BEFORE THE HONBLE HIGH COURT OF JHARKHAND

AT RANCHI

CIVIL SUIT NO../2016

(Under Section 115 of the Code of Civil Procedure)

-IN THE MATTER OFRaja Ram..Plaintiff

VERSUS
Prateek Malviya............Defendant

Memorial on behalf of the Defendant

DRAWN AND FILED BY COUNSEL ON BEHALF OF THE DEFENDANT

RASHI PANDIT
ROLL NO: - 402
2nd Year, Section- A

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TABLE OF CONTENTS

Index of Authorities...3
A.
B.
C.
D.

List of Cases
Books & Commentaries
Acts, Statutes, Treaties & Conventions
Internet Sites

List of Abbreviations..4
Statement of Jurisdiction5
Statement of Facts...6
Statement of Issues.7
Summary of Arguments.8
Arguments Advanced.9
Prayer..13

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INDEX OF AUTHORITIES
List of cases
NAME OF THE CASE & CITATION

PAGE
NO.
10

Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat AIR 1970 SC 1; Sri

Rathnavarmaraja v. Smt. Vimla AIR 1961 SC 1299

Prem Bakshi v. Dharam Dev AIR 2002 SC 559; Twentieth Century Fox Film Corporation v.

10

4
5
6
7
8
9
10
11
12
13
14
15
16
18
19
20
21
22
23
24

NRI Film Production Associates (P) Ltd. AIR 2003 Kant 148.
State of Bihar (now Jharkhand) v. Mijaj International, AIR 2004 Jhar 29.
Manick Chandra v. Debdas Nandy, (1986) 1 SCC 512: AIR 1986 SC 446
S. S. Khanna v. Brig. Dhillon; AIR 1964 SC 497
Reserve Bank of India Employees Association v.Reserve Bank of India; AIR 1981 AP 246
Mitthulal v. Badri Prasad AIR 1981 MP 1.
Smt. Vidyawati v. Devidas; AIR 1977 SC 397
Lala Lalsingh v. Seth Shobhagchand AIR 1986 MP 140.
Murari Kumar Saraf v. Sri Jagannath Shaw; AIR 1994 Cal 205
Smt. Rajbir Kaur v. S. Chokesiri and Co, AIR 1988 SC 1845;
Rajiv Kumar Sharma v. Smt. Bimla Rani Aggarwal 1984 Rev LR 350
Manick Chandra Nandy v. Debdas Nandy: AIR 1986 SC 446.
Ghashita v. Brahmavati, : AIR 1979 All 299
Dullan Prasad v. Smt. Rajeshwari Bibi : AIR 1977 All 151
Hindustan Aeronautics Ltd. v. Ajit: AIR 1973 SC 76.
Ramlal and Anr. v. Hariram, AIR 1959 Raj 95
Arun Lal Gupta v. Mriganka Mohan Sur and Ors., AIR 1975 SC 207
Sidramappa v. Rajashetty and Ors. [1970]3SCR319
Gurbux Singh v. Bhoora Lal AIR 1964 SC 1810
Narashatti Kenpanna v. Narasappa, AIR 1989 Kant 50
Deva Ram v. Ishwar Chand, AIR 1996 SC 378

11
11
11
11
11
12
12
12
12
12
13
13
13
13
14
15
15
15
15
16

Books & Commentaries

1. Sarkar S C, Code of Civil Procedure, Lexis Nexis, ButterworthsWadhva,Gurgaon, 2006,
21st Ed.
2. Dr. Singh Avtar,Code of Civil Procedure ,Central Law Publications, Allahabad, 2012,
3stEd.
3. ChakravertiSurajan, Code of Civil Procedure, EBC Publishers, Lakhnow,2011, 5th Ed.

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Acts & Statues

Code of Civil Procedure, 1908
Internet Sites
1. www.manupatra.com
2. www.westlaw.com

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LIST OF ABBREVIATIONS

&

And

A.I.R.

All India Reporter

Honble

Honorable

Sec

Section

V.

Versus

Rs.

Rupees

No.

