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2002 DIGILAW 680 (PNJ)

Shobha Sahni v. Prem Lata

2002-07-18

AMAR DUTT

body2002
Judgment Amar Dutt, J. 1. An application was moved by the plaintiff-petitioner before the Sub Judge, 1st Class, Ambala Cantt. for appointment of a Local Commissioner to record the Statement of Mohd. Akhtar or Sh. Fayez Mohd. in place of Sh. Attah Mohd. Another application was moved by the defendants for canceling the appointment of the Local Commissioner made on 14.12.1990. After detailed discussion, the trial Court vide its order dated 9.9.1993 dismissed the first application but allowed the second application. 2. Learned counsel for the respondents No.2 to 4 submitted that no relief can be granted to the petitioner in this petition on two grounds, namely, (i) amendment to proviso to Sub-Section (1) Section 115 of the Code of Civil Procedure (Amendment) Act, 1999 (in short "the Code"), which has come into force since 1.7.2002 and (ii) the judgments reported as Smt. Harvinder Kaur and another v. Godha Ram and another, 1979 P.L.J. 562 and Wazir Singh v. Union of India and others, 1987 P.L.J. 327. Prior to the amendment, the proviso to Sub-Section (1) of Section 115 of the Code read as under:- "115. Revision.- (1) The High Court may call for the record of any case which has been decided 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- (a) the order, if it had been made in favour of party applying for revision, would have finally disposed of the suit or other proceeding, 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." Now after the deletion of sub-clause (b) to proviso, this section reads as under:- "115. Revision.- (1) The High Court may call for the record of any case which has been decided 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 that 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." 3. Section 32(2)(i) of the Amendment Act makes the amendment operative qua all revisions, that are pending. Since the appointment of or refusal to appoint a Local Commissioner does not finally dispose of the suit in favour of the petitioner, the proviso would disentitle her to any relief in this petition. Even otherwise, the ratio of the judgments in Smt. Harvinder Kaurs case and Wazir Singhs case (supra) too does not justify the setting aside of the impugned order by this Court in the exercise of its revisional jurisdiction. 4. Looked from any angle, this revision fails and the same is dismissed with the observation that it shall be open to the petitioner to challenge the validity of the impugned order in appeal that he may file against the judgment and decree that may be passed in the suit as provided under Order 43 Rule 1A of the Code.