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2011 DIGILAW 722 (JK)

Mohni Devi v. Sarabjit Singh

2011-12-22

Hasnain Massodi

body2011
1. Whether the Civil Revision in hand is maintainable in wake of amendment to Section 115 Civil Procedure Code Svt. 1977 incorporated by Amendment Act of 2009 is the question that calls for an answer. 2. The background facts are as under:- The petitioners on 06.02.2009 commenced a suit for declaration, possession and injunction before 3rd Additional Munsiff, 1st Class, Jammu. The case set up was that the petitioners were owner in possession of land measuring 18 Kanals 16 Marlas comprising Survey No. 36 min, 40 min and 41 min, situated at Patel Nagar, Halqa Nowabad, Tehsil and District, Jammu, and that the defendants had forcibly occupied an area measuring 5 Kanals 09 Marlas comprising Survey No. 36 min, 40 min and 41 min, out of the said land. On the strength of the averments made in the plaint, the petitioners sought declaratory decree declaring the petitioners owners of the suit land, a decree of possession for the part of the suit land forcibly encroached upon by the respondents and also a permanent injunction decree, restraining the respondents from alienating or changing nature of area of suit land encroached upon by the respondents. Alongside the suit, the petitioners filed an application for grant of ad interim injunction. The trial Court dismissed the temporary injunction application and rejected prayer for grant of ad interim injunction. The petitioners questioned the trial Court order dated 25th July, 2009 in a Civil First Miscellaneous Appeal before Additional District Judge, Jammu. The appeal was held to be without any merit and accordingly dismissed on 27th September, 2010. The petitioners not satisfied with the order of the trial Court as also First Appellate Court, have come up with present Civil Revision and seek reversal of the impugned orders on the grounds urged therein. 3. The merits of the Civil Revision apart, preliminary objections is raised by counsel for the respondents as regards maintainability of the Civil Revision. It is contended that inconsequence of amendment to Section 115 Civil Procedure Code, restricting ambit and scope of the revisional powers of the High Court, Civil Revision is not maintainable and is liable to be dismissed as such. 4. Heard and considered. 5. It is contended that inconsequence of amendment to Section 115 Civil Procedure Code, restricting ambit and scope of the revisional powers of the High Court, Civil Revision is not maintainable and is liable to be dismissed as such. 4. Heard and considered. 5. The Civil Laws (Amendment) Act, 2009 (Act VI of 2009 dated 20.03.2009) is an omnibus amendment to Code of Civil Procedure and amongst its other provisions amends Section 115 that confers power on the High Court to call for the record of any case which has been decided by any Court subordinate to the High Court, and to vary or reverse such order, where the subordinate Court is found to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity, or the order to have caused failure of justice. 6. The amendment substitutes proviso to Section 115 (1) CPC by the following:- "Provided that the High Court shall not, under this Section vary or reverse any order made, or an 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 proceeding". 7. A closer look at the amended provision reveals that the amendment of 2009 restricts the supervisory powers of the High Court available under Section 115 CPC stand to a large extent. Before amendment of 2009, the High Court would exercise its revisional powers and vary or reverse any order made, in the course of a suit or other proceeding, even where the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. Section 115 (1) proviso (b), before amendment thus gave wide powers to the High Court to vary or reverse any order as said above, even where it did not involve erroneous assumption of jurisdiction, failure to exercise jurisdiction or exercise of jurisdiction illegally or with material irregularity. The High Court would still interfere where the order though not tainted with any jurisdictional error, if allowed to stand would cause irreparable injury to the party against whom it was made. The High Court would still interfere where the order though not tainted with any jurisdictional error, if allowed to stand would cause irreparable injury to the party against whom it was made. The Civil Laws (Amendment) Act 2009 deletes clause (b) of the proviso to Section 115 (1) CPC and substitutes it by the proviso reproduced above. 