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2004 DIGILAW 72 (GAU)

Suresh Kr. Dhanuka v. Kedar Nath Dhanuka

2004-02-04

I.A.ANSARI

body2004
JUDGMENT I.A. Ansari, J. 1. Challenging the legality of the order, dated 18.12.99, passed by the learned Civil Judge (Senior Divn.) No. 3, Kamrup, Guwahati, in Misc Appeal No. 5/99, which was directed against the order, dated 17.12.98, passed in Misc (J) Case No. 280/98, arising out of Title Suit No. 252/98, by the learned Civil Judge (Junior Divn.) No. 1, Guwahati, the Plaintiff-Petitioner has approached this Court with the present application for revision made under Section 115 read with 151 of Code of Civil Procedure. 2. Briefly stated, the facts leading to this revision are as follows: An application, seeking interim injunction under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, was made by the Plaintiff in TS 252/98. The learned Civil Judge (Junior Divn.) No. l Guwahati, upon considering the objection raised by the Defendant and also upon hearing the learned Counsel for the parties, passed an order of injunction, on 17.12.98, directing the Plaintiff-Petitioner to take steps within 60 days along with the opposite party No. 1 for demolition of his half portion of the building "by cutting pillar-joists and his sides pillars". Aggrieved by this order, the Plaintiff preferred Misc Appeal No. 5/99 aforementioned under Order 43 Rule 1(r) of the Code of Civil Procedure. The learned Civil Judge (Sr. Divn.) No. 3 Kamrup, Guwahati, vide the order, dated 18.12.99, partially allowed the appeal by setting aside the order, dated 17.12.98, aforementioned, passed by the learned Civil Judge (Junior Divn.) No. 1, Guwahati, and directed the Defendants-Respondents to ensure safety of the portion of the house of the Plaintiff-Appellant to take all necessary precaution to see that no damage was caused to the said portion and no inconvenience was caused to the Appellant due to the new construction of the building over the portion of the land of the Defendants-Respondents. It is this appellate order, dated 18.12.99, which stands impugned in the present revision. 3. I have perused the materials on record including the impugned order. I have heard Mr. B.K. Das, learned Counsel for the Petitioner, and Mr. A. Sattar, learned Counsel for Respondents. 4. It is this appellate order, dated 18.12.99, which stands impugned in the present revision. 3. I have perused the materials on record including the impugned order. I have heard Mr. B.K. Das, learned Counsel for the Petitioner, and Mr. A. Sattar, learned Counsel for Respondents. 4. Upon perusal of the materials on record and upon hearing the learned Counsel for the parties, what attracts my attention, most prominently, is that the Plaintiff-Petitioner has approached this Court with the present revision petition aggrieved by the impugned order, dated 18.12.99, aforementioned, passed by the learned Civil Judge (Sr. Division) No. 3, Guwahati, Kamrup, under Order 43 Rule 1(r) of the Code of Civil Procedure (hereinafter referred to as "the Code") setting aside the order, dated 17.12.98, aforementioned passed by the Civil Judge (Jr. Divn.) No. 1, Kamrup, and refusing to grant injunction, as had been sought for by the Plaintiff-Petitioner. 5. Before entering into the merit of the present revision, it needs to be pointed out that a careful reading of the unamended provisions of Section 115 of the Code reveals that an order, which decided a case, but not appealable, could have been interfered with, in revision, if the subordinate Court appeared to have exercised the jurisdiction not vested in it by law or have failed to exercise jurisdiction vested in it or have acted in the exercise of its jurisdiction illegally or with material irregularity. This exercise of revisional power was, however, subject to two conditions, which were embodied in Clauses (a) and (b) of the proviso to Section 115(1), namely, (a) that the order, which is sought to get revised, was such that if the order had been made in favour of the party applying for revision, it would have terminated the suit or the proceeding, or (b) if the order was such that it could cause, if allowed to stand, failure of justice or irreparable loss or injury to the party against whom the order was made. 6. What is, now, of paramount importance to note is that Clause (b) of the proviso to Section115(1) has been deleted by the Code of Civil Procedure (Amendment) Act, 2002. The question, therefore, is as to what will be the effect of the deletion of Clause (b) of the proviso to Section115(1) ? The answer to this question has been given in Karabi Karmakar and Anr. The question, therefore, is as to what will be the effect of the deletion of Clause (b) of the proviso to Section115(1) ? The answer to this question has been given in Karabi Karmakar and Anr. v. Shibani Karmakar and Ors., reported in 2003 (1) GLT 445, wherein it has been observed as follows: In the past, i.e., before the Code of Civil Procedure (Amendment) Act, 2002, came into force, an order, which suffered from jurisdictional error, could have been interfered with by the High Court in exercise of its revisional jurisdiction under Section 115 if the order under challenge was likely to cause failure of justice or irreparable loss or injury to the party approaching the revisional Court, but with Clause (b) of the proviso to Section 115(1)having been deleted under the new Act, the implication is that even if an order suffers from jurisdictional error or causes failure of justice or irreparable injury to the party approaching the Court, the order will not be interfered within revision unless the order, which is sought to get revised, is such that had the order been made in favour of the party applying for revision, it would have terminated the suit or the proceeding. (Emphasis is added) 7. However, the most significant aspect of the present revision is as to whether a revision application is at all maintainable against an order refusing to grant injunction under Order 39 Rules 1 and 2 read with Section 151 of the Code and/or under Order 43 Rule 1(r) read with Section 104 of the Code. The answer to this question is no more res integra. 