C.S. Clarke vs George W. Mayor

V.B. Bansal, J.

(1) Shri C. S. Clarke, petitioner has filed this revision petition against the order dated 4/03/1992 of Shri M. S. Rohilla, Additional District Judge. Delhi, thereby dismissing the suit of the plaintiff against the defendants.

(2) Briefly stated, the facts leading to the filing of this petition are that a suit for declaration that under the contract and law. the plaintiff was entitled to partly furnished residential accommodation in the Campus of Frank Anthony Public School or in close vicinity .during the term of employment and for permanent injunction. restraining the defendants, their agents, employees and nominees from forcibly dispossessing him from the two rooms accommodation, in his possession, in the Middle School building in the Campus of Frank Anthony Public School, Lajpat Nagar. New Delhi was filed by the plaintiff against the defendant. It has inter alia been pleaded by the petitioner/plaintiff that he has been a permanent teacher of Frank Anthony Public School, Lajpat Nagar, New Delhi, which he joined on 7.7.75in pursuance of appointment letter dated 16.5.1975. It is also claimed that as a condition of his service, he was allotted accommodation/quarter by the defendants at Ground Floor of premises No. N-86, Greater Kailash-I, New Delhi and subsequently the said accommodation was got vacated by the land-lord and on 14.12.1988, defendant No. 2 allotted two rooms to the plaintiff in the Middle School building in the Campus of the school for his residence. It has also been claimed that defendants were asking the plaintiff to vacate the aforesaid accommodation to which, he is not agreeable and that the alternative accommodation stated to have been arranged by defendant No. 2 was not suitable and thus, the suit.

(3) The suit was contested by the defendants and a written statement had been filed by defendant No. 2 in which, a prayer was made that the suit was not competent and so the same may be dismissed.

(4) During the pendency of the suit, an application dated 5.3.1990,under Section 151 CPC was moved by the defendants, in which, it was inter-alia pleaded that the plaintiff has since been removed from the service of the school vide Resolution dated 30.7.1989 of the Board of Governors(Managing Committee) of the Frank Anthony Public School. It has also been stated that the jurisdiction of the Civil Court was barred u/s 25 of the Delhi School Education Act. A prayer was, Therefore, made that the suit may be dismissed as having become infractions.

(5) This application was contested by the plaintiff and a reply was filled. Learned Trial Court, after hearing arguments, allowed the application and the suit, filed by the plaintiff, was dismissed as infructuous.

(6) I have heard Shri Atul Wadhera, learned Counsel for the petitioner and Shri S. K. Taneja. learned Counsel for the respondents and have also gone through the record.

(7) A preliminary objection has been raised by the learned Counsel for the respondents with regard to the maintainability of the revision petition. It has been submitted by the learned Counsel for the respondent that vide impugned order, the suit of the plaintiff itself has been dismissed and thus, it was open to the petitioner to file an appeal. He has, thus, submitted that the impugned judgment and decree being appealable, no revision is competent. A prayer has. Therefore, been made that this revision petition may be dismissed on this short ground.

(8) Learned Counsel for the petitioner has, on the other hand, submitted that the learned Trial Court has failed to frame any preliminary issue and without giving any opportunity to the petitioner of leading evidence on preliminary issue, has committed grave error in dismissing the suit itself, while disposing of an application u/s 151 CPC He has, thus, submitted that since the impugned order has been passed while disposing of an application u/s 151 Cpc, it is open to the petitioner to challenge the same by way of filing a Civil Revision. He has, Therefore, submitted that this plea of the learned Counsel for the respondent has no force and may be rejected.

