TMI Blog2011 (2) TMI 1581X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the trial Court was ₹ 11,500/-. As such, a second appeal would not lie in view of Section 102 Code of Civil Procedure. The Plaintiff laid the present revision on the ground that under Section 115 Code of Civil Procedure, a revision would lie when no appeal lies from an order of a Court subordinate to the High Court. 3. Sri M. Jagannadha Sarma, learned Counsel for the Plaintiff submitted that in view of Section 115 Code of Civil Procedure read with Section 102 Code of Civil Procedure, this revision would lie. On the other hand, Sri E.V.V.S. Ravi Kumar, learned Counsel for the first Defendant contended that Section 115 Code of Civil Procedure has no application and that as the second appeal is prohibited Under Section 102 Code of Civil Procedure, the Plaintiff was not be entitled to lay either an appeal or a revision from the judgment and decree in A.S. No. 59 of 2004. 4. The learned Counsel for the Plaintiff referred to the famous maxim Ubi jus ibi remedium recognized in the famous Ashby v. White (1 Smit L.C. 251) and contended that when the rights of the Plaintiff are violated, the Plaintiff must have a legal right to proceed against the aggressors who disturbed hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso, which is to the effect that the High Court shall not vary or reverse any order except where the order impugned would have finally disposed of the suit or other proceedings if the order was made in favour of the revision Petitioner. The learned Counsel for the first Defendant inter alia contended that the purport of the proviso is that the revision can be against any order in a suit or proceeding and not an order disposing of the very suit itself. He also pointed out that when a suit is disposed of, it is not an order, but is a decree and that when the proviso conspicuously did not refer to a decree, Section 115 Code of Civil Procedure cannot be invoked questioning any decree whether in a suit or an appeal. 10. In proceedings other than suits, issues are not settled. The controversies between rival claims are usually framed at the time of disposal of the matter. Even otherwise, when the controversies are crystallized before both sides let in evidence, they are referred to usually as points for consideration and not issues. The learned Counsel for the Plaintiff drew my attention to reference of an issue in Section 115(1) proviso Code of Civil Procedure. For the purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding, there is no bar for a revision from the judgment passed by the appellate Court. The other embargo is provided by the beginning of Section 115(1) that where no appeal lies from the impugned order/judgment, the party can resort to revision. In view of Section 102 Code of Civil Procedure, admittedly no second appeal would lie. This part of the condition imposed by Section 115(1) Code of Civil Procedure is satisfied in the present case. So far as the other condition imposed by the proviso incorporated by 1976 amendment and modified by 1999 amendment is concerned, viz., where the impugned order finally disposed of the suit and would have disposed of the suit finally even if the order were in favour of the Plaintiff, the revision is maintainable. I, therefore, answer this question raised by Sri Ravi Kumar, learned Counsel for the first Defendant-first Respondent that this revision prima facie is maintainable in view of Section 115(1) Code of Civil Procedure including the proviso thereto. 14. The next question is whether the order of the appellate Court deserves to be revised. This question is a mixed question of fact and law. The law regarding the interference by the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nferred so as to ensure that errors of grave nature should be corrected when they are brought to the notice of the Court. 18. I may briefly note the march of law relating to the revisional powers of the High Court at this stage. 19. In Amir Hassan Khan v. Sheo Baksh Singh ILR (1885) 11 Cal 6 (PC), the judicial committee of the Privy Council observed that where the Court has jurisdiction to determine a question, it could not be held that the Court had acted illegally or with material irregularity in exercise of its jurisdiction by giving an erroneous decision. In Malkarjun v. Narahari (1900) 27 IA 216, the Privy Council held that a Court had jurisdiction to decide wrongly as well as rightly and that if the case was wrongly decided, the wronged party could take the course prescribed by law for setting the matters right and that the jurisdiction of the High Court under Section 115 Code of Civil Procedure could not be invoked in such an event. The Privy Council's next two leading decisions are Balakrishna Udayar (supra) and N.S. Venkatagiri Iyyangar (supra), both of which were already referred to. 20. After independence, one of the first cases arising before the Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1987 SC 203 that the procedure under Section 115 Code of Civil Procedure and Article 227 of the Indian Constitution are different and are not interchangeable. 25. I may, however, point out that in Hukumchand Amolikchand Longde v. Madhava Balaji Potdar AIR 1983 SC 504, the Supreme Court held that once a revision under Section 115 Code of Civil Procedure was admitted, it had to be disposed of on merits. In Masjid Kacha Tank, Nahan v. Tuff ail Mohammed AIR 1991 SC 445, even though there were concurrent findings from the trial Court and the appellate Court, the Supreme Court considered that the High Court in its revisional jurisdiction would be entitled to interfere with the findings of fact if the findings are perverse or there had been a non-appreciation or non-consideration of material evidence on record by the trial Court or the appellate Court. In Vinod Kumar Arora v. Smt. Surjit Kaur MANU/SC/0827/1987 : AIR 1987 SC 2179, the Supreme Court held that the High Court would be justified in interfering with the orders of a subordinate Court by exercise of the revisional jurisdiction where the decision of the order under impugnment was based on conjectures and surmises and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff thrashed IR-64 crop during the first week of May, 1999 and realized 30 bags of paddy. As the Plaintiff and the members of his family were to attend a marriage, he entrusted Bondalu crop to the first Defendant on 08.05.1999 with a request to thrash the same and to handover the realized paddy to the rice mill. c) The first Defendant, under the instigation of the second Defendant thrashed the crop on 10.05.1999, realized 25 bags of paddy and appropriated the produce without making it over to the rice mill as requested by the Plaintiff. The Plaintiff came to know of the same on 12.05.1999 when he returned after the marriage. The Plaintiff came to know the conduct of the first Defendant through Gunnam Pedakapu @ Appa Rao, Paka Subba Rao, Miryala Veeraiah and the son of Miryala Veeraiah, all of whom attended the thrashing work in the fields of the Plaintiff as agricultural labourers. When the first Defendant did not bother to respond to the demand of the Plaintiff to offer explanation or to pay the cost of the paddy, the Plaintiff laid the suit. As the market value of the paddy was ₹ 460/- per bag in May, 1999, the Plaintiff claims that the first Defendant shall pay S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. As in the trial, the second Defendant, who is the brother of the Plaintiff, remained ex parte. The appellate Court considered that the Plaintiff failed to establish his title to the property largely on the ground that the Plaintiff failed to produce No. 10(1) account or the adangals and that there were corrections in Ex. A.4 pattadar passbook. The learned appellate Judge consequently concluded that the Plaintiff failed to establish his title to the property. The question of the first Defendant appropriating the produce, therefore, did not arise. The appellate Court consequently allowed the appeal and dismissed the suit. Hence, this revision. As already pointed out, where the value of the suit was less than ₹ 25,000/-, second appeal is proscribed under Section 102 Code of Civil Procedure. Hence, this revision. 32. The first Defendant raised a fundamental question whether the Plaintiff is the owner of the plaint schedule property. Indeed, the burden lies upon the Plaintiff to show his title to the property. If the Plaintiff is not the owner of the property, the question of his entrusting the crop to the first Defendant and the first Defendant wrongly appropriating the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Ex. A.4 is unauthorized and unauthenticated and that Ex. A.4 cannot be accepted to be the pattadar passbook of the Plaintiff. It may be noticed that the initials of the concerned authority are found beneath the obliteration of the name of Gunnam Doraiah against Column No. 1 as well as above Column No. 1 where the name of the Plaintiff is incorporated. Further, below Column No. 8, the signature of the pattadar is that of the Plaintiff and not that of Gunnam Doraiah or anyone else for that matter. 36. The photograph of the pattadar of the property is pasted in the first page of Ex. A.4, which is admittedly the photograph of the Plaintiff. The first Defendant on the other hand contends that the original photograph in Ex. A.4 was removed and the photograph of the Plaintiff was pasted in the place of the original photograph. I am afraid that there is no basis for this contention of the learned Counsel for the first Defendant. 37. In the second page of Ex. A.4 also, the name of Gunnam Doraiah figured as the owner which again was struck off and the name of the Plaintiff was recorded. The scored entry in the second page also bears the initial of the Village Administrative Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first Defendant before he can make any claim against the first Defendant. 41. Even on this count, the learned Counsel for the first Defendant resisted the claim of the Plaintiff. The Plaintiff contended that he entrusted the harvested crop to the first Defendant for thrashing and for making over the same to a rice mill. A reading of the evidence of P.W. 1 and the pleadings do not show as to which rice mill the Plaintiff suggested to the first Defendant to make over the produce from Ac. 1.00 cents of land. 42. The case of the Plaintiff is that on 08.05.1999, the Plaintiff had to go out of the village in connection with a marriage. He was accompanied by the members of his family. The Plaintiff gives a clear impression that he is predominantly an agriculturist and that his main source of income is agriculture. Harvesting and thrashing is the most important period for any farmers, since after all it is the time at which the agriculturist realises the fruits of his sweat. If the Plaintiff went out of the village during the thrashing season to attend a marriage, it must have been an unavoidable occasion and perhaps an important marriage to attend. The marriage must be that of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e village. D.W. 2 spoke about the motive for the Plaintiff to implicate the first Defendant and make allegations against the first Defendant. He was not and could not be a witness to speak about a negative fact. The Plaintiff could have established his case through positive evidence. The Plaintiff indeed has done so by examining himself as well as P.W. 2. The learned Counsel for the first Defendant would appear to point out that the Plaintiff did not produce any documentary evidence in support of the entrustment. As rightly submitted by the counsel for the Plaintiff, there cannot be any documentary evidence in this regard. The evidence of P.Ws. 1 and 2 is sufficient in the absence of contrary proof to conclude that the Plaintiff entrusted the crop to the Defendant. 45. The first Defendant produced Ex. B.1 as proof that he did not cultivate the crop of the Plaintiff. It may be recalled that the Plaintiff did not state that the first Defendant was his tenant. On the other hand, he claimed that the first Defendant was also an agriculturist to whom the thrashing of the crop was entrusted by the Plaintiff. Ex. B.1 is the pattadar passbook of the first Defendant. It shows that the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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