8. In the case of Shiv Shakti Coop. Housing Society v. Swaraj Developers, reported in (2003) 6 SCC 659 . The Apex Court, upon considering the effect of the Code of Civil Procedure (Amendment) Act, 1999, operative from 1.7.2002, whereby amendments to Section 115 of the Code were introduced, answered the question as to whether a revision would be maintainable against an order refusing to grant injunction or granting injunction. The effect of the recent amendments to the Code has been summarized by the Apex Court in Shiv Shakti Coop. Housing Society (supra) as follows: 32. The effect of the recent amendments to the Code has been summarized by the Apex Court in Shiv Shakti Coop. Housing Society (supra) as follows: 32. A plain reading of Section 115 as it stands makes it clear that the stress in 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 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. There is marked distinction in the language of Section 97(3) of the Old Amendment Act and Section 32(2)(i) of the Amendment Act. While in the former, there was a clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(3)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered, the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation. (Emphasis is supplied) 9. In the case of Shiv Shakti Coop. Housing Society (supra), the Apex Court, while dealing with the power of revision of the High Courts under Section 115, in respect of interim directions including applications seeking directions for temporary injunction, has observed as follows: 4. It has been contended by learned Counsel for the Appellants that the High Court went wrong in disposing of the revision applications as not maintainable, on several grounds. It has been contended by learned Counsel for the Appellants that the High Court went wrong in disposing of the revision applications as not maintainable, on several grounds. They are: (i) the amended provisions do not apply to petitions which were admitted before the amendment, (ii) appeals and revisions stand on a parallel footing and are vested rights in the Appellant/applicant, as the case may be, and as such the amended provisions would not have any application, and (iii) the applications for injunction and the like which form the subject-matter of the revisions relate to the expression "other proceeding" and even if the amended provisions apply, disposal of the revision would have meant final dismissal of such "other proceedings. (Emphasis is added) 10. After a threadbare discussion of the effect of the amendment of Section 115, the Apex Court has held that the High Courts were right in concluding that the revision applications, which were subject of discussion in Shiv Shakti Coop. Housing Society (Supra) were not maintainable. 11. The fall out of what has been discussed and pointed out above is that no revision will, now, lie against an order granting injunction or refusing to grant injunction under Order 39 Rules 1 and 2and/or under Section 151 of the Code as well as the orders allowing or disallowing the prayer for injunction in exercise of powers contained in Order 43 Rule 1(r) read with Section 104 of the Code. 12. One may also refer to the case of Surya Devi Rai v. Ram Chander Rai, reported in (2003) 6 SCC 675 , wherein the Apex Court has observed thus, "Section115 of the 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 proceedings. The exercise of revisional jurisdiction in such a case is taken away by the proviso inserted under Sub-section (1) of Section 115 Code of Civil Procedure. The amendment is based on the Malimath Committee's recommendations. The exercise of revisional jurisdiction in such a case is taken away by the proviso inserted under Sub-section (1) of Section 115 Code of Civil Procedure. The amendment is based on the Malimath Committee's recommendations. The Committee was of the opinion that expression employed in Section 115 Code of Civil Procedure, 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 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 proviso, being deleted and new proviso having been inserted that the revisional jurisdiction, in respect of an interlocutory order passed in atrial or other proceedings, is substantially curtailed. A revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied (Emphasis is added) 13. In view of the above observations made in Surya Dev Rai (Supra), there can be no escape from the conclusion that no revisional jurisdiction can be exercised by the High Court under Section 115 of the Code in respect of orders passed by trial court granting and/or refusing to grant temporary injunction and/or orders passed by appellate Court confirming, reversing or modifying an order of temporary injunction. 14. Unable to defend the present revision in the light of the law laid down in Shiv Shakti Coop. Housing Society (Supra), Mr. B.K. Das has submitted that the present revision was filed before the new amended Act came into force. This aspect of the matter has also been dealt with in shiv Shakti Coop. Housing Society (supra) and the Apex Court has laid down therein, in no uncertain words, that pending proceedings initiated under the Old Code of Civil Procedure will also be governed by the provisions of the amended Code. This aspect of the matter has also been dealt with in shiv Shakti Coop. Housing Society (supra) and the Apex Court has laid down therein, in no uncertain words, that pending proceedings initiated under the Old Code of Civil Procedure will also be governed by the provisions of the amended Code. Viewed from this angle, notwithstanding the fact that the present revision was filed before the amended Code came into force, the inevitable conclusion will be that the High Court can no longer exercise the power of revision under Section 115 Code of Civil Procedure in respect of orders passed granting or refusing to grant temporary injunction. 15. In the result and for the reasons discussed above, this revision is held as not maintainable and the same is accordingly dismissed. 16. No order as to costs. Petition dismissed.