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2007 DIGILAW 2899 (ALL)

RAM GOPAL MATHUR v. SUBHASH CHANDRA MATHUR

2007-12-03

DILIP GUPTA

body2007
DILIP GUPTA, J. ( 1 ) THE defendant of the Original Suit No 264 of 2002 has filed this civil revision for setting aside the other dated 25th October, 2007 passed by the learned Additional District Judge, Court No. 14 in Civil Appeal No. 18 of 2007 by which the application for amendment of the written statement was rejected. ( 2 ) THE original suit which had been filed for specific performance of the registered agreement to sell dated 31st January, 1998 was decreed by the Trial court by the judgment and decree dated 7th February, 2007, Civil Appeal No. 18 of 2007 was filed by the defendant and during the pendency of the civil appeal an application was filed for amendment of the written statement. This application was rejected by the Trial Court by the order dated 25th October, 2007. ( 3 ) THE stamp reporter has submitted a report that the revision is not maintainable in view of the Full Bench decision of this Court in M/s. Jupiter Chit Fund (Pvt.) Ltd. v. Dwarka Dhiesh Dayal and others, 197975) ALR 341 (FB ). ( 4 ) A preliminary objection has also been raised by Ms. Rama Goel learned Counsel appearing for the plaintiff-respondent that the civil revision under section 115 of the Code of Civil Procedure (hereinafter referred to as c. P. C.) as amended by the State of U. P. is not maintainable and in support of this contention reliance has been placed upon the Full Bench decision of this Court in Ganga Saran v. Civil Judge, Hapur, Ghaziabad and others, 1991 (17) ALR 380. and Jupiter Chit Fund (supra ). ( 5 ) SRI B. B. Paul learned Counsel appearing for the revisionist has, however, filed objections to the report submitted by the stamp reporter. He further submitted that this civil revision is maintainable in view of the Full Bench decision of five learned Judges of this Court in Rama Shanker Tiwari v. Mahadeo and others, 1968 ALJ 109. ( 6 ) I have are full considered the submissions advanced by the learned Counsel for the parties. He further submitted that this civil revision is maintainable in view of the Full Bench decision of five learned Judges of this Court in Rama Shanker Tiwari v. Mahadeo and others, 1968 ALJ 109. ( 6 ) I have are full considered the submissions advanced by the learned Counsel for the parties. ( 7 ) IN order to appreciate the contention advanced by the learned Counsel for the parties, it would be necessary to reproduce the provisions of section 115, C. P. C. as amended in the State of U. P. w. e. f. 1st July, 2002 by U. P. Act No. 14 of 2003. "115. Revision.- (1) A superior Court may revise an order passed in a case decided in an original suit or other proceeding by a Subordinate Court where no appeal lies against the order and where the Subordinate Court has- (a) exercised a jurisdiction not vested in it by law; or (b) failed to exercise a jurisdiction so vested: or (c) acted in exercise of its jurisdiction illegally or with material irregularity. (2) A revision application under sub-section (1) when filed in the High Court, shall contain a certificate on the first page of such application, below the title of the case, to the effect that no revision in the case lies to the District Court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the District Court. (3) The superior Court shall not, under this section, vary or reverse any order made except where,- (i) 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 (ii) the order, if allowed to stand, would occasion failure of justice or cause irreparable injury to the party against whom it is made. (4) 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 superior Court. (4) 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 superior Court. Explanation I.-In this section,- (i) the expression "superior Court" means- (a) the District Court, where the valuation of a case decided by a Court subordinate to it does not exceed five lakh rupees; (b) the High Court, where the order sought to be revised was passed in a case decided by the District Court or where the value of the original suit or other proceedings in a case decided a Court subordinate to the District Court exceed five lakh rupees. (ii) the expression "order" includes an order deciding an issue in any original suit or other proceedings. Explanation II.