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2002 DIGILAW 991 (PNJ)

Punjab Small Industries and Export Corporation v. Baldev Raj Ram Murti

2002-09-25

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity the Code) is directed against the order dated 6.10.1993 passed by the Addl. Senior Sub Judge, Tarn Taran dismissing the application of the defendant petitioner filed under Order 6 Rule 17 of the Code for amendment of the written statement. 2. The plaintiff-respondent has filed a suit for mandatory injunction against the defendant-petitioner seeking a direction to deliver them possession of plot No. 2 fully described in the head note of the suit. A further prayer for permanent injunction restraining defendant-petitioner from allotting the afore-mentioned plot to any one else or to allow raising of any construction thereon have also been made. The defendant-petitioner filed the written statement and issues were framed on 14.6.1988. An application for amendment of the written statement was filed earlier on 31.7.1991 which was rejected on 13.8.1991. Another application filed under Order 6 Rule 17 of the Code for incorporation of amendment to the effect that a cheque dated 18.2.1987 for an amount of Rs. 18896/- was sent to the plaintiff-respondent which was encashed by him under protest. The application has been dismissed by the Civil Judge on the ground that even if the amendment is allowed it would not have any material effect on the question to be decided in the suit namely whether defendant-petitioner had the authority to cancel the allotment made in favour of the plaintiff-respondents. A further ground for rejecting the application given by the Civil Judge is that the application is not bona fide and is aimed at delaying the proceedings. 3. I have heard Shri Sanjeev Sharma, learned counsel for the petitioner and Shri Munishwar Puri, learned counsel for plaintiff-respondent No. 1. 4. Shri Munishwar Puri has raised a preliminary objection to the maintainability of the revision petition under Section 115 of the Code as amended w.e.f. 1.7.2002. According to the learned counsel, the revisional jurisdiction of this Court has been further restricted to cases where interference by this Court would result into disposal of the suit. He has further submitted that the grounds for irreparable loss and failure of justice available before the amendment for exercising revisional jurisdiction have been deleted. 5. According to the learned counsel, the revisional jurisdiction of this Court has been further restricted to cases where interference by this Court would result into disposal of the suit. He has further submitted that the grounds for irreparable loss and failure of justice available before the amendment for exercising revisional jurisdiction have been deleted. 5. Shri Sanjeev Sharma, learned counsel for the petitioner has argued that the revision petition has been filed in the year 1993 and therefore would not attract the application of the amendment made effective from 1.7.2002. He has also pointed out that a serious prejudice will be caused in case the amendment is not allowed. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Prem Bakshi and others v. Dharam Dev and ors., 2002(2) SCC 2 and argued that denial of amendment may cause prejudice whereas the grant of the same may not. 6. Having heard the learned counsel for the parties, I am of the considered opinion that the present revision petition is not maintainable. The amendment made by further amending the proviso to Section 115 of the Code w.e.f. 1.7.2002 has stayed only those cases where the revision petitions have been decided before 1.7.2002. This Court in C.R. No. 2829 of 2002 decided on 5.8.2002 (Balwinder Singh v. Krishna Devi and others) has taken the afore- mentioned view. The observations made in Balwinder Singhs case (supra) read 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 disposed 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 dispose 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 6 rule 7 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 Courts inasmuch as the High Court shall not under this section vary or reverse any other 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 disposed of the suit or other proceedings. By way of illustration we may say that if a trial court holds by an interlocutory order that it has no jurisdiction to proceed 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 he 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 petition 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." 7. In view of the above, the revision petition is no longer maintainable and the same is dismissed on that ground. However, dismissal of the revision petition shall not constitute a bar for the petitioner to raise all possible objections against the impugned order under Order 43 Rule 1A of the Code at the stage of first appeal, if such a necessity arises. Revision dismissed.