8. It follows that the High Court can exercise its revisional powers under section 115 CPC only in case the order deciding an issue, in the course of a suit or other proceeding, if made in favour of the party questioning the order would have finally disposed of the suit or other proceeding. The litmus test for determining the maintainability of Civil Revision is to see whether the order impugned in the Civil Revision would clinch the suit or other proceedings, had the order been made in favour of the party assailing the order. 9. To illustrate, if an application seeking dismissal of a suit or other proceeding at the threshold, on whatever grounds available under law, is rejected. The party aggrieved with the order may successfully maintain a revision petition, as the order, if passed in his favour i.e. the order of dismissal of the suit or other proceeding, would have finally disposed of the suit or other proceeding as the case may be. On the other hand, revision against an order disallowing an amendment in the pleadings, or disallowing a prayer for summoning the witnesses, striking additional issues, deleting an issue from the list of issues, taking a document on record, so on and so forth, would not be maintainable, for the simple reason, that the order in all such cases, even if passed in favour of the party questioning the order would not finally dispose of the suit or other proceeding. The suit or other proceeding would continue to be alive and pending, whatever way the application is decided. 10. The effect of amendment to Section 115 CPC whereby proviso to Section 115 (1) was recast/substituted has been looked into by the Supreme Court in a number of cases. Since the amendment to Central Code was incorporated way back in the year 1999, the law on the subject in rest of the country has already settled down. However, as pointed out amendment to Section 115 in the Code of Civil Procedure (State Code) was made only in 2009. Since the amendment to Central Code was incorporated way back in the year 1999, the law on the subject in rest of the country has already settled down. However, as pointed out amendment to Section 115 in the Code of Civil Procedure (State Code) was made only in 2009. Resultantly, the position remains a little hazy and less clear as regard impact of amendment to Section 115 CPC J&K on the revisional jurisdiction of the High Court. 11. Against the said backdrop, it would be advantageous to make a brief survey of the case law on the subject:- 12. In Prem Bakshi & Others v. Dharam Dev & Others 2002 SC 599, Supreme Court while dealing with question of maintainability of a Civil Revision under amended Section 115 CPC has observed :- 5. The proviso to sub-Section(1) of Section 115 puts a restriction on the powers of the High Court in as much as the High Court shall not, under this Section vary or reverse any order made or any order deciding a issue, in course of a suit or other proceedings except where (i) the order made would have finally disposes of the suit or other proceedings or (ii) the said order would occasion a failure of justice or cause irreparable injury to the party against whom it is made. Under Clause (a), the High Court would be justified in interfering with an order of a subordinate Court if the said finally dispose of the suit or other proceeding. By way of illustration we may say that if a trial Court holds by an interlocutory order that it has no jurisdiction to proceed the case or that suit is barred by limitation, it would amount to finally deciding the case and such order would be revisable. The order in question by which the amendment was allowed could not be said to have finally disposed of the case and, therefore, it would not come under clause (a) . 13. Supreme Court again in Shiv Shakti Co-op. The order in question by which the amendment was allowed could not be said to have finally disposed of the case and, therefore, it would not come under clause (a) . 13. Supreme Court again in Shiv Shakti Co-op. Housing Society v. Sawaraj Developers and Others AIR 2003 SC 2434 --emphasising that a person has not a vested right in the course of procedure and that once by a statutory change, the mode of procedure is altered, the parties, are to proceed according to the altered mode without exception and that while a party to litigation has a right to file an appeal no such right is conferred to file a revision observed:- It is fairly a well settled position in law that the right of appeal is a substantive right. But there is no such substantive right in making an application under Section 115...... 