. R.L. Aggarwal, Learned Counsel for the Respondents, raised the objection that alternative remedy by way of filing a suit to establish that Kidar Nath Petitioner was the lawfully appointed successor of Puran Nath deceased was available to him. Support was sought from Faizuliabhai and Anr. v. Chhunilal, AIR 1951 M B. 79. In that case during the pendency of a small -cause case property of the Defendant was got attached. The application of the Defendant for quashing the order of attachment was dismissed by the Small Cause Court on the ground of delay. Simultaneously the Defendant had put in an application under Section 93(sic) of the Code claiming compensation, alleging that the attachment was wrongful. This application too was dismissed and the suit was decreed. In the revision petition before the High Court the Defendant did not contest the decree on merits. His only grievance was that his application under Section 95 was not enquired into by the trial Judge. On facts it was found that the Defendant did not lead evidence in support of his claim. The High Court did not consider it proper to interfere in revision to remand the case. The learned Judge observed that there was nothing to prevent the Defendant from filing a separate suit for claim -ing compensation for wrongful attachment. On the face of it Faizul -labhai's case has no applicability to the facts of the case in hand. Mr. Aggarwal then cited (Bhagwandas v. Banshidhar : AIR 1958 Raj. 286). This too appears to have no bearing on the case in hand, in as much as in that case an ex -parte decree passed by the Small Cause Court was assailed in revision. It was prayed that the case be remanded for enabling the Petitioner to have an opportunity to cross examine the witnesses of the other party and also for adducing his own evidence The learned Judge declined to accept the prayer on the ground that it was open to the Petitioner to have applied for setting aside the ex parte decree, but he failed to do so. Mr. Aggarwal then referred to Bhakti Sudha Pattadar and Ors. v. Manorama Devi : AIR 1972 Pat. 22. This ruling too is entirely distinguishable on facts. That was an execution case in which the High Court declined to interfere, for, the aggrieved party could, in the alternative file a suit under Order 21, Rule 103.

(3.) THE decision of the trial Court on issue No. 1, whether Kidar Nath was the representative of Puran Nath deceased, urged by Mr. Aggarwal, was concluded by a finding of fact based on appreciation of evidence Hence, argued the Learned Counsel, it was not open for this Court in the exercise of its powers under Section 115 to revise it. The first ruling relied on was Jai Hirji Taraporevala v. Dr. K A. Hamid : AIR 1956 Bom. 323, in which Shah, J. (as be then was) held that where the decision of the lower Court was based upon what is substantially appreciation of evidence and inferences drawn therefrom, that conclusion is binding upon the High Court and is not liable to be challenged in a petition under section (sic). The other authority strenuously pressed was M/s. Misrilal Parasmal v. H. P Sadasiviali(sic) : AIR 1965 SC 553. Dealing with a revision petition under the Mysore House Rent and Accommodation Control Act of 1951, their Lordships held that there could be no interference in revision merely because the decision is erroneous in law or fact. Emphasis was then laid by the Learned Counsel on the observations of their Lordship of the Supreme Court in D L F. Housing and Construction Company (P) Ltd. v. Sarup Singh : AIR 1971 S.C. 2324. In the instant case Clauses (a) and (b) of Section 115 were not pressed into service. However, Clause (c), providing that the Subordinate Court aced in the exercise of its jurisdiction illegally or with material irregularity, was said to be applicable to the case in hand. With respect to Clause (c) their Lordships held that the words " illegally " and " with material irregularity " do not cover either errors of fact or of law ; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with.