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2003 DIGILAW 933 (KAR)

V. B. NAYAK v. S. R. NARASIMHA MURTHY

2003-11-07

body2003
RAVEENDRAN, J. ( 1 ) PETITIONER in these two civil revision petitions is the plaintiff and the respondents in these petitions are the defendants in OS No 188 of 1990, on the file of Civil Judge (Jr. Dn), Thirthahalli. After completion of evidence, when the suit was posted for arguments, petitioner herein filed IA-32 for re-opening the case and IA-33 for amendment to the plaint. Both the applications have been rejected by the trial court by a common order dated 22-10-2002. Feeling aggrieved, petitioner has filed these petitions under Section 115 of Code of Civil Procedure. ( 2 ) THE proviso to Sub-section (1) of Section 115, substituted with effect from 1-7-2002 makes it clear that the High Court shall not, in exercise of power under Section 115, vary or reverse any order made in the course of a suit or other proceeding, except where such order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding. ( 3 ) A learned Single Judge, before whom the cases were listed, has referred these petitions to a Division Bench on 17-1-2003 to consider the question whether the revision petitions are maintainable, having doubted the decision of another learned Single Judge in regard to the scope of Section 115 of CPC as amended by Code of Civil Procedure (Amendment) Act 1999. Though the citation is not given, we are told that the reference was with reference to the decision rendered on 9-1-2003 in TWENTIETH CENTURY FOX FILM CORPORATION vs NRI FILM PRODUCTION ASSOCIATES (P) LTD. , (2003 AIR-KAR, HCR 418 ). In the said decision, it was held that a narrow interpretation is not to be placed on the proviso to Section 115 (1); and where any specific case of injustice or extreme prejudice is brought to the notice of the High Court, it is bound to step in to render justice. In other words, the learned Single Judge was of the view that even if the order under revision would not have finally disposed of the suit or other proceedings. If it had been made in favour of the party applying for revision, the power under Section 115 CPC can still be exercised in cases where injustice or extreme prejudice (irreparable loss) is made out. If it had been made in favour of the party applying for revision, the power under Section 115 CPC can still be exercised in cases where injustice or extreme prejudice (irreparable loss) is made out. ( 4 ) SUBSEQUENTLY, in MEENAKSHAMMA vs MUNIVENKATAPPA (ILR 2003 KAR 2753) another Single Judge of this Court has held that a revision under amended Section 115 CPC would lie against an order which allows a party to re-open the case after evidence is concluded even though it did not fulfil the requirement of the proviso to Section 115 (1) of CPC. The learned Single Judge, following the decision of the Supreme Court in BALDEVDAS SHIVLAL vs FILMSTAN DISTRIBUROTRS (INDIA) PVT. LTD. , ( AIR 1970 SC 406 ), has also observed thus: the code of Civil Procedure, envisages several provisions enabling the parties to seek interim reliefs in respect of the subject matter of the suit or in respect of their procedural rights in order to prove the case. The reliefs granted on such applications are conveniently called as interim relief, since the application is nomenclatured as interlocutory applications, the reliefs are called otherwise as interlocutory orders. The proceedings in different types of interlocutory applications result in adjudication of rights of the parties. In some cases, the question that arise in the course of adjudication of such interlocutory applications may not arise for consideration at the time of the disposal of the suit and may not be relevant for determination at the time of final adjudication. Although the proceedings in certain category of applications filed in the suit are termed as interlocutory applications and the orders thereon as interim orders, but in real sense they are intermediate proceedings, in other words subordinate and auxiliary to the main proceedings. Any orders granted thereon are intermediate orders. To illustrate, an application, under Order 39 Rules 1 and 2 regarding grant of temporary injunction, or appointment of Receiver under Order-40, although for procedural convenience titled as interlocutory Applications, the decisions with reference to the said applications will have a material bearing on the subject matter and the rights of the parties. Therefore for preserving properties the Courts are empowered to grant necessary interim reliefs. The questions involved while determining such applications would not be relevant for consideration at the time of final adjudication. Therefore for preserving properties the Courts are empowered to grant necessary interim reliefs. The questions involved while determining such applications would not be relevant for consideration at the time of final adjudication. An application under Order 26 Rule 9 for the appointment of Commissioner, an application under Order 6 Rule 17 for amending the pleadings and an application under Order 1 Rule 10 for impleading the parties, an application to summon the witness or documents, are also termed as interlocutory applications. Any wrong order in that regard by the Trial Court will have a material bearing on the final result. The party aggrieved if denied the right of revision has to get the order corrected only in appeal and many a time it may result in unnecessary remand. It is a flawed logic to assume that curbing the revision at any cost would solve the problem of delayed disposal. Therefore in the light of the ratio laid down by the Supreme Court, it is to be held that in all the sub-ordinate proceedings arising in a suit by way of interlocutory application where the rights of the parties are to be adjudicated and if such adjudication results in final conclusion of such rights and if the said questions involved in the adjudication of rights in the such proceedings do not arise for consideration at the time of final disposal of the suit, necessarily such of the sub-ordinate proceedings should be construed to come within the purview of the phrase other proceedings and in respect of such the orders, a revision would lie. As observed above, the orders, passed under Order 39 Rules 1 and 2, under Order 40, under order 26 Rule 9, under Order 6 Rule 17, under Order 13-belated summoning of witnesses and under Order 18 to reopen the case and to recall the witnesses have the character of an independent subordinate proceedings arising in a suit, not relatable to the question that arise for final adjudication in the suit and any orders thereon in revision would finally conclude the rights of the parties in such proceedings. Therefore a revision would lie. Therefore a revision would lie. (emphasis supplied) ( 5 ) THE questions that therefore arises for consideration before us is whether the revisional jurisdiction under Section 115 CPC (as amended by Act No. 46/1999) can be exercised to interfere with an order passed on an interlocutory application in a suit (which if it had been made in favour of the petitioner, would not have finally disposed of the suit) on the ground that (a) the order had resulted in injustice or irreparable loss to the petitioner, or (b) the subject matter of the application is not relatable to the questions arising for final adjudication in the suit. ( 6 ) THE Supreme Court has considered the scope of Section 115 of CPC, as amended. 