Good Legal Article on Lis Pendens ( S 52 of Transfer of Property Act)

Good legal article on Lis pendens( S 52 of Transfer of Property Act)

Lis pendens means that nothing new should be introduced in 

pending litigation.

      Where a suit or proceeding is pending between two persons with respect to immovable property and one of the parties thereto sells,or otherwise transfers subject matter of litigation, then transferee will be bound by result of suit or proceeding,whether or not, he had notice of suit or proceeding .This rule is known as the rule of lis pendens. This rule affects the purchaser not because the pending suit or proceeding amounts to notice but because the law does not allow litigants to give to others pending the litigation any right to property in dispute so as to prejudice the other party.

Thus the rule of lis pendens is based on the necessity for final adjudication: It aims at prevention of multiplicity of suits or proceedings.A transaction entered in to during pendency of a suit can not prejudice the interests of a party to suit who is not party to transaction. The object of the rule is to protect one of the parties to a litigation against act of the other.

     The doctrine of lis pendens can not be availed of by the transferor and it is really intended for the protection of the other party, that is the party in the suit other than the transferor.

Suits decreed exparte also falls within the scope of doctrine of lis pendens ,provided they are not collusive.

       Compromise decree also falls within the scope of doctrine of lis pendens, provided compromise is not result of fraud.

The rule of lis pendens does not apply to a transfer by a person who subsequent to transfer is added as a party to the pending suit. A transfer by a person before he is made a party is not affected by rule of lis pendens.

       It may be noted that the effect of the rule of lis pendens is not to invalidate or avoid the transfer,but to make it subject to the result of the litigation. This provision operates even if the transferee pendente lite had no notice of pending suit or proceeding at the time of transfer.

     Its essentials-In order to constitute a lis pendens, the following six elements must be present:

1.There should be a suit or a proceeding.

2.The suit or proceeding must be one in which a right to immovable property is directly and specifically in question.

3.The suit or proceeding must not be a collusive one .

4.The suit or proceeding must be pending.

5. The property directly and specifically in question in the suit must be transferred during such pendency.

Pending litigation-

The pendency continues from the time the plaint is presented to the proper court till it is finally disposed of, and complete satisfaction or discharge of the decree is either obtained or has become unobtainable.

It may be noted here that pendency of suit must be in competent court in India. The reason behind this rule is that in foreign court, not only the procedure, but even the remedy may be different from that prevailing in India.

Bonafide litigation-

The suit or proceeding must not be collusive.

Right to property must be in dispute-

The right to an immovable property must be directly and specifically in issue in the suit or proceeding.This will happen in a suit for specific performance of contract to transfer immovable property.

Transfer during pendency of litigation only-

For the purpose of this doctrine, the transfer must be made only during pendency of suit or proceeding. Naturally there a transfer before the suit will not be affected by lis pendens.It does not matter that the deed is registered after suit is filed, provided it was executed prior to its institution.

The decree of first court does not always put an end to the litigation.Therefore,even after dismissal of a suit,a purchaser is subject to lis pendens if an appeal is thereafter fled. Thus the rule of lis pendens applies to a transfer made after decree of the court but before filing of an appeal.

 In greater Bombay,however it is necessary to register the notice of lis pendens under S 18 of Indian Registration Act. Otherwise a pendency does not affect any transaction.

Important judgments on Lis pendens

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Daughters Have Equal Rights In Ancestral Property, Even If They Were Born Before Enactment Of Hindu Succession Act, Holds Supreme Court

Daughters Have Equal Rights In Ancestral Property, Even If They Were Born Before Enactment Of Hindu Succession Act, Holds Supreme Court [Read Judgment] Feb 4th 2018, 09:07, by Sukriti Manu Sebastian The Supreme Court has held that daughters who were born before the enactment of Hindu Succession Act 1956 are entitled to equal shares as son in ancestral property.  The ruling was rendered in an appeal filed by daughters challenging a decree in a partition suit, which excluded them from partition.  The partition suit was filed by the grandson of the deceased propositus of a joint family in 2002. The Trial Court held that daughters were not entitled to share in property, as they were born before 1956, the year of enactment of Hindu Succession Act. The Trail Court also denied them the benefit of 2005 amendment, which conferred equal coparcenary status to daughters as sons.  The High Court upheld the decree of the Trial Court. The Supreme Court held that the Courts below erred in holding that daughters were not entitled to partition because they were born before 1956. It was held that according to Section 6 of the Act ,when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act(which includes a daughter), his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener by survivorship but upon his heirs by intestate succession.  Therefore, the interest of the deceased coparcener would devolve by intestate succession on his heirs, which included his daughters. The Court also held that the daughters were entitled to the benefit of 2005 amendment as well, and on that basis also they were entitled to shares.  It was settled in Prakash v. Phulavati (2016) 2 SCC 36 rights under the amendment area available to daughters living on the date of amendment, irrespective of when they were born.  In the instant case, the bench comprising Justice A.K Sikri and Justice Ashok Bhushan explained it further, and stated that the amendment declared that a daughter ‘shall by birth’  became coparcener in her own right in the same manner as son. Hence, the daughter will get coparcenary right by virtue of the amendment, ‘since birth’. It was observed as follows :- Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized. Also, the fact that the partition suit was filed in 2002 was held to be inconsequential. The Court stated that so far as partition suits are concerned, the partition becomes final only on the passing of a final decree. The decree was passed in 2007. Here, the rights of the daughters got crystallised in 2005, and hence the Trial Court ought to have taken into account that aspect while passing decree in 2007. The Court also observed that 2005 amendment was brought in on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected. The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treaties, The Ideal Element in Law, that “the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change.- the Bench observed. Hence, it was held that shares will devolve on the daughters as well. Read the Judgment Here

