Decided on April 22,1997

Bhagwan Dass And Ors. Respondents


Surinder Sarup, J. - (1.)Heard the learned Counsel for the parties. Perused the office report as also the impugned order alongwith the lower Court record which has since been received It is stated by the learned Counsel for the Petitioners that the Plaintiff has applied before the lower Appellate Court, i.e. the Court of District Judge, Shimla for being granted a decree for possession of the suit property. This obviously means that that the Defendant-Petitioner is in possession of the same. Therefore, instead of ordering status quo stay of the impugned judgment and decree granted should have stay, as prayed for by the Defendant-Petitioner.
(2.)The learned Counsel for the Plaintiff-Respondents has cited before me a case reported as Ganesh Shankar Naik Vs. Joao Jose Catao Peregrino da Costa AIR 1976 Goa DD 24 . It has been held therein that when stay in refused by Appellate Court under Order 41, Rule 5, Code of Civil Procedure. refusal to exercise discretion does not amount to decide a 'Case' so as to attract Sec. 115, Code of Civil Procedure. In other words, such an order is not open to revision. He has also cited a case reported as M/s Bhojrj Kunwarji Oil Mill and Ginning Factory and Anr. Vs. Yograjsinha Shankersinha Parihar and Ors. AIR 1984 SC 1894 . It has been laid down therein that interference is only possible on the ground that a different view on facts elicited was possible. It is not permissible in exercise of revisional jurisdiction. He has further cited as case reported as Shri M.L. Sethi Vs. Shri R.P. Kapoor AIR 1972 SC 2379 . It has been held therein that the jurisdiction of the High Court under Sec. 115, Code of Civil Procedure is a limited one. The section is not directed against conclusion of law or fact in which the question of jurisdiction is not involved. He has further cited a case reported as Ratilal Balabhai Nazar Vs. Ranchhodbhai Shankarbhai Patel and Anr. AIR 1966 SC 439 . It has been held therein that erroneous construction placed upon a statute by the trial Court does not amount to exercising jurisdiction illegally or with material irregularity and would not furnish a ground for interference under Sec. 115, Code of Civil Procedure.
(3.)In so far as the three Apex Court Rulings are concerned, they are not directly on the point in issue. So far as the Ruling of Goa, Daman and Diu is concerned, this Court is of the impression that this view has not been approved by other High Courts, though at the moment no specific authority or Ruling comes to my mind.

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