61.) In SHIV SHAKTI CO-OPERATIVE HOUSING SOCIETY vs M/s SWARAJ DEVELOPERS [2003 AIR SCW 2445], one of the contentions urged was that applications for injunctions and the like which form the subject matter of the revision relates to the expression other proceedings, and even if the amendment provisions apply, the disposal of the revision would have meant final disposal of such other proceedings. The Supreme Court explained the scope of power under Section 115 before its amendment by 46 of 1999 thus: it is to be noted that prior to the amendments to the Code by the Old Amendment Act [that is Code of Civil Procedure (Amendment) Act, [1976] the power of revision was wider. By the amendment, certain positive restrictions were put on the High Courts power to deal with revisions under S. 115. Prior to the said amendment, it was not strictly necessary that the impugned order would have the result of finally deciding the list or the proceedings in the lower Courts. In fact, the power could be exercised in any case where jurisdictional error was committed by the original court or where substantial injustice had resulted. By the Old Amendment Act, the condition of finally deciding of lis and the proceedings in the subordinate courts was introduced. The proviso which was introduced contains qualifications which are prerequisites before exercise of power under S. 115. They were clauses (a) and (b) of the proviso. Logically, the High Court has suo motu power to revise an order where total failure of justice would have occasioned or where irreparable loss would have caused to the parties against whom it was made. They were clauses (a) and (b) of the proviso. Logically, the High Court has suo motu power to revise an order where total failure of justice would have occasioned or where irreparable loss would have caused to the parties against whom it was made. These powers were retained by clause (b ). Though, after 1976, the exercise of power was somewhat circumscribed, it was not totally curtailed. In other words, the High Court could even after the 1976 amendment interfere in cases where there was failure of justice or irreparable loss caused, the nature of the proceedings was substantially changed and the suo moto power of the High Court was retained. It was in the nature of power of superintendence of the High Court over the subordinate courts. The Supreme Court then referred to Section 104 and Order 43 Rule 1 CPC providing for appeals in the case of certain orders, and the amendment to sec 115 by Amendment Act 46/1999 and rejected the contention by stating the position after amendment thus: a plain reading of S. 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 finality 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 or revision under S. 115. 6. 2) In SURYA DEV RAI vs RAM CHANDER RAI [2003 AIR SCW 3872], Referring to the amendment to Section 115 by Act 46/1999, the Supreme Court held thus: section 115 of Code of Civil Procedure as amended does not now permit a revision petition being filed against an order disposing of an appeal against the order of the Trial Court, whether confirming, reversing or modifying the order of injunction granted by the Trial Court. The reason is that the order of the High Court passed either way would not have the effect of finally disposing of the suit or other proceeding. The reason is that the order of the High Court passed either way would not have the effect of finally disposing of the suit or other proceeding. The exercise of revisional jurisdiction in such a case is taken away by the proviso inserted under sub-Section (1) of Section 115 of he CPC. The amendment is based on the Malimath Committees recommendations. The committee was of the opinion that the expression employed in Section 115 CPC, which enables interference in revision on the ground that the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made, left open wide scope for the exercise of the revisional power with all types of interlocutory orders and this was substantially contributing towards delay in the disposal of cases. The committee did not favour denuding the High Court of the power of revision but strongly felt that the power should be suitably curtailed. The effect of the erstwhile clause (b) of the provision, being deleted and a new proviso having been inserted, is that the revisional jurisdiction, in respect of an interlocutory order passed in a trial or other proceedings, is substantially curtailed. A revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied. We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away-and could not have taken away the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil Court nor the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the CPC, and is available to be exercised subject to rules of self discipline and practice which are well settled. ( 7 ) IN view of the clear pronouncement of law in the cases of SHIVSHAKTI and SURYA DEV RAI, it has to be held that decision in MEENAKSHAMMA is no longer good law. It is overruled. The observation in TWENTIETH CENTURY FOX that the power under Section 115 can be used in cases where injustice or irreparable is made out, is also no longer a good law. It is overruled. The observation in TWENTIETH CENTURY FOX that the power under Section 115 can be used in cases where injustice or irreparable is made out, is also no longer a good law. Unless the requirement of the proviso to Section 115 (1) is fulfilled (that is, the order challenged, if it had been made in favour of the party applying for revision, would have finally disposed of the suit/proceedings), a revision petition under Section 115 will not be maintainable. Where the order does not fulfil the requirement of the proviso to sub-section (1) of Section 115, but where injustice or extreme prejudice is caused, recourse may be taken to a petition under Article 227 of the Constitution subject to the limitations stated in SURYA DEV RAI. ( 8 ) ADMITTEDLY, neither of the two applications [ias XXXII and XXXIII] if they had been decided in favour of the petitioners herein, would have disposed of the suit. From bare reading of Section 115, it is obvious that the revision petitions are not maintainable. In view of the above, we hold that these petitions are not maintainable and accordingly they are dismissed. --- *** --- .