Mortgagees Right To Sell: Past Situation

Mortgagees Right To Sell: Past Situation
The power of the mortgagee to sell without intervention of the court, before the incorporation of such right under Section 69 of the Transfer of Property Act, 1882, was a subject-matter of controversy and divergent views.

This power of sale, a feature of the English mortgage was originally confined to Englishmen or to Indian residents in the Presidency Towns who were conversant with the forms of English mortgage and English law and procedure as administered in the Presidency Towns. In the mofussil, prior to the Transfer of Property Act, there were certain regulations governing the law of mortgages between the parties who were not Europeans. Those regulations did not empower the mortgagee to effect sale of the mortgaged property without the intervention of the court.

Section 69 of the Transfer of Property Act, 1882, was modelled on the English Conveyancing Act, 1881 and the English Law of Property Act, 1925. Section 69 was later remodelled by amending Act 20 of 1929 drawing the principles from the English law.

Section 69 of the Transfer of Property Act, 1882 contains five sub-sections. Sub-sections (1) and (2) as detailed hereunder, deal with the circumstances under which the mortgagee's right to exercise the power of sale without the intervention of the court arises. Sub-sections (3) and (4) respectively dwell on the title of the purchaser from the mortgagee and the manner of deployment of sale proceeds of the mortgaged property by the mortgagee, his duties and responsibilities. Sub-section (5) states that nothing in this section applies to powers conferred before the first day of July, 1882.


The right under Section 69 is as much and as full a right as the right of redemption of the mortgagor. The mortgagee is, in no sense, a trustee for the mortgagor in the matter of the power of sale; as he holds it for protection of his interest and for his benefit. The mortgagee is not debarred from exercising the power of sale, even though the mortgagor files a suit for redemption. So long as the mortgage money is not paid or validly tendered, the mortgagee with full knowledge of a pending suit for redemption and even to defeat the suit can enforce his power of sale under this section.

While clauses (b) and (c) of sub-section (1) require that power of sale without intervention of the court must be expressly conferred on the mortgagee by the mortgage deed, no such conditions need be fulfilled, where the mortgage is an English mortgage and neither of the parties is Hindu, Mohammedan or Buddhist or any sect, race etc., as stipulated under clause (a) of sub-section (1).

Power of sale without intervention of court

The words "power of sale" refer to a clause expressly included in the mortgage deed. They mean conveyancing. The expression has not been defined in the Act. It includes all steps which are necessary to be taken in connection with a sale. The law permits the greatest freedom of contract, unless it is expressly taken away. If any party contends that a particular clause restricts, in any way, the power of parties to enter into a contract, the burden rests on him to show that the words prevent an agreement between the parties.

The power of sale, under Section 69, can be exercised only in the three cases mentioned in clauses (a), (b) and (c) of sub-section (1). The situation of the property is immaterial in cases falling within clauses (a) and (b).

A mortgagee has no right of sale if there is no default in payment of the mortgage money. There can be default in payment of mortgage money only after it has become due, and not before. In cases, where no time is fixed for payment of the mortgage money, there must be a demand for payment before it can be said that the mortgagor has made a default in payment of the mortgage money. It has been held in Purasawalkam Hindu Janopakara Saswatha Nidhi Ltd. v. Kuddus Sahib that where the amount due for principal is not repayable at any particular date, nor is anything stated as to when it is to be repaid, there can be no default in the payment of the principal sum due until there is a demand made for the money.

