Single judge allowed the writ petition and quashed the District Judge's order revising the trial Court's procedural order regarding the deletion of a paragraph from an affidavit in lieu of examination in chief.
Impugned Judgment & Order dated 6th January, 2012 passed by the learned District Judge-1, Kolhapur is quashed & set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
WP 8931-12.odt
Anand
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
Rajgonda Babaso Patil.Petitioner
V/s.
Mehabub Gaus Shaikh & anr. .Respondents
Mr.Manoj A. Patil, Advocate, for the Petitioner
Mr.Sandeep Koregave, Advocate, for the
Respondent No.1
P.C.
.Heard the learned counsel for the
respective parties.
2.Rule.
3.Notice to the respondent No.2 is not
necessary as she is co-plaintiff. Rule, by
consent, made returnable forthwith.
4.The petitioner-original plaintiff No.2
has questioned the order passed by the learned
Page 1 of 8
WP 8931-12.odt
District Judge-1, Kolhapur in Civil Revision
Application No.3 of 2010 whereby the learned
Judge set aside an order passed by the learned
trial Judge, Kolhapur below Exhibit 157 in
Regular Civil Suit No.817 of 2002 filed by the
respondentNo.1-originaldefendantfor
discarding an Affidavit in lieu of
examination-in-chief filed by the plaintiff on
13thOctober, 2009 after an amendment
application was allowed. The learned trial
Judge ordered deletion of para No.7 of the
Affidavit. However, he allowed the remaining
part of the Affidavit in lieu of examination-
in-chief to remain on record. Aggrieved
thereby, the respondent No.1-original defendant
had preferred the Revision Application which
came to be allowed by the impugned order.
5.The learned counsel for the petitioner
submitted that the order was not at all
revisable and the order passed by the District
Court ought to be set aside. The learned
counsel for the petitioner relied on Full
Page 2 of 8
WP 8931-12.odt
Bench Judgment of this Court in Bhartiben Shah
vs. Smt. Gracy Thomas & ors, reported in
2013(2)ALL MR 9. The Full Bench had considered
the extent of revisional jurisdiction
exercised by the revisional Court or Appellate
Bench under Section 34 of the Maharashtra Rent
Control Act, 199 and had observed in para
Nos.84 to 87 as under :-
“84. In the result, therefore, our answer to question No. 2 referred for our consideration is as under:-
A revision application under Section 34(4) of the Maharashtra Rent Control Act, 1999 is not maintainable in respect of a procedural order passed under the Code of Civil Procedure in a suit arising out of Maharashtra Rent Control Act, if such order does not affect the rights of parties under the Maharashtra Rent Control Act or any other substantive law. While an order to be revisable need not necessarily be an order for possession or fixation or recovery of rent, nevertheless, the order sought to be revised must directly affect the substantive rights and
Page 3 of 8
WP 8931-12.odt
liabilities of parties under the Maharashtra Rent Control Act or any other substantive law, but not merely rights under a procedural law like the Code of Civil Procedure or the Evidence Act.
(i) an order refusing leave to amend the plaint or written statement, where the proposed amendment is for assertion of rights or liabilities under the Rent Act or any other substantive law
(ii) an order rejecting an application for restoration of the suit under Order 9
Page 4 of 8
WP 8931-12.odt
Rule 4 of the CPC
(iii) an order allowing or rejecting an application for a declaration that the suit has abated
(iv) an order refusing to extend the time for filing a written statement
(v) an order for deleting an issue pertaining to rights or liabilities under the Rent Act, or any other substantive law
This list is illustrative and not exhaustive.
(i) an order granting leave to amend plaint or written statement
(ii) an order granting extension of time to file written statement
(iii) an order raising additional issue
(iv) an order made for production of documents or discovery or inspection.
(v) an order directing a plaintiff/defendant to furnish better and further particulars
(vi) an order issuing or refusing to issue a
Page 5 of 8
WP 8931-12.odt
commission for examination of witnesses
(vii) an order issuing or refusing to issue summons for additional witness or document
(viii) an order condoning delay in filing documents, after the first date of hearing.
(ix) an order of costs to one of the parties for its default
(x) an order granting or refusing an adjournment
(xi) an order allowing an application for restoration of the suit under Order 9 Rule 4 of CPC
This list is also illustrative and not exhaustive.
Page 6 of 8
WP 8931-12.odt
equated to errors of law or of fact simpliciter. It refers to the overall order, which must be according to law, which it would not be, if there is a miscarriage of justice due to mistake of law. Hence, mere breach of, or non-conformity with, the provisions of Code of Civil Procedure or the Evidence Act or similar other procedural laws, will not be a ground for interfering with the impugned order of the trial Court. The revisional powers are intended to be exercised with a view to subserve and not to defeat the ends of justice. As a general rule where substantial justice has been done by order of the lower Court, the revisional Court will not interfere with it notwithstanding the fact that the reasons for the order are not correct or the order is improper or irregular.”
It is, thus, clear that the order passed by
the learned trial Judge refusing to expunge
the particulars of the Affidavit in lieu of
examination-in-chief except para 7 thereof was
not revisable and the learned District Judge
should not have revised the order.
Page 7 of 8
WP 8931-12.odt
6.The Writ Petition is allowed. The
impugned Judgment & Order dated 6th January,
2012 passed by the learned District Judge-1,
Kolhapur in Civil Revision Application No.3 of
2010 is quashed & set aside.
(R.C.CHAVAN, J.)
Page 8 of 8
2 issues framed by the court
Whether an order by the District Judge quashing the trial Court's order refusing to expunge a part of an affidavit in lieu of examination in chief is maintainable under Section 34 of the Maharashtra R
Whether a procedural order under the Code of Civil Procedure that does not affect substantive rights is revisable under the Maharashtra Rent Control Act.
Colour shows how this judgement treated each authority
Bhartiben Shah vs. Smt. Gracy Thomas & orsRelied on¶24
2013(2)ALL MR 9
Rajgonda Babaso Patil.
Mehabub Gaus Shaikh
R.C. CHAVAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court