Showing posts with label civil revision. Show all posts
Showing posts with label civil revision. Show all posts
Wednesday, 4 February 2026
Monday, 12 May 2025
Bombay HC: Remand of case should not be directed where the record is sufficient for final disposal and no prejudice is caused.
The revisional authority, having recorded a finding on the
defectiveness of the panchnama, was under a legal duty to test the
merits of the Mamlatdar’s order in the light of the other evidence
on record, and determine whether the decision suffers from
perversity or legal infirmity. Once the panchnama was found to be
of doubtful evidentiary worth, the correct course would have been to proceed with adjudication on available legal grounds, and not to relegate the parties to a fresh round of proceedings without justification. {Para 5}
6. The power of remand, when exercised in absence of
compelling legal necessity, leads to avoidable delay in the
resolution of disputes. Courts and quasi-judicial authorities are
expected to avoid multiplicity of proceedings and ensure effective
adjudication in the interest of justice. Remand should not be
directed where the record is sufficient for final disposal and no
prejudice is caused.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5672 OF 2025
Kapil Satish Phalke & Anr. V/s. The Sub Divisional Officer, Koregaon Sub Division, Koregaon, District Satara & Ors.
CORAM : AMIT BORKAR, J.
DATED : MAY 5, 2025.
Print PageSunday, 4 May 2025
Allahabad HC: Revisional Court Can't Assume Jurisdiction To Reject O.21 R.97 Application When It Is Pending Before Executing Court
In the instant case the revisional court had assumed the jurisdiction of executing court and dismissed the application filed under Order XXI Rule 97, though observing that the issue of res judicata should have been decided first. The revisional court at the most could have remanded the matter with certain directions, it cannot assume the role of a executing court while exercising revisional jurisdiction, as the order dated 16.05.2024 does not fall in the category of case decided. {Para 33}
34. After giving thoughtful consideration, I find that the revisional court had exceeded its jurisdiction by dismissing the application filed under Order XXI Rule 97 by the petitioner before the executing court while exercising revisional jurisdiction under Section 115 CPC. However, the executing court has also failed in its endeavour to decide the execution case pending before it since the year 2014, and after framing the issue of res judicata had postponed the matter to be decided at the final stage.
35. In such a case where it is an admitted fact that the property was transferred during pendency of the suit and petitioner is a transferee pendente lite and hit by provisions of Section 52 of the Transfer of Property Act, the executing court should have, at the very outset, proceeded to pass the order in pursuance of Rule 102 CPC.
IN THE HIGH COURT OF ALLAHABAD
Matters Under Article 227 No. 11807 of 2024
Decided On: 11.03.2025
Santosh Awasthi Vs. Urmila Jain
Hon'ble Judges/Coram:
Rohit Ranjan Agarwal, J.
Citation: MANU/UP/0397/2025,- 2025:AHC:35146.
Print PageSunday, 11 August 2024
Leading SC and other HC Judgments on Civil appeal, criminal appeal, civil revision, criminal revision and remand of case (Part 2)
1) Supreme Court: All grounds that may be urged in support of the revision petition may be urged in the appeal, but not vice versa.
IN THE SUPREME COURT OF INDIA
Appeal (crl.) 808 of 2002
Decided On: 13.08.2002
Bindeshwari Prasad Singh and Ors. Vs. State of Bihar and Ors.
Hon'ble Judges/Coram:
M.B. Shah and B.P. Singh, JJ.
Author: B.P. Singh, J.
Citation: MANU/SC/0670/2002,AIR 2002 SC 2907,2002 INSC 332.
https://www.lawweb.in/2024/08/supreme-court-all-grounds-that-may-be.html
2) Supreme Court: Appellate court should reappraise the evidence itself and it cannot proceed to dispose of appeal upon appraisal of evidence by the trial court alone
Sunday, 22 August 2021
Whether bar U/S 8 Of Commercial Courts Act On Revision Application is Applicable To Petitions Under Article 227?
