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2017 Supreme(Gau) 790
IN THE HIGH COURT OF GAUHATI, (ITANAGAR BENCH)
Ajit Borthakur, J.
Tana Hari - Petitioner
Versus
Nabam Takam & Anr. - Respondents
CRP No. 44(AP) of 2016
Decided On : 30-03-2017
For the Petitioner: Mr. Hage Lampu
For the Respondent: Mr. Ninnong Ratan
Headnote:
Code of Civil Procedure, 1908 – Section 115, 96 – Order 12, Rule 6 – Constitution of India – Article 227 – Suit nor produced any document – Petitioners case, in brief, is that the plaintiff-Respondent, instituted in the Court of learned Civil Judge. Capital Complex, at Yupia, against the defendant-Respondent No.2, who is his wife, for declaration of right, title and interest over a plot of land measuring an area –Along with consequential reliefs –Plaintiff-respondent falsely claimed that he purchased the suit land from the present petitioner who is the brother of the defendant-Respondent – On the other hand, the defendant-Respondent her written statement, specifically averred that she is not at all connected with the suit land and that she has no Yedge of having such suit land, as such, she is not a proper party to the suit –Held, Law laid down in the aforesaid Civil Appeal by the Apex Court is applicable to the present petition which is preferred against the impugned decree passed by the learned Civil Judge (Senior Division), Capital Complex, Yupia, Arunachal Pradesh –Appellate jurisdiction and revisional jurisdiction of the High Court is clearly distinguishable, while the appeal is a continuation of a suit or proceeding wherein the entire proceeding is left open for consideration on law and on facts, but in exercise of the revisional jurisdiction, the revisional Court can interfere for the purpose of rectifying an error of the Court below so that the trial Court can decide the case in accordance will law – Jurisdiction of the High Court on the other hand, is a separate and distinct proceeding from one as the remedy of supervisory jurisdiction is alternative one – Civil Revision Petition stands dismissed.
Ajit Borthakur, J.
Heard Mr. Hage Lampu, learned counsel for the petitioner. Also heard Mr. Ninnong Ratan. learned counsel for Respondent No. 1.
2. This is a revision petition tiled under Section 115 of the Code of Civil Procedure, 1908, read with Article 227 of the Constitution of India, directed against the judgment & order, dated 29.09.2016, passed by the learned Civil Judge(Senior Division), Capital Complex at Yupia, Arunachal Pradesh, in Title Suit No. 19/2015.
3. The petitioner's case, in brief, is that the plaintiff-Respondent No. 1, herein, instituted T.S. No. 19/2015 in the Court of learned Civil Judge. Capital Complex, at Yupia, against the defendant-Respondent No.2, who is his wife, for declaration of right, title and interest over a plot of land measuring an area of 1180 sq. mtrs. along with consequential reliefs.
4. The plaintiff-respondent No. 1 falsely claimed that he purchased the suit land from the present petitioner who is the brother of the defendant-Respondent No.2. However, the present petitioner was neither impleaded as a respondent in the said suit nor produced any document of sale of the land by him. On the other hand, the defendant-Respondent No. 2. herein, in her written statement, specifically averred that she is not at all connected with the suit land and that she has no Yedge of having such suit land, as such, she is not a proper party to the suit. In this regard, the defendant-Respondent No.2, herein, filed Misc. Application, being No. 14X/2016 under Order 1, Rule 10 (2) of the Code of Civil Procedure, 1908, praying for striking out her name as defendant in the said suit. However, the learned trial Court, without appreciating the grounds mentioned in the said petition, took a presumption of admission, under Order 21, Rule 6 and Order % Rule 3 of ;he Code of Civil Procedure, 1908 and decreed the suit in favour of the plaintiff-Respondent No. 1, herein, as prayed for.
5. According to the petitioner, the learned trial Court misinterpreted the provision of Order 12, Rule 6 and wrongly presumed that the defendant-Respondent No.2, who was, in fact, a stranger, admitted the averments made in the plaint and further, that the learned trial Court also failed to exercise properly the provision contained in Order 1, Rule 10 (2).
6. The plaintiff-Respondent No. 1 denied the petitioner's case, by filing an affidavit-in-opposition. It has been averred that the learned trial Court passed the impugned judgment & order, dated 29.09.2016, taking into consideration of the respective pleadings and also the admission of the Respondent No. 2 in respect of the ownership of the plaintiff-Respondent No. 1, herein, over the suit land.
7. Mr. Lampu, learned counsel for the petitioner, submits basically on the above grounds stated in the petition. Learned counsel further submits that in view' of the facts apparent on record that the suit was adjudicated and decreed in absence of the petitioner, who was a necessary party as it was claimed that from him, the plaintiff-Respondent No. 1 purchased the suit land, therefore, the instant revision petition under Section 115 of the Code of Civil Procedure, 1908, read with Article 227 of the Constitution of India, is maintainable to set aside the impugned decree.
8. Mr. Ratan, learned counsel for the plaintiff-Respondent No. 1, submits that the petition is not maintainable as the same has been preferred against the impugned judgment and decree. According to Mr. Ratan, learned counsel, where order passed is a decree in law, no revision lies under Section 115 and it is only appealable under Section 96 read with Order 41 of the Code of Civil Procedure, 1908.
9. Mr. Ratan, learned counsel for the plaintiff-Respondent No. 1, further submits that the supervisory authority of the High Court under Article 227 of the Constitution of India is also not applicable, as alternative remedy is available to the petitioner. learned counsel has laid emphasis on the ratio laid by the Apex Court in
