Gulshan Bhatia v. Vijay Bala

2. The facts of the case are that the petitioner filed a suit, being Suit No.428/2013, for pennanent injunction along with an application under Order XXXIX, Rule 1 & 2 CPC for grant of injunction against the respondents thereby restraining them from dispossessing the petitioner from the suit shop and from putting their lock on the suit shop on the ground that father of the parties namely Lekli Raj Bhatia was the lawful lessee in the Shop No.A-137, S.P. Muklierjee Market, near Mama-Bhanja Ki Dargah, Rani Jhansi Road, Delhi-110055.

3. After hearing both the parties, the interim application filed by the petitioner was dismissed on the reasons that the petitioner has failed to bring CRP No.191/2013 Page 1 of[5] 2013:DHC:7675 u on record to show that Sh. Lekh Raj Bhatia was the lessee of the suit premises which was the entire case ofthe petitioner and Sh.Lekh Raj Bhatia, father ofthe parties was the owner ofthe suit premises and after his death by virtue of the will dated 6/5/2000 petitioner has become the right, title and interest in immovable properties however, prima facie evidence in order to prove to establish his case was not placed on record. But since the documentary proofofownership ofthe father ofthe parties is not on record, thus they have failed to show any prima facie case in their favour. Further the petitioner has not given his residential address and on perusal of the ^ photograph on record it is made out that neither any business/work is being carried out from the said premises nor it is habitable for anybody to reside within the four walls without any roof. The said fact rather was suppressed by the petitioner from the court. Therefore, the petitioner thus has not come before the court with clean hand. The interim order in these circumstances was not granted. The interim application is accordingly dismissed.

4. The said order of dismissal of application under Order XXXIX, Rule 1 & 2 CPC passed against petitioner was challenged by the petitioner in appeal filed under Order XLIII Rule 1 CPC, being MCA No.16/2013. The, •f said appeal was also dismissed on the same reason after coming to the conclusion that after allotment of the suit shop, the petitioner's father has constructed the shop with boundary wall with a tin roof and had also installed a double shutter in the same and has started his business of sale of motor spare parts upto 1985; that the suit shop was lying unattended after the death of the petitioner's father and as a result the shutter was removed by unknown people and tin roof also fell down; that on 11.01.2013, the CRPNo.191/2013 Page 2 of[5] r. respondents came to know from some neighbours that the petitioner was raising constructions in the suit shop and on visit it was found that the petitioner had installed anew shutter and had also put some articles used for cooking in the suit shop and was also repairing the boundary walls of the suit shop which was got stopped by the respondent No.2 by the intervention of the local police; that the respondents again went to the suit shop on 12.01.2013 and found that the petitioner had installed six pipes at the roof level in order to install the roof in the previous night but the said work was again stopped by the local police and intimation in this regard was sent to the MCD, Lt. Governor etc. It is denied by the respondent No.2 that a Will dated 06.05.2000 in favour of the petitioner was left by the father of the petitioner. It is also denied that tlie respondent No.2 always remained disobedient towards his father and ultimately, the father of the petitioner and respondents not only made several complaints against him during his life time but also disowned the respondent No.2 from his all moveable and immoveable properties.

5. The petitioner has come before this Courtunder Section 115 CPC for revision of the said impugned orders. It is pertinent here to discuss the scope of powers of revision of this Court under Section 115 CPC. The legal position as it stands today has been well-settled since the Supreme Court ruling of ShaktiCo-operative HousingSociety, Nagpur v. M/s. Swaraj Developers, AIR 2003 SC 2434. The Apex Court analysed the position both prior as well as post Amendment Acts of 1976 and 1999 and very well reiterated the difference between an appeal and a revision in the following paragraphs: CRP No.191/2013 3 of[5] r- ( "13...It is fairly well-settled position in law that the right of appeal is asubstantive right. But there is no substantive right in micing an application under Section 115. 15...Language of Sections 96 and 100 of the Code which deal with appeals compared with Section 115 ofthe Code. While in the former two provisions specifically provide for right to appeal, the same is not the position vis-a-vis Section 115. It does not speak of an application being made by a person aggrieved by an order of subordinate court. As noted above, it is a source of power ofthe High Court to have effective control on the flinctioning of the subordinate courts by exercising supervisory power." The court summed up the present legal position in the following paragraphs: "14.... Section 115 is essentially a source ofpower for the High Court to supei-vise the subordinate courts. It does not in any way confer a right on a litigant aggrieved by any order of the subordinate court to approach the High Court for relief The scope for making a revision under Section 115 is not linked with a substantive right." "32....t.A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is 'yes' then the revision is maintainable. Suit on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Section 115. There is marked distinction in language of Section 97(3) of the Old Amendment Act and Section 32(2) (i) of the Amendment Act. While in the former, there was clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a CRPNo.191/2013 Page 4 of[5] vested right in a course ofprocedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered the parties are to proceed according to the altered made, without exception, unless there is. a different stipulation." "33...Section 6 of the General Clauses Act has no application because there is no substantive vested right available to a party seeking revision under Section 115 ofthe Code."

6. In view of the above mentioned settled position and that admittedly, both the courts have decided the matter on the basis of the facts, I am of the considered opinion that there is no legal infinnity in these orders. Thus, no interference is called for in the present revision petition. The same is dismissed alongwithpending applications. (iGSnMOH^™(S^)^ JUDGE DECEMBER 02, 2013