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2010 DIGILAW 90 (PAT)

Durga Devi v. Vijay Kumar Poddar

2010-01-27

RAVI RANJAN

body2010
JUDGEMENT 1. In both these Civil Revisions common question with regard to their maintainability has cropped up, thus, both have been heard and considered together on the question. 2. It is well settled that an appeal and revision are creatures of statute. Section 115 of the Code of Civil Procedure (hereinafter referred to as "the Code"), as amended and substituted by the Code (Amendment Act. 1999, w.e.f. 1.7.2002) reads as follows: "115. Revision. (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 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.] [(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.] Explanation.In this Section, the expression, "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.]" 3. Now, question crops up as to whether in view of newly substituted proviso to the sub-section (1) of Section 115 of the Code, whether a Civil Revision would be maintainable against such orders which would not have given finality to the suit or proceeding, if the same would have been passed in favour of the parties applying for revision. This very question was considered by the Supreme Court in Shiv Shakti Coop. This very question was considered by the Supreme Court in Shiv Shakti Coop. Housing Society, Nagpur V/s. Swaraj Developers and Others, reported in (2003)6 SCC 659 (at page 674 paragraph-32) and answered in this regard. After a detailed discussion of Section 115 of the Code as stood before the 1999 Amendment and thereafter, Rules of statutory interpretation, distinction between appeal and revisional powers, the recommendations made by the Law Commission of India and the legislative intent for 1999 Amendment, the Supreme Court held as under: "32. A plain reading of Section 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 interim in nature or does not finally decide the lis, the revision is not 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(2)(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." 4. In view of what has been stated above, the inevitable conclusion would be that forum of civil revision would not be available against any interlocutory/interim order. 5. Section 115 of the Code was again considered by the Supreme Court in the case of Surya Dev Rai V/s. Ram Chander Rai and Others, reported in (2003)6 SCC 675 (at pages 682-683, paragraph-4) and it was held as follows:- "4. 5. Section 115 of the Code was again considered by the Supreme Court in the case of Surya Dev Rai V/s. Ram Chander Rai and Others, reported in (2003)6 SCC 675 (at pages 682-683, paragraph-4) and it was held as follows:- "4. Section 115 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 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 proviso, 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." 6. However, in the case of Sadhna Lodh V/s. National Insurance Co. Ltd. and Another, reported in (2003)3 SCC 524 [:2005(2) PLJR (SC)43], a three Judges Division Bench of the Supreme Court has held as under: "6. xxxxxxx. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. xxxxxxx. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. xxxxxxx" 7. Though the Supreme Court in the aforesaid decision has held that unless a revision under Section 115 of the Code has been expressly barred by State enactment, the same would lie where a remedy by way of an appeal has not been provided, in the opinion of this Court, the same principle would be applicable, if specific bar has been created by Parliamentary enactment also. 8. However, in the case of Joydeb Banerjee V/s. Subodh Choudhary and Another, reported in 2005(1) PLJR 440 also, a learned Single Judge of this Court placing reliance upon a decision of the three Judges Division Bench of the Apex Court in Sadhana Lodh (supra) has held that if the remedy of filing civil revision before High Court under Section 115 has been specifically barred by State enactment, only in such cases, petition under Article 226 of the Constitution of India would lie otherwise in the absence of such State enactment, it has been held, that the civil revision would be maintainable specially when the question of jurisdiction is involved. 