Section 69(1) (a)

The first case in which the mortgagee can have the power to sell is mentioned in clause (a) of sub-section (1) of Section 69 of the Transfer of Property Act, 1882. It lays down the following conditions for the acquisition of the power, namely: (1) that the mortgage must be an English mortgage, as defined in Section 58(e) of the Transfer of Property Act, 1882, and (2) neither the mortgagor nor the mortgagee must be-
(i) a Hindu, Mohammedan or Buddhist, or
(ii) a member of any other race, sect, tribe, or class from time to time specified in this behalf by the State Government in the Official Gazette.

The power of sale is inherent in the mortgagee, if Conditions (i) and (ii) mentioned above are satisfied. Thus it can be exercised where an English mortgage is executed by a company, which can be said to have no religion3 In L.V. Apte v. R.G.N. Price, the A.P. High Court applied Section 69 to an English mortgage between a company and trustees for debenture-holders, some of the trustees being Hindus.

Section 69(1) (a) is confined only to a select sect of mortgagors and mortgagees who do not belong to the majority communities in India. This section is taken advantage of by corporate bodies who are not natural persons since such bodies are not deemed to belong to any religion. As far as individuals are concerned, this section can be adopted if both the mortgagor and mortgagee do not belong to the religion, race, sect, tribe or class which are excluded from the purview of Section 69(1) (a).

If the conditions in Section 69(1) (a) and Section 69(2) are complied with, mortgagee's power of sale arises suo motu.

It is opined that Section 69(1) (a) is outdated in the present circumstances since the stipulations cannot be applied to the commercial transactions like mortgages, in letter and spirit. No community can be compelled to exclude themselves from a particular commercial venture as it would affect their constitutional rights.

Sections 69(1) (b) and 69(1) (c)

The words "expressly conferred" in clauses (b) and (c) indicate that the inherent power available under clause (a) is not available under clauses (b) and (c).

To bring a case under Section 69(1) (b), it is necessary to establish that

(i) a power of sale without the intervention of the court is expressly conferred on the mortgagee by the mortgage deed, and
(ii) the mortgagee is Government. This clause is applicable only where the mortgagee is the Government and does not extend to any other person. It applies both to the State Governments and the Central Government.

Section 69(1) (c) requires that

(i) a power of sale without the intervention of the court must have expressly been conferred on the mortgagee by the mortgage deed, and

(ii) the mortgaged property, or any part thereof, must, on the date of the execution of the mortgage deed, have been situate within the towns of Calcutta, Madras, Bombay or in any other town, or area, which the State Government may, by notification in the Official Gazette, specify in this behalf.

It is observed that the three cases mentioned in clauses (a), (b) and (c) of sub-section (1) of Section 69 of the Transfer of Property Act are independent and mutually exclusive. Clause (a) applies only where the mortgage is an English mortgage and the parties do not belong to certain religions, or sects, etc. Clause (b) applies to cases where the mortgagee is the Government. Under clauses (a) and (b), it is not necessary that the property mortgaged should be situated in any particular place. It may be situated in any part of India. But an essential condition of clause (c) is that the mortgaged property must be situated within any of the towns or area, specified in the clause.

Conditions for exercise of power

Section 69(2) (a) and Section 69(2) (b) specify the conditions for exercise of the power. These conditions are imperative and cannot be varied by an agreement between the parties. The power to exercise the right of sale arises when

(i) (a) notice in writing requiring payment of the principal money has been served on the mortgagor, or on one of several mortgagors, and

(b) default has been made in payment of the principal money, or of part thereof, and

(c) such default has continued for three months after such service; or

(ii) some interest under the mortgage amounting at least to five hundred rupees is (a) in arrear, and (b) remains unpaid for three months after becoming due.

Conditions (i) and (ii) are in the alternative. It is sufficient if any one of them is fulfilled.

The power of sale under Section 69(1) can be exercised by the mortgagee only when the conditions under Section 69(2) are fulfilled.

No notice is necessary when default is made for the payment of interest. It is sufficient that interest under the mortgage amounting at least to five hundred rupees is in arrear and unpaid for three months after becoming due.

Notice cannot be waived

The notice required by Section 69(2) (a) is not only necessary but is imperative and even the period of three months cannot be curtailed by agreement of the parties.

The Supreme Court in Narandas Karsondas v. S.A. Kamtam held that the conferment of power on mortgagee to sell without intervention of the court in a mortgage deed by itself will not deprive the mortgagor of his right of redemption. The equity of redemption is not extinguished by mere contract for sale. Therefore, until sale is complete by registration the mortgagor does not lose his right of redemption. In view of the fact that only on execution of conveyance ownership passes from one party to another, it cannot be said that the mortgagor lost the right of redemption just because the property was put to auction. The mortgagor has a right to redeem unless the sale of property was complete by registration in accordance with the provisions of the Registration Act.

