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Judgment
Hari Nath Tilhari, J.—A review petition has been filed from the Order dated 30th of November, 1999, delivered by Brother Hon''ble Sri
Venkatesh Murthy, J., in Civil Revision No. 2669 of 1999, without notice being served on Respondents 1, 2, 4 to 8.
The revision has arisen from an order dated 5.8.1999, passed on I.A. No. 15, in original suit O.S. No. 71 of 1986, u/s 92.
This Court in Appeal Regular First Appeal No. 33 of 1992, observed that:
When clause (ii) of the scheme clearly deletes the clause mentioned in the title deed without giving opportunity to the Appellant the order passed
cannot be said to be a consent order, as reasons have not been given and on the allegations, it amounts to giving a finding without materials being
placed or opportunity provided to the Appellant. In this regard, the order passed by the learned District Judge has to be set aside.
After having set aside the judgment given in the suit, this Court remanded back the matter to the District Judge to give both the parties, opportunity
to lead further evidence with respect to Clause (ii), and to dispose of the entire matter afresh after giving opportunity to both the parties to frame
proper scheme in the interest of institution.
After the appeal had been disposed of and the matter had reached the additional District Judge, an application u/s 151 was made by first
Defendant in the suit. It was stated in the application that after the disposal of the appeal, the vacuum is created, as there is no management to
administer the Trust and to lookafter the properties and there being no direction by the Hon''ble Court to the dissolved management to hand over
the charge to the Ex-officio President, the last Defendant. So, direction was sought for handing over the management to Defendant No. 1, as
otherwise, the Trust could not be administered and difficulties would have arisen in the management of institution, the hostel etc.
There were objections filed to the application of Defendant No. 1, and the objections to the application was opposed by Plaintiff No. 3, as well as
by the Secretary appointed after the Court''s orders, as mentioned in Paragraph-3 of the Appellate Court''s order.
Those trustees, which were appointed by the District Judge, also were given notice and they had also opposed the application. The District
Judge considered the matter and after having considered in detail observed in Paragraph-11 as under:
From the narration of above facts it becomes very clear that the need has arisen for making certain arrangements for the management of Trust
which involves the administration of various educational institutions and immovable properties, inter alia.
Thereafter, the District Judge after taking into consideration the various case law, opined, that, he would be entitled to appoint Receiver as well as
it can also constitute interim Management Committee to discharge the duties till the constitution of the Trust etc. and the appointing of interim
Management Committee, which would serve better then, asking a single receiver to hold the management of trust. The District Judge passed the
order and held neither, Defendant No. 3, nor Plaintiff can be placed in the charge of the Management and it appointed a Committee of persons,
namely, Defendants 2 and 4, and Basave Gowda to be incharge of the management and issued certain directions, as an interim arrangement and
rejected the claim of the 1st Defendant to be given the charge of the institution, for giving the charge to the alleged old trustees including Defendant
No. 1 himself.
Feeling aggrieved from that order, the Defendant No. 1, filed revision u/s 115 of the Code of Civil Procedure(CPC) and obtained the order
impugned, which is now being challenged by way of this review petition.
It is firstly, contended that, this revision has been disposed of and the order impugned had been passed without any notice to the present
Respondents 1, 2 and 4 to 8, and it has further been contended that, there was no jurisdictional error in the order of the District Judge nor there is
any indication in the order of the learned Judge of this Court indicating that any jurisdictional error was pointed out to the Court in the order of the
learned District Judge, challenged u/s 115 CPC (CPC). It was submitted that, as no jurisdictional error has been pointed out, and there has been
no jurisdictional error coming within the framework of Section 115, nor any jurisdictional error has been shown or placed or indicated with
reference to the order of Trial Court, before this Court, as per the order of learned Judge, the order in question suffers from error apparent on the
face of the record which error goes to the route of jurisdiction of this Court.
The above contentions which have been raised on behalf of the revision Petitioner by Sri M. Papanna have been hotly contested on behalf of
Respondents. It has been contended by Sri Raghupathy, that this is an Review Application, at the most review should be allowed only to this
extent that, order may be set aside and revision may be restored and it may be disposed of after hearing both the parties when both the parties are
present, I think it proper to hear on the merits as well, because unless jurisdictional error is shown in the order of the District Judge, this Court
could not interfere u/s 115, even if for a moment, the order passed by District Judge is shown to suffer from any error of law or of fact. Sri
Raghupathy, submitted when the revision was taken up, his client had offered to provide funds to the institution to the extent the institution needed
and if he is included in the Managing Committee and he very fairly submitted that the same had impressed the Court in passing the order.
The learned Counsel for the Respondents was called upon to show any jurisdictional error coming within the framework of Clauses (a), (b) or
(c) of Section 115 CPC (CPC) to sustain the order of the learned Single Judge and not to reject it, Sri Raghupathy submitted the Court had only
discretion either to allow the application I.A. 15 or to dismiss it and it could not frame the interim management scheme pending the decision of the
suit, and therefore, order is illegal and without jurisdiction.