9. In yet another decision, the learned Single Judge of this Court, while considering a Civil Revision filed against an order allowing intervention in the suit upon a petition filed under Order I Rule 10(2) of the Code, in Raghubans Mani V/s. Mahabir Babu Marwari, reported in 2005(4) PLJR 135 , after referring the decision of the Apex Court rendered in Shiv Shakti Coop. Housing Society, Nagpur (supra), has held that according to the aforesaid decision of the Apex Court itself the orders passed upon a petition filed under Order I Rule 10 of the Code were revisible under Section 115. It would be apt to quote the relevant passage of the aforesaid decision which is as follows: "8. Housing Society, Nagpur (supra), has held that according to the aforesaid decision of the Apex Court itself the orders passed upon a petition filed under Order I Rule 10 of the Code were revisible under Section 115. It would be apt to quote the relevant passage of the aforesaid decision which is as follows: "8. After hearing the learned counsel for the parties and after perusing the materials on record specially the impugned order, it is quite apparent that due to the objection of the intervenor- opposite party no. 2, a lis had arisen as to whether opposite party no. 2 was a necessary party for the proper adjudication of the suit and the said lis has been decided by the learned court below vide the impugned orders. Hence, in my view, according to the decision of the Honble Apex Court in case of Shiv Shakti Coop. Housing Society, Nagpur (supra), the said orders were revisable under Section 115 C.P.C. after its recent amendment which came into force on 1.7.2002. Even according to another decision of the Honble Apex Court in case of Sadhana Lodh V/s. National Insurance Co. Ltd. and Another, reported in AIR 2003 SC 1516 equivalent to (2003)3 SCC 524 [:2005 (2) PLJR (SC)43], the provision of Section 115 C.P.C. would be attracted in such matters. Hence, it is hereby held that these Civil Revisions are maintainable." 10. In yet another decision rendered in Prem Shankar Chaudhary V/s. Special Officer now President, Bihar State Board of Religious Trust and Ors. [ 2005(4) PLJR 487 ], the learned Single Judge, after referring the case of Shiv Shakti Coop. Housing Society, Nagpur (supra) held as follows: "19. So far the question of maintainability of this civil revision is concerned, the Honble Apex Court has specifically held in the case of Neelakantan V/s. Mallika Begum reported in (2002)2 Supreme Court Cases 440 that in cases where finding is recorded by courts below without any legal evidence on the record or on misreading the evidence or suffers from any legal infirmity which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such finding and to take a different view. In another decision of a Bench of three Honble Judges, the Honble Supreme Court in the case of Sadhana Lodh V/s. National Insurance Company Limited reported in (2003)3 Supreme Court Cases 524 has also held that only in such cases where remedy for filing civil revision is expressly barred by State enactment a petition under Article 227 of the Constitution would lie. Hence where there are such perversities in the findings and such legal infirmities in the impugned order which materially prejudices the case and leads to clear violation of law and abuse of the process of the court, the High Court has to interfere under its revisional jurisdiction to uphold the dignity of legal procedure and proper functioning of the judicial system. Furthermore, Section 115 of the Code of Civil Procedure specifically provides that where the subordinate court fails to exercise a jurisdiction vested in it or where it has acted in exercise of its jurisdiction illegally or with material irregularity, this Court can interfere in its revisional jurisdiction. Here in the instance case the lower court has not only failed to exercise the jurisdiction vested in it but has also failed in its basic duty to uphold the dignity, respectability and effectiveness of the orders and proceeding of the Court of Law. Hence, this civil revision is maintainable." 11. Some learned Members of the Bar pointed out few decisions of the Supreme Court to show that even after the law laid down in Shiv Shakti Coop. Housing Society, Nagpur (supra) and Surya Dev Rai (supra), the Supreme Court has not set aside the orders passed by the High Courts, allowing Civil Revisions filed against interlocutory orders, as not maintainable rather had adjudicated the issues on their merits. Apart from the above, it has also been pointed out that in the case of Sajjan Kumar V/s. Ram Kishamn, reported in (2005)13 SCC 89 , a three Judges Bench of the Supreme Court had held that if the trial court failed to exercise jurisdiction vested in it, such error was liable to be corrected by the High Court in exercise of its supervisory jurisdiction, even if Section 115 would not have been strictly applicable. Relevant passage of the aforesaid decision is quoted as under: "5. Relevant passage of the aforesaid decision is quoted as under: "5. Having heard the learned counsel for the parties, we are satisfied that the appeal deserves to be allowed as the trial court, while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it by law and by the failure to so exercise it, has occasioned a possible failure of justice. Such an error committed by the trial court was liable to be corrected by the High Court in exercise of its supervisory jurisdiction, even if Section 115 CPC would not have been strictly applicable. It is true that the plaintiff-appellant ought to have been diligent in promptly seeking the amendment in the plaint at an early stage of the suit, more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of execution in the event of the plaintiff- appellant succeeding in the suit." 12. However, it would be pertinent to point out that in Sajjan Kumar (supra) the decisions rendered in Shiv Shakti Coop. Housing Society, Nagpur (supra) and Surya Dev Rai (supra) do not stand referred. 