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2020 DIGILAW 178 (JK)

Ab. Raheem Bhat v. Mukhti Bibi (Mst. )

2020-03-18

TASHI RABSTAN

body2020
JUDGMENT : 1. Setting-aside of Order dated 11th December 2019, passed by Principal District Judge, Budgam (for short "Appellate Court”) in Review Petition titled as Abdul Rahim Bhat and others v. Mtr. Mukhti Bibi and others as also dated 16th November 2019 passed in Civil Miscellaneous Appeal, being CIMA No. 189/M, on the grounds tailored in Civil Revision on hand. 2. I have heard learned counsel for parties and considered the matter. 3. It is discernible from the file that a Civil Suit for Declaration, Partition, Possession and Injunction has been filed by respondent here before the court of Munsiff, Chadoora, (for brevity "Trial Court”). As an interim measure, Trial Court has rightly passed an Order dated 16th March 2019, directing parties to restrain from changing nature of suit land and creating any kind of third-party interest in any portion of suit land. While passing aforesaid order, Trial Court gave liberty to defendants there - petitioners here, to seek its alteration, cancellation, reversal or modification. Against this ad interim order, present petitioners, however, preferred a Civil Miscellaneous Appeal before Appellate Court. Same was dismissed. Review thereof was implored for. However, review also did not succeed. It is as a consequence whereof that petitioners have come up with Civil Revision Petition on hand before this Court. 4. Eventual question that requires discourse and adjudication herein is as to whether instant Civil Revision under Section 115 of the Code of Civil Procedure, is maintainable against impugned orders. 5. In view of case set up coupled with submissions and counter submissions made by learned counsel for parties, it is apposite to have birds eye view of Section 115 of the Code of Civil Procedure. It envisions that 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 and if such subordinate Court appears 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, the High Court may make such order in the case as it thinks fit. Nonetheless, proviso to Section 115 substituted by the Code of Civil Procedure (Amendment) Act, 1999, envisages that the High Court shall not under Section 115 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”. Sub-section (2) of Section 115 ordains that the High Court shall not, under the provisions of Section 115, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate to it. 6. From the aforesaid backdrop, it is deducible that for effective exercise of the High Court's superintending and visitorial powers over subordinate courts, the revisional jurisdiction has been conferred on the High Court by Section 115 of the Code. The powers given are clearly limited to keep subordinate courts within bounds of their jurisdiction. Thus, the scope of revisional jurisdiction depends on the language of the statute. Though revisional jurisdiction is only a part of appellate jurisdiction, yet it cannot be equated with that of a full-fledged appeal. It is well settled that the High Court, while considering the matter in exercise of its jurisdiction in civil revision, would not reverse the finding of the fact as recorded by the courts below. Even where an error of jurisdiction is committed by the court below but the action taken by it has not been proved to have resulted in injustice, the High Court would be loath to interfere with it. Thus, power under Section 115 is very limited and not to be exercised except in the rarest of rare cases, however, grossly erroneous. From all angles the present case does not come and fall within rarest of rare cases inasmuch as there is no error muchless grave in passing of orders both by Trial Court as well as Appellate Court. 7. It is pertinent to mention here that provisions of Section 115(1) Proviso are applicable to interlocutory orders only. From all angles the present case does not come and fall within rarest of rare cases inasmuch as there is no error muchless grave in passing of orders both by Trial Court as well as Appellate Court. 7. It is pertinent to mention here that provisions of Section 115(1) Proviso are applicable to interlocutory orders only. In the past, i.e. prior to CPC (Amendment) Act, 2002 coming into force, an order, which suffered from jurisdictional error, could have been interfered with by the High Court in exercise of its revisional jurisdiction under Section 115, if the order under challenge was likely to cause failure of justice or irreparable loss or injury to the party approaching the revisional Court, but with clause (b) of the Proviso to Section 115(1) having been deleted under the new Act, the implication is that even if an order suffers from jurisdictional error or causes failure or irreparable injury to the party approaching the Court, the order will not be interfered with in revision unless the order, which is sought to get revised, is such that had the order been made in favour of the party applying for revision, it would have terminated the suit or the proceedings. It is of immense importance to note that a careful reading of proviso to Section 115(1) will show that this Proviso applies in the case of orders, which are interlocutory in nature and not final orders, concluding the