Bijaya Kumar Sahu Vs Smt. Namita Parida and Another

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Judgment

29 paragraphs · 3,137 words

I. Mahanty, J.—In the present writ application the petitioner has sought to challenge, an order dated 27.11.2004 passed by the learned Ad hoc Additional District Judge Fast Track Court No. IV, Bhubaneswar in CRP No. 3/6 of 2004, refusing to exercise revisional jurisdiction, as well as, the order dated 23.4.2005 passed by the learned Ad hoc Additional District Judge Fast Track Court No. IV, Bhubaneswar rejecting Review Application No. 1/2006.

In terms of the impugned order under Annexure-2 dated 27.11.2004 a revision petition was directed against an order u/s 24 of the Hindu Marriage Act, awarding the pendente lite and litigation expenses in favour of the opposite parties passed by Civil Judge Sr. Division, Bhubaneswar.

This petition was rejected with a finding that w.e.f. 1.7.2002 the District Court has no jurisdiction to entertain a revision petition u/s 115 of the C.P.C. This conclusion was reached on a finding that in view of the amendment to Section 115 of the C.P.C. made by Act 46 of 1999 (Central Amendment), the earlier Orissa Act of 1991, vesting jurisdiction in the District Judge stood repealed w.e.f. 1.7.2002. Further, the learned Court in order to reach the aforesaid conclusion, relied upon an alleged admission made by the learned Counsel for both the parties to the effect that the Orissa Amendment no longer survived after the Central Amendment to Section 115 came into effect.

The petitioner filed a Review Application No. 1/2004 against the aforesaid order and the same came to be rejected on 23.4.2005. In the said review petition, the petitioner had relied on a judgment of this Court in the case of Simplex Engineering and Foundary Works Ltd. and Others Vs. Bhubaneswar Pattnaik, and had submitted that, the Hon''ble High Court by interpreting the Article 254 of the Constitution as well as the Section 32 of the Amendment Act 46 of 1999 and on a reading Section 115 of the C.P.C. (after amendment in 1999) as well as the earlier Orissa Amendment Act, 1991 of Section 115, came to hold that, the Orissa Amendment still remained in force but only to the extent it was consistent with the law made by the Parliament. This Hon''ble Court further held that Clause-(ii) to the second proviso below Clause (c) of Section 115 of the Orissa Amendment, i.e.," the, order If allowed to Stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made" is no more enforceable, being repugnant to Section 115 as it now stands. It was also indicated therein that the remaining part of Section 115 of the Orissa Amendment (excepting the aforesaid quoted part) shall still be operative being not repugnant to the existing provision of Section 115 of the C.P.C.

Mr. Sarangi, learned Counsel for the petitioner submitted that it is settled by the Hon''ble Orissa High Court, in the case of M/S. Simplex Engineering and Foundry works Ltd. (supra) that the learned District Judge continues to possesses revisional jurisdiction as vested in it, by 1999 Orissa Amendment Act, subject of course to the extent the Orissa Amendment was not consistent with the Central enactment. In this aspect, Mr. Sarangi drew a comparison between Section 115 as it existed prior to 1999 amendment to the Code of Civil Procedure. The provisions as enacted prior to amendment and post amendment are noted hereunder:

Mr. Sarangi further placed reliance u/s 32 Amendment Act 26 of 1991 is quoted hereunder:

32.

Repeal and savings - (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except insofar as such amendment or provisions is consistent with the provisions of the principal Act as amended by this Act, stand repealed.

Learned Counsel for the petitioner further placed reliance on Civil Procedure (Orissa Amendment) Act, 1991, amending Section 115, which is quoted hereunder:

115.

Revision - The High Court, in cases arising out of original suits or other proceedings of the value exceeding one lakh rupees, and the District Court, in any other case including a case arising out of an original suit or other proceedings instituted before the commencement of the CPC (Orissa Amendment) Act, 1991, may call for the record of any case which has been decided by any Court subordinate to the high Court or the District Court, as the case may be, 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 or the District Court, as the case may be, make such order in the case as it thinks fit:

Provided that in respect of cases arising out of original suits or other proceedings of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section:

Provided further that the High Court or the District Court shall not under this Section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where-

(i) the order, if so varied or reversed, would finally dispose of the suit or other proceedings; or

(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

Explanation- In this Section the expression "any case which has been decided" includes any order deciding an issue in the course of suit or other proceeding.

Saving- The amendment made by this Act shall not affect the validity, invalidity, effect or consequence of anything already done or suffered, or any jurisdiction already exercised, and any proceeding instituted or commenced in the High Court u/s 115 of the Code Civil Procedure, 5 of 1908, prior to the commencement of this Act shall, notwithstanding such amendment, continue to be heard and decided by such Court.

Relying on the aforesaid provisions of law, learned Counsel for the petitioner submitted that in terms of Section 32 of the Orissa Amendment Act 26 of 1991, it is specifically stipulated that any amendment made or any provision inserted in the principal Act by a State Legislature or by this Court before enactment of this Act shall, so far as, such amendment or provisions is inconsistent with the provisions of the principal Act, as amended, stand repealed. Mr. Sarangi further submits that on a comparison of Section 115 prior to the Amendment and post Amendment, it would clearly seen that there has been no change whatsoever to Sub-section (1) of Section 115, C.P.C. In fact, the only change that has been brought out in Sub-section (1) of Section 115, C.P.C., 1908 was to the "proviso" to the said provision. He asserts that while jurisdiction as contemplated in Sub-section (1) of Section 115, C.P.C. has not undergone any change, yet, the circumstances and other conditions under which such revisional jurisdiction shall be exercisable has been changed by amending the "proviso to Sub-section (1) of Section 115, C.P.C." He asserts that prior to the amendment and post Amendment the Proviso is as follows:

