GAYAPRASAD v. DEEPCHAND — 1984 DIGILAW 700 (MP)

JUDGMENT : ( 1. ) THE following question has been referred to this Bench for decision: "whether in case of an order passed in an original suit or other proceedings of the value of less than Rs. 20,000/- before 14-8-1984 by any of the Courts of Subordinate judges, i. e. , other than the Court of the District Judge, a revision petition under section 115 of the Code of Civil Procedure can lie to the High Court after 14-8-1984 or whether the District Judges concerned have exclusive jurisdiction to entertain such revision petition?" ( 2. ) IT is in the following manner that the above question has been referred. 2. 01. By the Code of Civil Procedure (Madhya Pradesh Amendment) Act, 1984, m. P. Act No. 29 of 1984 (for short hereinafter called the Act) which came into force with effect from 14th August 1984, Section 115 of the Code of Civil Procedure, 1908 (V of 1908) (for short, hereinafter referred to as the Principal Act has been amended and substituted by the following section : "4. For section 115 of the Principal Act, the following section shall be substituted, nemely: -"115. For section 115 of the Principal Act, the following section shall be substituted, nemely: -"115. The High Court, in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above, and the district Judge in any other case may call for the record of any case which has been decided by any court subordinate to such High Court or District Judge, as the case may be, 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 or the District Judge, as the case may be, make such order in the case as it think fit: provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Judge, the High Court alone shall be competent to make an order under this section : provided further that the High Court or the District Judge shall not, under this section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceedings, except where, - (i) The order, if so varied or reversed, would finally dispose of the suit or other proceeding; (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom if was made. Explanation - In this section, the expression "any case which has been decided" includes any order deciding an issue in the course of a suit or other proceeding. " 2. 02. On reading the fore-extracted amended section 115 of the Principal Act, it is evident that only in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above revisions are maintainable under this section before the High Court. To put it differently, the revisions arising out of suits or other proceedings which are of the valuation below twenty thousand rupees, would not lie before the High Court. To put it differently, the revisions arising out of suits or other proceedings which are of the valuation below twenty thousand rupees, would not lie before the High Court. In the unamended section of the Principal Act, the revisional jurisdiction of the High Court was not circumscribed by the valuation of the suit or other proceedings out of which the revisions arose. 2. 03. In the present revisions, which arise out of the suits instituted prior to the amendment in section 115 of the Principal Act and were filed on or after 14-8-1984, it was contended on behalf of the applicants that the amendment does not take away the jurisdiction of this Court in respect of such revisions. This contention was based on the submission that the right of revision is nothing short of the right of appeal and is, as such, a substantive right and, therefore, the amendment cannot be given a retrospective effect to curtail or take away that right. Therefore, the learned Single Judge, this being a question of general importance, referred the above question. 2. 04. On the analysis of the question, two points are required to be determined, viz. , (j) whether a revision lies against an order passed before 14-8-1984 in an original suit or other proceedings of the value of less than Rs. 20,000/- by any of the Courts of the subordinate Judges, i. e. , other than the court of the District Judge, after 14-8-1984 to the high Court, and whether a revision lies against an order pased after 14-8-1984 in an original suit or other proceedings of the value of less than Rs. 20,000/- by any of the courts of the Subordinate Judges, i. e. , other than the Court of the District Judge to the High Court. 2. 05. The answers to these questions depend on the determination whether there is a vested right of revision which can be equated with the right of appeal, which is a vested right. 2. 06. It is a settled law that the right of appeal is a vested right which vests in a suit or at the time of institution of the original proceedings. Therefore, any change in the law relating to appeals, after the institution of the original proceedings, which adversely affects this vested right, does not have the retrospective effect unless a clear intention to that effect is manifest. Therefore, any change in the law relating to appeals, after the institution of the original proceedings, which adversely affects this vested right, does not have the retrospective effect unless a clear intention to that effect is manifest. If any authority is needed on this point, the basic case is garikapati Veerava v. N. Subbiah Choudhry and others (AIR 1957 S. C. 540), where, on the survey of the verious authorities, it has been held : " (i) The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding; (ii) the right of appeal is not a mere matter of procedure but is a substantive right; (iii) the institution of the suit carries with it the implication that all the rights of appeal then in force are preserved to the parties thereto till the rest of the carrier of the suit; (iv) the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of appeal; (v) this vested right of appeal can be taken away only by subsequent enactment if it so provides expressly or by necessary intendment and not otherwise. " 2. 