AI Structured Summary
Not yet generated for this judgment
Judgment
Subramania Iyer, J.—The Plaintiff in O.S. 187 of 1951 on the file of the District Court of Trivandrum is the Appellant in this Civil Miscellaneous Appeal. The suit was for damages alleged to have been occasioned to the tarwad of the Plaintiff of which Defendants 1, 2 and 3 are some of the members, Defendant 2 being the karanavan. The plaint alleged that Defendant 1 excavated earth from tarwad property and was utilising it for conversion into bricks for purposes of sale. In that behalf it was alleged that Defendant 1 had erected a kiln.
Along with the plaint two applications, C.M.Ps. Nos. 2733 and 2734 of 1951 both dated 20-7-1951 were presented. The first was for an order of interlocutary injunction restraining Defendant 1 from removing the bricks from the kiln. The other application was for attachment before judgment of the bricks in the said kiln for satisfaction of the Plaintiff''s claim on the averment that otherwise the claim would be irrecoverable. Defendant 1 objected to these applications disclaiming title to the kiln which, according to him, belonged to his father. The father on knowledge of the attachment intervened by an application (C.M.P. 2875/51) claiming the attached kiln as his in regard to which Defendant 1 had no manner of right or possession and that it was not liable to be attached.
Oral and documentary evidence was tendered in support of and against the claim. As many as 7 witnesses were examined. After the close of the enquiry the Court below passed an order on 28-3-1952 allowing the claim. This order purports to be one passed not merely upon the claim but also upon the Plaintiff''s applications for injunction and attachment. The Plaintiff has preferred this appeal impleading the three Defendants as Respondents 1 to 3 and the claimant as Respondent 4. Exception is taken to the conclusion reached by the Court below in favour of the claimant upholding his claim. It is prayed that the appeal may be allowed, the claim dismissed and the applications for injunction and attachment be both allowed.
There has been no order consolidating the aforesaid three applications. In the absence of consolidation the circumstance that the Court happened to pass a single order upon the 3 petitions will not have the effect of consolidating them nor will it render a non-applicable order appealable. The consequences of consolidation do not fall to be decided. The order upon the claim petition presented by Respondent 4 is not appealable. It is final subject to the result of a suit which the aggrieved party might file within a year thereof. One year elapsed from the date of the order by this date. The Appellant confronted by this situation represented before us that the appeal which will be maintainable against the orders passed on the applications for injunction and/or attachment would be of no avail if the order passed upon the claim petition subsists, which would be the situation if it is not impeached as provided by law. No original suit has yet been filed. At the time when this appeal was presented that one year had not expired. Learned Counsel for the Appellant therefore prayed that this proceeding may not be regarded as an appeal against the orders upon the petitions for injunction and attachment and may be converted into a civil revision petition impeaching the order passed upon the claim petition presented by Respondent 4. Under the circumstances we are inclined to allow the prayer. This proceeding will therefore be renumbered as a civil revision petition against the order upon the claim petition presented by Respondent 4.
The complaint made against the claim order is that it cannot be sustained upon a proper appreciation of the evidence in the case. It is argued that the order is erroneous as the proper view on the evidence would be against and not in favour of the claim. The argument is that the order is wrong on facts. Assuming this grievance is well-founded, we are unable, sitting in revision, to redress it because our jurisdiction u/s 115, CPC is limited to interfering with orders on the grounds specified in that section. It is only if a subordinate Court appears
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.
that the High Court may make such order in the case as it thinks it.
(5a) In - Keshardeo Chamria Vs. Radha Kissen Chamria and Others, , the Supreme Court observed that
the High Courts have not always appreciated the limits of the jurisdiction conferred by this section
and after considering the case law from - -''Rajah Amir Hassan Khan v. Sheo Baksh Singh'' 11 Ind App 237 (PC) (B), onwards they reached the conclusion that
the errors contemplated (in Section 115) relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with.
No non-compliance with any formality required by law is pointed out by learned Counsel for the Petitioner. In the absence of any such we have no jurisdiction to interfere when the complaint is merely that the order is erroneous on facts. Even if the order be erroneous in law the same would be the position.
In the result we dismiss the C.R.P. but in the circumstances make no order for costs.
Vithayathil J.
I agree.