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2003 DIGILAW 255 (CAL)

Sakti Pada Das v. Sailendra Bhattacharya

2003-05-19

Subhro Kamal Mukherjee

body2003
JUDGMENT Subhro Kamal Mukherjee, J. This is an application under section 115 of the Code of Civil Procedure against order No. 6 dated June 17, 2002 passed by the learned Civil Judge (Junior Division) of Haldia at Tamluk in Title Suit No. 74 of 2002, inter alia, rejecting an application under section 151 of the Code of Civil Procedure filed by the plaintiffs/petitioner for police protection to implement the ad interim order of injunction passed in the said suit. 2. The plaintiffs/petitioners instituted the said Title Suit No. 74 of 2002, inter alia, for declaration of their title, confirmation of possession and permanent injunction. In connection with the said suit the plaintiffs filed an application for temporary injunction under Order 39, Rules 1 and 2 read with section 96 of the Code of Civil Procedure. By order No. 2 dated May 2, 2002 the learned trial Judge passed an ad interim order of injunction, inter alia, directing the defendant Nos. 1 to 4 to maintain status quo in respect of the suit land till June 3, 2002. By order No. 5 dated June 3, 2002 the learned Trial Judge extended the said ad interim order of injunction till the disposal of the application for temporary injunction. 3. The plaintiffs filed an application on June 17, 2002 under section 151 of the Code of Civil Procedure for implementation of the order of ad interim injunction passed by the court. 4. The learned trial Judge by the order impugned dated June 17, 2002, inter alia, rejected the said application for implementation of the order of ad interim injunction. 5. Being aggrieved the plaintiffs have come up with this revisional application. 6. It was in the discretion of the learned Judge in the Trial Court either to grant police assistance for implementation of the order of injunction in the present case or refuse such prayer. I cannot say that in choosing to exercise the discretion in one particular way and not in the other the learned Trial Judge did exercise a jurisdiction, which was not vested in him by law or exercised it in an irregular and improper manner. 7. Moreover, in my view, the present revisional application under section 115 of the Code of Civil Procedure is not maintainable against an interlocutory order. 7. Moreover, in my view, the present revisional application under section 115 of the Code of Civil Procedure is not maintainable against an interlocutory order. The provision of section 115 of the Code of Civil Procedure has been amended by the Code of Civil Procedure (Amendment) Act, 1999. After amendment of the Code of Civil Procedure, which came into effect from July 1, 2002, a revisional application under section 115 of the Code of Civil Procedure is maintainable when 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. The impugned order is interim in nature and as such the revisional application under section 115 of the Code of Civil Procedure is not maintainable. 8. Dr. Mondal submits the right to move a revisional application is a vested right and as the suit was instituted prior to July 1, 2002, the petitioners are entitled to maintain the revisional application under un-amended provisions. Dr. Mondal in support of his submissions relied upon the decision of the Apex Court in the case of Shankar Ramchandra Abhyankar vs. Krishnaji Dattatraya Bapat, reported in AIR 1970 SC 1 and contended that the appeal and the revisional application stand on the same pedestal. The pronouncement of the Supreme Court in the said case is not properly appreciated. The Supreme Court never pronounced that appeal is equated to a revisional application. There is always a vested right in the litigant to avail the remedy of an appeal. The right of appeal is a matter of substance and not of procedure. The right of revision is confined to jurisdiction and jurisdiction alone. The scope of making a revisional application under section 115 is not linked with a substantive right. Section 115 does not speak of an application being made by a person aggrieved by an order passed by a court subordinate to a High Court. There is marked distinction in the language used by the legislature in section 97(2)(o) of the Code of Civil Procedure (Amendment) Act, 1976 and section 32(2)(i) of the Code of Civil Procedure (Amendment) Act, 1999. In section 97(2)(o) of the amending Act of 1976 it was clearly stated that the amendment of section 115 of the Code of Civil Procedure should not apply to or affect any proceeding for revision, which had been admitted before the amendment. In section 97(2)(o) of the amending Act of 1976 it was clearly stated that the amendment of section 115 of the Code of Civil Procedure should not apply to or affect any proceeding for revision, which had been admitted before the amendment. Whereas under section 32(2)(i) it was provided that the amendment should not apply to or affect any proceeding for revision, which had been finally disposed of. A litigant has no vested right in procedural matters. The revisonal application is, therefore, not maintainable. 9. The revisional application is, therefore, rejected without, however, no order as to costs. 10. I, however, direct the learned trial Judge to make all endeavours to disposes of the application for temporary injunction pending before him as expeditiously as possible, but in any event by July 31, 2003 positively. The aforesaid time limit is peremptory and mandatory and I authorise the learned Judge to refuse any prayer of unnecessary adjournment by either of the parties. 11. By way of abundant caution I make it clear that I have no occasion to go into the merits of the claims and the counter claims of the parties involved in the application for temporary injunction and all points involved in the application for temporary injunction are kept open. 12. Xerox certified copy of this order, if applied for, is to be supplied expeditiously. Revisional application rejected with directions.