07. Learned counsel for the applicant Shri J. P. Sharma, relying on the decision of the Supreme Court in Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya bapat ( AIR 1970 SC. 1 ), has contended that the revisional jurisdiction, which is exercised by the High Court, is part of the general appellate jurisdiction of the High court as a superior Court and, therefore, the revision petition has to be considered to be an appropriate form of appeal from the order of the Court subordinate to it. The argument of the learned counsel is attractive and but for a deep probe about the ratio of abhyankars case (supra) one may be attracted to accept the contention of the learned counsel. The argument of the learned counsel is attractive and but for a deep probe about the ratio of abhyankars case (supra) one may be attracted to accept the contention of the learned counsel. The question for decision in Abhyankars case (supra) before the Supreme court was whether the High Court could interfere under Articles 226 and 227 of the constitution with the order of the appellate Court in proceedings under the Bombay rents, Hotel and Lodging House Rates Control Act (57 of 1947), when a petition for revision under section 115, Civil Procedure Code, against the same order had been previously dismissed by a Single Judge of that Court. While considering this question, a question arose as to whether the order of the appellate Court under the said Act merged in the order of the High Court passed in its revisional jurisdiction under section 115 of the Code in revision against that order. It is in this context that their Lordships held that the order though passed in revisional jurisdiction, is an order of the superior Court passed on the examination of the impugned order of the Tribunal and, as such, that order merges in the order of the High Court. The relevant part of the judgment is extracted herein below : -"6. Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil procedure circumscribes the limits of thai jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the high Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute: basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not, therefore, consultancy that the principle of merger of orders of inferior courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal. " irs the above view of the matter, the decision of the Supreme Court in Abhyankars case (supra) does not declare the law that the right of revision is a vested right. 2. 08. " irs the above view of the matter, the decision of the Supreme Court in Abhyankars case (supra) does not declare the law that the right of revision is a vested right. 2. 08. It cannot be gainsaid that the revisional jurisdiction conferred on the High court under S. 115 CPC is a discretionary jurisdiction. At this stage it would be useful to advert to the decision of the Supreme Court in Brij Gopal Mathur and another v. Kishan Gopal Mathur ( AIR 1973 SC 1096 ), wherein their Lordships have held : -"it has been laid down by this Court in Major S. S. Khanna v. Brig. F. J. Dillon (1964) 4 SCR 409 at p. 417 = (AIR 1964 SC497) that the exercise of the jurisdiction under S. 115, Civil Procedure Code, by the High Court is discretionary and that court is not bound to interfere merely because the conditions in clauses (a), (b) or (c) of that section are satisfied. The following observations of Shah, J. , who delivered the judgment in that case may be reproduced with advantage : -"the interlocutory character of the order, the existence of another remedy to an aggrieved party by way of an appeal from the ultimate order of decree in the proceeding or by a suit, and the general equities of the case being served by the order made are all matters to be taken into account in considering whether he High Court, even in cases where the conditions which attract the jurisdiction exist, should exercise its jurisdiction. " it follows that while exercising its discretion the High Court can take into consideration such circumstances and facts as may disentitle the petitioner in a revision petition from being granted any relief. One of such relevant considerations would be whether the order sought to be revised has occasioned a substantial failure of justice. The facts set out in the order of the high Court under appeal were sufficient for coming to the conclusion that it was not a fit case for interference in revision. We are, therefore, unable to accede to the submission of the learned counsel for the appellants that the high Court did not exercise the discretion in accordance with the well settled principles or that the exercise of discretion was such as would justify any interference. We are, therefore, unable to accede to the submission of the learned counsel for the appellants that the high Court did not exercise the discretion in accordance with the well settled principles or that the exercise of discretion was such as would justify any interference. " section 115, of course, gave a power to the High Court with a view to enable it to correct, when necessary, certain classes of errors of jurisdiction committed by the subordinate Courts; the purpose behind it being to provide a means to the aggrieved party to obtain rectification of a non-appealale order in exceptional circumstances, but not a right to the litigant which he has in an appeal. The power given under the Code to the High Court is analogous to the powers given to it of issuing a writ of certiorari. This view of ours is buttressed from the governing expression in the unamended section "the high Court may call for the record of any case which has been decided. . . " In contrast to this, the language used in sections % and 100 of the Code, which relate to appeals, are "an appeal shall lie from every decree" (S. 96) and "an appeal shall lie to the High court" (S. 100 ). 