We are of the view that once the Commercial Courts Act has expressly barred the remedy of a revision application under Section 115 of the CPC, with respect to the suits within its ambit, the purpose thereof cannot be permitted to be defeated by opening up the gates of Article 227 of the Constitution of India. The scope and ambit of a petition under Article 227 is much wider than the scope and ambit of a revision application under Section 115 of the CPC; whatever can be done in exercise of powers under Section 115 of the CPC, can also be done in exercise of powers under Article 227 of the Constitution. Allowing petitions under Article 227 to be preferred even against orders against which a revision application under Section 115 CPC would have been maintainable but for the bar of Section 8 of the Commercial Courts Act, would nullify the legislative mandate of the Commercial Courts Act. Recently, in Deep Industries Limited Vs. Oil and Natural Gas Corporation Limited (2020) 15 SCC 706, in the context of petitions under Article 227 of the Constitution of India with respect to orders in an appeal against an order of the Arbitral Tribunal under Section 17 of the Arbitration & Conciliation Act, 1996, it was held that if petitions under Article 226 / 227 of the Constitution against orders passed in appeals under the Arbitration Act were entertained, the entire arbitral process would be derailed and would not come to fruition for many years. It was observed that though Article 227 is a constitutional provision which remains untouched by an non-obstante Clause 5 of the Arbitration Act but what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing First Appeals under the Arbitration Act, yet the High Court would be extremely circumspect in interfering with the same taking into account the statutory policy, so that interference is restricted to orders which are patently lacking in inherent jurisdiction. Thus, though we are of the view that gates of Article 227
ought not to be opened with respect to orders in commercial suits at the level of the District Judge against which a revision application under CPC was maintainable but which remedy has been taken away by the Commercial Courts Act, but abiding by the judgments aforesaid, hold that it cannot be said to be the law that jurisdiction under Article 227 is completely barred. However the said jurisdiction is to be exercised very sparingly and more sparingly with respect to orders in such suits which under the CPC were revisable and which remedy has been taken away by a subsequent legislation i.e. the Commercial Courts Act, and ensuring that such exercise of jurisdiction by the High Court does not negate the legislative intent and purpose behind the Commercial Courts Act and does not come in the way of expeditious disposal of commercial suits.{Para 30}
31. We thus hold the petition under Article 227 of the Constitution of India to be maintainable with respect to the order impugned in CM(M) No.132/2021. However the discretion, whether in the facts and circumstances such petition is to be entertained or not, having under the roster been vested in the Single Judge, we leave it to the Single Judge to exercise such discretion.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CM(M) 132/2021 & CM No.5689/2021 (FOR STAY)
BLACK DIAMOND TRACKPARTS PVT. LTD. & ORS. Vs BLACK DIAMOND MOTORS PVT. LTD.
CORAM: MR. JUSTICE RAJIV SAHAI ENDLAW HON'BLE MR. JUSTICE AMIT BANSAL
AUTHOR: RAJIV SAHAI ENDLAW, J.
Dated : 10th August, 2021.
Print PageSunday, 30 May 2021
Whether a party can file a revision if he has withdrawn the appeal without leave of court?
It is a settled position that against an order dismissing an
eviction petition filed under Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act, remedy is only by way of a revision petition under Section 25B(8) of the Delhi Rent Control Act. Petitioner appears to have been incorrectly advised to file an appeal and since the appeal itself was not maintainable, nothing prevents the petitioner from filing a revision petition under Section 25B(8) of the Delhi Rent Control Act. Petitioner does not need express permission or leave to file a revision under Section 25B(8) of the Delhi Rent Control Act.{Para 10}
11. In my view, no express leave or liberty is required by the
petitioner to file a revision petition after withdrawing his appeal which was filed before a wrong forum especially in view of the objections specifically having been taken by the respondent that the appeal was not maintainable and only a revision under Section 25B(8) of the Delhi Rent Control Act would lie required.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CM(M) 527/2020
RAGHUBIR KAUR Vs SURESH KUMAR
Coram: HON’BLE MR JUSTICE SANJEEV SACHDEVA
Judgment delivered on: 10.12.2020
Print PageSaturday, 15 May 2021
How should Appellate court calculate interim compensation when staying eviction decree if vacant land was rented on which tenant has raised construction?