Section 69(1)(a) of the Transfer of Property Act, 1882 unduly excludes the majority communities in India from exercising the power of sale available for an English mortgagee. This section appears to have been enacted only for the transactions between mortgagors and mortgagees who are English people or people of English origin.

Section 69(1) (a)a blot on statute

When the debate on uniform civil code in India is hotting up amongst the law-makers and the general public, retention of Section 69(1) (a) of the Transfer of Property Act, 1882 is a blot on the statute-book. This section is a clear discrimination between religious communities in commercial transactions in India.

Section 69(1) (a) of the Transfer of Property Act, 1882 has lost its relevance in the present-day secular circumstances. English mortgage is rarely resorted to by the lenders like banks in view of the religious discrimination in the section itself and stamp duty and registration expenses being heavy to be borne by the mortgagors.

It is suggested that an amendment to Section 69 of the Transfer of Property Act is the need of the hour deleting the portion regarding restriction of the power of sale without intervention of the court only to certain religious communities.

The power of sale under Section 69(1) (c) of the Transfer of Property Act can be exercised only when the mortgaged properties are situated within certain towns. The restriction in respect of location of the properties within certain towns for the purpose of Section 69(1) (c) might have been a carefully considered decision at the time when the section was inserted into the Act. It protects the gullible rural masses from the usurious moneylenders. Since then, the situation has undergone changes and the people in the rural sector are prudent enough to know the implications of mortgage transactions.

Mortgagees Right To Sell: Present Situation

At present, an attempt has been made to change the situation by passing the “Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Act 54 of 2002)”, which protects the interests of the banks and other financial institutions by providing ways to recover their amounts by selling the assets of the mortgagor.

The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, fondly called by bankers as Securitisation Act, has recently been enacted conferring powers on banks and financial institutions, if they are secured creditors, to realize the securities by sale etc., without intervention of court. The Act contains a provision overriding the provision of Section 69 of the Transfer of Property Act, 1882. Sub-section (1) of Section 13 of the said Act reads as under:

"13. (1) Notwithstanding anything contained in Section 69 or Section 69-A of the Transfer of Property Act, 1882, any security interest created in favour of any secured creditor may be enforced, without the intervention of court or tribunal, by such creditor in accordance with the provisions of this Act."

The provisions of the Act have been made applicable exclusively to banks and financial institutions as secured creditors to enforce their security interest with a view to recovering their debts. That is, if the banks and financial institutions are secured creditors having lent against securities like mortgage of immovable property, charge, hypothecation they can take over and sell such securities after giving 60 days' notice to the borrowers so as to adjust the loan, without resort to litigation in a competent court of law. The provisions of the Act cannot be considered to have been extended to the secured creditors in general. In a nutshell, the provisions of Section 69 of the Transfer of Property Act, 1882 can be ignored by the banks and financial institutions in the matter of recovery of their debts ex curia whereas other creditors have to file a suit in a competent court for recovery of the loan. Otherwise, Section 69 of the Transfer of Property Act, 1882 still remains on the statute and is applicable to other creditors who are not banks and financial institutions. The banks and financial institutions are empowered to short-circuit the legal process to enforce the securities for recovery of their loans while the other creditors such as individuals, association of persons have to undergo the rigmorale of court proceedings. This is a clear discrimination endowing one section with legal favouritism and depriving similarly placed others of such right. Hence the suggestion for the amendment to make the law uniform to all creditors who have lent against mortgage securities.

It is suggested that the stipulation of certain notified towns in Section 69(1) (c) of the Transfer of Property Act, 1882 should be deleted by an amendment since such a stipulation does not have any sanctity or reasonable purpose in the present circumstances.

Recourse to legal proceedings through a court of law for recovery of debts, though secured by mortgage, is not only time-consuming but expensive too. The suggested amendment to Section 69 of the Transfer of Property Act, 1882 will result in enforcement of mortgage security by the mortgagee without resort to court proceedings and will, to some extent, disburden the courts from the current scenario of docket explosion so that the other cases can be adjudicated as expeditiously as possible.

Conclusion
After going through this project, I have come to the conclusion that, section 69(1) (a) of the Transfer of Property Act, 1882 has lost its relevance in the present-day secular circumstances. English mortgage is rarely resorted to by the lenders like banks in view of the religious discrimination in the section itself and stamp duty and registration expenses being heavy to be borne by the mortgagors.

This is because, section 69(1) (a) of the Transfer of Property Act, 1882 unduly excludes the majority communities in India from exercising the power of sale available for an English mortgagee. This section appears to have been enacted only for the transactions between mortgagors and mortgagees who are English people or people of English origin.

Therefore, I have come to the conclusion that an amendment to Section 69 of the Transfer of Property Act is the need of the hour, deleting the portion regarding restriction of the power of sale without intervention of the court only to certain religious communities.


