Chelli Chinnodu and Another vs Smt. Chelli Kanthamma and Others

S. Panda, J.—Defendant Nos. 1 and 2 are the Petitioners in this Civil Revision. They have challenged the Order dated 19.09.2001 passed by the Learned Civil Judge (Senior Division), Paralakhemundi in T.S. No. 25 of 2000 wherein he has allowed the petition filed by the Plaintiff under Order 1 Rule 3 of the CPC permitting her to add four persons, namely, Chelli Srinivas, Chelli Prasad, Smt. Yenni Adiamma and Yenni Narasimhulu as Defendant Nos. 5 to 8 in the suit.

Though notice on admission was issued to the Plaintiff-Opposite Party No. 1 and the same was made sufficient, she has chosen not to appear in this revision.

The brief facts of the case are as follows;

Opposite Party No. 1 as Plaintiff filed the suit for maintenance against Defendant Nos. 1 and 2 claiming to be the wife of Defendant No. 1. She has also challenged the partition and sought for cancellation of the sale deed executed in favour of Defendant Nos. 3 and 4. Defendant Nos. 1 and 2 filed a joint written statement denying the status of the Plaintiff being wife of the Defendant No. 1. It was further pleaded that the parties belong to "Kapu" caste and there was customary mutual divorce between the Plaintiff and the Defendant No. 1. Plaintiff has received substantial properties from Defendant No. 1 for which she is not entitled to maintenance. Defendants have also specifically pleaded in their written statement that some of the schedule properties belong to Chelli Srinivas, Chelli Prasad, Smt. Yenni Adiamma and Yenni Narasimhulu. Defendant No. 1 has no right over those properties. Thus they have prayed to delete those properties from the suit schedule. Defendant No. 3 and 4 have also filed a written statement supporting the case of Defendant Nos. 1 and 2. After filing of the written statement, Plaintiff filed a petition under Order 1 Rule 3 of the CPC to implead Chelli Srinivas, Chelli Prasad, Smt. Yenni Adiamma and Yenni Narasimhulu as Defendant Nos. 5 to 8 in the suit. The reason to implead those persons is that Defendant No. 1 has created false documents in favour of the said persons who are the son and parents of Defendant No. 2 and to avoid future complications and multiplicity of proceedings, they should be joined as Defendants in the suit. Hence those persons be added as Defendants.

Defendant Nos. 1 and 2 have filed an objection to the said petition. Their main objection is in order to delay the proceeding and to harass the Defendants, Plaintiff has filed the said petition. It is further objected that Plaintiff has not sought for any amendment of the plaint showing cause of action against those Defendants. Hence, they should not be impleaded as Defendants in the suit and plaint should be rejected under Order 7 Rule 1 of the Civil Procedure Code. Learned Trial Court has allowed the petition by the impugned Order dated 19.09.2001 on the ground that they are necessary parties and for proper adjudication of the matter directed the Plaintiff to add those persons as Defendant Nos. 5 to 8 by 27.9.2001. But those persons were not made parties in the civil revision.

From the above it is made clear that the impugned Order dated 19.09.2001 passed by the Learned Civil Judge (Senior Division), Paralakhemundi in T.S. No. 25 of 2000 is an interlocutory order.

The Learned Counsel appearing for the Petitioner submitted that as the Civil Revision was pending before this Court on the date of amendment (The CPC (Amendment) Act, 1999, operative from 1.7.2002) (in short "the amendment Act"), the same is clearly outside the effect of amendment. Hence, he has submitted that Civil Revision is maintainable.

The law is well settled that whenever the legislature intended to keep the pending proceeding out of the purview of amended provisions, it was specifically so provided. A bare reading of the provisions of the amendment Act shows that there is no provision made to save the pending proceeding.

The provision of Section 115 of the CPC ''before amendment'' is as follows;

(1) 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 thereto, and if such subordinate Court appears -

(a) to have exercised a jurisdiction not to 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 may make such order in the cases as it thinks fit:

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 order 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.

(2) The High Court shall not, under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

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

Before the amendment jurisdiction of revisional power u/s 115 cannot be invoked unless the following conditions exist;

(i) there must be a case decided by a Court;

(ii) the Court deciding the case must be subordinate to the High Court;

(iii) no appeal must lie (to the High Court) against the decision; and

(iv) in deciding the case, the subordinate Court must appear to have

(a) exercised a jurisdiction not vested in it by law; or

(b) failed to exercise a jurisdiction vested in it by law; or

(c) acted in the exercise of its jurisdiction illegally or with material irregularity;

Further in exercise of its revisional power, it is not the province of the High Court to enter into merits of the evidence. It has only to see whether the requirements of this law have been duly and properly obeyed by the Court whose order is the subject of revision, and whether the irregularity as to failure or exercise of jurisdiction is such as to justify interference with the order.

Section 115 of the CPC ''after the amendment'' is as follows;

(1) 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 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,

(c) 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:

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 order 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.

(2) The High Court shall not, under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court to any Court subordinate thereto,

(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.

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

Subsequent to amendment of Civil Procedure Code, the revisional power of High Court u/s 115 cannot be invoked unless the order passed either way would not have the effect of finally disposing of the suit or other proceedings. The exercise of revisional jurisdiction is taken away by the proviso inserted under Sub-section (1) of Section 115 of the Civil Procedure Code. The amendment is based on the Malimath Committee''s recommendations. The Committee was of the opinion that the expression employed in Section 115 of the Civil Procedure Code, which enable 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 the interlocutory orders and this was substantially contributing towards delay in dispose 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.

Section 115 is essential 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 u/s 115 is not linked with a substantive right.

The Supreme in the case of Shiv Shakti Coop. Housing Society v. Swaraj Developers reported in 2003 (I) OLR (SC) 673 has held that;

A plain reading of Section 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 Ms, 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 u/s 115.

In view of the above positron of law, the impugned Order dated 19.09.2001 passed by the Learned Civil Judge''(Senior Division), Paralakhemundi in T.S. No. 25 of 2000 being an interlocutory one; I am not inclined to entertain the revision, as the Civil Revision is not maintainable after "the amendment Act".

Accordingly, the Civil Revision is dismissed with no order as to costs.