(9) There can possibly be no dispute that vide impugned order dated4.3.1992, the learned Trial Court has dismissed the suit and decree sheet has also been drawn on the day on which the suit has been dismissed. The question, as to whether the suit has rightly been dismissed or not, has to be gone into by appropriate Court in competent proceedings. Section 96 CPC provides for the filing of an appeal from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decision of such Court. The suit having already been dismissed, can it be laid that it is open to the petitioner to challenge the impugned order only by way of filing a revision petition ? My answer is in the negative. Learned Counsel for the petitioner has not been able to point out any provision of law, authorising him to file a revision against the dismissal of suit, in which, a decree has also been drawn. Learned Counsel for the petitioner has, however, placed reliance upon the judgment in the case of Major S.S. Khanna Vs. Brig. F.J. Dillon, . It was submitted by the learned Counsel for the petitioner that the expression "case" includes a part of a case and that there is no escape from the conclusion that revisional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal lies from the ultimate decree or order, passed in the suit. He has also referred to an observation in the said judgment "any other view would impute to the Legislature an intention to restrict the exercise of this salutary jurisdiction to those comparatively unimportant suits and proceedings in which, the appellate jurisdiction of the High Court is excluded for reasons of public policy." There can possibly be no dispute that effective exercise of its superintendence and visitorial powers, revisional jurisdiction is conferred upon the High Court and it would be putting an unwarranted restriction on the jurisdiction of the High Court to restrict to those cases only where no appeal would reach the High Court from the final order, passed in the proceedings. It would be appropriate, at this stage, to refer to the facts of this case. Brig. F.J. Dillon and Maj. S S. Khanna (hereinafter called ''Dillon'' and ''Khanda'' respectively)carried on business in partnership as Construction Engineers, and agreed to dissolve the partnership w.e.f. 15/02/1956. According to the terms of the Deed of Dissolution, Dillon agreed to takeover the assets and properties of the partnership as absolute owner who was to pay all the debts and to discharge all the liabilities of the partnership. He was to keep Khanna indemnified against all demands. However, Khanna commenced an action against Dillon for dissolution of partnership and rendition of accounts. A compromise was, however, arrived at between the parties, confirming the earlier dissolution of the partnership, subject to a scheme of winding up, under which all outstandings realised from the debtors of the firm and the sale proceeds of certain assets, were to go into a banking account to be opened in the joint names of Dillon and Khanna and were to be applied in the first instance to meet the liabilities of the dissolved firm, and the balance in that joint account was to belong to Dillon. Some outstandings of the dissolved partnership were collected by Dillon and were deposited in the joint account of Dillon and Khanna. A suit for recovery of Rs. 54,250.00 with future interest was filed by Dillon, alleging that be had, at the request of Khanna, advanced a sum of Rs.46,000.00 as short term loan, which he had promised to pay but failed to do so. The plea taken up by Khanna was that be did not borrow any loan and the amount claimed in the action, being advanced, even on the plea of Dillon. out of joint funds, belonging to the two partners, no suit for recovery was maintainable. One of the issues framed by the Trial Court was :Whether the suit is not maintainable and the plaintiff is not entitled to institute this suit, alleged in paras 15, 16, 17, 18 of the written statement ?The learned Trial Court came to the conclusion that this suit was not maintainable. However, no further order with regard to the dismissal of the suit was passed and the case was adjourned. It was in these circumstances thata revision was filed in the High Court, which was accepted and the order in question was set aside. The plea taken up before the Supreme Court had been that the order did not amount to a case, which had been decided within the meanings of Section 115 CPC and the decree, which may have been passed in suit, will be subject to the appeal to the High Court; the power of the High Court was by the express term of Section 115 CPC excluded and the order did not fall within three Clauses (a), (b) and (e) of Section 115.While disposing of the matter, it was held by the Supreme Court that had the learned Trial Court dismissed the suit after deciding the preliminary issue, the aggrieved party had a right to file an appeal and no revision would have been filed or even entertained. But the suit having not been dismissed and having been kept pending after deciding the preliminary issue against the plaintiff with regard to the maintainability of the suit, it was open to the aggrieved party to challenge the same by way of a revision in the High Court and the High Court was fully justified in deciding the revision petition.

(10) From the facts narrated above, it is clear that this judgment cannot, by any stretch of imagination, help the petitioner and it very much goes against the submission made by the learned Counsel for the petitioner. It is clear that while disposing of the application of the respondent taking an objection that the suit has become infructuous, learned Trial Court bad dismissed the suit as infructuous. In these circumstances, the only remedy available to the petitioner was to file an appeal and the revision petition is incompetent

(11) Learned Counsel for the petitioner has submitted that this revision petition was filed on 11.3.199? against the impugned order dated4.3.1992 i.e. within 30 days of the decision and thus, was within the period during which the petitioner could file an appeal. He has further submitted that appeal against the impugned order could be filed only in this Court and in these circumstances, submitted that this revision petition can be treated as an appeal. Learned Counsel for the respondent has, however, submitted that the petitioner has not challenged the decree drawn by the learned Trial Court in terms of the impugned order nor has the same been challenged in the case and so this cannot be treated as an appeal. I am inclined to agree with the submission of the learned Counsel for the respondent. Memorandum not accompanied by a certified copy of the decree would be incompetent and invalid and thus, can not be considered to be a valid appeal. Reference in this regard can be made to the case of Shakuntala Devi Jain Vs. Kuntal Kumari and Others, . In the case of Labhmal Vs. Lalchand, , it has been held that where at the time of filing of the appeal, the decree had already been drawn up by the Lower Court but the appellant had not applied for it in time, the appeal filed without the copy of the decree would be incompetent. It has also been observed that even if the appellant was under erroneous impression that the decree had not been drawn, can also be of no avail to him and the appeal, without any copy of the decree would be incompetent.

(12) Considering all the facts, I am clearly of the view that even this request of the learned Counsel for the petitioner that the present revision petition may be treated as an appeal, cannot be acceeded.

(13) In view of my a fore going discussion, I hold that the revision petition is incompetent and not maintainable and the same is, Therefore, dismissed with costs.