Further, as regards the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Act, 2002 is concerned, there is a clear discrimination endowing one section with legal favouritism and depriving similarly placed others of such right. Hence I would suggest for the amendment to make the law uniform to all creditors who have lent against mortgage securities. This is because this Act is applicable only to banks and financial institutions and not to other types of creditors.

Further, recourse to legal proceedings through a court of law for recovery of debts, though secured by mortgage, is not only time-consuming but expensive too. The suggested amendment to Section 69 of the Transfer of Property Act, 1882 will result in enforcement of mortgage security by the mortgagee without resort to court proceedings and will, to some extent, disburden the courts from the current scenario of docket explosion so that the other cases can be adjudicated as expeditiously as possible.

Therefore, in my view there is an urgent need to amend the provisions of sec.69 of the "Transfer of Property Act, 1882", so that the interest of the secured creditors can be realized more fruitfully and without much delay and harassment.

The author can be reached at: rks_nlu@legalserviceindia.com / Print This Article

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Whether Appeal can be Converted into Revision and Revision can be Converted into Appeal

Friday, 1 May 2020

Whether appeal can be converted into revision and revision can be converted into appeal?

It may be mentioned that the Apex Court while considering the question of conversion of revision into second appeal has considered the question that revision can be converted into second appeal, if substantial question of law arise in the case. However, while converting appeal into revision, question of substantial question of law will not arise. It is true I that scope of appeal and revision is different, but the Courts have been permitting conversion of appeal into revision and revision into appeal. Therefore, rigid view that appeal cannot be converted into revision or vice versa will not be in the interest of justice. A litigant cannot be penalised on account of technical error or mistake committed by the counsel. To meet the ends of justice, revision can be converted into appeal or appeal can be converted into revision while exercising the discretion and if the following norms are fulfilled, then normally order of conversion of revision in to appeal or appeal into revision should be passed :

(i) When revision is converted into second appeal, then before passing the order of conversion, it is to be considered whether substantial question of law arises in the said case, if no substantial question of law arises in the case, revision cannot be converted into second appeal.

(ii) Revision can be converted into appeal if same is filed within time and there is no impediment of limitation. Limitation must be construed from the date of filing of the revision petition or appeal. If the revision or appeal so filed was within limitation, for conversion into appeal or revision, it is to be examined that the appeal or revision, as the case may be, so filed, on the date of institution, was within the limitation and if so, said permission can be granted.

(iii) There is no period of limitation for applying such conversion, but while exercising the powers of conversion, the Court would keep in mind whether appeal or revision, as the case may be, had been instituted within the period prescribed for such proceedings.

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

Civil Revision No. 1259 of 1999

Decided On: 25.08.2004

Om Prakash  Vs.  Dwarka Prasad and Ors.

Hon'ble Judges/Coram:

S.S. Jha and A.K. Gohil, JJ.

 In this revision, an application I. A. 3963/03 is filed by the petitioners for converting this revision into miscellaneous appeal under Order XLIII, Rule l(u) of the Code of Civil Procedure. The application was opposed by the respondents inter alia contending that the scope of appeal is different from the scope of revision, and therefore, application and revision be dismissed. Counsel for the respondents placed reliance on the single Bench decision of this Court in the case of Food Corporation of India v. Munnilal MANU/MP/0515/2002, whereas counsel for the petitioners has referred to the decision of the single Bench of this Court in the case of Shivkumar v. Ramkatori MANU/MP/0144/1976 : (1977 JLJ 33).Since two conflicting views were brought to the notice of the single Bench, single Bench has referred the dispute for decision in accordance with law by the Division Bench.

Question involved in the case is whether revision can be converted into appeal and vice versa.

Counsel for the petitioners submitted that this question has been settled long back and this Court time and again is permitting conversion of appeal into revision and revision into appeal. While delivering the later judgment in the case of Food Corporation of India (supra) single Bench has not considered the previous judgments on this subject and ignored the principle of stare decisis. Long settled view has been upset in the case of Food Corporation of India (supra). He submitted that against the order of remand by the Additional District Judge, counsel was of the opinion that order was in exercise of inherent powers by the first appellate Court, therefore, revision was filed, however, on the objection of the respondents, counsel for the petitioners minutely examined the position and found that the order is appealable under Order XLIII, Rule 1(u) of the Code of Civil Procedure (hereinafter, referred to as the "Code"). Counsel for the petitioners, therefore, submitted that the judgment in the case of Food Corporation of India (supra) has not laid down the correct law and single Bench has not considered the previous judgments on the point. In support of his contention, counsel for the petitioners has referred to the judgment in the case of Reliable Water Supply Service of India v. Union of India (1971 SC 2183). This case relates to dispute under the Arbitration Act. Though the dispute was within the ambit of Section 33 of the Arbitration Act, but the trial Court treated the dispute under Section 5 of the Arbitration Act. Thereafter, against the order passed by the trial Court, Union of India filed an appeal in the High Court. Appeal was contested on various grounds and one of the grounds was that appeal was not maintainable. High Court accepted the contention and converted the appeal into revision under Section 115 of the Code and decided the case exercising the revisional jurisdiction. Thereafter, objection was raised that appeal could not be converted into revision. It is held in this case that the High Court was right in converting the appeal into revision.