-The provision of this section shall also be applicable to orders passed, before or after the commencement of this section, in original suits or other proceedings institute before such commencement. " ( 8 ) IN Jupiter Chit Fund (supra) the Full Bench of this Court consisting of three learned Judges enunciated the following two principles relevant for the purposes of the controversy involved herein relating to the provisions of section 115, C. P. C. as amended by State of U. P. in 1978 w. e. f. 1st August, 1978 : (1) Against orders made in suits valued at less than rupees twenty thousand a revision lies only to the District Judge and against the orders of the District Judge in revision no revision lies to High Court. (2) Against an order made by the District Judge in an appeal no revision lies to the High Court provided the suit is valid at less than rupees twenty thousand. ( 9 ) THESE two aspects were affirmed by the Supreme Court in Vishesh Kumar v. Shanti Prasad, 1980 (6) ALR 233 (SC ). and Vishnu Awatar v. Shiv Awatar, AIR 1980 SC 1575 =1930 ARC 461. respectively. In Vishesh Kumar (supra), the Supreme Court held that section 115 as amended by U. P. Amendment Act assigns mutually exclusive jurisdiction to High Court and District Court and that recognising a revisional power in High Court over a revisional order passed by the District Judge would defeat the legislative scheme and object underlying it. respectively. In Vishesh Kumar (supra), the Supreme Court held that section 115 as amended by U. P. Amendment Act assigns mutually exclusive jurisdiction to High Court and District Court and that recognising a revisional power in High Court over a revisional order passed by the District Judge would defeat the legislative scheme and object underlying it. In Vishnu Awatar (supra) it was held that against an order of the District Judge made in appeal no revision lies to the High Court provided the suit is valued at less than rupecs twenty thousand. ( 10 ) HOWEVER, in Qamaruddin v. Rasul Baksh, 1990 All WC 308=1990 SCFBRC 76=1990 (1) ARC 250. the Supreme Court, without noticing the amendments made in section 115 by the State of U. P. , disposed of the matter holding that against an order made under Order XXXIX, Rules 1 and 2 an appeal lies under Order XLIII, Rule 1 to the District Judge and the order of the District Judge on such appeal is amenable to the revisional jurisdiction of the High Court under section 115, C. P. C. ( 11 ) A Full Bench was again constituted in Ganga Saran (supra) and the first question framed by the Full Bench was whether the judgment of the Supreme Court in Qamaruddir. (supra) has the effect of overruling the Full Bench decision of this Court in Jupiter Chit Fund (P) Ltd. (supra) as affirmed by the judgment of the Supreme Court in Vishesh Kumar (supra) and Sri Vishnu Awatar (supra ). ( 12 ) THE Full Bench in Ganga Saran (supra) noticed that there was direct conflict between the decision of the Supreme Court in Qamaruddin (supra) on the one hand and the decisions of the Supreme Court in Vishesh Kumar (supra) and Vishnu Awatar (supra) affirming the decision of the Full Bench of this Court in Jupiter Chit Funds (P) Ltd. (supra) on the other hand. The Full Bench observed as follows :- "in such a situation it cannot be held that the case of Qamaruddin (supra) lays down the law accurately. Further it also cannot be held that the decision of the Supreme Court in Qamaruddin"s case overruled the decision of Full Bench of this Court which as noticed already, has been specifically affirmed in two decisions of the Supreme Court. Further it also cannot be held that the decision of the Supreme Court in Qamaruddin"s case overruled the decision of Full Bench of this Court which as noticed already, has been specifically affirmed in two decisions of the Supreme Court. It would not be reasonable to say that even though Qamaruddins case does not notice U. P. Amendment Act and the earlier decision of Supreme Court approving the Full Bench decision of this Court, it must be deemed to have assented or departed from earlier decisions or that it has overruled the Full Bench decision of this Court. It goes without saying that even the decision of the Supreme Court must be understood reasonably. It would not be reasonable to say that the Supreme Court would depart or dissent from its earlier decision without even referring to them or its earlier decision without even referring to them or without ever referring to the relevant provision of law. For the above reasons it must be held that the decision of the Supreme Court in Qamaruddins case (supra) to the extent it holds that revision against an appellate or revisional order passed by the District Court is