Bombay HC: Second revision filed by a party who is aggrieved by order of Session judge in revision is maintainable

A plain reading and construction of these two provisions shows that the Legislature intended that an aggrieved person choosing the forum before the Sessions Judge shall be bound by his verdict which shall be final so far he is concerned and he shall be precluded from filing another revision before the High Court and by necessary implication it further means that so far as unsuccessful or aggrieved person by the order the Sessions Judge is concerned, the decision is not conclusive or final for him and a remedy of a revision to the High Court is not barred. If the Legislature really intended to make no distinction between an unsuccessful or successful party before the Sessions Judge in revision and intended that there shall be no further or second revision in any event irrespective of who moved the Sessions Judge and who wins and who loses before the Sessions Judge, the Legislature could have enacted that if an application for revision has been made by any party to the Sessions Judge or to the High Court, no further application shall be entertained by either of them.

19. We are, therefore, of the view that a revision to the High Court would be tenable at the instance of a party who is unsuccessful before the Sessions Judge, or who is aggrieved by his order. In other words, a concurrent finding of the Sessions Judge and of the Courts below becomes final, but when the Sessions Judge reverses the order of the Court below in revision the defeated party is not precluded from moving the High Court. The consensus of judicial opinion as can be seen supports only this view.

20. We, therefore, hold that these two criminal applications filed here by the persons who were non-applicants before the Sessions Judge in the Criminal Revisions and who are aggrieved by the decisions of the Sessions Judge are tenable and competent. There is no need to convert these petitions into applications under Section 482 of the Code. These criminal revisions shall be dealt with and disposed of by the learned single Judge according to law.

 IN THE HIGH COURT OF BOMBAY

Criminal Revn, Appl. Nos. 120 of 1978 and 158 of 1977

Decided On: 14.04.1980

Inayatullah Rizwi Vs. Rahimatullah and Ors.

Hon'ble Judges/Coram:

P.G. Palshikar and M.R. Waikar, JJ.

Author: M.R. Waikar, J.

Citation: MANU/MH/0015/1980,1981 Cri L J 1398 (Bom) (DB).

Print Page

What is the basic concept of legal right and how this concept is relevant to decide who is “person aggrieved” ?

 In this context, we may refer to a recent
pronouncement in Ayaaubkhan Noorkhan Pathan
v. The State of Maharashtra & ors.
2012 (11) SCALE 39wherein this
Court has held thus: -
“A “legal right”, means an entitlement
arising out of legal rules. Thus, it may be
defined as an advantage, or a benefit
conferred upon a person by the rule of law.
The expression, “person aggrieved” does
not include a person who suffers from a
psychological or an imaginary injury; a
person aggrieved must therefore,
necessarily be one, whose right or interest
has been adversely affected or
jeopardized. (Vide: Shanti Kumar R. Chanji
v. Home Insurance Co. of New York, AIR
1974 SC 1719; and State of Rajasthan &
Ors. v. Union of India & ors., AIR 1977 SC
1361).”

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 102 OF 2013
(Arising out of S.L.P. (C) No. 35271 of 2011)

Hardevinder Singh Vs  Paramjit Singh 

Dated: January 07, 2013
Dipak Misra, J.
Citation: (2013) 9 SCC 261; 2013 KHC 4017.

Read full Judgment here: Click here

Print Page

What remedy is available against consent decree to an aggrieved third party?

Still there could be one more situation, where the third party who was not the party to suit or the party to the compromise but had an interest in the subject matter of the compromise, is aggrieved by the decree passed by the Court under Order XXIII, Rule 3 on the basis of the compromise arrived at between the parties to the suit. So what remedy would be available to him? It cannot be gainsaid that the decree based on the compromise between the parties under Order XXIII, Rule 3, if remains unchallenged would be a "consent decree" binding to the parties to suit. However, when the person aggrieved is third party who was neither a party to the suit nor a party to the compromise on the basis of which the decree was passed by the Court in the suit, would not be bound by such decree. Such a decree could not be said to be a "consent decree" qua such third party, and therefore, neither the bar contained in Section 96(3) nor the bar under Rule 3A of Order XXIII would be application to him. Such an aggrieved party, with the leave of the Court can always file an appeal under Section 96(1) against the decree passed by the Court on the basis of the compromise, and can contest the decree on the ground that the compromise should, or should not have been recorded by the Court in view of Rule 1A(2) of Order XLIII of CPC. When the third party is vitally and adversely affected by the decree passed by the Court under Order XXIII, Rule 3 on the basis of the compromise arrived at between the parties to the suit on the subject matter or otherwise of the suit, he can certainly, with the leave of the appellate Court, prefer an appeal and can contest such a decree passed under Order XXIII, Rule 3. One of the grounds to contest the decree could be that such a compromise should or should not have been recorded by the Court.