So far as the question of compensation is concerned, Mr. Naidu is right that it cannot be based on the valuation of the building ‘Garment House’. After all, what was leased out was the land; the construction on the land, if any, made during the subsistence of the tenancy, was to belong to the lessee. Compensation can accordingly be based only on the value of the land, the fruits of which may be said to be lost unto the Plaintiffs as a result of the stay of the eviction decree obtained by them. There is another way of looking at the land value. The land may well be commercially exploited either by retaining the structure (since the terms of the lease permit such retention upon payment) or, alternatively, by demolishing the existing structure and constructing on the land. In either case, the landlord would have to incur capital cost by purchasing the building or paying for the new construction. In either premises, commercial letting of constructed premises cannot be the basis of valuation; it would have to be letting of land.{Para 8}
13 The only legitimate basis for working out interim compensation in our case appears to be the actual price paid for the suit property (i.e. essentially the land) by Respondent No.19. Respondent No.19 has acquired reversionary right of the lessors in the suit property for a sum of Rs.5.50 crores. Evidently, this has been a concrete deal at arms length between men of commerce; it does take into account or, at any rate, must be presumed to have taken into account, all aspects arising out of the lessee’s right to the existing structure at the expiry of the lease. It may safely, at least for our purposes, which, as we have seen above, in any event, involve a certain ad-hocism, be taken as the basis for working out a fair interim compensation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.357 OF 2017
Vijay Anant Gangan Vs Zenabibi Gulam Rasool And Others
CORAM : S.C. GUPTE, J.
PRONOUNCED ON : 5 NOVEMBER 2020
Print PageThursday, 4 March 2021
Leading SC and other HC Judgments on Civil appeal, criminal appeal, civil revision, criminal revision and remand of case (Part 1)
1) Leading Supreme court judgment on production of additional evidence in appellate court
Union of India (UOI) Vs. Ibrahim Uddin and Ors.
Decided On: 17.07.2012
2) When court can grant relief to party who had not preferred appeal?
Banarsi vs Ram Phal on 17 February, 2003
3) Leading Supreme court Judgment on cross objection
Superintending Engineer And Ors vs B. Subba Reddy on 26 April, 1999
4) Leading Judgment on procedure to be followed by lower court after case is remanded to it
It is fairly stated that power of jurisdiction
of the Court lower in hierarchy after remand, depends on
specifications of the remand order. Whether the order of
remand lays down any limits of enquiry to be made by the
Court lower in hierarchy that Court has no jurisdiction
to entertain any question which falls outside those
limits. In other words, where the Court passes
restricted order of remand it is not open to any of the
parties or any Court to enlarge the scope of the remand
order, that too, by a side window.
Popcorn Entertainment Corporation, V/s. The City Industrial Development Corporation,
Q 5:- Whether court to which case is remanded can take cognizance of change of law?
Ans:- ORDER OF REMAND - Interpretation of-Supreme Court remanding the case for decision in the light of a particular decision-Subordinate Court can look into the subsequent decisions also to ascertain the correct position of law.
Delhi High Court
Hardit Singh Chadha vs Jagtar Singh Grover on 1 October, 1993
6) Procedure to be followed by lower court when case is remanded by higher court
Only limitation after the remand is as may be contained in the order of remand. If the order of remand restricts the jurisdiction, the Court cannot override those limitations. But if the order of remand is in fact a direction of re-hearing on merits on all issues and all contentions raised by the parties, the jurisdiction is not at all restricted.
Bombay High Court
Laxman Bapu Berad vs Sudhakar Nanasaheb Jawale on 5 August, 1997
7) Whether lower appellate court can remand the case to trial court if high court has remanded said case to it?
If such a remand is directed by the second Appellate Court or by the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India, on remand of such matter before the lower Appellate Court, the lower Appellate Court has all the options open including, in turn, remanding the matter to the trial Court if it thinks that such a course is necessary in the ends of justice.
Equivalent citations: 1998 (2) BomCR 259,1998(1)ALLMR667,
8) Landmark Supreme Court Judgment on powers and duties of first appellate court while deciding first appeal
IN THE SUPREME COURT OF INDIAC.A. No. 1117 of 2001Decided On: 08.02.2001Santosh Hazari vs. Purushottam Tiwai (Dead) by L.Rs.Coram:Dr. A.S. Anand, C.J., R.C. Lahoti and Brijesh Kumar, JJ.Citation:(2001) 3 SCC 179.
Saturday, 28 November 2020
Questions and answers on law part 16
Q. 1:-Whether Tender contract comes under commercial dispute under Commercial Courts Act?
Ans: Commercial Courts Act
2. Definitions.—(1) In this Act, unless the context otherwise requires,—(c) “commercial dispute” means a dispute arising out of—
(vi) construction and infrastructure contracts, including tenders;
Q. 2 :- Whether civil revision is tenable if court fails to award costs while deciding suit?
Print PageFriday, 27 November 2020
Sunday, 15 November 2020
Whether the court can mould relief in revision proceeding considering the subsequent event?