maintainable under section 115, C. P. C. (as amended by U. P. Act 31/78) to the High Court does not state the law accurately when or overrule the decision of the Full Bench of this Court in Jupiter Chit Fund (Pvt.) Ltd. (supra) particularly when it has specifically been approved by the two earlier decisions of the Supreme Court. " ( 13 ) IT needs to be mentioned at this stage that in Jupiter Chit Fund (Pvt.) Ltd. the Full Bench held that words "or other proceedings" in the phrase "cases arising out of original all suits or other proceedings" refer to proceedings of final nature and the words have been added in order to bring within the purview of the revisional jurisdiction orders passed in proceedings of an original nature, which are not of the nature of suits, like arbitration proceedings, and that this phrase cannot include decisions of appeals, or revisions. It was also observed :- It was suggested that an appeal or a revision is a case which arise out of the original suit, and, therefore, a revision would lie under section 115, C. P. C. to the High Court. It was also observed :- It was suggested that an appeal or a revision is a case which arise out of the original suit, and, therefore, a revision would lie under section 115, C. P. C. to the High Court. An appeal or a revision is for some purposes treated as a continuation of a suit. The appeal or the revision is the case which arise out of the suit. But when the appeal or the revision is decided, such decision creates a different or a fresh case which arises out of the appeal or the revision. It has an identity and existence different and apart from the case which arose out of the suit. It is settled law that a judicial order passed by the Trial Court merges in the order passed by the Appellate or Revisional Court : Shankar Rdmchandra v. Krishnaji Dattatraya, AIR 1970 SC 1 . How can it be said that an appellate or revisional decision in which the decision of the Trial Court has merged, it still a case arising out of the original suit. After merger, that case, i. e. the decision arising out of the original suit vanishes. The decision of the appeal or revision brings into existence a case which can properly be said to be arising out of the appeal or revision. The decision of an appeal or revision is hence not amenable to the revisional jurisdiction under section 115 even after the amendment in 1973. " ( 14 ) AMENDMENTS were made in section 115, C. P. C. by the Code of Civil Procedure (Amendment) Act, 1999 w. e. f. 1st July, 2002 but the State of u. P. substituted section 115, C. P. C. w. e. f 1st July, 2002. The position does not change with respect to the maintainability of the civil revision under section 115, C. P. C. even after the State of U. P. substituted section 115, C. P. C. w. e. f. 1st July, 2002. ( 15 ) HOWEVER, learned Counsel for the revisionist placed reliance upon the decision of the Full Bench of this Court of five Honble Judges in Rama Shanker Tiwari (supra ). In the said case, the amendment application had been filed in the pending original suit. The Trial Court rejected the amendment application and a revision was filed against the said order. In the said case, the amendment application had been filed in the pending original suit. The Trial Court rejected the amendment application and a revision was filed against the said order. The question involved therein was whether an order passed under Order VI, Rule 17, C. P. C. , either allowing an amendment or refusing to allow an amendment is a case decided within the meaning of that expression contained in section 115, C. P. C. The majority held that an order passed under Order VI, Rule 17, C. P. C. either allowing an amendment or refusing to allow an amendment is a case decided within the meaning of that expression contained in section 115, C. P. C. The question involved before the Full Bench of five Honble Judges was not whether the revision was maintainable against an order rejecting the amendment application in the pending civil appeal. The decision in the case of Rama Shanker Tiwari (supra), therefore, does not help the revisionist at all. ( 16 ) IN view of the aforesaid decision, of the Full Bench in Ganga Saran (supra) this civil revision, which arises out of an interlocutory order passed in the civil appeal, is not maintainable. The objection filed by the revisionist against the report of the stamp reporter are rejected. ( 17 ) SUCH being the position, the revision is not maintainable and is, accordingly, dismissed. The interim order stands vacated. Revision Dismissed. .