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2004 DIGILAW 108 (GAU)

Tulsi Sahu v. Dhan Nayak

2004-02-16

P.P.NAOLEKAR

body2004
JUDGMENT P.P. Noleker, C.J. 1. Heard Mr. P. Bhowmik, learned counsel for the petitioner and Mr. D.C. Mahanta, Learned counsel for the opposite party. 2. This revision petition is filed challenging the order of the trial court whereunder the affidavit evidence of the defendant's witness has not been accepted by the court on the ground that his name do not appear in the list of witness submitted by the defendant. 3. In exercise of the powers under Section 115 of the CPC, the High Court may call for the record of any cases which has been decided by the court subordinate to the High Court where no appeal lies form such order. The High Court, if it finds that the order under revision has been passed by the subordinate court in exercise of the jurisdiction not vested in it by law or the court has failed to exercise the jurisdiction illegally or with material irregularity, can pass appropriate order. The power of the High Court to pass appropriate order n the aforesaid condition has been restricted by proviso added to Section 115 of the CPC by Code of Civil Procedure (Amendment) Act, 1999 which came into force from 1st July, 2002 whereunder the High Court shall not exercise powers of varying or reversing any order which is a subject matter of revision, except where the order, if it is made in favour of the party applying for the revisional jurisdiction, would, have finally disposed of the suit or other proceeding. In other words, the order passed by this Court should be in fact, of disposal of the proceeding or suit. When the order passed by this Court could not dispose of the suit or proceeding, but it has merely decided the question raised at interlocutory stage, the High Court has no jurisdiction to adjudicate upon and decide the case in exercise of its jurisdiction under Section 115 CPC. 4. The learned counsel for the petitioner states that this petition may be treated as a petition under Art 227 of the Constitution of India, it is no doubt true, as has been held in Surya Dev Rai v. Ram Chander Rai and Ors. 4. The learned counsel for the petitioner states that this petition may be treated as a petition under Art 227 of the Constitution of India, it is no doubt true, as has been held in Surya Dev Rai v. Ram Chander Rai and Ors. reported in that the High Court has jurisdiction to correct and quash the error committed by the subordinate court in passing an order in exercise of its civil jurisdiction by invoking powers under Article 226 or 227 of the Constitution of India. But the Apex Court has also put a note of caution that the jurisdiction so vested in the High Court should not be exercised as a matter of course. So long as an error is capable of being corrected by the superior court in exercise of appellate or revisional jurisdiction, though available to be exercised only at the Conclusion of the proceeding, it would be sound exercise of discretion on the part of the High Court to refuse to exercise power of superintendence during the pendency of the proceeding. 5. Considering the facts of the case in hand I do not find that a case is made out for exercise of the powers under Article 227 of the Constitution of India. 6. The revision petition is dismissed. Office shall send back the lower court records within seven days. It shall be the responsibility of the Superintendent, Civil Revision Section to see that the records are sent back within the said period.