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MADHYA PRADESH HIGH COURT
C.V. Sirpurkar, J.
Kamar Mohammad Khan —Applicant
versus
Nawab Mansoor Ali Khan Pataudi & Ors. —Respondents
Civil Revision No.538
Counsel for the Parties:
For the Applicant: Smt. Jai Lakshmi Iyer, learned counsel
For the Respondent No.4: Shri Anubhav Jain, learned Panel Lawyer
IMPORTANT POINT
An order passed under Order 1, Rule 2in a proceedings under Order 9, Rule 13 being interlocutory in nature, revision petition will not be maintainable.
Headnote:Civil Procedure Code 1908- Section 115 read with Order 19, Rule 2 and Order 9, Rule 13- Setting aside of ex parte order- Application filed under Order 19, Rule 2 by power of attorney holder for permission of cross examination in the proceeding under Order 9, Rule 13- Since the proceeding under Order 9, Rule 13 are covered by expression “other proceedings” as used in Section 115- Therefore held that an order passed under these proceedings, are interlocutory order- Therefore civil revision petition will not be maintainable. (Paras 11, 13, 14, 17, 19 & 20)
Facts of the case-
The applicant and respondent No. 2 filed Civil Suit against the respondent for declaration and permanent injunction which was decreed in favour of the applicant and the respondent No.1 filed application under order , Rule 13 through Power of Attorney Holder for setting aside the decree but during pendency respondent No. died. It was contended by the revision petitioner that during the pendency of M.J.C. No. 10/2011, power of attorney holder of the applicant, Mohammad Saeed, met respondent No. 1 a Sharmila Tagore, who told him that they have no right, title or interest in the suit land and they have not authorized anyone to engage Counsel on their behalf nor have they signed any power in favour of any advocate. Consequently, the applicant moved an application under section 5 of the Indian Evidence Act to get the signature of respondent No. a on Vakalatnama, examined by handwriting expert. The reply to application under Section 5 of the Indian Evidence Act, was accompanied by an affidavit, purported to be sworn by Smt. Sharmila Tagore; therefore, the applicant moved an application before the learned Trial Court praying for permission to cross-examine Smt. Sharmial Tagore. This application was dismissed by impugned order dated 18.10.214. This order was challenged by filing Civil Revision Petition.
Findings of the Court-
Question was whether a Civil Revision was maintainable against an order dismissing application under Order 19, Rule 2 CPC. It is true that a provision curtailing the jurisdiction of the Civil Court has to be construed strictly, the court should lean in favour of the view i.e. against curtailing jurisdiction of the Civil Court. The test prescribed in provision to sub section 1 of Section 115 is required to be applied to every individual case and it is to be seen whether the impugned order was made in favour of the party applying for revision would have finally disposed the suit or the other proceedings. If the answer is in negative, revision petition will not be maintainable. . Therefore revision petition against the impugned order held not maintainable.
Result: Petition dismissed.
C.V. Sirpurkar, J.—This civil revision under Section 115 of the Code of Civil Procedure, 1908 has been preferred challenging the legality, propriety and correctness of order dated 18/10/2014 passed by the 13th Civil Judge Class-I, Bhopal in M.J.C. No. 10/2011, whereby learned court below had rejected an application under Order 19 Rule 2 of the Code of Civil Procedure for permission to cross-examine respondent No. 1 (a).
2. The facts giving rise to this civil revision may be summarized thus: The applicant and respondent No.2, who are real brother and sister, jointly filed Regular Civil Suit No. 585/2006 against respondent Nos. 1, 3 and 4, for declaration and permanent injunction in respect of the suit land. Civil Suit No. 585/2006 was decreed in favour of the applicant and respondent No.2 on 28/07/2006. About 4 ½ years after the judgment and decree, the deceased/respondent No.1 filed an application under Order 9 Rule 13 of the Code of Civil Procedure through his power of attorney holder for setting aside the judgment and decree dated 28/7/2006. This was registered as M.J.C. No.10/2011. During the pendency of the Miscellaneous Judicial Case, respondent No.1 died and his legal representatives respondent Nos.1 (a), (b), (c) & (d) were brought on record.
3. The case of the revision petitioner is that during the pendency of M.J.C. No. 10/2011, power of attorney holder of the applicant, Mohammad Saeed, met respondent No. 1 (a) Sharmila Tagore, who told him that they have no right, title or interest in the suit land and they have not authorized anyone to engage counsel on their behalf nor have they signed any power in favour of any advocate. Consequently, the applicant moved an application under Section 45 of the Indian Evidence Act to get the signature of respondent No.1 (a) on Vakalatnama, examined by a handwriting expert. The reply to application under Section 45 of the Indian Evidence Act, was accompanied by an affidavit, purported to be sworn by Smt. Sharmila Tagore; therefore, the applicant moved an application before the learned trial Court praying for permission to cross-examine Smt. Sharmila Tagore. This application was dismissed by impugned order dated 18/10/2014.
4. The applicant challenged the impugned order by way of writ petition (W.P. No. 18146/2014) which was withdrawn by him on 25/11/2014 with liberty to challenge the order in civil revision. In the result, this civil revision came to be filed.
5. The question that arises for consideration herein is whether a civil revision is maintainable against an order dismissing application under Order 19 Rule 2 of the Code of Civil Procedure, filed for permission to cross-examine the affiant, in a proceeding under order 9 rule 13, in view of the proviso appended to sub-section (1 of Section 115 of the Code of Civil Procedure?
6. It has been held by a Division Bench of this High Court in the case of Johra Bi and others Vs. Jageshwar and others, (2010) 1 M.P.L.J. 98 that the revisional jurisdiction under Section 115 of the Code of Civil Procedure, is available against:
(i) an order deciding finally the suit or other proceedings where no appeal is provided; and
(ii) where effect of the order in the revision would finally disposed of the suit or other proceedings.
It has further been observed that the revisional jurisdiction will not be exercised in respect of other orders “ deciding a case” in the course of a suit or other proceedings; though, there may be an error or defect, irregularity or illegality in exercise of the jurisdiction, where allowing the revision would not finally disposed of the suit or other proceedings.
7. Similar proposition of law was made by a Judge of this High Court sitting singly in the case of Sawalsingh Vs. Smt. Ramsakhi & others, (2002 (4) M.P.H.T. 200).
8. In this regard, learned counsel for the applicant inviting attention of this Court to paragraph nos. 7 & 8 of the judgment in the case of Sawal Singh (Supra), has argued that the expression “ot