31. At this juncture, the word "party" used in Sub-rule (1) and the word "appellant" used in Sub-rule (2) of Rule 1A of Order XLIII assume importance. The Sub-rule (1) of Rule 1A relates to the order passed against the 'party' to the suit, and the appeal filed by 'such party', whereas the Sub-Rule (2) of the said Rule 1A relates to the appeal filed by the 'appellant'. Such appellant may or may not be a party to the suit. The Sub-rule (2) is not confined to the appeal filed by the "party" to the suit. Hence, the third party, in the appeal against the decree passed in the suit under Rule 3 of Order XXIII can also contest such decree on the ground that such a compromise should not have been recorded.

32. In the opinion of the Court, such an aggrieved third party would also have an option to file an application for Review of the order recording the compromise or for Review of the decree based on the compromise between the parties to the suit, under Section 114 read with Order XLVII, Rule 1 of CPC, if the conditions precedent mentioned therein are satisfied. It has been held by the Supreme Court in case of Board of Control for Cricket, India Vs. Netaji Cricket Club, reported in MANU/SC/0019/2005 : AIR 2005 SC 592, that an application for Review under Order XLVII Rule 1 would be maintainable not only upon discovery of a new and important piece of evidence, or when there exists an error apparent on the face of record but also if the same is necessary on account of some mistake or for any other sufficient reason. What would constitute sufficient reason would depend upon facts and circumstances of each case. The words "sufficient reason" in Order XLVII, Rule 1 are wide enough to include a misconception of fact or law by a Court or by an advocate. An application for review may be necessitated by way of invoking he doctrine "actus curiae neminem gravabit", which means that the act of the Court shall prejudice no one. Therefore, it any person considers himself aggrieved by the order or decree passed under Order XXIII, Rule 3 may for sufficient reason apply for review of such decree or order under Order XLVII, Rule 1, subject to the conditions mentioned therein. When an application for review is granted, the Court may at once re-hear the case or make such order in regard to the rehearing as it thinks fit, as contemplated in Rule 8 of Order XLVII of CPC.

 If the aggrieved party was not the party to the suit, the remedy available to him to challenge the decree passed by the Court on the basis of compromise between the parties to the suit (consent decree), would be to file an appeal under Section 96(1) of CPC, with the leave of the appellate Court, or to file a review application before the Court, which passed the decree, as may be permissible under Section 114 read with Order XLVII of CPC.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Appeal from Order No. 33 of 2017,

Decided On: 28.08.2019

 Sakina Sultanali Sunesara (Momin) Vs.  Shia Imami Ismaili Momin Jamat Samaj 

Print Page

Whether court should condone delay if application is made by aggrieved person not party to proceeding?

 In our opinion, having regard to the facts and circumstances of the case and further keeping in view of the fact that the appellants were not made parties  to the original writ petitions and became aggrieved by the order passed by the writ Court (Single Judge) in the writ petitions, a case for condonation of delay in filing the appeals was made out. It was, in our view, a sufficient cause for condonation of delay within the meaning of Section 5 of the Limitation Act. The High Court ought to have, in these circumstances, condoned the delay and granted permission to file the appeals to the appellants for being heard on merits.

NON-REPORTABLE

Supreme Court of India

Hetal Chirag Patel vs The State Of Gujarat on 11 July, 2018

Bench: [ U Lalit], [ M Sapre]

Citation: (2018) 7 SCC 703

Print Page

Whether arbitration appeal filed by third party is maintainable?

Insofar as the submission of the learned counsel for the respondent no. 2 that since the petitioners or the applicants were admittedly not the parties to the arbitration agreement, none of them could be a party to the arbitration proceedings before the learned arbitrator is concerned, there is no dispute about this proposition. However, since the order passed by the learned arbitrator for interim measures at the behest of one of the parties to the arbitration agreement which would prejudice the right, title and interest of a third party, such third party who is not allowed to seek impleadment in the arbitration proceedings or to apply for modification and/or vacating the order of interim reliefs, will have a right of appeal under section 37 of the Arbitration & Conciliation Act, 1996 against such order. I am not inclined to accept the submission made by the learned counsel for the respondent no. 2 that there is any statutory bar against a third party from filing an appeal under section 37 of the Arbitration Act though an order is passed by the arbitral tribunal in the proceedings filed by the parties to the arbitration agreement under the provisions of the Arbitration & Conciliation Act, 1996 would affect the rights of such third party. 

IN THE HIGH COURT OF BOMBAY

Arbitration Petition Nos. 619, 633, 642, 621, 622, 623, 668, 667, 643, 646, 574, 634 and 620 of 2017

Decided On: 31.08.2018

 Prabhat Steel Traders Pvt. Ltd. Vs. Excel Metal Processors Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Print Page

Whether landlord can agitate grounds of eviction negatived by trial court in appeal preferred by tenant?

