D.L.F HOUSING & CONSTRUCTION COMPANY PRIVATE LTD., NEW DELHI versus SARUP SINGH AND OTHERS

D.L.F. HOUSING & CONSTRUCTION COMPANY PRIVATE LTD., NEW DELHI

SARUP SINGH AND OTHERS

September 12, 1969

(C. A. VAIDIALINGAM AND I. D. DUA, JJ.J

. Code of Civil Procedure (Act 5 of 1908) ss. 115, 151 Jurisdiction of the High Court under.

and 141-

The appellant company filed suit against the respondents in the court of the Senior Subordinate Judge, Gurgaon, for the specific perfor-mance of an agreement for the purchase of certain land by the company from the re·spondents. Part of the land in question became the sub.iect of proceedings under the Land Acquisition Act, 1894, and dispute relating to compensation was refe:rred to the Court of the District Judge. The court fixed the comPensation at over Rs. 2 Jakhs. disoute as to apportionment ·of the compensation was also referred under s. · 30 of the Land Acquisition Act to the court but the proceedings \Vere stayed by the Additional District Judge. pending decision of the suit for specific performance by the Senior Sub6rdinate Judge. The suit was dismissed and thereupon the respondents. applied to the Additional District Judie for continuation of proceedings under s. 30 and for paymen·t of com-pensation 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 a11peal by the High Court. Ori revision appli-cation under s. 115 C.P.C. filed by the respondents, the High Court ordered on March 18, 1969 that .i sum of not m6re than Rs. 1,78,000 out of the compensation for the acquired land be paid to the respondents who must undertake not Iv sell the rest of the land during the pendoncy of the appeal. The Additional District Judge after hearin~ the parties judicially interpretted 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 resoondento;; again moved the Hi~h Court with an application under s. 151/141 C.P.C. for clarifioation of its earlier order whereupon bv order dated May 8. 1969 the High Court ordered immediate payment. The company challenged the Hiµh Court's orders dated March 18, I 969 and May 8, 1969 in an appeal before this Court. It w3' contended on its b~h::tlf that in making its first order the High Court· exceeded its iurisdiction u .1 s 115 C.P .C. and in making the c!arificatory 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 ju:risdiction of the Court to try ·the dispute itself. Cl~usc.s (a) and (b) of this section on their: nlain reading quite clearly did not cover the present case bec-ause 1t had not been shown that the learned Additional Sessions Judge had either exercised jurisdiction not vested in him by law or h2d failed to exercise iurisdiction so vested in him in recording the order that the proceedings under reference be stayed till the deci~ion 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

to the pres~nt 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 ar'rived 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 or to material defects of procedure affect-ing the ultimate decision, and not to errors of either fact or of law, after the prescribed procedure has been complied with. [375 D-GJThe 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 beeause the High Court would have tfelt inclined, had it dealt with the matter initi!Uy, to come to different conclusion on the que3tion 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 ille~ality or material irregularity com-mitted by the Additional Sessions Judge in his manner of dealing with the question. The order of the High Court dated March 18, 1964 had there-fore' to be set aside. [375 F-H]

Rajah Amir Hassan Khan v, Shea Baksh Singh. I! Indian Appeals 237; Balakrishna Udayar v. Vasudeva Aiyar, 44 Indian Appeals 261; Keshav Dea 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 iudicial order made by the learned Additional Judge in favour of tile appellant. This could more appropriately be done only on appeal or revision after notice to the party affected and not on an application under S'i. 151/141 C.P.C. Such an application in the circum-stances ·was misconceifed. [376 C, F]

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.

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. sum of Rs. 1,87 ,000 was paid as earnest money. The sale deed was to be registered py April 30, 1964. As it was not so registered, both parties blamed each otherjor the breach. In May, "1966 the Government issued notiljcation under -:>. 4 of the Land Ac-H quisition Act which was follo\,V(:q by ~a notification under s. 6 in September 1966 acquiring 104 kanals and 18 mar las of land out of the litnd agreed to be sold. The Collector made an award of the compensation fonhe acquired land, against which reference

was made to the Court of the District Judge. In May, 1968 the compensation was enhanced to sum over Rs. 2 lakhs. In the mean time on April 15, 1967, the appellant-company instituted suit for specific performance of the agreement dated August 9, 1968. This suit was dismissed by the Court of the Senior Sub-ordinate Judge, Gurgaon on August 13, 1968. Regular First Appeal (No. 216 of 1968) against the dismissal of the suit is pend-ing in the Punjab and Haryana High Cpurt.