I have applied my mind to the contentions raised by the learned Counsel for the parties.
Firstly, it is well settled that, no order should be passed ordinarily without any notice to the parties which may be going to be affected, but here for
one reason or other, the Court had dispensed with the notice and passed the order. The jurisdiction of this Court is not unbridled or arbitrary.
In M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu and Others, , their Lordships of the Supreme Court observed in Paragraph- 82, ""Judicial
discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are
not entitled to exercise discretion wearing robes of judicial discretion and pass an order based solely on their personal predilections and peculiar
dispositions. Judicial discretion where-ever is required to be exercised has to be in accordance with law and set principles of law"". Thus this very
basic principles have always to be kept in mind by us when exercising our judicial discretion any powers and as such judicial discretion u/s 115
CPC (CPC) could be exercised in the present case only when a case u/s 115 of the Code of Civil Procedure(CPC) is or had been made out.
Section 115 of the Code of Civil Procedure(CPC) reads as under:
Revision.-(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and
in which no appeal is thereto, and if such 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, the High Court may make such order in the case as it thinks
fit: Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue in the course of a suit
or other proceeding, except where-
(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 proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
No doubt, it is mentioned in Section 115, the High Court may make such orders, as it thinks fit and judicial discretion has been given to the Court.
This Court can make such orders, if it thinks fit, but before that, in a case, where this Court is called upon to exercise its jurisdiction and power u/s
115 CPC (CPC), certain basic and preliminary conditions which are sine qua non, for the exercise of jurisdiction u/s 115 as, will appear from the
perusal of Section 115 have to established and have be shown to exist.
The first condition to be established is that the order amounts to be a case decided. The second condition is that order impugned is not appealable
directly and the third essential condition to be established is that the order impugned suffers from jurisdictional error coming within either of the
clauses of Section 115 of the Code of Civil Procedure(CPC), there has been a good series of cases on the subject explaining the scope of
jurisdiction of this Court u/s 115 as to necessary pre-requisite conditions. It has been laid down very clearly that, if no jurisdiction error has been
established or shown in the order, then, this Court has no jurisdiction to interfere with the order simply on the ground, there is an error of fact or
law (other than jurisdictional error) in the order vide the law laid u/s 115 CPC (CPC) in AIR 1949 156 (Privy Council) , AIR 1949 239 (Privy
Council) , Chamaria v. Chamaria AIR 1953 SC 26 , Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, , Ratilal Balabhai Nazar Vs.
Ranchhodbhai Shankarbhai Patel and Another, , K. Balasubramania Chetty Vs. N.M. Sambandamoorthy Chetty, , Panchdeo Narain Srivastava
Vs. Km. Jyoti Sahay and Another, , Manick Chandra Nandy Vs. Debdas Nandy and Others, and in Sri Kempaiah Vs. Smt. Chikkaboramma and
Others, .
Thus considering I find firstly, that the order of the learned Judge of this Court suffers from the error of law apparent on record when this Court
without its being shown or established that order of Trial Court did suffer from error of jurisdiction u/s 115(1) (a) or ''b'' or ''c'' it interfered with
Trial Court''s Order. In all probability the attention of the Hon''ble Judge was not invited to the basic ingredients of Section 115, and it appears to
have been suggested that this Court can pass an order, such as the one proposed by the Counsel if, deems fit, in the interest of justice, without
pointing out any jurisdictional error in the order of trial Court challenged u/s 115 of the Code (CPC). In my opinion, therefore, order impugned i.e.
order subject matter of Review suffers from error of law apparent on record affecting jurisdiction of this Court. As the order of the District Judge
could not be shown to suffer from any jurisdictional error within the framework of Section 115 CPC (CPC) nor could any been shown or
suggested even at this stage that the order passed by subordinate Court and challenged in Civil Revision Petition u/s 115, suffered from any
jurisdictional error within the framework of Section 115 of the Code (CPC), as such power u/s 115 could not be exercised and the revision could
not be allowed and no order could be passed, except dismissing the revision. Secondly, the order had been passed against the parties without any
notice to them.
As I have mentioned earlier, even at this stage no jurisdictional error could be pointed out in the order of Civil Court. So the Civil Revision u/s 115
CPC (CPC) did not lie and could not be entertained. The contentions of the Counsel for Respondent Shri Raghupati that learned subordinate
Court could only dismiss his application and could not pass an order of interim Management, in my opinion, is without substance. When inherent
powers are invoked, then, it is not only open to the Court to allow or reject the application moved u/s 151 CPC (CPC) instead the Court could
make the order which was necessary for the purpose of due interim management of Trust during the interregnum period and during pendency of
the suit. Thus, considered, in my opinion, the Review application has got substance and, as such, should be allowed as order dated 30.11.1999
suffers from error of law apparent on the face of record, and is hereby therefore allowed.
The order dated 30th of November, 1999 is reviewed and recalled, and Civil Revision Petition is hereby dismissed. It may be indicated Review
application has been allowed, but revision petition filed u/s 115 CPC (CPC) is hereby dismissed.