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Kerala High Court · body

2002 DIGILAW 654 (KER)

Madhavan v. Narayana Das

2002-09-30

R.BASANT

body2002
Judgment :- As common questions of crucial importance arise for determination in these Civil Revision Petitions, I am proceeding to dispose of these Revision Petitions by this common order. 2. C.R.P.1383 of 2000 is preferred by the Petitioner-plaintiff against the order dt.17.6.2000 passed by the learned Munsiff of Chittur in I.A.1243 of 2000 in O.S.115 of 2000. By the impugned order the petition filed by the petitioner-plaintiff under Order VI Rule 17 of the code of Civil procedure for amendment of the plaint to incorporate a claim for interest from an anterior date to the date of the suit (which was not claimed originally in the suit) was dismissed by the learned Munsiff on the grounds that Order II Rule 2(2) will be offended and that the court would not have pecuniary jurisdiction if the amendment were allowed. 3. C.R.P.296 of 2001 is preferred by the petitioners-defendants aggrieved by the order dt.19.12.2000 in I.A.1118 of 2000 in O.S.95 of 1998 pending before the Munsiff's Court, Kasaragod. By the impugned order the application of the revision petitioners under order XXVI Rule 10 and Section 151 of the Code of Civil Procedure to refer back the report and plan dt.27.6.2000 submitted by the commissioner deputed by the court was dismissed on the ground that the Commissioner has already answered all the points raised by the defendants in the work memo. These Civil Revision Petitions filed under Section 115 of the Code of Civil Procedure have been admitted long prior to 1.7.2002, the date on which the 1999 and 2002 amendments to the Code of Civil Procedure were brought into force. 4. I have heard the learned counsel for the revision petitioners and the respondents. As identical questions of importance were raised, the counsel appearing in some other Revision Petitions where also identical questions do arise for consideration were also permitted to assist the court. 5. The following points arise for determination in these Civil Revision Petitions. (1) Whether these Revision Petitions are maintainable in view of the amended proviso to Section 115(1) of the code of Civil Procedure. (2) Whether the amendment to Section 115 of the Code of Civil Procedure brought into force with effect from 1.7.2002 govern these Revision Petitions which were admitted long prior to 1.7.2002. The points. 6. (1) Whether these Revision Petitions are maintainable in view of the amended proviso to Section 115(1) of the code of Civil Procedure. (2) Whether the amendment to Section 115 of the Code of Civil Procedure brought into force with effect from 1.7.2002 govern these Revision Petitions which were admitted long prior to 1.7.2002. The points. 6. As the play of the 1999 and 2002 amendments to the Code of Civil Procedure falls for consideration, it will be apposite for this court to first of all advert to the salutary purpose of the said amendments. 7. The unreasonable and scandalous delay in the judicial process has been attracting the attention of the elite polity and the legislature for a long period of time. Experts in law as well as the elite are unanimous that the law's delays have to be reduced and cut down. Experiments to achieve this object have been undertaken from time to time. A reading of the Parliamentary debates on the 1999 and 2002 amendments must drive home the concerns, which impelled the legislature to undertake such an exercise of drastic amendments to the Code. 8. We are in these Revisions concerned with the amendment to Section 115 of the Code of Civil Procedure. It is well known that frequent challenge raised against interlocutory orders passed in the course of suits/other proceedings is a major cause contributing to the delay in the judicial process. The legislature had addressed itself to this concern in the amendments to the Code of Criminal Procedure in 1973 as also in the present amendments to the Code of Civil Procedure. Challenge against interlocutory orders is identified as one of the major causes for holding up proceedings before courts. When the code of Criminal procedure was amended, a specific provision was incorporated in Section 397(2) barring invocation of the revisional powers against interlocutory orders. Interlocutory orders were not defined in the amended Code of Criminal procedure. This led to a number of disputes and ultimately it is now settled that all non-final orders are not interlocutory orders to be beyond the sweep of the revisional jurisdiction of the Courts of Session and the High Court. Between the categories of interlocutory orders pure and simple and final orders stricto sensu lie a class of orders which can be termed as quasi final or intermediate orders. Between the categories of interlocutory orders pure and simple and final orders stricto sensu lie a class of orders which can be termed as quasi final or intermediate orders. The Hon'ble Supreme Court has settled the controversy and has held that such intermediate/quasi final orders are revisable notwithstanding the bar under Section 397(2) of the Criminal Procedure Code they being not interlocutory orders. Decisions of moment affecting the rights of parties substantially cannot be reckoned as interlocutory orders so as to be beyond the revisional jurisdiction of the superior courts, it is now trite. The argument that orders in which a decision in favour of the aggrieved party would have finally disposed of the proceedings alone would be interlocutory orders under Section 397(2) was not accepted by the highest court while interpreting Section 397(2) of the Code of Criminal Procedure. One must take note of the fact that the same legislature with such past experience has now chosen to bring about amendments to Section 115 of the Code of Civil Procedure to achieve the cherised objective of eliminating/avoiding challenge against interlocutory orders during the pendency of suits/other proceedings in which such orders are passed. 