It app.~ars that the dispute as to apportionment of compensa-tion under s. 30 of the Land Acquisition Act was also referred to the Court. In view of the institution of the suit for specific per-formance, 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 ob~ed 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 pend-ing 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-com-pany 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 re-main stayed pending the disposal of the appeal. The learned Ad-ditional 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 whe-ther the original agreement had become frustrated or was alive and deserved to be specifically enforcefi, would have an important bearing on the question of apportionment of compensation.

The respondents preferred revision to the High Court against this order and learned Single Judge on March 18, 1969 reversed the order continuing stay of the proceedings under s. 30 and fur-ther 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 the proceedings under section 30 of the Act shoµld continue, but the petitioners may

not be allowed a.ctual 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 Gov-ernment to be disbursed in accordance with the decision in the regular first appeal. This will, however, be sub-ject 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 en-cumbrance 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 aopearing 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 res-pondent-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 judi-cially on consideration of the circumstances of the case. Both parties were accordingly heard and the learned Additional District Judge in detailed order dated April 19, 1969 expressed his con-clusion thus :-

"To my mind it seems that the decision of the refer-ence under section 30, is to take place first and it is there-after that the applicants shall be paid amount upto Rs. 1,78,000. In these circumstance~, it is ordered that the proceedings u/s 30 be restored and should continue The cheque will be given only after the decision of th~ reference u/s .30. The revision ?efore the Hon'ble Judge was only agamst the order staymg 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-

tion. As such, the intention of the Hon'ble Judge in passing the orders seems to be that the amount iuay not be paid to any of the 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 chal-lenging on merits the order dated April 19, 1969 in the High Court by way of revision, the responcents filed in that Court on May 6, 1969, an application under ss. 151/141 C.P.C. for clarifica-tion 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 thi!t 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 sub.iect-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 th.e High Court dated March 18, 1969 is unsustainable because there was no jurisdictional infirmity made -0ut 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 with-·OUt notice to the app.ellant. It was contended by Shri Gupte that in face of the judicial order dated April 19, 1969 madr by the learned Additional District Judge after hearing both sides at length, it was not open to tJie High Court to record the ex parte ·order dated May 18, 1969 without affording to the appellant an oµportunity for supporting the view taken by the learned Addi-·tional 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 subordi-nate to such High Court and in which no appeal lies thereto, and if such Subordinate Court appears-

(a) to have exercised jurisdiction noc vested in it by law or

(b) to have failed to exercise jurisdiction so vested.

( c) to have acted in the exercise of its jurisdiction il-legally or with ma!~rial irregularity,

the High Court may make such order in the case as it thinks fit."

The mass or reported qses only serve to show that the High Courts do not always appreciate the limits of their jurisdiction under this section. The legal posjtion was authoritatively laid down by the Privy Council as far back as 1894 in Rajah Amir Hassan Khan v. Sheo Baksh Singh('). The Privy Council again pointed out in Balakrishna Udayar v. Vasudeva Aiyar(') that this section is not directed against the conclusions of law or fact in which the ques-tion of jurisdiction is not involved. This view was approved by this Court in Keshav Deo v. Radha Kissan('') and has since been reaffirmed in numerous decisions.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 Jaw 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. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised jurisdiction not vested in him by law or had failed to exercise jurisdiction so vested in him, in recording the order that :he pro-E ceedings 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 irre-gularity" as used in this clause do not cover either errors of fact or of Jaw; they do not refer to the decision arrived at but m~rely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some pro-vision of Jaw or to material defects of procedure affecting the ulti-mate decision, and not to errors 'ither of fact or of Jaw, after the prescribed formalities have been complied with. The High Court does not seem to have aaverted to the limitation imposed on its power under s. 115 of the Code. Merely becausethe High Court would have felt inclined, had it :lealt with the matter initially, to come to different conclusion on the question of continuing stay of the reference proceedings pending decision of the apoeal, 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 Districi Judg~ in h.is manner of dealing with tlus question. It seems to us that m this matter the Hieb Court treated the revision virtually as if it was an appeal.

(I) 11 Indian AppeaJs 237. ~•--- (2) 44 Indja~ Appe;ls 261.

L2 Sup. Cl/70-12

13) [19531S.C.R.136.

The respondents' sulJmission that the order made by the High Court on March 18, 1969 was 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 dis-pose of or otherwise transfer any interest by creating encumbrance over the r.emaining 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 1side.

The ex parte order dated May 8, 1969 is equalJy 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, 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 19-4-6.9, has interpreted the High Court's ord~r wrongly and has held that the intention of the Hon'ble Judge in passing the 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 prelil)lfo.ary hearing the attention of the High Court was not drawn to this fact and that Court pro-ceeded to make an order virtually and in effect reversing the judi-cial 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 misconc~ived. 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 par-ties, if so advised, to a!)proach the High Court by appropriate pro-ceedings for the speedy disposal of the appeal.

ppea/ allowed.

R.K.P.S.