What is urged is that only an appeal is a continuation of a suit while revision is not. There cannot be any demur to the legal proposition as such. However, I am of the view that where the right to sustain the application is no longer available to Murugan Bus Service, different considerations will arise irrespective of the fact that the jurisdiction that is exercised is appellate jurisdiction or revisional. In other words, if the lis is kept pending, that would enough for the court to interfere. If it were some other matter perhaps, one may not very much worry in exercising revisional jurisdiction. But here as I have stated above, the right to sustain the application on certain stated qualifications having disappeared, can it be said that because of this High Court exercising revisional jurisdiction and because it concerns itself under S. 115 C.P.C. with the jurisdiction exercised by the Tribunal or lower authority, it should shut its eves? I do not think so. The power of revision is a limited one, in comparison to the appellate power. Barring that there is no point in saying that under revisional powers, the subsequent events cannot be taken note of. Such an extreme argument will render the revisional power absolutely nugatory. In shankar v. Krishnaji MANU/SC/0456/1969 : [1970]1SCR322 , it has been categorically held that the power under S. 115 C.P.C is a valuable power which is exercised by the High Court as a superior Court. Therefore the right to sustain the application must survive at any stage of the order. In fact, Alagirirswami J. (as he then was) in a ruling reported in Abdul Rahiman v. Abdulla (1967) 80 MLW 54, which comes under the Madras Buildings (Lease and Rent Control) Act, took note of an even that took place during the revisional stage and granted the relief. this exactly is the purport of the ruling in P.Venkateswarlu v. Motor and General Traders, MANU/SC/0415/1975 : [1975]3SCR958 . that case also related to A.P.Buildings (Lease Rent and Eviction) Control Act. Krishna Iyer J. speaking for the court, said as follows ( at p.1410) -
"We feel the submissions devoid of substance. First about the jurisdiction and prosperity vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceedings. Equally clear is the principle that procedure is the hand-maid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inapt the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice subject, of course to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation ponds, the power exists, absent other special circumstances repelling resort to that course in law or justice. rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the fight or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. the later recovery of another accommodation by the landlord, during the pendency of the case has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into S. 10(3)(iii) itself. We are not disposed to disturb this approach in law or finding of fact.
Therefore, if a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the court, it cannot blink at it or be blind to events which stultify or render inapt the decretal remdey. I should think that equity and justice demand my taking note of these events especially when by reason of these events, the original grantee Murugan Bus Service loses all the qualification to the a transport operator.
IN THE HIGH COURT OF MADRAS
C.R.P. No. 1535 of 1980
Decided On: 17.09.1982
A.M.V. Jayaraman Vs. Murugan Bus Service and Ors.
Hon'ble Judges/Coram:
S. Mohan, J.
Citations: AIR 1983 Mad 210,MANU/TN/0377/1983,1982SCCONLINE Mad 138
Print PageWhen revisional court can take note of subsequent event?
It is true that the Court can take notice of subsequent events. These cases are where the court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation. Where the original relief has become inappropriate by subsequent events, the Court can take notice of such changes. If the court finds that the judgment of the Court cannot be carried into effect because of change of circumstances the Court takes notice of the same. If the Court finds that the matter is no longer in controversy the court also takes notice of such event. If the property which is the subject matter of suit is no longer available the Court will take notice of such event. The court takes notice of subsequent events to shorten litigation, to preserve rights of both the parties and to subserve the ends of justice.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 1036 of 1967
Decided On: 12.09.1972
Laxmi & Co. Vs. Anant R. Deshpande and Ors.
Hon'ble Judges/Coram:
A.N. Ray and I.D. Dua, JJ.
Citations: 1973 AIR 171, 1973 SCR (2) 172,MANU/SC/0513/1972,(1973) 1SCC 37
Print PageWhether revisional court can take additional evidence in suitable cases?
Learned counsel for the petitioners Sri H.S. Nigam argued with vehemence that the view of the lower revisional court that in law no additional evidence could be admitted in a revision filed under Section 18 of the Act. is patently erroneous and in support of his argument, learned counsel has relied upon a number of decisions of this Court. Reliance has been placed on the decisions in (1) Lallu Lal Gupta v. IVth Additional District Judge and others, 1979 (UP) RCC 372 ; (2) Bihari Lal v. IInd Additional District Judge, Mathura and others, 1983 (2) ARC 146 ; (3) Smt. Shanti Devi v. District Judge, Farrukhabad and others, 1982 ARC 92 and (4) Radhey Shyam and another v. Additional District Judge, Unnao and others, 1984 (2) ARC 404. In all these decisions, the view taken was that a revisional court in suitable cases is entitled to take additional evidence and while exercising the power of taking additional evidence, the revisonal court has to act on the principles contained in Order XLI. Rule 27, C.P.C.
