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2003 DIGILAW 556 (ORI)

Narayan Dash v. Gouranga Charan Dash

2003-09-05

P.K.TRIPATHY

body2003
JUDGMENT P. K. TRIPATHY, J. — The common question of maintainability of the Civil Revision Petitions in view of amendment to Section 115 of the Code of Civil Procedure, 1908 (in short, ‘the Code’) by Act 46 of 1999 has arrested the further consideration of the CRPs on merit. Therefore, that common question of law is consid¬ered in each of the aforesaid CRPs with respect to the following type of cases involved in each of the CRPs. This common judgment shall abide the result on the question of maintainability of all the aforesaid CRPs. CRP No. 163 of 2002 Respondent No.6 in Title Appeal No.16 of 1996 of the Court of Addl.District Judge, Bargarh has challenged to the order passed on 2.7.2002 by the said Court in allowing the prayer for amendment of the appeal memo to insert some names and to correct the cause title. CRP No. 6 of 2003 Petitioner filed an application under Order 1, Rule 10 (2) of the Code for adding him as a party to Title Suit No. 33/10/169 of 1998/91/1985 of the Court of Civil Judge (Jr. Division), Nim¬para. On 29.10.2002 learned Civil Judge (Jr. Division) passed the impugned order rejecting the application. CRP No.10 of 2003 The plaintiff/appellant in Title Appeal No.43 of 1997 of the Court of ad hoc Addl.District Judge (FTC), Dhenkanal filed an application for amendment of the plaint. On 7.11.2002 that Court considered and rejected the application. CRP No.29 of 2003 An application was filed by the plaintiff to call for cer¬tain documents in Title Suit No.247 of 2000 of the Court of Civil Judge (Sr. Division), Bhubaneswar. On 6.1.2003 learned Civil Judge (Sr. Division) heard and rejected that application. CRP No. 30 of 2003 An application was filed by the plaintiffs to call for certain documents in Title Suit No.262 of 2000 of the Court of Civil Judge (Sr. Division), Bhubaneswar. On 6.1.2003 learned Civil Judge (Sr. Division) heard and rejected that application. CRP No.70 of 2003 Plaintiff’s application for amendment of the plaint in Title Suit No.51 of 1993 of the Court of Civil Judge (Sr. Division), Nayagarh was rejected by that Court as per the impugned order passed on 25.1.2003. CRP No. 127 of 2003 Application for amendment filed by Defendant No.1 in Title Suit No. 128 of 1998 of the Court of Civil Judge (Sr. Division), Nayagarh was rejected by that Court as per the impugned order passed on 25.1.2003. CRP No. 127 of 2003 Application for amendment filed by Defendant No.1 in Title Suit No. 128 of 1998 of the Court of Civil Judge (Sr. Division), Berhampur was heard and rejected by that Court as per the im¬pugned order passed on 4.2.2003. CRP No. 154 of 2003 There are two plaintiffs in the suit. Plaintiffs filed an application purported to be under Order 11 Rule 12 of the Code with the prayer to call for certain documents in Title Suit No.37 of 1998 of the Court of Civil Judge (Sr. Division), Bhanjanagar as per the impugned order passed on 24.3.2003 learned Civil Judge (Sr. Division) rejected that application. Thus, plaintiff No.1 has filed this CRP challenging to that order. CRP No.178 of 2003 In TMS No. 409 of 1992 of the Court of 1st Addl.Civil Judge (Sr. Division), Cuttack an application was filed by the plaintiff to recall P.W.7 for his further evidence. On 19.2.2003 learned 1st Addl.Civil Judge (Sr. Division) rejected that applica¬tion. That order is impugned in this CRP. CRP No. 183 of 2003 Petitioner’s application under Order 1 Rule 10(2) of the Code in Title Suit No.133 of 1999, presently pending in the Court of Ad hoc Addl.District Judge (FTC), Dhenkanal, was heard and rejected by that Court as per the impugned order passed on 26.3.2003. CRP No. 188 of 2003 Defendant No.2 in Title Suit No.25 of 1988 of the Court of Civil Judge (Sr. Division), Banki filed an application for amend¬ment of the written statement. As per the impugned order passed on 29.3.2003 learned Civil Judge (Sr. Division) rejected that application. CRP No.236 of 2003 Petitioner is the plaintiff in Civil Proceeding No.311 of 2003 pending in the Court of Civil Judge (Sr.Division), Bhubanes¬war. In that suit he filed Interim Application No.273 of 2003 for temporary injunction under Order 39 Rules 1 and 2 of the Code. In that Interim Application petitioner prayed for ad interim orders of temporary injunction. On 9.5.2003 that was rejected and the case was posted to 25.6.2003 for filing of the objection. Peti¬tioner challenges that order in this CRP. 2. In that Interim Application petitioner prayed for ad interim orders of temporary injunction. On 9.5.2003 that was rejected and the case was posted to 25.6.2003 for filing of the objection. Peti¬tioner challenges that order in this CRP. 2. The nature of the impugned orders involved in each of the aforesaid CRPs prima facie appear to this Court to be order of interlocutory in nature against which the High Court should not invoke the revisional jurisdiction under Section 115 of the Code because of the embargo put by the law in the proviso to Sub-Section (1) of Section 115. Therefore, petitioners were heard on the question of maintainability of the Civil Revisions. Interpre¬tation of the scope and applicability of Section 115 to such type of case is to be considered systematically and consistently and therefore this common judgment is delivered on that common ques¬tion of law involved in each of the Civil Revision Petitions. 