14. Section 115 is essentially a source of power for the High Court to supervise the subordinate courts. It does not in any way confer a right on a litigant aggrieved by any order of the subordinate court to approach the High Court for relief. The scope for making a revision under S.115 is not linked with a substantive right. The Court making a comparison of Section 115 CPC as it stood before the amendment and after the amendment held:- A comparison of two provisions of S.115 as they stood before amendment and after the amendment of 1999 shows that while proviso (a) of the unamended provision has been retained in its totality. In the amended provisions clause (b) of the proviso has been omitted. It is to be noted that prior to the amendments to the Code by the old Amendment Act, the power of revision was wider. By the amendment, certain positive restrictions were put on the High court's power to deal with the 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 lis 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........ Prior to the said amendment, it was not strictly necessary that the impugned order would have the result of finally deciding the lis 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........ 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 of revision under S.115. 15. The principle was reiterated in Surya Dev Rai v. Ram Chander Rai AIR 2003 SC 3044 , where the Supreme Court holding a civil revision under Section 115 CPC against an order disallowing appeal questioning the trial Court order under Order 39 CPC as not maintainable observed:- 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 finality disposing of the suit or other proceedings. The exercise of revisional jurisdiction such a case is taken away by the proviso inserted under sub-section (1) of S.115 of the C.P.C. the amendment is based on the Malimath Committee's recommendations. The Committee was of the opinion that the expressions employed in S. 115 C.P.C., 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 the 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 Cl.(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. In the aforementioned case an application for grant of temporary injunction was rejected by the trial Court and so was the appeal preferred against the trial Court order. The revision against the order of the appellate Court was held to be non-maintainable in view of amendment made in Section 115 of CPC by the Amendment Act 46 of 1999, though remedy available under Articles 226, 227 was held to be available and intact, unaffected by the said amendment. 16. Learned counsel for the petitioner notwithstanding the settled legal position as regards maintainability of a civil revision emerging from the above survey of the case law on the subject insists that the civil revision on hand is maintainable. Learned counsel is prompted to support maintainability of the civil revision on the following three grounds:- 4. That the expression "other proceedings" in proviso to Section 115 (1) CPC refers to proceedings in interim matters and even where an application is disposed of during course of the proceedings, the order allowing or disallowing such application would satisfy litmus test laid down under the amended provision and the revision would be maintainable. 5. That the High Court in terms of Section 115 (1) (d) is competent to exercise revisional powers even where the order impugned in the revision is found to have caused failure of justice and deletion of Clause (b) of proviso to Section 115 (1) CPC would not, in any manner, curtail or restrict the revisional powers of the High Court. 6. That the Learned Single Judge has already in "Darbari Lal and ors. v. Madan Lal and ors. 2011 (1) JKJ 649 (HC)", held the civil revision against the order of Appellate Court, whereby appeal against the order of the Trial Court under order 39 CPC is dismissed, maintainable. 6. That the Learned Single Judge has already in "Darbari Lal and ors. v. Madan Lal and ors. 2011 (1) JKJ 649 (HC)", held the civil revision against the order of Appellate Court, whereby appeal against the order of the Trial Court under order 39 CPC is dismissed, maintainable. This Court, if not, in agreement with the aforesaid judgment as in terms of High Court Rules is to remand the case to be placed before the Chief Justice for referring it to a Bench of two Judges or more for decision. 17. Learned counsel for the petitioner elaborating on his argument insists that if expression "other proceedings" is taken to refer to the matters -- interim and ancillary to the proceedings in the suit, orders passed on such interim/ancillary applications allowing or disallowing such applications would be revisable in terms of amended provision, inasmuch as such order, if passed in favour of the parties, questioning it would finally dispose of the proceedings. It is argued that the revision against an application allowing or disallowing temporary injunction would be maintainable inasmuch as the order is made in favour of the party filing the revision petition. The proceedings in temporary injunction application would come to an end, same, according to learned counsel for the petitioner, would be true as regards order passed in appeal, rejecting a temporary injunction application. 