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2003 DIGILAW 240 (RAJ)

Ahmed @ Mohd. Ahmed v. Kamaluddin

2003-02-14

SHASHI KANT SHARMA

body2003
JUDGMENT 1. - Revisionist-defendant Shri Ahmed @ Mohd. Ahmed has filed this revision petition under section 115 of Code of Civil Procedure and prayed to aside the order dated 4.12.2002 passed by the learned Civil Judge (JD) and Judicial Magistrate East, Jaipur in Civil Suit No. 10/97 whereby learned Court has dismissed the application filed by present petitioner under Order 6, Rule 17 of CPC. 2. Brief facts of the case are that the plaintiff-non- petitioner Kamaluddin filed a suit for rent and ejectment against the present petitioner and in that suit written statement was filed and issues were framed and during the pendency of the suit an application for amendment in written statement was 'lied by present petitioner. After hearing the argument, the said application of defendant-petitioner was dismissed. Aggrieved against the said order, the petitioner has filed revision petition. 3. Heard learned counsel for the revisionist-petitioner at the admission stage. 4. Dr. PC. Jain learned counsel for the petitioner submits that the order passed by lower Court is illegal, therefore, it should be set aside and application under Order 6, Rule 17 of CPC filed by petitioner should be allowed. He further submits that impugned order has also occasioned failure of justice therefore. this order should be set aside. He has relied upon the judgments to endeared in the cases of Jayanti Roy v. Dass Estates Pvt. Ltd., AIR 2002 SC 2394 and M/s. Estrella Rubber v. Dass Estate (Pvt.) Ltd., AIR 2001 SC 3295 and argued that this Court should see whether impugned order is legal or not and also see whether impugned order has occasioned failure of Justice or not and this Court should not give much importance to the 15 amended proviso which has been added to Section 115 of CPC by Amendment Act of 46 of 1999. 5. Main contention advanced by advocate for the petitioner is that no importance should be given to the proviso of Section 115 CPC. He further submits that if subordinate Court has committed illegality in passing an order 'hen High Court should set aside that order in revision under section 115 of CPC and should not see whether the matter is covered by proviso to Section 115 of the :',PC or not. 6. He further submits that if subordinate Court has committed illegality in passing an order 'hen High Court should set aside that order in revision under section 115 of CPC and should not see whether the matter is covered by proviso to Section 115 of the :',PC or not. 6. On this point, judgment of Hon'ble Supreme Court published in AIR 999 SC 287 (Mahabir Prasad Singh v. M/s. Jacks Aviation Pvt. Ltd.) is 25 also relevant. In this judgment Apex Court has held: "In our view the High Court has committed a jurisdictional error in entertaining the revision petition filed by the respondent challenging the order dated 21.5.1998. That order is clearly not revisable by the High Court in view of the specific interdict embodied in the proviso to Section 115(1) of the Code. Under the same sub-section, a High Court is empowered to call for the records of any case which has been decided by any Court subordinate thereto, if it had exceeded or failed to exercise the jurisdiction vested in it, or had acted illegally or with material irregularity. In such cases the High Court has power to make such order as it thinks fit. The restriction against exercise of such a general power has been incorporated in the proviso which was inserted in the sub-section by the CPC Amendment Act of 1976. That proviso read thus:, "Provided that the High Court shall not, under the section, vary or reverse any order made, or any order deciding an issue; in the course of a suit or other proceedings, except where (a) the order, if it had been made in favour of the 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." Out of the two clauses in the proviso the former has no application to the order which has been challenged in the High Court because even if the application of the respondent filed on 21.5.1998 was granted the suit would not have been finally disposed of. The latter clause could be resorted to only if that order, if allowed to stand would occasion a failure of justice or cause irreparable injury to the respondent. The latter clause could be resorted to only if that order, if allowed to stand would occasion a failure of justice or cause irreparable injury to the respondent. Thus, even if such an order passed by the Subordinate Court has any illegality or is affected by material irregularity, the High Court will not interfere unless the said order, if allowed to stand, would occasion a failure of justice or its effect would be infliction of irreparable injury to any party." 7. In this way, another judgment of Hon'ble Supreme Court rendered in the case of Prem Bakshi & Ors. v. Dharam Dev & Ors. is not also relevant in which it has been held: "The proviso to sub-sections (1) & (2) with explanation was added by the amending Act of 1976. By this amendment the power of the High Court was curtailed, the intention of the legislature being that High Court should not interfere with each and every interlocutory order passed by the trial Court so that the trial of a suit could proceed speedily and that only the interlocutory order coming u/CI. (a) or (b) of the proviso would be entertained by the High Court. 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 condition mentioned in Cls. (1) & (b) of the proviso." 