Counsel for the petitioners submitted this Court has taken; a view that even the revision can be heard :as an appeal or appeal can be heard as a revision and relied upon the judgments in the cases of Gauri Shankar v. Firm Dulichand Laxminarayan MANU/MP/0059/1959. Similar view was taken in the case of Rashid Khatoon v. Abdul Rashid Khan MANU/MP/0171/1966 : (1969 MPLJ 587) and Sir Madhaorao Ganesh Deshpande v. Keshao Gajanan Huddar (AIR 1941 Nag 304). Counsel for the petitioners submitted that the law laid down in the case of Food Corporation of India (supra) has not considered the previous judgments of this Court and is against the settled principles of law laid down by this Court and the judgment does not lay down the correct law. He prayed that the application for conversion of the revision into appeal be allowed.

Shri D. D. Bansal, learned counsel appearing for the respondents opposed the application and submitted that there is distinction between the appeal and the revision. In support of his contention, he referred to the judgments in the cases of Ram Avtar v. Ram Dhani (MANU/SC/0034/1997 : AIR 1997 SC 107) : (1997 All LJ 1908), Lachhman Dass v. Santokh Singh MANU/SC/0265/1964 and Hari Shankar v. Girdhari Lal (AIR 1963 SC 698). He further submitted that nature and scope of High Court's revisional jurisdiction is different from the appellate jurisdiction and placed reliance upon the judgment in the case of (MANU/SC/0285/1985 : (1986) 1 SCC 512) : (AIR 1986 SC 446). Counsel for the respondents then referred to the judgment in the case of Chittaranjan Crochet (P) Ltd. v. Lakshmoni Dass (Smt) and submitted that if a parry had any doubt then the party could file appeal as well as revision. He submitted that if the order impugned is revisable, it cannot be converted into an appeal as, there is no presentation of appeal in the eyes of law. Revision as filed itself was not maintainable, therefore, revision which was not maintainable and was bad at its initial filing cannot be converted into an appeal. The powers should not be exercised liberally to convert the revision into appeal. In support of his contention, he referred to the judgment in the case of Munshi Singh v. Tula Ram (1980 MPLJ SN 61). He referred to the judgment of the Madras High Court in the case of T.K. Ramanujam Pillai v. Subramaniam (MANU/TN/0299/1967 : AIR 1967 Mad 298) wherein it is held that second appeal could not be converted into revision in exercise of discretion. He submitted that if the revision is not maintainable, petitioner can file appeal explaining the delay by filing an application under Section 14 of the Limitation Act alongwith memo of appeal. In support of his contention, he referred to the judgment in the case of Rakesh Shyamlal Samaiya v. Ajay Kumar Babulal Jain MANU/MP/0662/2000 : (2000 (3) MPLJ 484). However, he referred to the judgment in the case of Ram Prasad Rajak v. Nand Kumar & Brothers (MANU/SC/0520/1998 : (1998) 6 SCC 748) : (AIR 1998 SC 2730) wherein in para 7 of the judgment, it is held that against the order of eviction, appeal under Section 96 of the Code was maintainable and second appeal under Section 100 of the Code was maintainable. It is held that against the judgment, revision was not maintainable and the remedy was by way of second appeal alone. High Court entertained the revision and allowed the case in the absence of objection against maintainability of revision petition. Apex Court held that "to meet the ends of justice if the revision is to be treated as second appeal under Section 100, CPC, then requirement of existence of substantial questions of law must be satisfied." It is held that if the revision is converted into second appeal, then requirement of substantial question of law must be satisfied, otherwise, revision cannot be converted into second appeal.

Counsel for the respondents then submitted that once the revision is held to be not maintainable then petitioners are free to prefer an appeal and explain the delay in filing the appeal by moving an appropriate application under the Limitation Act. He referred to the judgment in the case of Rakesh Shyamlal Samaiya (supra). He submitted that in the light of the provisions of Section 104 and Order XLIII, Rule 1 of the Code of Civil Procedure, the order impugned is appealable and revision as filed is not maintainable and it cannot be converted into an appeal.