Number

CPC

Code of Civil Procedure

Order

Rule

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STATEMENT OF JURISDICTION

The Petitioner in the present case has approached the Honble High Court of Jharkhand under
Sec.1151 of the Code of Civil Procedure.
The Defendant respectfully submits to this jurisdiction invoked by the Petitioner.

1 Revision- (1) The High Court may call for the record of any case which has been decide by any court subordinate
to such High Court and in which no appeal lies thereto, and if such subordinate court appears
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make
such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an
issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party
applying for revision, would have finally disposed of the suit or other proceedings.(2) The High Court shall not,
under this section vary or reverse any decree or order against which an appeal lies either to the High Court or to any
court subordinate thereto.
(3) A revision shall not operate as a stay of suitor other proceeding before the Court except where such suit or other
proceeding is stayed by the High Court.

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STATEMENT OF FACTS
I
Prateek Malviya owns an ancestral house in Dhanbad. In October 2000 he moved to Ranchi for
establishing his clothing business. Shifting his base from Dhanbad to Ranchi, made him to give
his ancestral house on rent. He gave his double storied ancestral house at Dhanbad on rent to
Raja Ram at the rate of Rs.500 per month.
II
In January 2012 Prateek realized that amount of rent was not as per current market price and
therefore he asked Raja Ram to enhance the rent from Rs. 500 to Rs 1000. But despite his
request Rajaram paid little heed, he denied to pay the increased amount. After repeated requests
he did not agree to pay any extra money for rent. The denial of the payment of increased rent by
Raja ram caused Prateek to file one case at court of small causes at Dhanbad in July 2012
relating to rate of rent which he claimed to be Rs 1000 per month instead of Rs. 500.
III
In September 2015 the small causes court decided that rate of rent would remain Rs. 500 per
month. After that Raja Ram stopped paying any rent to Prateek. Being frustrated with the
decision of the court, Prateek filed another suit at July 2015 as per advice of his friends at
Dhanbad Civil Judge Junior Division for ejectment suit against Raja Ram with due rent from
September 2012 at the rate of Rs 1000 per month. At august 2015 Civil Judge passed judgment
the in favor of Prateek and passed an order to Raja Ram to pay the due amount with cost. Raja
Ram filed one revision petition before the Jharkhand High Court about validity of order of
Dhanbad court.

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STATEMENT OF ISSUES

Issue 1: Whether the present suit is maintainable under Section 115 of Code of Civil
Procedure, 1908?
Issue 2: Whether the appellant can claim bar on the institution of a suit by respondent
under Order2, Rule2 of CPC or not?

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SUMMARY OF ARGUMENTS

Issue 1: Whether the present suit is maintainable under Section 115 of Code of Civil
Procedure, 1908?
It is humbly contended before the honble court that the present petition is not maintainable
under Sec. 115 of the Code of Civil Procedure, 1908. The petitioner filed a revision suit which is
only enforceable if their lies no appeal. In the present case the case moved from small cause
court to the junior division court and from there direct to the High Court which is not the correct
order and that appeal lies in the present situation.
Issue 2: Whether the appellant can claim bar on the institution of a suit by respondent
under Order2, Rule2 of CPC or not?
It is humbly contended before this honble Court that appellant cannot claim bar on the
institution of a suit by respondent under Order 2, Rule 2 because there are no facts and
circumstances covered under the essentials of Order 2 Rule 2 of CPC.

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ARGUMENTS ADVANCED

Issue 1: Whether the present suit is maintainable under Section 115 of Code of Civil
Procedure, 1908?
It is most humbly submitted before the honble court that the present suit is not maintainable
under Sec. 115 of the Code of Civil Procedure, 1908.
Section 115 (1) of the Civil Procedure Code empowers the High Court to call for the record of
any case which has been decided by any Court subordinate to it and in which no appeal lies to it.
It can interfere with the Order of the subordinate Court upon happening of either of the three
conditions2
(a) If the subordinate Court appears to have exercised the jurisdiction not vested in it by law or
(b) To have failed to exercise the jurisdiction so vested or
(c) To have acted in the exercise of its jurisdiction legally or with material illegality
The proviso to Subsection (1) of Section 115 puts a restriction on the power of the High Court
inasmuch as the High Court shall not, under this section vary or reverse any Order made or any
Order deciding a issue, in course of a suit or other proceedings except where the Order made
would have finally, disposed of the suit or other proceedings. By way of illustration it may be
stated that if a Trial Court holds by an interlocutory Order that it has no jurisdiction to proceed

Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat AIR 1970 SC 1; Sri Rathnavarmaraja v. Smt.
Vimla AIR 1961 SC 1299

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the case or that suit is barred by limitation, it would amount to finally, deciding the case and such
Order would be revisable.3
SubSection (2) limits the power of the High Court to vary or reverse any decree or Order against
which an appeal has been provided either to the High Court or any subordinate Court. The
purpose behind Section 115 of the Code is to provide means to an aggrieved party to obtain
ratification of a non appealable Order.4
The revisional jurisdiction of the High Court can be invoked in respect of any case in which no
appeal lies to the High Court.5 The word appeal includes first appeal as well as second appeal.
Therefore, where an appeal lies to the High Court either directly or indirectly, revision under
Section 115 does not lie. On the other hand, where no first or second appeal lies to the High
Court, the revision is competent.
3

Prem Bakshi v. Dharam Dev AIR 2002 SC 559; Twentieth Century Fox Film Corporation v. NRI Film Production
Associates (P) Ltd. AIR 2003 Kant 148.

State of Bihar (now Jharkhand) v. Mijaj International, AIR 2004 Jhar 29.

Manick Chandra v. Debdas Nandy, (1986) 1 SCC 512: AIR 1986 SC 446

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As has been rightly observed by the Supreme Court in the case of Major S.S. Khanna v. Brig.
F.J. Dillon6, If an appeal lies against the adjudication directly to the High Court, or to another
court from the decision of which an appeal lies to the High Court, it has no power to exercise its
revisional jurisdiction, but where the decision itself is not appealable to the High Court directly
or indirectly, exercise of the revisional jurisdiction by the High Court would not be deemed
excluded.

Under Section 115 (2), Code of Civil Procedure, the High Court is debarred from varying or
reversing any decree or Order against which an appeal lies either to the High Court or to any
Court subordinate to it (Reserve Bank of India Employees Association v. The Reserve Bank of
India).7 A revision can be entertained only if the Order is not appealable.8

AIR (1964) SC 497: (1964) 4 SCR 409

7

AIR 1981 AP 246

8

Mitthulal v. Badri Prasad AIR 1981 MP 1.

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The provisions of Section 115 Code of Civil Procedure are clear enough that where an Order is
not appealable and that Order came to be passed by a subordinate Court without jurisdiction or in
excess of jurisdiction or with material irregularity, the Order is revisable by this Court.

AMENDMENT, 1976
Prior to the amendment of Code of Civil Procedure by way of amending Act of 1976 the Apex
court in Smt. Vidyawati v. Devidas9, has held that under Section 115 of the Code of Civil
Procedure a revision can lie before the High Court from an Order made by a subordinate Court in
which no appeal lies from that Order to the High Court. But after the amendment of 1976,
Section 115 has been radically amended and a new provision i.e. Subclause (2) has been enacted
which specifically bars the hearing of revision against an Order which is either appealable before
the lower Court or before the High Court.10 The interpretation of the Supreme Court in Smt.
Vidyawatis case, thus are of no help in view of 1976 amendment.

AIR 1977 SC 397

10

Lala Lalsingh v. Seth Shobhagchand AIR 1986 MP 140.

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The effect of the amendment is that power of the High Court to vary or reverse any decree or
order under Section 115 is barred where an appeal lies either to the High Court or to any court
subordinate to the High Court.11
REVISION IF COULD BE TREATED AS APPEAL.
Revisional jurisdiction is only a part of the Appellate jurisdiction and cannot be equated with that
of a fully fledged appeal.12 A revision cannot be treated as an appeal because doing so would
render the provisions of Subsection (2) of Section 115 of the Code of Civil Procedure nugatory.13
A right of appeal is a vested right and an appeal is a continuation or a rehearing of the suit.
The limits of revisional jurisdiction are prescribed and its boundaries defined by Section 115 of
the Code of Civil Procedure. Under that section revisional jurisdiction is to be exercised by the
High Court in a case in which no appeal lies to it from the decision of a subordinate Court if it
11