18. The argument advanced is specious and better to be ignored. It hardly needs any emphasis that the expression "other proceedings" is used to include matter that partake character of a suit. It refers to proceedings that though having characteristics of a suit is not known or styled as "suit" but some other expression. To illustrate a petition under Hindu Marriage Act for restitution of congenial rights or dissolution of the marriage, though not known or styled as "suit" has all the characteristics of a suit. The opposite party is allowed to file reply to the written statement, issues are settled, evidence recorded and the matter decided by preponderance of probabilities. When Section 115 (1) refers to "suit" or "other proceedings", what is intended is, such matters though not having same nomenclature, have all the characteristics of a suit. The opposite party is allowed to file reply to the written statement, issues are settled, evidence recorded and the matter decided by preponderance of probabilities. When Section 115 (1) refers to "suit" or "other proceedings", what is intended is, such matters though not having same nomenclature, have all the characteristics of a suit. It follows that revision by a party against an order would be maintainable, in case, the suit or other proceedings would be finally disposed of, had the order gone in favour of the party filing the civil revision. When we embark on an exercise to interpret the expression "other proceedings", we need to be reminded of the object of Civil Laws (Amendment) Act 2009 and opt for a purposive interpretation. The baseline is to be the Heydon's Rule that requires the Court to have regard to the law before the amendment, focus on mischief or defect proposed to be cured and the remedy provided by the amendment. The Civil Laws (Amendment) Act 2009 was response to concern for unending delays in civil proceedings defect proposed to be cured was frequent civil revisions in the name of failure of justice or irreparable injury to the party aggrieved with the order, and the remedy introduced was restricting scope and ambit of revisional powers. 19. Against the said backdrop, if the expression "other proceedings" is held to include and matters of interim nature or matters ancillary to the proceedings in the suit, the very purpose of the Amendment Act of 2009, would be frustrated and the legislative effort to cure the defect or address the mischief rendered, meaningless. It is pertinent to point out that in "Prem Bakshi's" case (Supra) the order impugned was one by which the amendment application was allowed and in "Surya Dev Rai's" case (Supra), the order impugned was one rejecting an application for grant of temporary injunction. In case, it was permissible to interpret expression "other proceedings" as interim or ancillary applications to the proceedings in the suit, there was no occasion to hold civil revision not maintainable in all these cases. 20. The order in all such cases, if passed in favour of the petitioners would have finally disposal of such applications making the order amenable to revisional jurisdiction. 20. The order in all such cases, if passed in favour of the petitioners would have finally disposal of such applications making the order amenable to revisional jurisdiction. The law laid down in "Shiv Shakti Co-op Housing Society's" case (Supra) was in effect followed in "Surya Dev Rai's" case (supra), "Yeshwant Sakhalkar and anr. v. Hirabat Kamat Mhamai and anr. 2004 (6) SCC 71" and "Gayatri Devi and ors. v. Shashipal Singh AIR 2005 SC 2342 ". In "Yeshwant Sakhalkar" case, the High Court did not overset the order of the Appellate Court, allowing appeal against the order of the Trial Court, refusing temporary injunction, in exercise of its revisional powers under Section 115 CPC but exercised its jurisdiction under Article 227 Constitution of India. In "Gayatri Devi's" case (Supra) a civil revision was preferred before Delhi High Court against an order of the Appellate Court, rejecting an appeal against the Trial Court order, dismissing the application for grant of temporary injunction. The High Court entertained and allowed the civil revision on February 23, 2004. The Supreme Court setting aside the High Court order observing:- "14. In the first place, it appears to us that the revision petition before the High Court was wholly incompetent in view of the amended provision of Section 115 of the CPC. The Revision Petition was entertained at a stage of an interlocutory proceedings. As laid down by this Court in Shiv Shakti Coop, Housing Society v. Swaraj Developers, an order interim in nature of which does not finally decide the lis, cannot be challenged by way of a revision under Section 115 of the CPC. 17. In the result, we are of the view that the High Court grossly erred in entertaining the revision petition and granting relief which was unjustified both in law and on facts. The impugned judgment of the High Court is quashed and set aside." 