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2002 DIGILAW 869 (PNJ)

Gurbinder Pal Kaur Alias Rana v. Maan Singh

2002-09-03

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This revision petition under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) is directed against the order dated 15.9.2001 passed by the Civil Judge (Jr. Division), Malerkotla dismissing the application of the plaintiff-petitioner seeking amendment of the suit by incorporating the higher rate of compensation. In Civil Suit No. 690 dated 8.12.1994 filed by the plaintiff-petitioner, a claim of Rs. 1,000/- p.m. on account of maintenance from her father (defendant-respondent) has been made. However, on account of changed circumstances and more expenses required for continuing higher studies, the plaintiff-petitioner filed an application under Order 6 Rule 17 of the Code for amendment of her claim to Rs. 5,000/- p.m. The application has been dismissed on the ground that no amendment could be allowed on account of changed circumstances. 2. At the outset, it was pointed out to the learned counsel for the plaintiff-petitioner that such a revision petition is not now maintainable in view of the amendments which have been made effective from 1.7.2002 in the Code because it would not result into disposal of the suit even if the impugned order is set aside. Learned counsel has not been able to give any satisfactory reply to this query of the Court. Moreover, in Civil Revision No. 2829 of 2002, decided on 5.8.2002, this Court has considered the amended provisions of Sections 115 and 32 of the Code of Civil Procedure (Amendment) Act, 1999 and 2002. The view taken by this Court in the aforementioned judgment reads as under :- "The newly added proviso makes it abundantly clear that the High Court is not to exercise jurisdiction to vary and reverse any order made during the course of a suit or other proceedings unless the order is of such a nature that had it been made in favour of the revision petitioner it would have finally dispose of the suit or other proceedings. In other words, the jurisdiction of the High Court would depend on the question as to whether the order challenged by the revision petitioner is reversed, it would finally disposed of the suit. If answer to this question is yes then the High Court would be well within its jurisdiction to interfere and reverse the order passed during the course of proceedings of the civil suit. If answer to this question is yes then the High Court would be well within its jurisdiction to interfere and reverse the order passed during the course of proceedings of the civil suit. If the reversal of the order by the High Court does not result into disposal of the suit then the High Court would not have jurisdiction to entertain the revision petition. In Prem Bakshi and others v. Dharam Dev and others, AIR 2002 SC 559 it has been held that in cases where the amendments under order VI rule 17 of the Code has been allowed no revision would be competent under Section 115(1) proviso (a) of the Code as it stood before amendment of the Code. It also contemplated some of the cases where such a revision petition would be competent, namely, if the trial Court held by an interlocutory order that it had no jurisdiction to proceed with the case or that the suit is barred by limitation it would finally be deciding the case and such order would be revisable. The observations of their Lordships read as under : "In Major S.S. Khanna v. Brig. F.J. Dhillon, AIR 1964 SC 497 : 1964(4) SCR 409 this Court considered the expression "any case which has been decided" in sub-section (1) of Section 115 CPC and held that the expression case is a word of comprehensive import and includes civil proceedings other than suits and is not restricted by anything contained in the said section to the entirety of the proceeding in a civil court and to interpret the expression case as an entire proceeding only and a part of the proceedings would impose an unwarranted restriction on the exercise of powers of superintendence by the High Court. This view of the High Court has now been legislatively adopted by the Parliament by introducing the explanation to sub-section (1) of Section 115 CPC and, therefore, an interlocutory order would be revisable. There is no doubt that present order being an interlocutory order is revisable under Section 115, but for exercising powers under this Section by the High Court, the order must satisfy one of the conditions mentioned in clauses (a) and (b) of the proviso. There is no doubt that present order being an interlocutory order is revisable under Section 115, but for exercising powers under this Section by the High Court, the order must satisfy one of the conditions mentioned in clauses (a) and (b) of the proviso. The proviso to sub-section (1) of Section 115 puts a restriction on the powers 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 (i) the order made would have finally disposed of the suit or other proceedings or, (ii) the said order would occasion a failure of justice or cause irreparable injury to the party against whom it is made. Under clause (a), the High Court would be justified in interfering with an order of a subordinate court if the said order finally disposes of the suit or other proceeding. By way of illustration we may say that it a trial Court holds by an interlocutory order that it has no jurisdiction to proceed with the case or that suit is barred by limitation, it would amount to finally deciding the case and such order would be revisable. The order in question by which the amendment was allowed could not be said to have finally disposed of the case and therefore, it would not come under clause (a)." The effect of the amendment would be to restrict the challenge of the revision petitioner to the judgment and decree which may ultimately be passed. If an appeal is filed under Section 96 of the Code such an order could be made subject matter of challenge either by the revision petitioner by filing the appeal or by raising the cross objection. Such a course would be permissible in view of the provision of order XLIII rule 1-A of the Code." In view of the above, the revision petition is held to be not maintainable and is dismissed as such. However, the dismissed of the revision petition shall not constitute any bar for the plaintiff-petitioner to raise any objection against the impugned order under Order 43 Rule 1-A of the Code at the stage of appeal, if any such necessity arises. Petition dismissed.