9. The amended proviso to Section 115(1) does not make use of the word "interlocutory" at all. The proviso which stood earlier was repealed and a new proviso was introduced. It is significant that there is no vital differences between the proviso as it exists now and clause (a) of the proviso as it stood prior to the amendment. Inspite of that, the Legislature wanted the former proviso to be deleted entirely and the present proviso which incorporates clause (a) of the previous proviso alone to be introduced afresh. 10. The Legislature could easily have deleted "(a) or (b) the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made" from the former proviso. The Legislature did not, choose to resort to such deletion alone. They chose to delete the existing proviso and introduce a fresh proviso. It must be assumed that compelling reasons were there to resort to this exercise. They were not evidently intending to tinker with an existing provision. Advisedly a new proviso was being introduced. The Legislature did not, choose to resort to such deletion alone. They chose to delete the existing proviso and introduce a fresh proviso. It must be assumed that compelling reasons were there to resort to this exercise. They were not evidently intending to tinker with an existing provision. Advisedly a new proviso was being introduced. The legislature with its wealth of experience in the attempt to restrict revisional powers, gained particularly from the experience in amending the code of Criminal Procedure, was attempting to introduce a stipulation which would effectively bar revisional challenge against interlocutory orders in the widest sense. The legislature did not want to leave anything to chance and the conclusion appears to be inescapable that the legislature was drawing on its experience gained from the amendment of the code of Criminal Procedure to ensure that only final orders stricto sensu will be subject to the revisional jurisdiction of the High Court under Section 115 of the code of civil Procedure after amendment. 11. The amendment brought about to Section 115(3) also must convey to the court eloquently the anxiety of the Legislature to prevent the delay in the judicial process on account of admission of revision petitions. Under the Indian law it is trite that mere pendency of proceedings before superior courts challenging the orders of subordinate courts would not operate as stay of the impugned orders or stay of the proceedings before the lower courts. But inspite of that the Legislature wanted to restate that well established principle in Section 115(3). The intention appears to me to be obvious. 12. It follows that no revision would lie unless the order sought to be revised, if it has been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. Borrowing terminology from the precedents laid down under Section 397(2) of the code of Criminal Procedure, not only interlocutory orders but also intermediate orders are not amenable to revisional correction under the amended Section 115 of the Code of Civil Procedure. All available indications compellingly point to that conclusion- that only final orders stricto sensu will be revisable. 13. It is argued that if this interpretation were accepted, the amendments would become counter productive. Instead of reducing law's delays it would only contribute to further protraction, it is contended. All available indications compellingly point to that conclusion- that only final orders stricto sensu will be revisable. 13. It is argued that if this interpretation were accepted, the amendments would become counter productive. Instead of reducing law's delays it would only contribute to further protraction, it is contended. The effect would be to bar interference with the orders of subordinate courts even in cases of serious injustice resulting from an interlocutory order. It is contended that an order of the trial court refusing a n amendment of pleadings even where the amendment was sought because of intervening events or to rectify a bonafide mistake or to remedy the unintentional omission to implead a party or unintentional omission to take a plea in defence that is left out would all cease to be revisable. It is further submitted that an order rejecting a document as inadmissible would also cease to be revisable even though the document may be very material. Such order can possibly be made a ground of attack in appeal against the ultimate decree but the lapse of time would itself cause serious injustice, it is contended. 14. I am of opinion that these arguments have to be advanced before the Legislature and not before the court which is called upon only to interpret an amended statutory provision. It is not open to this court to doubt the wisdom of the Legislature, which advisedly brought about the amendment in clear and unambiguous language. The Legislature had with sufficient forethought taken away the revisional jurisdiction of the High Court against orders of subordinate courts which "if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made". It was transparently evident that the Legislature did not want to leave with the High Court any jurisdiction in Revision to interfere with no final orders which if allowed to stand would even occasion a failure of justice or cause irreparable injury to a party. 15. While interpreting the amended provisions, the court is bound to take note of the nature of the amendment brought about and the circumstances, which persuaded the legislature to bring about such amendment. 15. While interpreting the amended provisions, the court is bound to take note of the nature of the amendment brought about and the circumstances, which persuaded the legislature to bring about such amendment. Viewed from this angle, I find no merit whatsoever in the argument that the interpretation accepted by this court would lead to failure of justice and irreparable injury to the party aggrieved by the non final order. 