Full Judgment Text
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PETITIONER:
D.L.F. HOUSING & CONSTRUCTION COMPANY PRIVATE LTD., NEW
Vs.
RESPONDENT:
SARUP SINGH AND OTHERS
DATE OF JUDGMENT:
12/09/1969
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
VAIDYIALINGAM, C.A.
CITATION:
1971 AIR 2324 1970 SCR (2) 368
1969 SCC (3) 807
ACT:
Code of Civil Procedure (Act, 5 of 1908) ss. 115, 151 and
141-Jurisdiction of the High Court under.
HEADNOTE:
The appellant company filed a suit against the respondents
in the court of the Senior Subordinate Judge, Gurgaon, for
the specific performance of an agreement for the purchase
of’ certain land by the company from the respondents. Part
of the land in question became the subject of proceedings
under the Land Acquisition Act, 1894, and dispute
relating to compensation was referred to the Court of the
District Judge. The court fixed the compensation at over Rs.
2 Iakhs. A dispute as to apportionment of the compensation
was also. referred under s.’ 30 of the Land Acquisition Act
to the court but the proceedings were stayed by the
Additional District Judge, pending decision of the suit for
specific performance by the Senior Subordinate Judge. The
suit was dismissed and thereupon the respondents applied to
the Additional District Judge for continuation of
proceedings under s. 30 and for payment of compensation to
them. The appellant company resisted the application on the
ground that it had filed an appeal in the High Court
against the decree of the Senior Subordinate Judge. The
Additional District Judge after hearing both parties stayed
the proceedings under s. 30 pending disposal of the
company’s appeal by the High Court. On a revision
application under s. 115 C.P.C. filed by the respondents,
the High Court ordered on March 18, 1969 that a sum of not
more than Rs. 1,78,000 out of the compensation for the
acquired land be paid to the respondents who must undertake
not to sell the rest of the land during the pendency of the
appeal. The Additional District Judge after hearing the
parties judicially interpreted the order to. mean that Rs.
1,78.000 were to be paid to the respondents after the
conclusion of the proceedings under’ s. 30. The respondents
again moved the High Court with an application under s.
151/141 C.P.C. for a clarification of its earlier order
whereupon by order dated May 8, 1969 the High Court ordered
immediate payment. The company challenged the High Court’s
orders dated March 18, 1969 and May 8, 1969 in an appeal
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before this Court. It was contended on its behalf that in
making its first order the High Court exceeded its
jurisdiction u/s 115 C.P.C. and in making the
clarificatory order ex-parte it violated the rules of
natural justice.
HELD: (i) The position is firmly established that while
exercising its jurisdiction under s. 115, it is not
competent to the High Court to correct errors of fact
however gross or even errors of law unless the errors have
relation to the jurisdiction of the Court to try the dispute
itself. Clauses (a) and (b) o.f this section on their plain
reading quite clearly did not cover the present case because
it had not been shown that the learned Additional Sessions
Judge had either exercised a jurisdiction not vested in him
by law or had failed to exercise a jurisdiction so vested in
him in recording the order that the proceedings under
reference be stayed till the decision of the appeal by the
High Court in the proceedings for specific performance of
the agreement in question. Clause (c) of the section also
did not apply
369
to the present case. The words "illegally" and "with
material irregularity" as used in this clause do not cover
either errors of fact or of law; they do not refer to the
decision arrived at but merely to the manner in which it
is reached. The errors contemplated by this clause may
relate either to breach of some provision of law of to
material defects of procedure. affecting the ultimate
decision, and not to errors of either fact or of law, after
the prescribed procedure has been complied with. [375 D--G]
The High Court had not adverted to the limitation
imposed on its power under s. 115 of the Code and had
treated the revision as if it was an appeal. Merely because
the High Court would have felt inclined, had it dealt with
the matter initially, to come to a different conclusion on
the question of continuing stay of the reference proceedings
pending decision of the appeal could hardly justify
interference on revision under s. 115 of the Code when there
was no illegality or material irregularity committed by
the Additional Sessions Judge in his manner of dealing with
the question. The order of the High Court dated March 18,
1964 had therefore to be set aside. [375 F-H]
Rajah Amir Hassan Khan v. Sheo Baksh Singh, I I Indian
Appeals 237: Balakrishna Udayar v. Vasudeva Aiyar, 44 Indian
Appeals 261; Keshav Deo v. Radha Kissan. [1953] S.C.R. 136
applied.
