SUPREME COURT HOLDS HIGH COURT CANNOT EXERCISE REVISIONAL JURISDICTION AGAINST APPEALABLE ORDERS OF LOWER COURT
In a recent case of Rahimal Bathu and Others vs Ashiyal Beevi, Civil Appeal No. 006232 of 2023, a two Judge Bench of the Supreme Court comprising of Justice Pamidighantam Sri Narasimha and Justice Manoj Misra passed a Judgment dated 26-09-2023 and observed that the High Court cannot exercise revisional jurisdiction against an appealable order of a lower court, as in such scenario, the aggrieved party would lose their right to file an appeal against the lower court order.
i) In the present case, one, Mrs. Fathima Beevi sold her property to her granddaughter, Ms. Ashiyal Beevi, the Respondent-Plaintiff, vide Sale Deed dated 14-11-1990. The said property was originally gifted to Mrs. Fathima Beevi by her father. However, earlier, the Appellant-Defendant- Mrs. Rahimal Bathu, the daughter-in-law of Mrs. Fathima Beevi, and the Defendant’s husband, Mr. Khaja Mohideen, got a Gift Deed dated 24-04-1982 executed in the Defendant and her husband’s favor by exercising undue influence, coercion, etc. Thereafter, the Defendant’s husband passed away on 31-05-1988 before the death of his mother, Mrs. Fathima Beevi.
ii) Aggrieved, the Appellant-Plaintiff filed a Suit in S. No. 276 of 1992 before the Ld. First Additional Sub Court, Tirunelveli (Trial Court) seeking declaration of the Plaintiff as the exclusive owner of the Suit Property and possession thereof. In the alternative, if the Trial Court does not hold the Plaintiff as the exclusive owner, then to order for partition of the Suit Property, whereunder, by virtue of the Sale Deed dated 14-11-1990, the Plaintiff would get the 1/6th share in the Property that belonged to her grandmother, Mrs. Fathima Beevi.
iii) The Trial Court, vide Order dated 21-11-1996 (Decree) held that the Gift Deed dated 24-04-1982 executed by Mrs. Fathima Beevi in favor of her son, Khaja Mohideen was invalid and that the Sale Deed dated 14-11-1990 executed by Mrs. Fathima Beevi in favor of her granddaughter, i.e. the Plaintiff was valid. However, the Trial Court held that the Plaintiff was entitled to only 1/6th share in the Property.
iv) Aggrieved by the Trial Court Order dated 21-11-1996, the Plaintiff filed a Review Application in A. No. 207 of 2001 in O.S. No. 276 of 1992, before the Trial Court, which was rejected on merits, vide Order dated 20-12-2006.
v) Aggrieved by the Trial Court Order dated 20-12-2006, the Plaintiff filed a Civil Revision Petition bearing R.P. (NPD) (MD) No. 1342 of 2007 before the Madurai Bench of the Hon’ble Madras High Court under Section 115 of the Code of Civil Procedure 1908 (CPC) (Revision), which was allowed, vide Order dated 12-09-2017. The High Court, thereby, set aside the Trial Court Order dated 20-12-2006 that rejected the Review Application and the High Court, further, modified the Decree and held that the Plaintiff was entitled to full share in the Suit Property and not just 1/6th share therein.
Aggrieved by the High Court Order dated 12-09-2017, the Defendant filed Civil Appeal No. 006232 of 2023 before the Supreme Court. The Apex Court vide Order dated 26-09-2023 made the following observations:
1) That Section 115 CPC empowers the High Court to exercise its revisional jurisdiction against any order of a sub-ordinate court passed in a case including civil proceedings other than suits, against which no appeal lies. Hence, an order passed by a lower court rejecting a review application would be deemed to be a case which has been decided and if no appeal lies against such order, the same is amenable to revisional jurisdiction under Section 115 CPC.
2) However, exercise of revisional jurisdiction is a discretionary power of the High Court and the same may be exercised bearing in mind the following circumstances:
(i) if “it would be appropriate to exercise such power considering the interlocutory character of the order, the existence of another remedy to an aggrieved party by way of an appeal, from the ultimate order or decree in the proceeding, or by a suit, and the general equities of the case”.
(ii) If “there was no appealable decree in existence at the time when the revisional jurisdiction was invoked.” For instance, revision can be entertained against an order passed by a trial court while deciding a preliminary issue (but the suit itself is not decided), as there is no appealable decree in such proceedings.
(iii) But if the trial court, during review proceedings, rejects the review application on merits, then it is deemed to be a final order and an appealable decree and the aggrieved party has the right to question the decree of the trial court in an appeal. Hence, in such cases, revision against appealable decree / order of the trial court is not maintainable.
(iv) On the other hand, if the trial court, during review proceedings, allows the review application and thereby, modifies / vacates / reverses the decree under review, the same is amenable to appeal by the aggrieved party. In such cases as well, revision against appealable decree / order of the trial court is not maintainable.
(v) Otherwise, if the revisional court entertains a revision petition against an appealable order of the trial court that rejected the review application on merits, and in such revision petition, if the court sets aside / modifies / reverses the original decree, the aggrieved party including the party in whose favor the original decree was passed, would have no right left to file an appeal or raise any objection in an appeal against the original decree.
3) Applying the aforesaid principles to the present case, the Bench held that the High Court ought not to have exercised revisional jurisdiction against the appealable Trial Court Order dated 20-12-2006 that rejected, on merits, the Application to Review the Decree, as in such scenario, both the Plaintiff and the Defendant would lose their right to file an appeal against the Decree.
Based on the aforesaid observations, the Supreme Court held that the Plaintiff is entitled to file an appeal against the Decree seeking declaration of ownership in respect of the whole Property and not just 1/6th share thereof and the Defendant, against whom the Decree was passed, may seek to challenge the Decree in an appeal or file cross-objections under Order 41 Rule 22 of CPC (Upon hearing respondent may object to decree as if he had preferred separate appeal) in the appeal, if any, filed by the Plaintiff. As a result, the Appeal filed by the Defendant was allowed and the High Court Order dated 12-09-2017 passed in exercise of revisional jurisdiction was set aside.
The Indian Lawyer