A perusal of the impugned order would indicate that petitioners' application for admitting additional evidence on record has been rejected on a number of grounds and it is not correct to say that the said application has been rejected solely on the ground that the revisional court does not possess any power to admit additional evidence while exercising jurisdiction under Section 18 of the Act. It would appear that the revisional court has also held that the petitioners have no right in law to contest the release application or to challenge the order releasing the accommodation in favour of the landlord. In all those cases on which reliance has been placed on behalf of the petitioners, it was held that the additional evidence in revision can be admitted in suitable cases on the principles contained in Order LXI, Rule 27, C.P.C., but before that power could be exercised, it has to be seen by the court that a right vests in the party seeking to bring additional evidence on record.
Allahabad High Court
Suraj Bhan Jain And Another vs Ist Additional District Judge, on 4 September, 1997
Equivalent citations: 1998 (1) AWC 266
Bench: J Gupta
Print Page
Friday, 13 November 2020
Whether the court can remand the case in civil revision if the subsequent event is brought on record by amendment?
Indeed, the court can allow the parties to amend the pleadings at any stage of the proceedings. Those amendments must be necessary for the court to determine the questions in controversy between the parties. This liberal provision underwent an amendment in 2002. So the earlier Maharashtra-specific State Amendment of 1983, I reckon, now may not stand in the way. Then, with the Central Amendment, the limitation on amending the pleadings is this: there should be no amendment once the trial has commenced. But there is an exception: if the court concludes that despite due diligence, the party could not have raised the matter before the commencement of trial. And that includes the subsequent developments.
23. For the court to appreciate the later developments, they should be brought on record through amendment. Once the pleadings are amended, the later developments become part of the record. Then, based on the gravity, the appellate court or even the revisional court may remand the matter.
IN THE HIGH COURT OF BOMBAY
Civil Revision Application No. 497 of 2016
Decided On: 06.09.2019
Rukminibai Motiram Kshirsagar Vs. Manoramabai Mallikarjun Bagale
Whether court can permit production of additional evidence in civil revision?
That said, even the revision under Section 115 of CPC is a continuation of the original suit proceedings. The Code provides for procedural steps to be taken--for example, placing evidence on record --both at the trial stage and at the appellate stage, but hardly any specific provision, again for placing evidence, at the revisional stage. Even Order 41, Rule 27 permits additional evidence at the appellate stage, not at the revisional stage.
IN THE HIGH COURT OF BOMBAY
Civil Revision Application No. 497 of 2016
Decided On: 06.09.2019
Rukminibai Motiram Kshirsagar Vs. Manoramabai Mallikarjun Bagale
Print Page
Thursday, 29 October 2020
Whether civil revision is maintainable against the order passed in the application under S 151 of CPC?
Learned Counsel for the parties have been heard. The revision has to be admitted. I do not find any force in the contention that an order under Section 151 of the Code of Civil Procedure being discretionary is not revisable . An order under Section 151, C.P.C. is not appealable hence revision is maintainable against such order.
IN THE HIGH COURT OF GUJARAT
Civil Revn. Appln. No. 1072 of 1998
Decided On: 31.08.1998
Zakinaben Vs. Babubhai Alimohmad Kapadia and Ors.
Hon'ble Judges/Coram:
D.C. Srivastava, J.
Citations: AIR 1999 Guj 118, (1999) 1 GLR 122,MANU/GJ/0235/1998
Print Page
Sunday, 25 October 2020
Questions and answers in law part 12
Q.1 What is limitation for filing suit for eviction against tenant on ground of subletting?
Ans:- After hearing both the learned Counsel, and after perusal of the Trial Court judgment and the lower Appellate Court judgment, it is clear that in the instant case, though the tenancy was created in favour of Respondent No. 1, the Respondent No. 1 never stayed in the suit premises, right from inception, i.e. 1st February, 1969. On the contrary, the Respondent No. 1 had illegally sub-let the same to Respondent Nos. 2 and 3 from 1st February, 1969. If that be so, the breach of tenancy conditions occurred on 1st February, 1969, and the suit ought to have been filed within 12 years, as per Article 66 of the Limitation Act. Ex-facie the suit is barred by law of limitation.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 684 of 1991
Decided On: 05.12.2006
Shri Taherbhai Taiyebhai Poonawala, Vs. Shri G. Hamid Hasan Patel
Hon'ble Judges:
Dr. S. Radhakrishnan, J.
