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Allahabad High Court · body

2003 DIGILAW 610 (ALL)

Akhtari Begum v. Nasim Ahmad

2003-03-24

R.K.AGRAWAL, TARUN CHATTERJEE

body2003
JUDGMENT : 1. This is an application under Article 227 of the Constitution challenging the order dated 22nd January, 2003, passed by the Civil Judge (Junior Division), Najibabad in O. S. No. 62 of 1992 whereby an application filed by the Petitioners seeking to summon original Will dated 14th July, 1987 in the Court of Judge, Small Causes, Bijnor, was rejected. It is not in dispute that this order was passed in the suit filed by the Plaintiff-opposite parties in which the Petitioners were the Defendants. 2. A question of some importance has arisen for decision before us whether the order rejecting the application seeking to summon the original Will dated 14th July, 1987, in the Court of Judge, Small Causes, Bijnor, could be challenged by way of proceedings under Article 227 of the Constitution in view of the specific provisions contained in Section 115 of the Code of Civil Procedure. 3. According to the learned Counsel for the Petitioners, in view of the amendment in the Code of Civil Procedure, no application for revision of the impugned order would be maintainable. Learned Counsel for the Petitioners further contended that according to law, an application under Article 227 of the Constitution against the impugned order is maintainable. We are unable to accept this contention of the learned Counsel for the Petitioners. In our view when there is specific provision for filing a revision application u/s 115 of Code of CPC, the question of filing an application under Article 227 of the Constitution does not arise. 4. The Code of CPC, 1908, was amended in the year 1977. Before the present amendment of the Code of Civil Procedure, Section 115 of the Code of CPC was to the following effect: 115. 4. The Code of CPC, 1908, was amended in the year 1977. Before the present amendment of the Code of Civil Procedure, Section 115 of the Code of CPC was to the following effect: 115. (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: (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. (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. 5. By a plain reading of Section 115 of the Code of CPC it appears to us that the power of the High Court to interfere with the order is very much limited. The High Court in revision can interfere with an order passed by the subordinate court only if it appears to the High Court that the subordinate court had exercised its jurisdiction, not vested in it by law and failed to exercise its jurisdiction or had acted in the exercise of its jurisdiction illegally and with materially irregularity. 6. The High Court in revision can interfere with an order passed by the subordinate court only if it appears to the High Court that the subordinate court had exercised its jurisdiction, not vested in it by law and failed to exercise its jurisdiction or had acted in the exercise of its jurisdiction illegally and with materially irregularity. 6. A controversy had arisen 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: (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. The proviso to Section 115 of the Code of Civil Procedure, before its amendment, clearly indicates that the High Court in exercise of powers u/s 115 of the Code of CPC shall not vary or reverse any order made or any order deciding an issue except where the conditions (a) and (b) mentioned above are satisfied. Therefore, from the perusal of the relevant provisions of Section 115 of the Code of CPC, it may be safely quoted that u/s 115 of the Code of Civil Procedure, High Court has been conferred with power to interfere with an order passed in a suit or proceeding in case the conditions indicated in Section 115 of the Code of CPC have been satisfied. It cannot be a case that an application u/s 115 of the Code of CPC would not be maintainable in law but the High Court, in exercise of its power conferred u/s 115 of the Code of Civil Procedure, cannot interfere with an order until and unless the conditions laid down in the said section, referred to above, are fully satisfied. 7. Subsequently, Section 115 of the Code of CPC has again been amended in the following manner: 15. 7. Subsequently, Section 115 of the Code of CPC has again been amended in the following manner: 15. Revision.-(1) The High Court may call for the record of any case which has been decided by any Court subordinate of such High Court and in which no appeal lies thereto, and if such subordinate court appears: (d) to have exercised a jurisdiction not vested in it by law, or (e) to have failed to exercise a jurisdiction so vested, (f) 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 proceedings.] (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 (c) The order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the partly against whom it was made.] (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. 8. In Uttar Pradesh, by way of further amendment, the following words have been substituted in Section 115 of the Code of Civil Procedure: 115. (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. 8. In Uttar Pradesh, by way of further amendment, the following words have been substituted in Section 115 of the Code of Civil Procedure: 115. Revision.