8. After perusing the above referred both the judgments of Hon'ble Supreme Court and after examining old proviso to Section 15 of CPC and as well as amended proviso to Section 115 CPC, I am of the view that High Court can interfere with the order of subordinate Court under section 115 CPC only in those cases in which both the conditions are satisfied, firstly, subordinate Court has committed jurisdictional error in passing the impugned order and secondly the matter is also covered by proviso to Section 115 CPC. 9. I have also gone through the judgment relied upon the learned counsel for the petitioner. Both the above referred judgments of Hon'ble Supreme Court has been given before 1.7.2002 when the amendment made in Section 115 in the CPC has been made operative from 1.7.2002 and by this amendment, revisional jurisdiction of the High Court has been materially changed. 9. I have also gone through the judgment relied upon the learned counsel for the petitioner. Both the above referred judgments of Hon'ble Supreme Court has been given before 1.7.2002 when the amendment made in Section 115 in the CPC has been made operative from 1.7.2002 and by this amendment, revisional jurisdiction of the High Court has been materially changed. In my view, the above mentioned both the authorities do not help the petitioner much because at that time when above referred judgments were pronounced, the amended proviso to Section 115 of CPC was nonoperative. 10. Second contention advanced by advocate for the petitioner is that because the impugned order has occasioned a failure of justice, therefore, this order should be set aside. 11. In this connection, I have examined the effect of amendment in the proviso to Section 115 of CPC and after the amendment in Code of Civil Procedure by the Act of 46 of 1999, revisional jurisdiction of the High Court has been materially restricted. Provision of Section 115 of CPC has been materially changed and now that proviso to Section 115 of CPC is as under: "Provided that the High Court shall not, under this section, vary or reverse any order made, or any other 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." Before this amendment, the proviso to Section 115 was as under: "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 proceedings." Before this amendment, the proviso to Section 115 was as under:- "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 to other proceedings, except. (a) the order, if it had been made in favour of the 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 s made." 12. (a) the order, if it had been made in favour of the 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 s made." 12. After examining amended proviso and the proviso before amendment, it is clear that now provision namely Section 115(1)(b) has been omitted by the present amendment. Therefore, now the order of subordinate Court cannot be interfered with on the ground that it has occasioned a failure to of justice. 13. In this revision, judgment of Karnataka High Court in the case of K.R. Subbaraju v. Vasavi Trading Co. & Ors., AIR 2002 Karnataka 407 is also relevant in which it has been held: "In view of the amendment made in Section 115 of the Code by amendment Act 46 of 1999, which has become operative from 1.7.2002, the revisional jurisdiction of the High Court has now been materially restricted. The effect of the amendment is that even if the order sought to be impugned suffers from jurisdictional error, it cannot be interfered with under section 115 unless it can be shown and found that if the order impugned could have been made in favour of the party applying for revision, it would have finally disposed of the suit or other proceedings. The word "other proceedings" used in the proviso has to be understood as speaking proceedings divorced of the suit." 14. In the same way, judgment of High Court of Madhya Pradesh rendered in the case of Phool Singh v. Mavla @ Bhavaliya & Ors., AIR 2002 Madhya Pradesh 246 is also very material and in this judgment it has been held: "The legislature has clearly intended to limit the jurisdiction of the High Court in exercising the powers under revision and now that can only be exercised in cases 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 otherwise not. Therefore, the clear meaning is that now no revision would be maintainable against by (sic any) interlocutory order if it would not have the effect of finally disposing of the suit or other proceedings." 15. Therefore, the clear meaning is that now no revision would be maintainable against by (sic any) interlocutory order if it would not have the effect of finally disposing of the suit or other proceedings." 15. After perusing the above mentioned judgments and examining amended Section 115 of the Code of Civil Procedure, I am of the view that now revisional jurisdiction of the High Court has been materially curtailed. The effect of the amendment in the proviso is that even if the impugned order suffers from jurisdictional error, it cannot be interfered with under section 115 CPC unless it can be shown that if that order would have been passed in favour of the party applying for revision that the order would have finally disposed of the suit or other proceedings. It is also clear that the words "other proceedings' used in the proviso should be taken as proceedings divorced of the suit. It should be an independent proceeding. 16. I have examined the impugned order in the light of above discussion and after examining the impugned order, I am of the view that this so impugned order is not such an order about which it can be said that if this impugned order would have been passed in favour of the present revisionist, it would have finally disposed of the suit. Therefore, I am of the view that this Court cannot interfere the impugned order. 17. Consequently, the revision petition is dismissed. 18. However, it is made clear that if the suit pending before the trial Court is disposed of and any appeal is filed against that judgment then the present defendant-revisionist would be at liberty to raise those objections and points also in that appeal which he has raised in this revision petition.Revision Dismissed. *******