16. It is urged that the words "other proceedings" appearing twice in the amended proviso to Section 115(1) in the expression "suit or other proceedings" must be expanded to include interlocutory proceedings also. In that view of the matter the orders impugned are final orders in such interlocutory proceedings and would hence be revisable ,it is contended. I am afraid I am unable to agree. Such introduction of the words "interlocutory" in front of the word "proceeding" in the proviso would defeat the very purpose of the proviso. If such a construction were accepted it would be impossible to locate any order to which the bar under the proviso would apply. That contention is nothing but cavil. 17. The argument that the expression "any case which has been decided" appearing in Section 115(1)"as clarified in the Explanation at the foot of Section 115 and as explained in some binding and persuasive precedents, must persuade this court to water down the apparent rigour of the amended proviso to Section 115(1) cannot obviously be accepted. The prohibition in the amended proviso does not permit this court to accept such a course. The width and the amplitude of the expression any case which has been decided must now be appreciated and understood in the light of the very specific prohibition introduced by the amended proviso. 18. The argument that there will be no orders left for exercise of revisional jurisdiction if such a restricted construction is accepted does not also appeal to me at all. Instances are legion and it is not necessary for me to enumerate them here, where this court will have to invoke the revisional powers subject to the mandate of the amended proviso. 19. Instances are legion and it is not necessary for me to enumerate them here, where this court will have to invoke the revisional powers subject to the mandate of the amended proviso. 19. It follows from the above discussions that an order will not be revisable under the amended Section 115 unless such order if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings in which such order is passed. The plain reading of the amended statutory provision cannot lead to any other conclusion. The circumstances under which the amendment is brought about cannot also persuade this court to take any other view. 20. It is not disputed that the orders, which are sought to be revised in these Revision Petitions, even if the decisions were taken in favour of the revision petitioners, would not finally terminate the suits in question. The bar of the proviso to Section 115(1) therefore squarely applies to the instant cases. 21. The next question is whether the amendment would apply to pending proceedings. It is very evident that both these revisions were preferred and admitted long prior to 1.7.2002, the date on which the amendments came into effect. It is unnecessary to advert to precedents. No party has a right to prefer a Revision Petition unlike the right to prefer an appeal. The decision reported in Garikapathy v. Subbaiah Chowdhary (AIR 1957 SC 540) can apply only to a party who has a right of appeal. Even a right of appeal, it is trite, can be taken away by a subsequent enactment. 22. The 1999 amendment Act under which the proviso to Section 115 was amended deals with repeal and savings in Section 32 in Chapter IV of the Amendment Act. Section 115 of the Code of Civil Procedure is amended by Section 12 of the Amendment Act. Section 32(i) stipulates. "The provisions of Section 115 of the principal Act asamended by Section 12 of this Act shall not apply to or affect any proceeding for Revision which had been finally disposed of". 23. It is very evident from the language of Section 32(i) of the Amendment Act that the amendment shall apply to and affect all proceedings for revision, which had not been finally disposed of lufuse 1.7.2002. 23. It is very evident from the language of Section 32(i) of the Amendment Act that the amendment shall apply to and affect all proceedings for revision, which had not been finally disposed of lufuse 1.7.2002. These revisions belong to that category of revision petitions which have not been finally disposed of prior to the date of the amendment (1.7.2002). The language of Section 32(i) makes it crystal clear beyond controversy that the amended Section 115 of the code of Civil Procedure will apply to pending proceedings for Revision which have not been finally disposed of prior to 1.7.2002. 24. If there be any doubt still on this aspect, reference to Section 32(g) and (h) and other sub-sections of section 32 is sufficient to remove such doubt. In respect of the amended Section 100A and 102 of the Code of Civil Procedure it is made clear that the amendment shall not apply to or affect any appeal which had been admitted before the commencement of the amended provision and every such admitted appeal shall be disposed of as if the amendment has not come into force. Such stipulation is significantly absent in Section 32(i). The difference in the language employed in Section 32(i) is eloquent. 25. On the basis of the above discussions I come to the conclusion that Section 115 as amended will apply to all revision petitions pending on 1.7.2002 even though they were admitted prior to the amendment. 26. It follows from the above discussions that both these Revision Petitions are not maintainable and are barred by the proviso to Section 115(1), they being interlocutory orders which even if made in favour of the revision petitioners would not finally dispose of the suits in question. These revision petitions are hence not maintainable and impugned orders are not liable to be revised. 27. In the view which I have taken in interpreting the amended proviso to Section 115(1), it is not necessary for me to advert to the contention raised in C.R.P.296 of 2001 that the said revision petition is not maintainable even under the unamended Act in the light of the dictum in Kanaran Nair v. Madhavan Nair (1996(1) K.L.T.162) and Mahamood v. Ali Hajee (1999(3) K.L.T.220)- both rendered by Division Benches. 28. In the result a)These Revision Petitions are dismissed. b)The parties are directed to suffer their respective costs.