-The High Court, in cases arising out of original suits or other proceedings (of the value exceeding one lakh rupees or such higher amount not exceeding five lakh rupees as the High Court may from time to time fix, by notification published in the Official Gazette including such suits or other proceedings instituted before the date of commencement of the U.P. Civil Laws (Amendment) Act, 1991, or as the case may be, the date of commencement of such notification) and the District Court in any other case, including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been decided by any Court subordinate of 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, (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. Provided further that the High Court or the District 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: (i) the order, if so varied or reversed would finally dispose of the suit or other proceeding or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made: Provided also that where a proceeding of the nature in which the District Court may call for the record and pass orders under this section was pending immediately before the relevant date of commencement referred to above, in the High Court such Court shall proceed to dispose of the same. 9. Learned Counsel appearing on behalf of the Petitioner in support of his contention relied upon a Division Bench decision of the Calcutta High Court in Sukumar Chatterjee Vs. Kiran Chandra Mitter, AIR 1964 Cal 439 . 9. Learned Counsel appearing on behalf of the Petitioner in support of his contention relied upon a Division Bench decision of the Calcutta High Court in Sukumar Chatterjee Vs. Kiran Chandra Mitter, AIR 1964 Cal 439 . We have carefully considered the relevant provisions of Section 115 of the Code of CPC and also the decision on which the learned Counsel for the Petitioner has placed implicit reliance in the present case. We are unable to hold that an application under Article 227 of the Constitution is maintainable in view of the fact that second proviso to Section 115 of the Code of CPC in the Uttar Pradesh amendment having been deleted from Section 115 of the Code of Civil Procedure. 10. As noted herein earlier, on a careful consideration of Section 115 of the Code of Civil Procedure, before its amendment and also after the present amendment, it cannot be said that a revision application u/s 115 of the Code of CPC is not maintainable in law. Only exercise of power u/s 115 of the Code of CPC has been restricted on the ground mentioned in the section. If the order of the trial court does not come within the ambit of that section and the conditions laid down therein are not satisfied, then only a conclusion is arrived at that the High Court in its revisional jurisdiction cannot interfere with the order impugned in the revision application. This does not amount that in a revision application, the High Court, in a case where the conditions imposed in Section 115 of the Code of CPC have been fully satisfied, is powerless to exercise its revisional jurisdiction. Where an order impugned in the revision application is brought within the ambit of Section 115 of the Code of Civil Procedure, the High Court, while exercising its power u/s 115 of the Code of Civil Procedure, will go into that question and come to the conclusion that since the limitations laid down in Section 115 of the Code of CPC for interference u/s 115 of the Code of CPC had not been satisfied, the High Court was not entitled to invoke its revisional power u/s 115 of the Code of CPC against a particular order of the trial court. Therefore, we are unable to accept the contention of the learned Counsel for the Petitioners that in view of second proviso to Section 115 of the Code of Civil Procedure, power of the High Court to exercise jurisdiction u/s 115 of the Code of CPC has been further limited, the application under Article 227 of the Constitution must be held to be maintainable in law. 11. So far as the decision in Sukumar Chatterjee Vs. Kiran Chandra Mitter, AIR 1964 Cal 439 , is concerned, the Division Bench of the Calcutta High Court held that even if the order refusing to amend a pleading under Order VI, Rule 17 is revisable u/s 115 of the Code of Civil Procedure, such an order can also be revised under Article 227 of the Constitution. This decision does not apply to the present case simply because of the fact that an amendment was made in the year 1977 when a proviso was added in which it has been stated that the High Court shall not u/s 115 of the Code of Civil Procedure, vary or reverse any order made or any order deciding an issue, in the course of a suit or other proceeding, 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 proceedings, 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. 12. It is true that under Article 227 of the Constitution, the High Court has power of superintendence over all subordinate Courts and Tribunals but when there is specific provision u/s 115 of the Code of CPC to file an application u/s 115 of the Code of CPC against an order passed in a suit, such power under Article 227 of the Constitution cannot be exercised. It is well-settled that exercise of power under Article 227 of the Constitution has to be sparingly used. Assuming that an application under Article 227 of the Constitution is maintainable against the impugned order, even then we find no reason to interfere with the order passed by the trial court. It is well-settled that exercise of power under Article 227 of the Constitution has to be sparingly used. Assuming that an application under Article 227 of the Constitution is maintainable against the impugned order, even then we find no reason to interfere with the order passed by the trial court. We can only direct that certified copy of the Will from the Court of Judge, Small Causes, Bijnor, will meet the purpose for which the original Will was sought to be produced. 13. Accordingly, it is not a fit case where the High Court will exercise its power under Article 227 of the Constitution which has to be sparingly used and in our view, it is not a case where such interference is needed. At the same time, as held herein earlier, we are of the view that the application under Article 227 of the Constitution is not maintainable. 14. For the reasons aforesaid, we reject this application under Article 227 of the Constitution. There will be no order as to costs.