(ii) The ex-parte order dated May 8 1969 was equally
difficult to sustain. The High Court had proceeded to make
an order virtually and in effect reversing the judicial
order made by the learned Additional Judge in favour of the
appellant. This could, more appropriately be done only on
appeal or revision after notice to the party affected and
not on an application under ss. 151/141 C.P.C. Such an
application in the. circumstances was misconceifed. [376 C,
F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1575 of 1969.
Appeal by special leave from the judgment and order
dated March 18, 1969 and May 8, 1969 of the Punjab and
Haryana High Court in Civil Revision No. 1014 of 1968 and
C.M. No. 1863 of 1969.
S.V. Gupte and Ravinder Narain, for the appellant.
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K.R. Chaudhuri, for the respondents.
The Judgment of the Court was delivered by
Dua, J. By means of an agreement dated August 9, 1963,
the appellant-company agreed to purchase from the
respondents, land measuring 264 kanals and 12 marlas.
A sum of Rs. 1,87,000 was. paid as earnest money. The sale
deed was to be registered by April 30, 1964. As it was not
so registered, both parties blamed each other for the
breach. In May, 1966 the Government issued a notification
under s. 4 of the Land Acquisition Act which was followed by
a notification under s. 6 in September 1966 acquiring 104
kanals and 18 marlas of land out of the land agreed to be
sold. The Collector made an award of the compensation for
the acquired land, against which a reference
370
was made to the Court of the District Judge. In May, 1968
the compensation was enhanced to a sum over Rs. 2 lakhs. In
the mean time on April 15, 1967, the appellant,company
instituted a suit for specific performance of the agreement
dated August 9, 1968. This suit was dismissed by the Court
of the Senior Subordinate Judge, Gurgaon on August 13, 1968.
A Regular First Appeal (No. 216 of 1968) against the
dismissal of the suit is pending in the Punjab and Haryana
High Court.
It appears that the dispute as to apportionment of
compensation under s. 30 of the Land Acquisition Act was
also referred to the Court. In view of the institution of
the suit for specific performance, an application was
apparently made in the Court of the learned Additional
District Judge dealing with the reference under the Land
Acquisition Act to stay those proceedings pending the
decision of the suit by the learned Senior Subordinate
Judge. On February 28, 1968 the learned Additional District
Judge took the view that the entire matter in his Court was
covered by the civil suit, it being further observed in the
order that even the question of the jurisdiction of the
Senior Subordinate Judge to determine the amount of
compensation was to be first decided by the civil court. On
this view, the reference proceedings were stayed pending the
decision of the civil court.
After the dismissal of the suit, the respondents applied
to the Court of the learned Additional District Judge for
continuing the proceedings and for making an order of
payment of compensation in their favour. This prayer was
Contested by the appellant-company on the ground that an
appeal against the decree dismissing the suit had already
been presented in the High Court and that the proceedings
for payment of compensation should continue to remain stayed
pending the disposal of the appeal. The learned Additional
District Judge after hearing both sides decided on August
30, 1969 to continue the order of stay pending the decision
of the appeal by the High Court. According to him, the
question whether the original agreement had become
frustrated or was alive and deserved to be specifically
enforced, would have an important bearing on the question of
apportionment of compensation.
The respondents preferred a revision to the High Court
against this order and a learned Single Judge on March 18,
1969 reversed the order continuing stay of the proceedings
under s. 30 and further directed payment of Rs. 1,78,000 to
the respondents. The order of payment of this amount was
framed in the following words :--
"I do feel that in view of the fact that the
suit filed by the respondent-company has been
dismissed, prima facie, it is reasonable that
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the proceedings under section 30 of the Act
should continue, but the petitioners may
371
not be allowed actual payment of more than
Rs. 1,78,000. The balance of the amount due
in respect of the land of the petitioners
shall be kept with the Government to be
disbursed in accordance with the decision in
the regular first appeal. This will, however,
be subject to the further condition that the
petitioners will file an undertaking in this
Court that they shall not dispose of or
otherwise transfer any interest by creating
any encumbrance over the balance of the land
which was the subject-matter of the agreement
dated the 9th of August, 1963, without the
permission of the Court. Learned counsel for
the petitioners appearing before me have
agreed to this condition being imposed."