proceedings or determining the suit. If during the course of progress of a suit or proceeding, an order is made, which suffers from jurisdictional error, the party aggrieved may apply under Section 115(1) for revision, but such an order will not be interfered with in revision, even if the same is ex facie without jurisdiction, unless the order is such, which would have, if the order had been made in favour of the party applying for revision, finally disposed of the suit or the proceeding. If the order is such, which even if interfered with, will not terminate the progress of the suit or of the proceedings, the order will not be interfered with. It, therefore, logically follows that a final order, which disposes of the suit or the proceedings cannot fall within the ambit of Proviso to Section 115(1). 8. If the order is such, which even if interfered with, will not terminate the progress of the suit or of the proceedings, the order will not be interfered with. It, therefore, logically follows that a final order, which disposes of the suit or the proceedings cannot fall within the ambit of Proviso to Section 115(1). 8. In the present case, Trial Court while passing ad interim injunction/order, has rightly restrained parties from changing the nature of suit property and creating any third-party interest in suit property under Order XXIX CPC. There against, petitioners preferred Civil Miscellaneous Appeal, but failed therein. Even looking from all angles, instant Civil Revision Petition is not maintainable given the provisions of Section 115 CPC. Both the orders, passed by Trial Court as well as Appellate Court, as is gatherable therefrom, have not given finality to the suit. 9. It is pertinent to mention here that proviso to Section 115(1) mentions about order made by a Court in the course of a "suit” or "other proceeding”. The term "other proceeding” used in the proviso will not be a proceeding in the suit. The use of word "other” as a prefix to the term "proceeding” would indicate that the "proceeding” made mention of in the proviso is a "proceeding” other than "suit”. Hence an order made in an application for temporary injunction cannot be treated as an order by which proceedings for granting temporary injunction was finally disposed of. An order, by which an application for granting temporary injunction is disposed of either dismissing it or granting the temporary injunction, can only be an order in the course of a suit. That order, if it had been made in favour of the party applying for revision, can never have the effect of finally disposing of the suit. It is made mention of here that in the light of amendment to Section 115, a revision is not maintainable against the order, by which a civil appeal was disposed of. The revision will not lie against the decision by which a civil miscellaneous appeal filed challenging an order made by the Trial Court under Order XXXIX CPC, is decided. Same is true about present case. 10. The revision will not lie against the decision by which a civil miscellaneous appeal filed challenging an order made by the Trial Court under Order XXXIX CPC, is decided. Same is true about present case. 10. The statutory provision, as it stands, puts an embargo to exercise of revisional jurisdiction against an order, which if would have been passed in favour of the revision-petitioner, then it would not have finally disposed of the suit or other proceedings. In that context, the term "other proceedings” gathers momentum for a judicial interpretation because of lack of definition in the Code of Civil Procedure. Proceeding, as it means according to the dictionary meaning, cannot be totally imported to interpret the term "proceeding” used in Section 115. After coming into force of Amendment Act of 1999, order passed by Appellate Court against the order of granting or refusing injunction by Trial Court is not revisable and therefore, no revision will be maintainable. The law on the point is well settled. The Supreme Court has said that upon amendment carried in terms of the Act of 1999, Section 115 CPC does not 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 substitution of proviso to Section 115(1) CPC by the aforesaid Amendment Act of 1999. [See: Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 ; Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers, (2003) 6 SCC 659 ; Ram Chandra Agarwal v. State of U.P., AIR 1966 SC 1888 ]. 11. From the above discourse, it is deducible that in examining the legality and proprietary of the order under challenge, what is required to be seen by the High Court is whether it is in violation of any statutory provision or a binding precedent or suffers from misreading of evidence or omission to consider relevant clinching evidence or where the inference drawn from the facts proved is such that no reasonable person could arrive at or the like. It is only in such situations that interference by the High Court in revision in a finding of fact will be justified. Mere possibility of a different view is no ground to interfere in exercise of revisional power. 12. In view of foregoing discussion, the orders impugned do not suffer from any jurisdictional error or with any material irregularity. The net result is that Civil Revision fails and is, accordingly, dismissed. 13. Copy of this order be sent down.