Dwarika Prasad Kejriwal vs Rajendra Prasad Sao

Shivanugrah Narain, J.—The opposite party, Rajendra Prasad Sao, filed title suit no. 34 of 1976 in the second court of the Munsif, Monghyr; for eviction of the petitioner, Dwarika Prasad Kejriwal, from the suit premises and for arrears of rent on the allegation that Dwarika Prasad Kejriwal was his tenant and has defaulted in payment of rent. The learned Munsif decreed the suit ex-parte on 23-2-1978. On 11-9-78 the petitioner filed an application under Order 9 Rule 13 of the Code of Civil Procedure, hereinafter called the Code; which was registered as Miscellaneous case No. 45 of 1978 in the second court of the Munsif at Monghyr for setting aside that exparte decree on the ground that the aforesaid decree had been obtained by fraudulent suppression of the processes in the suit without knowledge to the petitioner and the petitioner could know about the decree only on 10-9-1978. By that time the exparte decree for delivery of possession on the suit premises as or arrears of rent had been put into execution. The petitioner who was judgment debtor in execution case no. 8 of 1978 in which the execution was proceeding, on 11-9-1978 itself filed an application before the executing court which was the same court who has passed the decree for staying the proceeding in the execution case pending the final disposal of miscellaneous case no. 45 of 1978 for setting aside the ex-parte, decree. The learned Munsif; after stating that the aforesaid petition, had been filed and copy was served and both sides have been heard, passed the following order "The execution is stayed till one week. The judgment debtor is directed to pay the decretal dues and cost of the suit within one week failing which stay order will stand vacated". It is against the aforesaid order that the petitioner has come up in revision in this court. Sri Jugal Kishore Prasad, appearing on behalf of the opposite party, urged that the present revision application is not maintainable inasmuch as the order sought to be revised does not amount to a ''case decided'' by the learned Munsif, and, therefore no revision lies. In support of this contention Sri Prasad has placed reliance on the decision of this court in (1) Ramgulam Choudhary and Others Vs. Nawin Choudhary and Others, in which it was held that the order of the trial court allowing the plaintiff to adduce further evidence even after the defendants had already closed their case, did not amount to a ''case decided'' and, therefore, no revision u/s 115 of the CPC was maintainable against that order. In coming to this conclusion Untwalla, J. as he then was, relied upon the decision of the Supreme Court in (2) Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, that a case may be said to be decided if the court adjudicates for the purpose of the suit some right or obligation of the parties in controversy. It is argued that by refusing to stay the execution case during the pendency of the aforesaid miscellaneous case the court below did not adjudicate upon any right or obligation of the parties in controversy.

In my opinion; for the purpose of determining whether the impugned order amounts to a case "which has been decided," it is not necessary to consider whether the impugned order adjudicated upon any right or obligation of the parties in controversy. Subsequent to the aforesaid decision of the Supreme Court, Section 115 of the Code has been amended by the CPC (Amendment Act) 1976 (hereinafter called the Amendment Act, 1976) and in view of the Explanation inserted in Section 115 by the Amendment Act, 1976 the impugned order clearly amounts to a case which has been decided within the meaning of expression as used in Section 115 of the Code. It is not disputed that the present case is governed by the Code as amended by the Amendment Act, 1976.

Section 115 of the Code as amended by the Amendment Act 1976 runs thus:--

Revision--(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.

(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 it thinks fit:--

Provided that the High Court shall not, under the section, vary or reverse any order made; or any 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 proceedings

(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.

Thus; according to the Explanation any order made or any order deciding any issue in course of a suit or other proceeding is included within the ambit of the expression ''any case which has been decided''. Therefore, prima facie the Explanation besides including any order deciding any issue in the course of a suit or other proceeding within the ambit of the expression ''any case which has been decided'' also includes within its ambit any order made in the course of a suit or other proceeding. Sri Jugal Kishore Prasad however, argues that the words ''deciding any issue'' governed the expression ''any order made'' as well as the subsequent expression ''any order'' following the word ''or''. I am unable to agree.

