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1988 DIGILAW 115 (MP)

Saieda Bi wd/o Zahoor Khan v. Abdul Khalique

1988-06-22

K.L.SHRIVASTAVA

body1988
ORDER : K.L. Shrivastava, J. 1. This revision petition under Section 115 of the Civil Procedure Code, 1908 (for short 'the Code') is directed against the order dated 2-3-1988 passed by the Vth Additional Judge to the District Judge, Indore dismissing the Miscellaneous Appeal (No. 17/87) preferred by the petitioner against the order dated 4-5-1987 passed by the Civil Judge, Class II, Indore in Civil Suit No. 10-A of 1987 dismissing her application for temporary injunction. 2. The point for consideration is whether the revision petition is tenable. Section 115of the Code has been substituted by Section 4 of the Civil Procedure Code (M.P. Amendment) Act, 1984 (No. 29 of 1984) which came into force on 14-8-1984. The relevant provision of the section together with its first proviso as introduced by the said amendment investing the Courts with the discretionary revisional jurisdiction to interfere with jurisdictional errors of sub-ordinate Courts is in these words:-- 115. Revision -- The High Court in cases arising out of or original 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, may make such order in the case as it thinks 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. 3. The contention of the learned counsel for the petitioner is that orders passed in appeal must be construed as orders passed in 'other proceedings' and the impugned order is amenable to the revisional jurisdiction of the High Court. 3. The contention of the learned counsel for the petitioner is that orders passed in appeal must be construed as orders passed in 'other proceedings' and the impugned order is amenable to the revisional jurisdiction of the High Court. He placed reliance on the decision in Govindram vs. Smt. Jhimibai, 1988 JLJ 235 , in which distinguishing the Full Bench decision in Ramchandra's case, 1986 MPLJ 406 , it has been held that the order of withdrawal of appeal arises out of other proceedings of any valuation within the meaning of the expression as used in the proviso. 4. In the aforesaid decision in Govindram's case the impugned order was one passed by the District Judge allowing the withdrawal of an appeal pending before him. The learned Single Judge has held that the order passed by the District Judge must be held to have been passed in 'other proceedings' and in view of the first proviso to Section 115 of the Code it was amenable to the revisional jurisdiction of the High Court. In this decision the decisions in Sri Vishnu Autar's case and Jagman's case referred to below have not been referred to. 5. With reference to the decision in Vishnu Autar's case, AIR 1980 SC 1575 , it may be pointed out that the expression 'other proceedings' occurring in the proviso has to be construed ejusdem generis and it contemplates proceedings of original nature like arbitration proceedings and appeals do not fall within its ambit as held in the decision w Jagman's case, 1985 JLJ 319 , which has been relied on in the Division Bench decision in Pir Bux's case, 1986 MPLJ 720 : 1986 CCLJ 36. In Jagman's case the expression in any other case' used in Section 115 of the Code with reference to tile District Court has also been interpreted. In Govindram's case (supra) it has been pointed out that the general rule that appeal is continuation of suit is nor applicable to section 2(1) of the Limitation Act. 6. From the provision embodied in Section 115 it is clear that the High Court has revisory powers only in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above. The entire residuary area belongs to the District Judge. Another test of revisional jurisdiction for the High Court is to see whether the first proviso applies. 7. The entire residuary area belongs to the District Judge. Another test of revisional jurisdiction for the High Court is to see whether the first proviso applies. 7. For a proper construction of the provision in Section 115 and its first proviso, the following excerpts respectively from paragraphs 10,12 and 13 in the decision in Sri Vishnu Autar's case (supra) are apposite:-- Schematically, we are satisfied that decisions of District Courts rendered in appeal or revision are beyond revision by the High Court, if the suit is of less than Rs. 20,000/-. But an exception has been engrafted by the first proviso to section 3 to the effect that where an original decision has been made by a District Court the High Court's appellate or revisional power will come into play. That is as it should be, for an appeal or revision almost universal. But otherwise: the District Court's decision is immune to revisional probe by the High Court. 8. Precedentially, the result is no different as the Full Bench of the High Court has been at pains to make out. Purposively speaking, it will be stultifying to interpret Section 3 to mean that orders in appeal by District Court must suffer a distant journey to revisory justice from the High Court Thus we reach the convergent conclusion of "no revision to the High Court", viewing the text of Section 3, lexically, literally, schematically and in the setting of special justice of which saving the average litigant from the intoxication of tantalizing litigation is a component. 9. The short test to refuse revisory jurisdiction to the High Court is to ascertain whether the decision sought to be challenged is in a case arising out of a suit of the valuation of Rs. 20,000/- and more, if the answer is 'yes' then the High Court has revisory power, but if the suit from which the case arises and in which the decision is made is one where the valuation is less than rupees 20,000/- then the litigation cannot travel beyond the District Court except in that class of cases where the decision is taken for the first time by the District Court itself in a case arising out of an original proceedings. 10. The excerpts are in connection with a practically identical provision in the U.P. Amendment Act 9. 11. 10. The excerpts are in connection with a practically identical provision in the U.P. Amendment Act 9. 11. In paragraph 8 of the decision in Sri Vishnu Autar's case (supra) it has been held mat the High Court has no revisional power under section 115 unless the case arises out of an original suit or other proceedings: i.e. other original proceedings decided by the District Court or where the case arises from a suit of and above rupees twenty thousand in value. In the decision in Govindram's case (supra) the original suit was no doubt not with the District Judge but the impugned order though passed by him in appeal was certainly not an appellate order dealing with the lower Court's decision but was an original order amounting to a case decided by him and in my view, therefore, within the coverage of the proviso. 12. In the instant case the impugned order is one passed in exercise of appellate jurisdiction and decides the appeal and, therefore, it cannot travel beyond the District Court. 13. As a result of the foregoing discussion I find that the revision petition is not maintainable and is, consequently, summarily dismissed.