The concluding portion of that order may also be reproduced:
"................. I accept this revision
petition
and direct that the proceedings under section
30 of the Act be continued, but the
petitioners will not be paid more than Rs.
1,78,000 and the balance will remain
undisbursed till the decision of the regular
first appeal If the appeal is accepted, this
amount shall be treated as part of the
consideration that has to be paid by the
respondent-company. Till the decision of the
appeal or till further orders of this Court,
the petitioners will not dispose of the
balance of the land, which is the
subject matter of the agreement, without the
permission of the Court."
Before the learned Additional District Judge, the question
arose as to whether under the order of the High Court dated
March 18, 1969, the sum of Rs. 1,78,000 was to be paid
immediately or after the decision of the reference under s.
30. The parties apparently desired the learned Additional
Judge to decide this question judicially on a consideration
of the circumstances of the case. Both parties were
accordingly heard and the learned Additional District Judge
in a detailed order dated April 19, 1969 expressed his
conclusion thus :--
"To my mind it seems that the decision of
the reference under section 30, is to take
place first and it is thereafter that the
applicants shall be paid amount upto Rs.
1,78,000. In these circumstances, it is
ordered that the proceedings u/s 30 be
restored and should continue. The cheque will
be given only after the decision of the
reference u/s 30. The revision before the
Hon’ble Judge was only against the order
staying the proceedings and there was no
revision regarding the non-payment of the
amount as that was not the question before
this court and no orders were passed by this
court in that connec-
372
tion. As such, the intention of the Hon’ble
Judge in passing the orders Seems to be that
the amount may not be paid to any of the
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parties now but after the decision of the
reference u/s 30. I order accordingly."
The learned Additional District Judge. also fixed May 21,
1969 .,for the evidence of the parties. It appears that
instead of challenging on merits the order dated April 19,
1969 in the High Court by way of revision, the respondents
filed in that Court on May 6, 1969, an application under ss.
151/141 C.P.C. for clarification of its order dated March
18, 1969. This application was placed before the High Court
for preliminary hearing on May 8, 1969 and the learned
Single Judge recorded the following order without giving
notice to the appellant :-
"My orders are clear that the amount of Rs.
1,78,000 may be paid to the petitioners. The
order further directs the petitioners not tO
dispose any part of the land which was the
subject-matter of the agreement.
With these observations, this petition is
filed."
It is against these two orders that the present appeal
by special leave has been presented and the short argument
pressed by Shri Gupte was that the order of the High Court
dated March 18, 1969 is unsustainable because there was no
jurisdictional infirmity made out in the order of the
learned Additional District Judge dated August 30, 1968,
which would justify interference on revision under s. 115
C.P.C. In regard to the order dated May 8, 1969, it was
further complained that this order was made ex parte without
notice to the appellant. It was contended by Shri Gupte
that in face of the judicial order dated April 19, 1969 made
by the learned Additional District Judge after hearing both
sides at ’length, it was not open to the High Court to
record the ex parte .order dated May 18, 1969 without
affording to the appellant an opportunity for supporting the
view. taken by the learned Additional District Judge.
The submissions made by Shri Gupte, in our opinion,
possess merit. The revisional jurisdiction has been
conferred on the High Court by s. 115, C.P.C. in these terms
:--
"115. The High Court may call for the
record of any case which has been decided by
any Court subordinate to such High Court and
in which no appeal lies thereto, and if such
Subordinate Court appears-
(a) to have exercised a jurisdiction
not. vested in it by law or
(b) to have failed to exercise a jurisdiction
so vested. or
373
(c) to have acted in the exercise of its
jurisdiction illegally or with material
irregularity,
the High Court may make such order in
the case as it thinks fit."
The mass or reported cases only serve to show that the High
Courts do not always appreciate the limits of their
jurisdiction under this section. The legal position was
authoritatively laid down by the Privy Council as far back
as 1894 in Rajah Amir Hassan Khan v. Sheo Baksh Singh(1).