Murari Kumar Saraf v. Sri Jagannath Shaw; AIR 1994 Cal 205

12

Smt. Rajbir Kaur v. S. Chokesiri and Co, AIR 1988 SC 1845;

13

Rajiv Kumar Sharma v. Smt. Bimla Rani Aggarwal 1984 Rev LR 350

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appears to it that the subordinate Court has exercised a jurisdiction not vested in it by law or has
failed to exercise a jurisdiction vested in it by law or has acted in the exercise of its jurisdiction
illegally or with material irregularity. The exercise of revisional jurisdiction is thus confined to
questions of jurisdiction.
While in a first appeal the Court is free to decide all questions of law and fact which arise in the
case, in the exercise of its revisional jurisdiction the High Court is not entitled to reexamine or
reassess the evidence on record and substitute its own findings on facts for those of the
subordinate Court.14
To invoke the jurisdiction of the High Court under Section 115(1) of Code of Civil Procedure
any of the three contingencies are required to be fulfilled15 namely
(i)

the subordinate Court appears to have exercised a jurisdiction not vested in it by law

(ii)
(iii)

or
the subordinate Court appears to have failed to exercise a jurisdiction so vested or
The subordinate Court have acted in exercise of its jurisdiction illegally or with
material irregularity.

Thus it is apparent that the jurisdiction of the High Court is a limited one and it can interfere with
an Order of a subordinate Court only if question of jurisdiction is involved therein or there is
some illegality and material irregularity in the exercise of jurisdiction.16

14

Manick Chandra Nandy v. Debdas Nandy: AIR 1986 SC 446.

15

Ghashita v. Brahmavati, : AIR 1979 All 299.

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The powers of High Court under Section 115 are discretionary and even if the conditions
mentioned in the section are fulfilled High Court is not obliged to exercise revisional power.17
It cannot also interfere with an Order because an erroneous view on a question of law has been
taken by the subordinate Court, unless the jurisdiction itself is exercised illegally or with material
irregularity.18

16

Dullan Prasad v. Smt. Rajeshwari Bibi : AIR 1977 All 151

17

Ibid (S.S. Khanna v. Brig. Dhillon)

18

Hindustan Aeronautics Ltd. v. Ajit: AIR 1973 SC 76.

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Issue 2: Whether the appellant can claim bar on the institution of a suit by respondent
under Order2, Rule2 of CPC or not?
It is humbly contended before the Honble court that suit is not barred by the provisions of
Order2, Rule2 of CPC.
Order2, Rule2 of CPC: (1) Every suit shall include the whole of the claim which the plaintiff is
entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his
claim in order to bring the suit within the jurisdiction of any court.
(2) Where a plaintiff omits to sue in respect of or, intentionally relinquishes, any portion of his
claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) A person entitled to more than one relief in respect of the same cause of action may sue for all
or any of such reliefs, but if hi omits, except with the leave of the court, to sue for all such
reliefs, he shall not afterwards sue for any relief so omitted.
A bare perusal of the above provisions indicates that if a plaintiff is entitled to several reliefs
against the defendant in respect of the same cause of action, he cannot split up the claim so as to
omit one part of the claim and sue for the other. If the cause of action is the same, the plaintiff
has to place all his claims before the court in one suit as Order 2 Rule 2 is based on the cardinal
principle that the defendant should not be vexed twice for the same cause. In the case of Ramlal
and Anr. v. Hariram, 19 the court discussed the jurisprudence of Order 2, Rule 2 which works on
the basis of principles of Res Judicata. The doctrine of Res Judicata is based on the three
maxims:
(1) nemo debet bis vaxari pro una et eadem causa (no man should be vexed twice for the same
cause of action);
19