21. The case law relied by counsel for the petitioner does not lend support to the contention that civil revision against an order, finally disposing of an interim or ancillary application, was maintainable. 22. The second argument advanced by learned counsel for the petitioner relates to ambit and scope of Section 115 (1) (d). The case law relied by counsel for the petitioner does not lend support to the contention that civil revision against an order, finally disposing of an interim or ancillary application, was maintainable. 22. The second argument advanced by learned counsel for the petitioner relates to ambit and scope of Section 115 (1) (d). It is argued that in view of the decision of the law makers to retain Section 115 (1) (d), the scope of revisional powers of the High Court was maintained and deleting Clause (b) proviso to Section 115 (1) CPC is not to have any impact on the revisional powers. The argument does not carry any weight, for the simple reason that proviso to Section 115 (1) CPC applies as much to Section 115 (1) (d) as to Section 115 (1) (a) to (c). It follows that a civil revision filed on whatever ground -- be it exercise of jurisdiction, not vested in the Court, failure to exercise jurisdiction so vested, exercise of jurisdiction illegally or with material irregularity, or failure of justice, has to satisfy the requirements of proviso to Section 115 (1) CPC i.e. the order impugned must finally dispose of the suit or other proceedings, if made in favour of the party, questioning the order. What emerges from the above discussion is that a civil revision like one in hand is not maintainable, even if the order impugned results in failure of justice, unless it is of the nature contemplated by proviso to Section 115 (1) CPC. 23. It is next argued by counsel for the petitioner that in view of judgment reported as "Darbari Lal and ors. v. Madan Lal and ors, 2011 (1) JKJ 649 (HC)" (decided on 15.03.2011), whereby a civil revision against order of the Appellate Court, rejecting appeal against the trial Court order dismissing application under Section 39 CPC is held maintainable, this Court, even if, it is inclined to hold otherwise, is left with no option but to submit the matter to the Chief Justice for its reference to a larger Bench in terms of Rule 33 J&K High Court Rules, 1999. The argument is bereft of any merit for the simple reason that the judgment rendered by learned Single Judge in Darbari Lal's case (Supra) is per incurium inasmuch as law laid down in "Prem Bakshi and ors. v. Dharam Dev & Ors. The argument is bereft of any merit for the simple reason that the judgment rendered by learned Single Judge in Darbari Lal's case (Supra) is per incurium inasmuch as law laid down in "Prem Bakshi and ors. v. Dharam Dev & Ors. AIR 2002 SC 599 and Shiv Shakti Co-op Housing Society v. Sawaraj Developers and ors. AIR 2003 SC 2434 , Surya Dev Rai v. Ram Chander Rai AIR 2003 SC 3044 , Gayatri Devi v. Shashi Pal Singh AIR 2005 SC 2342 ", has not been brought to the notice of learned Single Judge. This apart, this Court earlier in Om Parkash v. Mohan Lal Sharma 2010 (3) JKJ 36 (HC) (decided on 18.9.2010), held that in view of amendment to Section 115 CPC the revisional jurisdiction of the High Court was restricted to a great extent and an order was not revisable, unless if passed in favour of the party filing the revision petition, it would have clinched the suit or other proceedings. This Court in the aforementioned case held that a civil revision against an order disallowing an amendment in the pleadings was not maintainable, inasmuch as the order if passed in favour of the petitioner would not have finally dispose of the suit. The judgment also appears not to have been brought to the notice of the Learned Single Judge. The doctrine of binding precedents of a Coordinate Court though not absolute in its applicability is to be followed, so as to achieve uniformity of Court decisions and certainty about the law. However, one of the exceptions to the rule that a decision of the Court of coordinate jurisdiction is to be followed by another Court of same strength, is that a judgment delivered, per incurium is not binding on account of coordinate jurisdiction. So viewed, the judgment reported as "Darbari Lal and ors. v. Madan Lal and ors, 2011 (1) JKJ 649 (HC)" does not stand in the way of the Court to decide the matter. Resultantly, Rule 33 J&K High Court Rules, 1999 is not attracted at all. 24. For the reasons discussed, the civil revision is held not maintainable in view of amendment to Section 115 CPC incorporated by the Civil Laws (Amendment) Act of 2009 and accordingly dismissed.