Therefore, on the basic of above comparison, learned Counsel for the petitioner submitted that the vesting of jurisdiction has not undergone any amendment, whatsoever and, therefore, Orissa Amendment Act, in so far as vesting of jurisdiction is concerned in the learned District Judge, is in fact saved by Section 32 of the Amendment Act 26 of 1991 and therefore, the learned District Judge continues to possesses revisional jurisdiction. But, in so far as, the proviso to Orissa Amendment Act is concerned, the same being at variance or inconsistent with the Central Enactment can obviously no longer apply and by virtue of such repeal, the aforesaid proviso to the Orissa Amendment Act, 1991 no longer survives. Therefore, he submits that while the Dist. Judge even after the Central amendment to the C.P.C. continue to possess a revisional jurisdiction by virtue of the Orissa Act, 26 of 1991 yet while exercising revisional jurisdiction, the Learned District Judge shall no longer be guided by the amended proviso to the Orissa Amendment but by the amended proviso to Section 115, C.P.C. brought about by the Central Act Amendment, 1999.

10.

Mr. Das, learned Counsel for the opposite parties submits that the challenge in the present case is to an order passed in the "review" by the learned Ad hoc Addl. Dist. Judge. He further submitted that there is no error whatsoever in review order dated 23.4.2005, inasmuch as, the Court has correctly come to the conclusion that the ground on which the review was sought was not available under Order-47, C.P.C. Sri Das further submitted that even if the original order dated 27.11.2004 passed in CRP No. 3/6 of 2004 by the learned Ad hoc Addl. Dist. Judge under Annexure-2 may have not proceeded on the right exposition of law, yet, any question of law wrongly decided does not constitute sufficient cause for review arid for such purpose relied upon the judgment of Chhaju v. Neki and Ors. reported in AIR 1922 PC 112. Sri Das vehemently submitted that it is only errors apparent on the face of the record, without reference to any other matter which could be a ground for seeking review and, therefore, even if (without admitting) the Court had wrongly decided the question of law in its order dated 27.11.2004 and had made a wrong interpretation or assumption of law, the same will not constitute adequate ground for review of such order. Mr. Das further submitted, that in any event, an order u/s 24 of the Hindu Marriage Act, awarding maintenance pendente lite and litigation expenses is not a revisable order and, therefore, the writ petition merits no consideration and ought to be rejected.

11.

On a consideration of the rival contentions advanced in course of argument and in the facts of the present case as well as various case laws relied upon by the learned Counsel for both the parties and referred hereinabove, the main question that arises for consideration is, whether the order dated 27.11.2004 passed by the Ad hoc Addl. Dist. Judge, Cuttack under Annexure-2 holding that the District Judge had no jurisdiction to entertain a revision u/s 115 of the C.P.C. is correct or not ?

12.

In this respect, this question has already been determined by the High Court in the case of M/s. Simplex Engineering (supra) and is no longer res Integra. In this Judgment, the following dicta has been laid down:

In view of the provisions in Article 254 of the Constitution of India, any provision of the State Law if repugnant to any provision of law made by the Parliament than to the extent of inconsistency or repugnancy, the law made by the Parliament shall supersede and prevail and to that extent the law made by the State Legislature shall not be enforceable. Therefore, on a comparison of Section 115 C.P.C. after the aforesaid amendment in the year 1999 and the Orissa Amendment Act of Section 115 which has been made in the year 1991, this Court finds that though the Orissa Amendment is enforceable but only to the extent it is consistent with the law made by the Parliament. Therefore, Clause-(ii) to the second proviso below Clause (c) of Section 115 of the Orissa Amendment, i.e., "the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made" is no more enforceable being repugnant to Section 115 as it stands now. It is needless to say that the remaining part of Section 115 of the Orissa amendment shall still be operative being not repugnant to the existing provision of Section 115, C.P.C.

13.

In view of the aforesaid conclusion of this Hon''ble Court, It is now well settled that Orissa Amendment of 1991 to Section 115, C.P.C. continues to remain operative, except to the extent of the proviso thereto. Learned District Judges remain vested with jurisdiction to entertain the revisions in terms of Orissa Amendment Section 115, C.P.C subject to applying the proviso to Section 115 as introduced by Central Amendment Act of 1999 while exercising such jurisdiction. Therefore, Annexure-2 is quashed and directions are issued to the learned Ad hoc Additional District Judge, Bhubaneswar to admit the revision and decide the revision on merits. It is further made clear that nothing stated in this order shall be deemed to be an expression of any opinion on the merits of the case or on the rival contention of the parties, including the question as to whether a revision petition against an order u/s 24 of the Hindu Marriage Act is maintainable or not. By this order, it is clarified the finding of the learned District Judge that it no longer possesses jurisdiction to entertain a revision petition is therefore, quashed.

14.

In so far as challenge to the order in Review dated 23.4.2005 under Annexure-3 is concerned, while I am in agreement with the objections raised by Mr. Das, learned Counsel for the opposite parties and hold that while the said order under Annexure-3 dated 23.4.2005 has been correctly decided, yet, since the original order dated 27.11.2004 under Annexure-2 has been quashed, the consequential order dated 23.4.2005 in the review application no longer survives in law and the issues arising therefrom are merely academic.

15.

With the aforesaid direction and observation, the writ application is allowed, but in the circumstances without cost.

Bijaya Kumar Sahu vs Smt. Namita Parida and Another

Judgment