2. 09. The upshot of the foregoing discussion is that the suitor has no vested right of revision. ( 3. ) IT is a trite law that an appeal is a continuation of the suit, whereas the revision is not a continuation of the suit. It would also be significant to note here that the supreme Court has while dealing with Abhyankars case (supra) has approved a Full bench decision of the Madras High Court in P. P. P. Chidambaranadar v. C. P. A Rama nadar ( AIR 1937 Mad. 385 ), wherein, while deciding the question about the applicability of Article 182 (2) of the Limitation Act, 1908, whether the word appeal was used in a restrictive sense so as to exclude revision petitions and the expression appellate Court was to be confined to a Court exercising appellate, as opposed to, revisional powers, the Full Bench expressed the view that Article 182 (2) applied to civil revisions as well and not only to appeals in the narrow sense of that term as used in the civil Procedure Code. This goes to show that for the purpose of the Civil Procedure code - with which we are concerned in the present case - appeal and revision are two different expressions and appeal does not include revision. ( 4. ) THE essence of the above discussion is that the provision of revision contained in the Code of Civil Procedure relates to procedural law; it does not create a vested right and cannot be equated with the right of appeal. This being the position, the amended section 115 of the Code has retrospective effect, in the sense that it shall apply to all revisions after the date when it came into force, i. e. 14-8-1984. This view is in line with the decision of the Supreme Court in Memon Abdul Karim Haji Tayab, Central Cutlery stores, Veraval v. Deputy Custodian General, New Delhi and others (AIR 1964 S. C. 1256), the relevant excerpt where from is set out herein below : - "it is well settled that procedural amendments to a law apply, in the absence of anything to the contrary, retrospectively in the sense that they apply to all actions after the date they came into force even though the actions may have begun earlier or the" claim on which the action may be based may be of an anterior date. " 4. 01. The above view has also been taken in a Single Bench decision of this Court in Chironjilal Ramjibhai and Co. v. Chunarmal Motiram and Co. and Others (1976 M. P. L. J. 33), relying on the decision of the Supreme Court in Memon Abdul Karim Hajis case (supra ). 4. 02. It may be mentioned that there is nothing either in the Amending Act or in the amended section to indicate that it shall not apply to revisions arising out of original suits instituted prior to the Coming into force of the amended section. ( 5. ) THERE is another Significant point to be noted and it is this that the amended section 115 of the Code has not abolished revisions. It has only changed the forum depending upon the valuation of the original suit or proceedings. Thus, this change in law was merely a change of forum, i. e. , a change of adjectival or procedural law and not a substantive law, and such a change of law operates retrospectively. It has only changed the forum depending upon the valuation of the original suit or proceedings. Thus, this change in law was merely a change of forum, i. e. , a change of adjectival or procedural law and not a substantive law, and such a change of law operates retrospectively. This is a view settled by the Supreme Court as is obtainable from the decision of that Court in New india Insurance Co. Ltd v. Smt. Shanti Mishra (AIR 1976 S. C. 237 ). The relevant portion of the decision is set out below : - "on the plain language of section 110a and 110f there should be no difficulty in taking the view that the change in law was merely a change of forum, i. e. , a change of adjectival or procedural law and not of substantive law. It is a well established proposition that such a change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum. If by express words the new forum is made available only to causes of action, arising after the creation of the forum, then the retrospective operation of the law is taken away. Otherwise the general rule is to make it retrospective. " ( 6. ) IT may be mentioned that there could not be any debate or dispute that in case of an order passed in an original suit or other proceedings of the value of less than Rs. 20,000/- instituted after 14-8-1984, by any of the Courts of subordinate Judges, i. e. other than the Court of the District Judge, the revision will lie to the District Judge and not to the High Court. ( 7. ) IN the light of the discussion contained in the preceding paragraphs our answer to the question referred is that in case of an order passed either before 14-8-1984 or after 14-8-1984 in an original suit or other proceedings of the value of less than Rs. 20,000/-instituted before 14-8-1984, by any of the Courts of subordinate Judges, i. e. , other than the Court of the District Judge, a revision petition under section 115, as amended of the code of Civil Procedure, after 14-8-1984 shall lie to the District Judge and not to the High Court. ( 8. 20,000/-instituted before 14-8-1984, by any of the Courts of subordinate Judges, i. e. , other than the Court of the District Judge, a revision petition under section 115, as amended of the code of Civil Procedure, after 14-8-1984 shall lie to the District Judge and not to the High Court. ( 8. ) BEFORE parting with this, we may make it clear that our opinion is confined to the interpretation of amended section 115 CPC and is limited to revision petitions instituted on or after 14-8-1984. We also record our thanks to Shri R. D. Jain, Advocate, who appeared as amicus curiae and ably assisted the Court. ( 9. ) WE make no order as to costs. Order accordingly.