This revision has been preferred against the order dated 13.08.2012 passed by Learned Civil Judge, Senior Division, Gonda in regular suit No. 657/2012, by which the learned Trial Court has directed both the parties to maintain status-quo.
Counter affidavit filed today by the learned counsel for the opposite party is taken on record.
Learned counsel for the revisionists does not want to file any rejoinder affidavit.
I have heard both the learned counsels for the parties and have gone through the records.
The brief facts, relevant for the purposes of deciding this revision, are that the plaintiff/opposite party filed suit for declaration and permanent injunction i.e. Regular Suit No. 657/2012 on 17.07.2012, in which application 7C was moved for ad interim injunction. It appears that the application for issue of commission was also moved.
The Learned Trial Court has observed in the order that none appeared on behalf of the defendant, who are revisionists before this Court, nor any written statement was filed. It was further observed that during the course of execution of commission one, Harish Dubey, an employee of the revisionists remained present. The learned Court has further observed that the defendants/revisionists did not file any written statement after having full knowledge of the suit nor any objection has been filed against the application paper no. 7C. It has also been observed that the copy of application paper No. 7 C for ad interim injunction has been received by the defendants/revisionists. The learned Trial Court has further observed that the defendants do not prefer to appear wilfully.
The learned Trial Court considered the documents including the extracts of Khatauni and, thereafter, reached to the conclusion that the plaintiff will be deprived of possession if some injunction order is not passed. Even after observing this fact, the learned Trial Court directed both the parties to maintain the status-quo till the date fixed and the case was fixed for filing of written statement on 31.08.2012.
A perusal of the order shows that there is no infirmity in the impugned order and there were grounds relating to what has been contained in order 39 rule 1 (a), (b) and (c) of C.P.C.
There was no option for the learned Trial Court but to have passed the impugned order. It was argued by learned counsel for the revisionists that Harish Dubey is not an employee of the defendant bank. This plea must have been raised before the learned Trial Court; without raising any such plea before the learned Trial Court, this plea is not tenable before the Revisional Court,exercising its jurisdiction under section 115 C.P.C.
It was further argued that the suit was not maintainable, in view of section 34 of Act No. 54 of 2002. This plea should have been raised before the learned Trial Court and surpassing the Original Court of competent jurisdiction , the Revisional Court is not competent to maintain such a plea under Section 115 C.P.C., which do not authorize a revisional Court to sit over the Court of pecuniary jurisdiction. It is distressing to note that the revisionists, who is a nationalised bank did not prefer to make any meaningful appearance before the learned Trial Court and has directly filed this revision, which depicts a tendency that the original Civil Court has no relevancy in the eyes of the Branch Manager concerned, who is revisionist No. 2. This is not only contumation that the revisionists have unnecessarily dragged the opposite party to this court. In Vishnu Awatar vs. Shiv Autar and Ors. [ AIR 1980 SC 1575], the Hon'ble Apex Court has held:-
"After all, our District Courts are easier of access for litigants, and the High Courts, especially in large States like Uttar Pradesh, are 'untouchable' and 'unapproachable' for agrestic populations and even urban middle classes. Nor is there ground to distrust the District Judges. A hierarchy of courts built upon a heritage of disbelief in inferiors has an imperial flavour. If we suspect a Munsif and put a District Judge over him for every thing he does, if we distrust a District Judge and vest the High Court with pervasive supervision, if we be skeptical about the High Courts and watch meticulously over all their orders, the System will break down as its morale will crack up. A psychic communicable disease of suspicion, skepticism and servility cannot make for the health of the judicial system. If the Supreme Court has a super-Supreme Court above it, who knows how many of its verdicts will survive judging by the frequency with which it differs from itself."
Lastly, the learned counsel for the revisionists has relied upon the law laid down by the Hon'ble Apex Court in the case of United Bank of India vs. Satyawati Tondon and Ors.(2010) 8 SCC 110 and also in the case of Kanaiyalal Lalchand Sachdev and Ors. vs. State of Maharashtra and Ors. (2011) 2 SCC 782. These authorities also relate to question on maintainability of a suit which should have been placed before the Learned Trial Court.
The revisionist has unnecessarily filed this revision, which has no merits. No final order has been passed by learned Trial Court. The revisionist has not filed any application before the learned Trial Court to reject the plaint as required under order 7 Rule 11 C.P.C. In view of the law laid down by a full Bench of the Hon'ble Apex Court in the case of Pandurang Dhondi Chougule and Ors. vs. Maruti Hari Jadhav and Ors., reported in AIR 1966 SC, 153, in which it was held:-
"It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court, which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate Court which has no relation to questions of jurisdiction of that Court, cannot be corrected by the High Court under Section 115."
The revision is not maintainable. This view has been reiterated by the Hon'ble Apex Court in Shiv Shakti Co-op. Housing Society, Nagpur v. M/s Swaraj Developers and others, reported in AIR 2003 SC 2434, in which it was held:-
"It is fairly a well settled position in law that the right of appeal is a substantive right. But there is no such substantive right in making an application under Section 115. Section 115 is essentially a source of power for the High Court to supervise the subordinate Courts. It does not in any way confer a subordinate court to approach the High Court for relief. The scope for making a revision under Section 115 is not linked with a substantive right."
The revision is devoid of merits and deserves to be dismissed with costs. While imposing cost, this Court has taken into consideration pragmatic realities and be realistic as to what the respondent had to actually incur in contesting the litigation before this Court as well as before the learned Trial Court. This Court has also broadly taken into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photo copying, court fee etc. In view of the discussions, as made above, the revision is dismissed with Rs. 10,000/- as cost to be paid/ deposited by the revisionists before the learned Trial Court within thirty days from today.
However, the Learned Trial Court is advised to expedite the disposal of the case, in accordance with law, as expeditiously as possible.
Order Date :- 10.10.2012 Nitesh