'Any aggrieved party', the expression employed in Section 20(1), means a person feeling aggrieved by the ultimate decision, that is, the operative part of the order. A party to the proceedings, who has succeeded in securing the relief prayed for is not a party aggrieved though the order contains a finding or two adverse to him. The Respondent can support the order and pray for the ultimate decision being sustained, without filing a revision of his own, and for achieving such end he may seek reversal of any findings recorded against him. However, if the non-petitioning party feels entitled to a more beneficial or larger order in his favour but was allowed a lesser or smaller relief then to the extent of claiming the more beneficial or larger relief he should have filed a revision petition of his own as he was 'an aggrieved party' to that extent.

16. There is, therefore, no doubt in the present case that in a revision preferred under Section 20 of the Act by the tenant laying challenge to the propriety of the decision of the Appellate Authority under Section 11(8) of the Act, the landlord could have urged that the order of eviction could be sustained under Section 11(3) of the Act also. The High Court has not erred in permitting the landlord to urge such a plea in the revision filed by the tenant though the landlord did not file any revision of his own. A landlord who has succeeded in securing an order of eviction on one of the several grounds urged by him cannot be said to be a person aggrieved by such order. He can not file a revision rather he can feel satisfied with the order. The person aggrieved is the tenant and in a revision preferred by the tenant it is only just and equitable that the landlord should be permitted to support the order of eviction by disputing correctness of the finding recorded in the impugned order whereby the availability of additional ground for eviction was negatived. Such a right has to be necessarily spelled out in favour of the landlord who has succeeded from the Court below else there would be grave injustice.

IN THE SUPREME COURT OF INDIA

SLP No. 1599 and 8694 of 2001

Decided On: 08.07.2002

Nalakath Sainuddin Vs. Koorikadan Sulaiman

Hon'ble Judges/Coram: 

R.C. Lahoti and B.N. Agrawal, JJ.

Citation: AIR 2002 SC 2562

Print Page

Whether a party can challenge a finding given against him without filing revision?

It was also held in Smt. Gangabai v. Vijay Kumar and Ors. MANU/SC/0020/1974 : (1974) 2 SCC 393, 'no appeal can lie against a mere finding', and, if filed, shall be liable to be dismissed as not maintainable. In Seetaram and Ors. v. Smt. Remabai and Anr. MANU/MP/0079/1958 : AIR 1958 MP 221, the Division Bench consisting of M. Hidayatullah, CJ and P.K. Tare, J., (as their Lordships were then), considered Clause 21 of the C.P. and Berar Letting of Houses and Rent Control Order. 1949 which provides for an appeal being preferred by 'any person aggrieved by an order' of the Controller to the Deputy Commissioner who shall decide the appeal. Eviction was sought for on three grounds but was allowed by the Controller only on one ground. In an appeal preferred by the tenant the landlord was not permitted by the Deputy Commissioner to establish that the other two grounds on which permission was asked for were wrongly decided. The Deputy Commissioner formed an opinion that the order of Controller could nor be allowed to be supported by the landlord-respondent before him on any ground which had been decided against him by the Controller unless an appeal was filed by the landlord-respondent. The Division Bench held that 'a person aggrieved' must be a man against whom a decision has been pronounced which has wrongfully refused him something which he had a right to demand. In spite of a ground for an order having been decided against the landlord, if the operative part of the order is in his favour, the landlord though a person aggrieved' is not a 'person aggrieved by an order of the Controller'. The landlord could have felt satisfied therewith and there is no reason why he should have appealed. Even if a person has a grievance against the finding he cannot come by way of appeal unless he challenges the order itself and wants to get it interfered with. Such ah interpretation of the provision is warranted otherwise even if the order is in favour of a party he would be required to file an appeal against a finding. The Division Bench held that, in an appeal, the party who has an order in its favour is entitled to show that the order is justified on some ground which was decided against it in the Court below and this position of law is supportable on general principles without having recourse to Order 41. Rule 22 of the Code of Civil Procedure.

13. Krishnaswami Ayyangar, J. in his opinion, in Gaddem Chinna Venkata Rao and Ors. v. Koralla Satyanarayanamurthy and Anr. MANU/TN/0137/1943 : AIR 1943 Mad 698, which is a Full Bench decision, held, interpreting Order 41, Rule 22 of the Code of Civil Procedure, that a party who has succeeded in the result of a decision in spite of one or more of several grounds urged by him having been negated, he cannot and need not appeal as regards the latter grounds however erroneous the decision because there is no right of appeal to a party who has succeeded. The distinction lies in supporting or sustaining the decree in one's favour and in obtaining an alteration which would give him a further advantage. The latter can be secured only by an appeal or cross objection.

