RANJHU RAM Vs. PARKASH CHAND

JUDGEMENT

(1.) Petitioners are the plaintiffs whereas respondents and five others, namely, Nand Lal, Tulsi Ram, Chinti Devi, Vidhya Devi and Kaushalya Devi are the defendants in Civil Suit No. 317 -1 of 1993 pending before Sub -Judge, Ghumarwin, District Bilaspur, inter alia, for declaration that the sale deed of Khasra No. 155 min measuring 0 -5 biswas made by defendants and four others in favour of respondents -defendants is illegal, void having no effect on their right, title and interest. The plaintiffs had also filed an application under Order 39, Rules 1 and 2, Civil Procedure Code seeking interim injunction against respondents -defendants restraining them from raising construction over the land measuring 0.5 bighas comprised in Khasra No. 155/1. Both the Courts below have dismissed this application holding that there is no prima facie case in favour of the plaintiffs since the land in question was exclusively owned and possessed by Smt. Persino and was never in possession of Bardoo, the predecessor -in -interest of the plaintiffs, as a tenant. The District Judge has also noticed the stand of the plaintiffs in earlier suit filed by Sanjiv Kumar son of defendant Nand Lal & Anil Kumar s/o defendant Tulsi against the plaintiffs whereby they had only claimed that their father Bardoo was a tenant of original owner Smt. Persino Devi over the suit land measuring 10.2 Bighas including Khasra No. 155 min measuring 5.12 Bighas and did not claim tenancy over Khasra No. 155/ 1 measuring 0.5 bighas. Feeling aggrieved the plaintiffs have filed the present revision petition.

(2.) This Court has heard learned Counsel for the parties and gone through the record. Relying upon the judgment of Supreme Court in The Municipal Corporation of Delhi v. Suresh Chandra Jaipuria and another, AIR 1976 SC 2621, learned Counsel for respondents -defendants has opposed this revision petition on the ground that in view of the concurrent findings of fact by both the Courts below no interference is called for in the exercise of revisional jurisdiction under Section 115, Civil Procedure Code. He has further referred to the judgment of Supreme Court in M/s. Bhojraj Kunwarji Oil Mill and Ginnig Factory and another v. Yograjsinha Shankersinha Parihar and others, AIR 1984 SC 1894, to argue that even if a different view on the material on record is possible this Court shall not interfere in exercise of revisional jurisdiction. Further submission of learned Counsel is that unless the subordinate Courts have exercised a jurisdiction not vested in them by law, or have failed to exercise a jurisdiction so vested, or have acted in the exercise of their jurisdiction illegally or with material irregularity the revisional jurisdiction of this Court cannot be invoked. Even erroneous decision on question of law having no relation to question of jurisdiction cannot be corrected in revisional jurisdiction. For making these submissions he has relied upon the judgments in Pandurang Dhondi Chougule and others v. MarutiHari Jadhav and others, AIR 1966 SC 153; The Managing Director (MG) Hindustan Aeronautics Limited and another v. Ajit Prasad Tarway, AIR 1973 SC 76.

(3.) On the other hand, learned Counsel for the petitioners has argued that where the orders of the Courts below are perverse and unjust it is the duty of this Court in the exercise of its revisional powers to interfere. Referring to Clause (ii) of second proviso to Section 115, Civil Procedure Code learned Counsel has urged that if the order would occasion a failure of justice or cause irreparable injury to the party against whom it was made it can be set aside in exercise of revisional jurisdiction even if the subordinate Court passing such an order appears to have not committed jurisdictional error. This interpretation, urged by learned Counsel, deserves outright rejection as proviso cannot control the main provision; rather it further puts rider on the conditions given in the main provision. Even if an order suffers from illegality or material irregularity of jurisdictional error it shall not be set aside unless the conditions provided under Clauses (i) and (ii) of second proviso are fulfilled. In other words, the impugned order should be such as to finally dispose of the suit or proceedings had it been in favour of the revision petitioner or it should not occasion a failure of justice or cause irreparable injury to the revision petitioner if allowed to stand. The word or used between clause (a) and clause (b) of the proviso has been used in the disjunctive sense.