Ramlal and Anr. v. Hariram, AIR 1959 Raj 95

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(2) interest republicae ut sit finis litium (it is in the interest of the state that there should be an
end to a litigation ie. itprevents a plaintiff from splitting of claims and remedies based on the
same cause of action);
(3)re judicata pro veritate occipitur (a judicial decision must be accepted as correct ie. there
should be no jurisdictional , factual or legal error in the judgment or decree).
What the rule, therefore, requires is the unity of all claims based on the same cause of action in
one suit. It does not contemplate unity of distinct and separate causes of action. If, therefore, the
subsequent suit is based on a different cause of action, the rule will not operate as a bar.20 In the
case of Sidramappa v. Rajashetty and Ors.21, it was laid down that if the cause of action on the
basis of which the previous suit was brought, does not form the foundation of the subsequent suit
and in the earlier suit the plaintiff could not have claimed the relief which he sought in the
subsequent suit, the latter namely, the subsequent suit, will not be barred by the rule contained in
Order II Rule 2, CPC.
Also in the case of Gurbux Singh v. Bhoora Lal22, the Court held that in order that a plea of a bar
under Order 2 Rule 2(3), Civil Procedure Code should succeed the party who raises the plea
must make out that (1) the subsequent suit was in respect of the same cause of action as that on
which the previous suit was based; (2) that in respect of that cause of action the plaintiff was
20

Arun Lal Gupta v. Mriganka Mohan Sur and Ors., AIR 1975 SC 207
21

Sidramappa v. Rajashetty and Ors. [1970]3SCR319

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entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff,
without leave obtained from the Court, omitted to sue for the relief for which the second suit had
been filed. From this analysis, it was seen by the court in the aforementioned case that the party
raising the plea of bar under this provision would have to establish primarily and to start with,
the precise cause of action upon which the previous suit was filed, for unless there is identity
between the cause of action on which the earlier suit was filed and that on which the claim in the
later suit is based there would be no scope for the application of the bar.
It is also submitted before the Honble Supreme Court that a plea of bar under O 2, r 2 is a
highly technical plea. It tends to defeat justice and to deprive the party of a legitimate right.
Therefore, care must be taken that complete identity of cause of action is established. 23 In the
case of, Deva Ram v. Ishwar Chand24, on a similar facts the Supreme Court gave the ruling that
the essential requirement for the applicability of O 2, r 2, namely, the identity of cause of action
22

Gurbux Singh v. Bhoora Lal AIR 1964 SC 1810

23

Narashatti Kenpanna v. Narasappa, AIR 1989 Kant 50

24

Deva Ram v. Ishwar Chand, AIR 1996 SC 378

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in the previous suit and the subsequent suit was not established, the subsequent suit could not be
said to be barred by O 2, r 2.
In the present case what is to be seen is whether the cause of action on the basis of which the
previous suit was filed, is identical to the cause of action on which the subsequent suit giving rise
to the present appeal, was filed. If the identity of causes of action is established, the rule
immediately becomes applicable and it is held that since the relief claimed in the subsequent suit
was omitted to be claimed in the earlier suit, without the leave of the court in which the previous
suit was originally filed, the subsequent suit for possession could not be said to be barred by O 2,
r 2.
In the instant matter, the previous suit was filed for revision of the rent to be paid by Raja Ram,
which was dismissed by the court. At the later stage, a subsequent suit was brought by the
respondents for ejectment and to recover rent at the rate of Rs. 1000 per month as Raja Ram
refused to pay any further after the first suit. The cause of action in the subsequent suit was,
therefore, entirely different. Since the previous suit was for non-payment of the revised rent, and
whilst the later is on ejectment and possession of the property with rent.
Thus, in the present matter both the suits instituted in the Court of law are based on different
cause of action. The previous suit was instituted for the recovery of rent on revised rates and the
second suit was instituted for the title of the property and so the cause of action in the two suits
differed, making it impossible for the appellants to validly take the plea of bar under Order 2,
Rule 2.

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PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is humbly
requested that this Honble Court may graciously be pleased to adjudge and declare
1) That the present appeal is not maintainable;
2) That the cause of action of both the suit are different under Order 2 Rule 2
And pass any order relief in favor of the Respondents which is in conformity to the principles of
Justice, Equity and Good Conscience.
All of which is respectfully submitted
Sd/Counsel for the Respondents

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