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Judgment
This revision petition assail the two orders passed by SubJudge (CJM) Jammu, on dated 2841992 and the other, dated 2691992. The first order
disposes of an application for adinterim relief filed by the plaintiffrespondent in terms of an agreement between learned counsel for the parties and
the second order disposes of a subsequent application filed by counsel for the petitioners in terms of Sec. 151 C.P.C. for redalling and vacating of
the stay order granted on 2841992,
Learned counsel appearing for the respondent has taken two preliminary objections regarding the maintainability of this revision petition: one, that
an order passed by the trial court on consensus of the counsel for the parties is rot revisable; and second, that no revision lies against an order of
review. It is necessary for me to meet these two preliminary objections first.
The argument that no revision will lie against an order of review, does not find any relevance for this case. This is so because the basis challenge
thrown in this petition is upon the order passed on 2841992. The subsequent order, by virtue of which petitioner's application seeking withdrawal
of that order was dismissed, also stands challenged in this revision petition. Terming that order to be one of review, the challenge is on the ground
no revision lies against an order as such. This argument is misconceived because the subsequent order has added nothing new and has maintained
the earlier order. This order was passed while disposing of an application under Sec. 151 C.P.C. only.
now coming to the main argument as to whether or not a revision lies against an older passed with consent of the parties, we will have to go to the
genisis of the content which is said to have formed the basis of the order under revision. Once such consent is assailed on the ground that the agent
did not have any authority to grant that consent, the very foundations of the order are shaken and the court will be within its powers to enter upon
such a revision. Law docs not create an estoppel for filling a revision against a consent order. An appeal shall, no doubt, not lie against a consent
decree but there is no provision in the Code of Civil Procedure which like Sec. 96 would create a bar for maintainability of a revision against a
consent order.
Sec. 115 C.P.C. not only enables but also costs an obligation upon a court to intervene when an error of jurisdiction or illegality has been
committed or where its noninterference would occasion a failure of justice or cause irreparable loss to a party against whom the order has been
passed. The purposes behind this section is to provide a remedy for an aggrieved party to obtain rectification of nonappealable orders. Thus, a
revision will lie against such an order.
Now looking to the present case from the object of Sec. 115 C.P.C. as discussed above, we find that the order impugned in this revision arises
out of a statement which is said to have been tendered by the counsel for the defendant. There is nothing on record to show that the said court had
tendered this concession in writing. The trial court has not even recorded the statement of counsel giving that concession. Except the order of the
trial court dated 2841992 there is nothing to show that such concession was ever given.
It is true that the impugned order carries with it a presumption of correctness but such a presumption is always rebuttable in law. Then it seems that
as soon as the petitioner defendants same to know about the concession having been granted by their counsel, they approached the trial court for
cancellation of the order passed on the strength of such a concession. The trial court should have tried to address itself to the question of rebuttal of
this presumption. There are three parties in this case. Some Addl. Chief Secretary seems to have engaged the counsel. Was the counsel a duly
authorised agent on behalf of all the respondents in view of Sections 122 and 123 of the Constitution of Jammu and Kashmir? Could the counsel
accord a concession as such? Was he authorised to take a stand that would ostensibly overide the provisions of Art, 226 of the J&K Civil
Services Regualations? Were some of the important questions which should have been considered by the trial court.
An important aspect of the matter is that both the parties at the time of making such concessions as are stipulated in the order dated 2841992,
seem to have surrendered their rights contingently. In case of success of the plaintiff in defendants have to make payment of ail the dues and the
suit, defendants have to make payment of all the dues and in case of his failure the plaintiff was surrendering his claim for the said dues. The trial
court should have atleast recorded the statements of counsel appearing for the parties and then proceeded ahead on the basis of such statements.
The trial court has not even cared to take initials of the counsel for the parties on the order sheet which would show that such a statement was
tendered. In case of waiver of rights or surrender of a claim, whether conditionally or unconditionally, subordinate civil courts are required to
record the statement of learned counsel so that when motion for rebutall of such a presumption comes up before the court, there is positive proof
to substantiate the court order. The trial court has acted in a prefunctory manner as such an irregularity has occurred. The plaintiffrespondent has
along in the service career accepted the date of birth which was tendered by him at the time of his joining the service and towards the fag end of his
retirement, he by way of this suit wants to lend a further lease to his service. I am afraid, an order passed in a way word manner, like the one
impugned herein if allowed to remain in force, shall occasion failure of justice.
On the foregoing analogy, I, while accepting this revision petition, quash the order dated 2841992 and also the one passed on 2691992 and send
back the file to the trial court with a direction that the application for adinterim relief shall be heard denove and disposed of on its merits. It is
pertinent to remind the trial court that in this case the well recognised principles of existance of prima facie case, balance of convenience and
irreparable loss, should strictly be taken into account while disposing of the said application. This also disposes of C.M.P. No. 670/92.
Record of the trial court shall be returned forthwith where learned counsel for the parties have been directed to appear or cause the appearance of
their respective clients on I5tb Dec. 1992.