14. A single Bench decision of Madras High Court in K. Venkataramani v. S. Aravamuthan and Ors. MANU/TN/0292/1982 : AIR 1982 Mad 36, is directly in point dealing with pari materia provision contained in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It was held that where an order for eviction is based on one of the several grounds, in an appeal preferred by the tenant, the ultimate decision in favour of the landlord can be supported by the landlord without filing an appeal by disputing the correctness of findings on a ground decided against him and submitting that the order of eviction should have been rested on that ground as well. What is true of the appellate jurisdiction is also true of the revisional jurisdiction under Section 25. The Division Bench decision of Madhya Pradesh High Court in Seetaram and Ors. case (supra) was followed.

15. We agree with the view taken by the High Courts of Madhya Pradesh and Madras. We are of the opinion that-

(i) There is no reason to read and interpret Section 20 of the Kerala Buildings. (Lease and Rent Control) Act. 1965 narrowly and limit the scope of revisional jurisdiction conferred on the High Court thereby:

(ii) Once a revision petition is entertained by the High Court, whichever be the party invoking the revisional jurisdiction, the High Court acquires jurisdiction to call for and examine the records of the authority subordinate to it. The records relating to 'any order' and/or any proceedings, are available to be examined by the High Court for the purpose of satisfying itself as to the (a) legality, (b) regularity, or (c) propriety of the impugned order, including any part of the order, or proceedings. The only limitations on the scope of High Court's jurisdiction is that the order or proceedings sought to be scrutinized must be of the subordinate authority. Any illegality, irregularity or impropriety coming to its notice is capable of being corrected by the High Court by passing such appropriate order or direction as he law requires and justice demands.

(iii) 'Any aggrieved party', the expression employed in Section 20(1), means a person feeling aggrieved by the ultimate decision, that is, the operative part of the order. A party to the proceedings, who has succeeded in securing the relief prayed for is not a party aggrieved though the order contains a finding or two adverse to him. The Respondent can support the order and pray for the ultimate decision being sustained, without filing a revision of his own, and for achieving such end he may seek reversal of any findings recorded against him. However, if the non-petitioning party feels entitled to a more beneficial or larger order in his favour but was allowed a lesser or smaller relief then to the extent of claiming the more beneficial or larger relief he should have filed a revision petition of his own as he was 'an aggrieved party' to that extent.

IN THE SUPREME COURT OF INDIA

SLP No. 1599 and 8694 of 2001

Decided On: 08.07.2002

Nalakath Sainuddin Vs. Koorikadan Sulaiman

Coram: R.C. Lahoti and B.N. Agrawal, JJ.

Citation:(2002) 6 SCC 1

Print Page

When appeal filed by person who is prejudicially or adversely affected by decree is maintainable?

 This Court has clearly stated
that if a person is prejudicially or adversely affected
by the decree, he can maintain an appeal. In the
present case, as we find, the plaintiff claiming to be a
co-sharer filed the suit and challenged the will. The
defendant No. 5, the brother of the plaintiff,
supported his case. In an appeal at the instance of
the defendant Nos. 1 to 4, the judgment and decree
was overturned. The plaintiff entered into a
settlement with the contesting defendants who had
preferred the appeal. Such a decree, we are
disposed to think, prejudicially affects the defendant
No. 5 and, therefore, he could have preferred an
appeal. It is worthy to note that the grievance
pertained to the nature and character of the property
and the trial court had decreed the suit. He stood
benefited by such a decree. The same having been
unsettled, the benefit accrued in his favour became
extinct. It needs no special emphasis to state that he
had suffered a legal injury by virtue of the over
turning of the decree. His legal right has been
affected. In this context, we may refer to a recent
pronouncement in Ayaaubkhan Noorkhan Pathan
v. The State of Maharashtra & ors.
2012 (11) SCALE 39wherein this
Court has held thus: -
“A “legal right”, means an entitlement
arising out of legal rules. Thus, it may be
defined as an advantage, or a benefit
conferred upon a person by the rule of law.
The expression, “person aggrieved” does
not include a person who suffers from a
psychological or an imaginary injury; a
person aggrieved must therefore,
necessarily be one, whose right or interest
has been adversely affected or
jeopardized. (Vide: Shanti Kumar R. Chanji
v. Home Insurance Co. of New York, AIR
1974 SC 1719; and State of Rajasthan &
Ors. v. Union of India & ors., AIR 1977 SC
1361).”

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 102 OF 2013
(Arising out of S.L.P. (C) No. 35271 of 2011)

Hardevinder Singh Vs  Paramjit Singh 

Dated:January 07, 2013
Dipak Misra, J.
Citation: (2013) 9 SCC 261: 2013 KHC 4017.

Print Page