The Privy Council again pointed out in Balakrishna Udayar
v. Vasudeva Aiyar(2) that this section is not directed
against the conclusions of law or fact in which the question
of jurisdiction is not involved. This view was approved by
this Court in Keshav Deo v. Radha Kissan(3) and has since
been reaffirmed in numerous decisions.
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The position thus seems to. be firmly established that
while exercising the jurisdiction under s. 115, it is not
competent to the High Court to correct errors of fact
however gross or even errors of law unless the said errors
have relation to the jurisdiction of the Court to try the
dispute itself. Clauses (a) and (b) of this section on
their plain reading quite clearly do not cover the present
case.
was not contended, as indeed it was not possible to
contend, that the learned Additional District Judge had
either exercised a jurisdiction not vested in him by law or
had failed to exercise a jurisdiction so vested in him, in
recording the order that the proceedings under reference be
stayed till the decision of the appeal by the High Court in
the proceedings for specific performance of the agreement in
question. Clause (c) also does not seem to apply to the
case in hand. The words "illegally" and "with material
irregularity" as used in this clause do not cover either
errors of fact or of law; they do not refer to the decision
arrived at but merely to the manner in which it is reached.
The errors contemplated by this clause may, in our view,
relate either to breach of some provision of law or to
material defects of procedure affecting the ultimate
decision, and not to. errors either of fact or of law, after
the prescribed formalities have been complied with. The High
Court does not seem to have adverted to the limitation
imposed on its power under s. 115 of the Code. Merely
because the High Court would have felt inclined, had it
dealt with the matter initially, to come to a different
conclusion on the question of continuing stay of the
reference proceedings pending decision of the appeal, could
hardly justify interference on revision under s. 115 of the
Code when there. was no illegality or material irregularity
committed by the learned Additional District Judge in his
manner of dealing with this question. It seems to us that
in this matter the High Court treated the revision virtually
as if it was an appeal.
(1) 11 Indian Appeals 237. (2) 44 Indian Appeals 261.
L2 Sup. CI/70--12 (3) [1953] S.C.R. 136.
374
The respondents submission that the order made by the
High Court on March 18, 1969 was a consent order, is
unsustainable. The agreement mentioned in that order is
obviously the agreement by the respondents (petitioners in
the High Court) to the condition imposed on them, to file an
undertaking in that Court not to. dispose of or ,otherwise
transfer any interest by creating encumbrance over the
remaining land which, was the subject-matter of the
agreement dated August 9, 1968, without the previous
permission of the Court. There is nothing in the order of
the High Court or on the record to which our attention was
drawn, showing or even suggesting that the appellant had
agreed to the revision being allowed. The order of the
High Court dated March 18, 1969 must, therefore, be set
aside.
The ex parte order dated May 8, 1969 is equally difficult to
sustain. In para 5 of the respondents application dated May
6, 1969 under s. 151/141 Civil P.C. presented in the High
Court, a reference was clearly made to the order passed by
the learned Additional District Judge on April 19, 1969. It
was averred in this paragraph :--
"That the learned District Judge by his
order dated 19-4-69, has interpreted the High
Court’s order wrongly and has held that the
intention of the Hon’ble Judge in passing the
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order dated 18-3-69, seemed to be that the
amount may not be paid to any of the parties
now but only after the decision of the
reference under Section
30 of the Land Acquisition Act. Thus he has
fixed the
case under Section 30 of the Act for
evidence on
21-5-69."
It seems that at the stage of preliminary hearing the
attention of the High Court was not drawn to this fact and
that Court proceeded to make an order virtually and in
effect reversing the judicial order made by the learned
Additional District Judge in favour of the appellant. This
could more appropriately be done only on appeal or revision
from the order dated April 19, 1969 after notice to the
party affected and not on an application under ss. 151/141
Civil P.C. Such an application in the circumstances was
misconceived. The ex parte order is thus unsustainable and
must be set aside.
This appeal accordingly succeeds and the impugned
orders are set aside with costs.
We would like to make it clear that it will be open to
the parties, if so advised, to approach the High Court by
appropriate proceedings for the speedy disposal of the
appeal.
R.K.P.S. Appeal allowed.
375