13. Another decision of the Supreme Court in the case of Col. Anil Kak (Retd.) V/s. Municipal Corporation, Indore and Others, reported in AIR 2007 SC 1130 has also been referred. The relevant passage of the aforesaid decision is reproduced as under: "2. All that the High Court has done is to treat the petition filed before it under Section 115 of the Code as a proceeding initiated under Article 227 of the Constitution of India. The respondents had filed the revision originally and during the pendency of that revision the High Court appears to have taken a view that an orde in an appeal arising from a proceeding under Order 39, Rules 1 and 2 of the Code, could not be challenged under Section 115 of the Code since the order was in the nature of an interlocutory order. In such a situation, in our view, the High Court rightly decided to permit the revision petitioners before it, to convert the same as a proceeding under Article 227 of the Constitution of India. After all, the court could have done it on its own, even without a motion in that behalf by the petitioner. We see absolutely no ground to interfere with the said order on the grounds raised in this special leave petition. Hence, this special leave petition is dismissed." 14. In view of the decision of the Apex Court rendered in Col. Anil Kak (Retd.) (supra) and in the case of Nawab Shaqafath Ali Khan and Others V/s. Nawab Imdad Jah, reported in (2009)5 SCC 162 (Paragraph 48), it has been urged on behalf of the Bar that Civil Revision application concerned, alternatively, could be treated as a petition under Article 227 of the Constitution of India. However, it would further be pertinent to point out that in the case of Vishesh Kumar V/s. Shanti Prasad, reported in 1980(2) SCC 378 , it was urged that in case a revision under Section 115 C.P.C. was not maintainable, the case should be remitted to the High Court for consideration as a petition under Article 227 of the Constitution. In answer, the Supreme Court held as under: "17. It has been urged by the appellant in Vishesh Kumar V/s. Shanti Prasad (Civil Appeal No. 2844 of 1979) that in case this Court is of the opinion that a revision petition under Section 115, Code of Civil Procedure, is not maintainable, the case should be remitted to the High Court for consideration as a petition under Article 227 of the Constitution. We are unable to accept that prayer. A revision petition under Section 115 is a separate and distinct proceeding from a petition under Article 227 of the Constitution, and one cannot be identified with the other." 15. Further, it would be relevant to point out that in all the aforesaid subsequent decisions on this issue, the earlier decision rendered in Vishesh Kumar (supra) does not stand referred. 16. Further, it would be relevant to point out that in all the aforesaid subsequent decisions on this issue, the earlier decision rendered in Vishesh Kumar (supra) does not stand referred. 16. I, therefore, deem it proper to refer these Civil Revisions for their adjudication by an appropriate Division Bench on the following issues: (i) Whether the Civil Revision against an interlocutory order (an order which could not have finally decided the suit or proceedings in favour of the party applying for revision, if same had been passed by the court concerned in his favour) is maintainable in view of the newly substituted proviso to the sub-section (1) of Section 115 of the Code? (ii) Whether, even assuming that there is such a bar, still the High Court can interfere with such orders under "Civil Supervisory Jurisdiction"? (iii) Whether in each and every such Civil Revision, even if a petition has been filed under Section 115 of the Code, the High Court can hear and decide the same in exercise of its power under Article 227 of the Constitution of India? (iv) Whether all such revisions filed under Section 115 of the Code of Civil Procedure should be allowed to be converted into a writ petition under Article 227 of the Constitution of India? 17. The office is directed to place the records of these cases before the Honble the Chief Justice.