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2012 DIGILAW 88 (JK)

Mohammad Ramzan Thokur & Ors. v. Gh. Mohammad Sheikh & Ors.

2012-03-05

MOHAMMAD YAQOOB MIR

body2012
1. Suit captioned Ghulam Mohammad Sheikh & anr Vs. Samandar Thokar & ors is pending before the Court of Sub Judge, Handwara. During the course of proceedings, two applications came to be filed on behalf of petitioners (defendants), one seeking leave of the Court to file list of witnesses and depositing diet expenses and second seeking permission for production of agreement and affidavit dated 25.5.1992 and 29.5.2007 respectively. 2. Trial court after considering both the applications has allowed one application where-under list of witnesses has been permitted to be filed and has also permitted deposit of the diet expenses whereas application for production of documents has been dismissed. Dissatisfied therewith, instant revision petition has been filed. 3. At the very outset learned counsel for the petitioners was asked to justify maintainability of the revision petition as the bar contained in Proviso to Section 115 CPC does not permit entertaining the revision petitions against the orders which do not have the effect of terminating the suit proceedings. 4. Learned counsel, Mr. Sofi, with all efforts tried to convince that the expression "or other proceedings" as appear in the Proviso would take into its sweep disposal of all applications during the course of the suit. Buttressing this submission tried to take benefit of various judgments but those judgments are not of any help to him. In the said judgments expression "other proceedings" as appear in the Proviso has not been interpreted. 5. If submission projected by learned counsel for the petitioners is taken correct, then the object of amendment will be rendered otiose. The Proviso to Section 115 CPC has been substituted and by virtue of that substitution in effect earlier clause (b) to the Proviso has been omitted. The powers exercis-able under Section 115 CPC have been drastically curtailed with the object of avoiding protraction in the trial of suits. The Proviso to Section 115 CPC has been substituted and by virtue of that substitution in effect earlier clause (b) to the Proviso has been omitted. The powers exercis-able under Section 115 CPC have been drastically curtailed with the object of avoiding protraction in the trial of suits. It shall be quite advantageous to reproduce unamended as well as amended Proviso to sub-section (1) of Section 115 CPC: "Unamended Proviso to sub-section (1) of Section 115 CPC: "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- (a) 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 (b) the order, if allowed to stand, would occasion a failure of Justice or cause irreparable injury to the party against whom it was made. "Amended Proviso to sub-section (1) of Section 115 CPC: "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," 6. What will emerge from the careful reading of the proviso is that the revisional power has to be exercised only in respect of the orders which are final or the orders which if would have been passed in favour of the party applying for the revision would result in termination of the suit or other proceedings independent of the suit i.e. which may have trappings of the suit. 7. The words employed i.e. "or other proceedings" are in the context of the proceedings as may be commenced under the provisions of Succession Certificate Act, Guardians & Wards Act, Hindu Marriage Act and like proceedings but not the proceedings as may arise during the trial of the suit. It shall be quite advantageous to quote para 4 of the judgment captioned Surya Dev Rai Vs. Ram Chander Rai & others reported in (2003) 3 SCC 675: "4. It shall be quite advantageous to quote para 4 of the judgment captioned Surya Dev Rai Vs. Ram Chander Rai & others reported in (2003) 3 SCC 675: "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 9] injunction granted by the trial court. The revision 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 11SCPC. The amendment is based on the Malimath Committee's 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." 8. In the reported judgment application for injunction had been rejected and appeal taken against that order was also dismissed, both the two orders were held not amenable to the revisional jurisdiction. In case submission of the learned counsel that all ancillary matters which arise during the course of suit will fall within the scope of "other proceedings" then the application for injunction which had been rejected and then appeal taken against that order, could be easily termed to fall within the scope of word "other proceedings" 9. The interpretation has to be purposive and same has to be in-keeping with the legislative intent. The interpretation has to be purposive and same has to be in-keeping with the legislative intent. As already noticed above, the amendment has been introduced with the object of avoiding protraction in the suits and it is only in that backdrop clause (b) to proviso has, in effect, been omitted because said clause would give sweeping powers to the Court to interfere with all orders as shall be passed during the trial of the suit or during the course of other proceedings independent of suit which may result in causing failure of justice or cause irreparable injury to the party. 10. In light of the afore-stated reasons, to interpret the word "other proceedings" the way it is projected by the learned counsel, is not permissible. Revision petition, as such, is held to be not maintainable, dismissed accordingly along with connected CMP. 11. Copy of the order be send to the trial court.