3. It is stated at the Bar that the impugned orders are coming within the meaning of the term ‘case decided’ and also quality to the condition of exercise of jurisdiction illegally and/or with material irregularity and apart from that such orders are required to be interfered with in the interest of justice and therefore, this Court should entertain the Civil revisions, scrutinise the legality and propriety of the impugned orders and to dispose of the Civil Revision Petitions on merit. According to them, under such circumstance the embargo put by the proviso to Sub-Section (1) of Section 115 of the Code is of no consequence. Some decisions have been cited in support of the aforesaid argu¬ment. It was also argued that the principle of ‘ejusdem generis’ as applied by the Apex Court in the case of Sri Vishnu Awatar etc.etc. vs. Shiv Autar and others, AIR 1980 SC 1575 and the ratio propounded by the Apex Court in the case of Shiv Shakti Coop Housing Society, Nagpur vs. M/s. Swaraj Develo¬pers and others, 2003 (I) OLR (SC)-673, do not put any embargo on the maintainability of the Civil Revisions. vs. Shiv Autar and others, AIR 1980 SC 1575 and the ratio propounded by the Apex Court in the case of Shiv Shakti Coop Housing Society, Nagpur vs. M/s. Swaraj Develo¬pers and others, 2003 (I) OLR (SC)-673, do not put any embargo on the maintainability of the Civil Revisions. It was also argued at the bar that the view expressed by the Karnatak High Court in the case of Twentieth Century Fox Film Corporation and another v. NRI Film Production Associates (P) Ltd., AIR 2003 Karnataka 148, and the Madhya Pradesh High Court in the case of Laxmi Chand v. State of M.P. and others, AIR 2000 M.P. 245 supports the view of main¬tainability of the Civil Revisions. 4. In a note of submission made in C.R.P. No. 187 of 2003 some decisions have been cited by the petitioner to state that the category of order impugned in that revision comes within the meaning of a ‘case decided’. There can be hardly any dispute in that respect. But a revision is not entertainable only on satis¬faction of that requirement of law. 5. Section 115 of the Code, as it stands after amendment by Act 46 of 1999, that puts a restriction on the exercise of revisional jurisdiction by deleting Clause-(b) and amending Clause-(a) of the proviso to Sub-Section (1) of Section 115, as it was after the amendment of the Code in 1976. Deletion of Clause (b) has made a material difference in the exercise of the revisional jurisdiction. Therefore, as the law stands now one of the conditions must be satisfied for invoking the revisional jurisdiction that if the impugned order would have been made in favour of the revision-petitioner, then that would have finally disposed of the suit or other proceedings’. Therefore, notwith¬standing satisfying to the requirement of jurisdictional error on any of the grounds as enumerated in Clauses (a) to (c) of Sub-Section (1) and even if satisfying the requirement of the factor that the impugned order comes within the category of a ‘case decided’, then also a Civil Revision Petition shall not be main¬tainable if it does not carry the effect and result of disposal of suit or other proceedings in the event of the order impugned is allowed in favour of the party applying for revision. It be noted here that none of the aforesaid impugned order qualify to the said requirement of law in as much as if the impugned orders would have been passed in favour of the revision-petitioners then also that would not have resulted in disposal of such suits. 6. As propounded by the Apex Court in the case of Sri Vishnu Awatar (supra), the term ‘proceeding’ used in Section 115 of the Code shall carry the meaning of a proceeding not arising in a suit and must be a proceeding of the equivalent category of a suit by applying the maxim ‘ejusdem generis’. Therefore, none of the applications which were disposed of in the above noted Civil Revisions come within the category of ‘proceeding’ so as to invoke the revisional jurisdiction to consider legality and propriety of the impugned order. 7. In the case of Shiv Shakti Coop. Housing Society, Nagpur (supra), Apex Court have noted the amended position of law in Section 115 of the Code in the following manner : “Section 115 (after amendment) (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 the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other pro¬ceedings. (2) The High Court shall not, under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court. Explanation : In this Section, the expression “any case which has been decided” includes any order made, or any order deciding the issue, in the course of a suit or other proceeding.” After highlighting the principle relating to interpretation of statutes, manner in which language in a statute is to be construed and restriction of the jurisdiction of the revisional Court, their Lordships have propounded that : “32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given final¬ity to suit or other proceeding. If the answer is ‘yes’ then the revision is maintainable. But on the contrary, if the answer is ‘no’ then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Section 115.” The above quoted ratio leaves no room for doubt that all the aforesaid Civil Revisions are not maintainable. This Court thus does not find good reason to depart from the settled position of law and therefore, the view of Karnataka High Court in the case of Twentieth Century Fox Film Corporation (supra) and of Madhya Pradesh High Court in the case of Laxmi Chand (supra) is not followed. 8. For the reasons indicated above, this Court records that the impugned orders involved in the aforesaid Civil Revision Petitions are orders of interlocutory in nature, they are not passed in a proceeding within the meaning of that term which can be given to that by applying the principle of ‘ejusdem generis’ and since the suit or other proceedings shall not stand disposed of if the impugned orders would have been passed in favour of the revision-petitioners, therefore, all the Civil Revision Petitions are found not maintainable and accordingly dismissed.