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2018 DIGILAW 587 (JK)

AYASH AHMAD DAR v. ABDUL REHMAN NATH

2018-08-01

ALOK ARADHE

body2018
ORDER : ALOK ARADHE, J. 1. This civil revision under section 115 of the Code of Civil Procedure has been filed against order dated 30.05.2018 by which the trial Court has dismissed the application preferred by the petitioner under section 24 of the Code of Civil Procedure for transfer of the civil suit. 2. The arguments with regard to maintainability of this revision against an order passed on an application under section 24 of the Code of Civil Procedure were heard. 3. Learned counsel for the petitioner while placing reliance on decision of Karnataka High Court in M. V. Ganesh Prasad v. Vasudevamurthy and others, AIR 2003 Karnataka 39 submitted that since the proceeding under section 24 of the Code of Civil Procedure is an independent proceeding, therefore, the bar contained in Proviso to section 115 of the Code of Civil Procedure does not apply and the instant revision is maintainable. Learned counsel for the petitioner also placed reliance on the decision of this Court in Mushtaq Ahmad Dar v. Mohd. Ishaq Zaroo, AIR 1999 J&K 125 as well as decision of Madhya Pradesh High Court in Rambharose Singh v. Hemlata, 1987 Supreme (MP) 564. 4. I have considered the submissions made by the learned counsel for the petitioner and have perused the record. Before proceeding to deal with the issue of maintainability of this revision, it is apposite to refer to the amended section 115 of the Code of Civil Procedure (hereinafter to be referred to as 'the Code’), which has been amended by Civil Laws (Amendment) Act, 2009 and it has come into force with effect from 20.03.2009. By the aforesaid amendment, the following changes have been incorporated in Section 115(1) of the Code:- (a) Following proviso has been substituted in sub-section (1):- ' 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.' (b) After sub-section (2) but before the Explanation, following sub-section (3) has been inserted, namely;- ' A revision shall not operate as a stay of suit for other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.' 5. The aforesaid proviso curtails the revisional jurisdiction of this Court under section 115 of the Code of Civil Procedure and restricts the exercise of jurisdiction of this Court while entertaining the revision. The proviso restricts the power of this Court to entertain the revision in the case where the order if made in favour of the party applying for the revision, the suit or 'other proceeding' would have been finally disposed of. 6. There are certain orders which come into existence in the course of hearing of the suit, namely, 'an order refusing/allowing an application for amendment', 'prayer for grant of injunction', 'relief seeking appointment of receiver', 'commission', 'application to file documents', 'application to take up an issue as preliminary issue', 'application seeking addition of an issue and such other ancillary matters'. These orders are precluded from the purview of revisional jurisdiction as ordinarily, in a case of this nature the proceeding in the suit would not be disposed of, even if an order is passed in favour of the party applying for revision. 7. The expression 'other proceeding' is noteworthy, which appears in Proviso to Section 115 of the Code, after the expression 'suit'. The rule of ejusdem generis has to be applied for interpreting the expression 'other proceeding' employed by legislature in Proviso to Section 115(1) of the Code. The aforesaid rule provides that when particular words pertaining to a class, category or genus are followed by general words, the general words are construed as limited to things of the same kind as those specified. (See: Kavalappara Kottarathil Kochuni v. State of Madras, AIR 1960 SC 1080 , p.1103; Housing Board of Haryana v. Haryana Housing Board Employees Union, (1996) 1 SCC 95 : ( AIR 1996 SC 434 ) and State of Karnataka v. Kempaiah, (1998) 6 SCC 103 ) : ( AIR 1998 SC 3047 ). Thus, the word 'other proceeding' has to be read in the context of the expression 'suit', which means an original proceeding. 8. There are some proceedings which are proceedings under the Code which have the status of original proceedings, namely, application under Order 9, Rule 4 and Order 9, Rule 13. These applications are filed in a Court of law when the suit is not in existence or pending as the same has been disposed of. Therefore, the aforesaid proceedings are to be regarded as original proceedings. These applications are filed in a Court of law when the suit is not in existence or pending as the same has been disposed of. Therefore, the aforesaid proceedings are to be regarded as original proceedings. For example, if the Court refuses to restore the suit for some reason or other and the matter comes before the High Court in revision and if the revision is allowed, the said proceeding would stand terminated. Therefore, the proceeding of aforesaid nature is an independent proceeding, otherwise immense hardship would be caused. 9. The terms 'other proceedings' have wide meaning and they should not be read in a narrow compass. In the Code 'other proceedings' are not defined but in Sections 24, 63, 99, 99-A, 141, 144, 146 and 147, the word 'proceedings' has been used. Under Section 141, the legislation has specifically included the proceedings under Order 9 of the Code but has excluded any proceedings under Article 226 of the Constitution. The term proceedings cannot be confined to a civil proceeding alone. It has the comprehensive meaning so as to include within it all matters coming up for judicial adjudication. 10. A proceeding instituted under Section 144 of the Code has to be treated as an original proceeding as it relates to different realm altogether. It has a different colour. Ordinarily, it is in the nature of an execution proceeding. The execution proceeding cannot be regarded as a proceeding in the course of the suit or related to an order passed under the suit or decision of an issue in the suit. Another example may be given. After the suit is disposed of, an application may be filed under Section 152 of the Code for rectification of the error in the decree. That proceeding has to be considered to be in a different sphere. Otherwise that would defeat the purpose of justice. A proceeding under Section 47 which was initially appealable, after 1976 amendment is not appealable. If the same is not treated as an original proceeding, revision would not lie and the same cannot be the purpose of the proviso and such an acceptation would amount to travesty of justice. 11. In the instant case, the application under Section 24 of the Code is filed during the course of the suit. If the same is not treated as an original proceeding, revision would not lie and the same cannot be the purpose of the proviso and such an acceptation would amount to travesty of justice. 11. In the instant case, the application under Section 24 of the Code is filed during the course of the suit. The proceeding under Section 24 cannot be treated to an original proceeding which is independent of the proceeding in the suit. The application under Section 24 of the Code is made during the course of the suit and if the order is passed in favour of the party applying for revision, the proceeding in the suit would not be terminated. Therefore, an order passed on a proceeding under Section 24 of the Code would be hit by proviso to Section 115(1) of the Code. 12. In view of preceding analysis, I am unable to agree with the view taken in M. V. Ganesh Prasad v. Vasudevamurthy and others (AIR 2003 Kant 39) (supra). The decision relied upon by the learned counsel for the petitioner in Mushtaq Ahmad Dar v. Mohd. Ishaq Zaroo (AIR 1999 J &K 125) and Rambharose Singh v. Hemlata (supra) do not deal with the question of maintainability of the revision against an order passed under Section 24 of the Code. Therefore, the same are of no assistance to the petitioner. In the result, it is held that the revision is not maintainable against an order passed in exercise of power under Section 24 of the Code. Therefore, this revision is not maintainable. Accordingly, the same is disposed of with the liberty to the petitioner to assail the impugned order in petition under Section 104 of the Constitution of the State of Jammu and Kashmir, if so advised.