Monday, 17 August 2020
Whether court can set aside exparte order passed in civil revision?
However, the Learned Counsel for the Respondents urged that, although there is a rule about restoration to file of a revision petition dismissed in default, there is no similar rule for setting aside an ex-parte order passed in a civil revision. Therefore, the contention is that this Court has no jurisdiction to set aside an ex parte order. In my opinion, a resort to exercise of inherent powers would be necessary to meet such a situation; otherwise we are led to the anomalous situation created by the view as expressed by Byers J. in A. Rirnxmwrti Iyer and Ors. v. T.A. Meenakshisundarammil and Anr. (Supra), as this Court would have the power to do damage to a party, but would be supposed not to undo it.
IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)
Misc. Civil Case No. 94 of 1963
Decided On: 12.12.1963
Dhullchand Bhuraji Vs. Chainsingh Bachusingh and Ors.
Hon'ble Judges/Coram:
P.K. Tare, J.
Citation: 1965 JLJ 997,= ILR (1966) MP 169=1966 MP LJ 65, MANU/MP/0146/1963
Sunday, 7 June 2020
Whether cross objection is maintainable in a civil revision application?
The crossobjections contemplated under O.41 R.22 are in the nature of substantive right available to the person interested in opposing the appeal cause for which would commence on service of notice upon such person. It is not merely a procedure since the procedure would normally regulate the rights and liabilities of the parties and not invest substantial rights. It is settled law that the statutory rights are exercisable when provided for and in absence of explicit conferment of such right or a remedy, it cannot be claimed. Therefore, the reliance on O.41 R.22 which does not explicitly contemplate a right to crossobjections in revision is of no benefit to the petitioner.
Gujarat High Court
Nasiruddin Fakhruddin Munshi vs Legal Heirs Of Decd. Mohammed Alam ... on 16 January, 2020
Bench: G.R.Udhwani
Tuesday, 21 April 2020
Whether revision is maintainable against order passed in application for framing of additional issues?
From perusal of the order dated 2nd May, 2006, it is evident that while RCA No. 326 of 2003, Smt.Ganga Dei v. Dan Bahadur is pending in the Appellate Court and applications were moved on behalf of the appellants/revisionists C52 and C53 under Order XLI, Rule 25, CPC for framing an issue on section 41 -H of the Specific Relief Act and the Appellate Court rejected this application by the impugned order. It has been held by this Court in MANU/UP/0063/1978 : AIR 1978 All 260 (FB) that "the power to frame additional issues is a discretionary power of the trial Court. Additional issues may be framed if the Court thinks necessary for determining the matter in controversy. By an order refusing to frame additional issues or allowing an application for framing of additional issues no right or obligation of the parties in controversy is adjudicated upon by the Court. It is a matter only of procedure. The Court after examining the pleadings and other material on record as required under Rule 3, may frame issues. Since no right or obligation of a party is determined by an order refusing to frame additional issues such an order cannot be hold to be deciding a case between the parties and would not come within the ambit of the expression 'case which has been decided'. Similar would be the position in regard to an order by which additional issues are framed or amended." Hence in view of the judgment of this Court, framing or not framing additional issues is the discretionary power of the Court and if the Court thought that no additional issues is required to be framed, then it cannot be said that in the revision, the case will amount to decided finally. And, in my opinion, this is the correct position of law and after 1978 the Code of Civil Procedure has been drastically amended and there are drastic amendment in section 115, CPC and in view of the amended provisions of section 115, CPC, if any revision is finally decided if that will not amount to case decided, then no such revision can be entertained. In the present case if this revision is allowed, then the judgment of this Revisional Court will not amount to final disposal of RCA pending in the Court, even then the appeal is to be decided by the Court below and it will be more complicated in case the revision is allowed. If revision is allowed, then the case is to be remanded to decide afresh which is not permissible and, hence, I agree with the arguments of the learned Counsel for the opposite-party that against the order refusing to frame additional issues, revision is not maintainable.
IN THE HIGH COURT OF ALLAHABAD
Civil Revision No. 78 of 2006
Decided On: 04.08.2008
Ganga Devi Vs. Dan Bahadur
Hon'ble Judges/Coram:
Shiv Charan (Sharma), J.
Citation: 2009(4) Civil court cases 350 ALL
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