We have considered the arguments of both the parties. It may be mentioned that this Court was suo motu converting revision into appeal and appeal into revision while exercising its inherent jurisdiction. This view was taken in the cases of Gauri Shankar, Rashid Khatoon and Shivkumar (supra). With regard to discretion of the Court in converting appeal into revision, Bombay High Court in the case of U.D. Patel and Company v. C.M. Milligam and Clarke Ltd., AIR 1956 Bombay 598 has held that appeal can be treated as an application for revision. Full Bench of the Patna High Court in the case of Ram Ran Vijay Prashad v. Kishun Singh MANU/BH/0082/1943, has held that revision under Section 115 of the Code was not maintainable against the order which was appealable. In this case, an appeal preferred in a case in which no appeal lay was treated as an application under revision as the question argued was one of the jurisdiction and the Full Bench held that the memorandum of appeal may be treated as a revision as the question relating to jurisdiction is involved in the case.

Division Bench of Calcutta High Court in the case of Banka Behari Deb v. Birendra Nath Datta MANU/WB/0290/1927 has held that where no appeal lies from an order, memorandum of appeal can be treated as an application for revision. Where revision has wrongly been preferred it has been permitted to be converted into appeal in the case of Shivkumar (supra). Bombay High Court in the case of Rupam Pictures v. Dr. Brijmohan AIR 1977 Bombay 425 has held that when revision was wrongly preferred, revision was permitted to be converted into an appeal against the order. It is held that in case where appeal lies but revision application is wrongly preferred, the Court has wide discretion to treat it as an appeal if conditions laid down by the law are fully satisfied.

In the case of Bahori v. Vidya Ram MANU/UP/0076/1978, it is held that if revision is filed within limitation prescribed for appeal, then prayer for converting revision into appeal after expiry of period of limitation is maintainable. It is held that there is no specific provision for conversion of an appeal into a revision or vice versa. Consequently, the exercise of power has to be only under the provisions of Section 151 of the Code. The inherent powers of the Court permit the Court to make such orders as may be necessary for the ends of justice. The power is undoubtedly discretionary and is to be exercised in a proper case. If the interest of justice requires the passing of such an order or to prevent the abuse of the process of the Court, the Court would be fully justified in passing an order under this provision. It is further held that there is nothing like a period of limitation for making an application for conversion of an appeals into revision or vice versa. All that is required to be seen is if the appeal or the revision had been filed within the time prescribed for the filing of the appeal, or the revision, as the case may be. Even otherwise, there would be very few cases, were the conversion would be sought before the expiry of the period of filing the appeal. In most cases, the point would emanate after an objection had been filed or made by the other side. It would undoubtedly be open to the Court considering the question of conversion to satisfy itself that the prayer was bone fide and that there was no unusual delay.

In the case of Narmadabai Narayanshet v. Hidayatalli Saheballi (AIR 1949 Bombay 115), Gajendragadkar, J. (as he then was) has held that considering the question of conversion of appeal into revision, second appeal before the High Court was not maintainable and it was allowed to be converted into revision after preliminary objection was raised that the suit was cognizable by the Courts of Small Causes no second appeal would have been competent against the said decree since the amount or subject matter of the original suit did not exceed Rs. 500/-. Expression "Suit" used in Section 102 of the Code includes execution proceedings with the result that if the suit is of the nature described in Section 102, no second appeal would lie from an order made in execution of the decree passed in such a suit unless the value of the suit exceeds Rs. 500/-. The test in such cases is not the nature of the proceedings in execution, but the nature of the suit in which the decree sought to be executed was passed. That being so, the preliminary objection is, I think, well founded and must be accepted. Prayer was made by counsel for the petitioner that in view of the importance of the question of law which is being raised in the appeal, he should be permitted to convert his second appeal into a revisional application. It is clear that question of Jaw which arises for decision in these proceedings is of considerable importance, and I think it would not be improper to deal with the said point after allowing the appellant to concert his second appeal into a revisional application.

In the case of Bar Council of India New Delhi v. Manikan Tiwari (AIR 1983 All 357) against an order allowing the petition for review on the ground of mistake apparent on the face of record, appeal was preferred it was held not maintainable but it is held that the appeal could be treated as revision. It was held that rejecting the appeal on the ground of maintainability would mean to call upon the appellant to challenge the impugned order by means of a revision and this will not serve any purpose and the Court permitted the appeal to be converted into a revision.

Single Bench of Kerala High Court in the case of N. Karuppan v. M. Sankaran Nair (AIR 1973 Kerala 28) has held that conditional order under Order IX, Rule 13, CPC is not appealable and appeal lies from a final order. It is held that appeal filed when no appeal lay, appeal when technically incompetent, can be treated as a revision and delay can be condoned. Similar view was taken by the Division Bench of Andhra Pradesh High Court in the case of Narendra Kumar v. Shrimati Suraj Mehta MANU/AP/0174/1982. While considering the amendment in the Hindu Marriage Act, it is held that no appeal lay against an order passed under Section 24 of the Hindu Marriage Act. However, since the order is an interim order, High Court can treat the appeal as revision invoking powers under Section 115 of the Code.

In the case of J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. Collector of Central Excise MANU/SC/0187/1998 : (1998) 3 SCC 540 : AIR 1998 SC 1270 appeal was filed by an aggrieved party in the Apex Court under the Central Excise and Salt Act, 1944. A preliminary objection was raised by the Revenue that no such appeal was maintainable. Though the Supreme Court upheld the objection, it did not dismiss the matter and observed (at page 1273 of AIR) :

"We are not disposed to dismiss this appeal on that technical ground at this stage because the appellant could in that situation have sought for special leave under Article 136 of the Constitution. With all the papers available for deciding the question involved in this appeal, we do not think it proper to drive the appellant to file another special leave petition for that purpose, particularly because of the lapse of almost nine years since the filing of this appeal. We, therefore, treat this appeal as one filed by special leave."

After the 1977 amendment in Section 102 of the Code it is held that if second appeal is filed by the party aggrieved against the decision rendered by the first appellate Court, in appropriate cases, on objection being raised, the High Court may, in its discretion, allow conversion of second appeal into revision. This view has been taken by the Orissa High Court in the case of Loknath Maharana v. Dr. A.B. Mohantil MANU/OR/0057/1977.

However, in the case of Food Corporation of India (supra) it is held that in view of the amendment in Section 102 of the Code, second appeal was not maintainable being the suit valued less than Rs. 25000/-. Though the appeal was filed before 1-7-2002, it is held that second appeal was not maintainable. Further it is held that appeal cannot be converted into revision as the scope of both the sections is different. It may be mentioned that the Apex Court while considering the question of conversion of revision into second appeal has considered the question that revision can be converted into second appeal, if substantial question of law arise in the case. However, while converting appeal into revision, question of substantial question of law will not arise. It is true I that scope of appeal and revision is different, but the Courts have been permitting conversion of appeal into revision and revision into appeal. Therefore, rigid view that appeal cannot be converted into revision or vice versa will not be in the interest of justice. A litigant cannot be penalised on account of technical error or mistake committed by the counsel. To meet the ends of justice, revision can be converted into appeal or appeal can be converted into revision while exercising the discretion and if the following norms are fulfilled, then normally order of conversion of revision in to appeal or appeal into revision should be passed :

(i) When revision is converted into second appeal, then before passing the order of conversion, it is to be considered whether substantial question of law arises in the said case, if no substantial question of law arises in the case, revision cannot be converted into second appeal.

(ii) Revision can be converted into appeal if same is filed within time and there is no impediment of limitation. Limitation must be construed from the date of filing of the revision petition or appeal. If the revision or appeal so filed was within limitation, for conversion into appeal or revision, it is to be examined that the appeal or revision, as the case may be, so filed, on the date of institution, was within the limitation and if so, said permission can be granted.

(iii) There is no period of limitation for applying such conversion, but while exercising the powers of conversion, the Court would keep in mind whether appeal or revision, as the case may be, had been instituted within the period prescribed for such proceedings.

We are of the considered opinion that in the case of Food Corporation of India (supra) correct law has not been laid down. In this judgment, previous judgments on the point and settled position of law of this Court has not been considered. Ignoring the principle of "stare decisis" settled practise has been unsettled without considering previous judgments. We have considered the earlier views of this Court and the judgments of other High Courts and that of the Apex Court and we hold that in this case, revision can be converted into miscellaneous appeal. Application LA. 3963/03 is allowed and the office is directed to register this revision as miscellaneous appeal and list before appropriate Bench.

Reference is answered accordingly.

Appeal cannot be Disposed Of without Trial Court Record - Supreme Court

Appeal cannot be disposed of without Trial Court record: SC

November 20, 2019

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The Supreme Court recently set aside a judgment of Delhi High Court which disposed of a criminal appeal without the record of the trial court before it.

The bench considering an appeal against a Delhi High Court order which upheld the conviction and sentence imposed on a man under Sections 498A and 304 IPC by the trial court without the record of the trial court, which was lost during the pendency of the appeal before it.

One of the issue raised in the appeal was whether the order of High Court disposing of the criminal appeal in the absence of original record can be held sustainable in the eyes of law. In this regard, the bench observed:

The High Court has disposed of the appeal filed by the appellant herein without the record of the trial court, which was lost during the pendency of the appeal before it.

The bench then remanded the matter back to the High Court for hearing of the appeals afresh after reconstruction of the record of the trial court.

Source : Livelaw.com