The words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary--(3) Crawford V. Spencer 4 M. I. A. 179 (P.C.) at 181. The words ''deciding any issue'' are qualifying words and they occur immediately after the expression ''any order'' following the word ''or''. According to the rules of grammar, a qualifying phrase qualifies the last antecedent or as it has been said ''the proximate substantive'' (4) Mahadeolal Kanodia Vs. The Administrator-general of West Bengal, Therefore, according to the rules of grammar, to which we must adhere in the absence of any repugnancy with the object or the context of the enactment, the expression ''deciding any issue'' governs only the proximate substantive, viz. the words ''any order'' occurring after ''or'' and not the previous antecedent ''any order made'' occurring before ''or''. The use of the verb ''made'' in relation to the first ''any order'' and a different verb ''deciding'' in relation to the subsequent any order and of the disjunctive for reinforces this conclusion. The use of two different verbs and their separation by the disjunctive ''or'' indicate that the legislature intended the previous and the subsequent ''any order'' to denote two different and separate categories of orders. That intention would be completely defeated if the expression ''deciding any issue'' were held to qualify the previous antecedent ''any order'' made as well. There is no difference between ''any order made deciding any issue'' and ''an order deciding any issue.'' Upon the interpretation that the expression ''deciding an issue'' governs both the antecedents, the previous antecedent ''any order made'' will be rendered entirely superfluous. A construction which renders an expression a meaningless surplusage should be avoided. Thus, if the explanation is given its plain, ordinary meaning and is construed according to the rules of grammar, the expression ''any order made'' is not qualified by any other word or expression.

Now what does any order in the expression ''any order made'' mean? ''Any'' is a plain word and in its plain and ordinary meaning means ''each'' or ''every''. Thus any order is a term of the widest possible import and covers any kind of order made in the course of a suit or proceeding. Indeed we cannot think of a wider expression. It is true that ''any'' is a general word but then, to use the words of Lord Radcliffe in (5) Smith V. East Ellos Rural District Council and others 1956 (1) All E. R. 855 ''unless there is some compelling reason to the contrary, I should be inclined to regard general words as the most apt to produce a corresponding general result'' (at p. 870 of the report). The principle that unless there is some compelling reason to the contrary; general words must receive a general construction and must be given their full meaning and content underlies the decision of our Supreme Court in India (6) Indian Carbon Limited Vs. Superintendent of Taxes, Gauhati and Others, .

I do not find any cogent reason, much less any compelling reason, for not giving the plain general expression ''any order'' their full meaning and effect by introducing any limiting words such as ''deciding any issue or deciding any controversy regarding the rights and obligations of the parties'' therein. Neither the context nor the object of the enactment warrants any departure from the rule that plain words must be given their plain meaning a rule described by Lord Simonds as the first of all principles of construction Smith V. East Ellos (Supra) (at 859 of the report).

The expression ''any order made'' occurs in and forms part of the Explanation which says that the expression any case which has been decided includes any order made ....... (emphasis supplied and thus contains an inclusive definition of the expression ''any case which has been decided''. As was pointed out by Gajendragadkar, J., as he then was, in (7) The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, . "The words used in an inclusive definition denote extension and cannot be treated as restricted in any sense. Where we are dealing with an inclusive definition, it would be inappropriate to put a restrictive interpretation upon of wider denotation" (at p. 614 of the report). As the words ''any order'' occur in an inclusive definition of the expression ''any case which has been decided'' the circumstance that ''any case which has been decided'' in its natural meaning applies only to a limited class of orders and not to each and every order is no ground whatsoever for not giving those words their wide general meaning. "The word includes is very generally used in definition or interpretation to enlarge the meaning of words or phrases occurring in the statute and when it is so used, those words or phrases must be construed as comprehending not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include"--(8) Dilworth V. Commissioner of Stamps [1899 A. C. 99 (sic) at 105].

Secondly the Explanation occurs in a section which contains the newly added proviso also. The proviso limits the power of the High Court to interfere in revision with an order which amounts to a case which has been decided even on the grounds specified in Clauses (a) to (c) of Section 115 to orders falling within either clause (a) and (b) of the proviso, namely only to cases where the order if it had been made in favour of the party applying for revision would have finally disposed of the suit or the other proceeding or the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. The proviso; therefore, completely dispels the apprehension that if the words ''any order made'' are given their full effect and meaning the flood gates will be opened for revision applications against trivial and inconsequential orders and the potentiality of the revisional jurisdiction being misused for delaying the expeditious trial of suits and proceedings greatly increased. If the explanation and the proviso are as they must be read together, it is plain that what legislature intended was to give the widest possible meaning to the expression ''a case which has been decided'' so as to cover all interlocutory orders which may be passed in a suit or other proceeding in older to vest the High Court with the power of preventing any failure of justice caused by jurisdictional errors of the subordinate courts but at the same time limit its interference in revision to such erroneous interlocutory orders which if rightly decided would terminate the suit or proceeding or if not interfered with would occasion a failure of justice either directly; or indirectly by causing irreparable loss to a party to the suit or proceeding.

A consideration of the mischief which these amendments were designed to suppress further, reinforces this conclusion. Both the proviso and the Explanation have been inserted in Section 115 of the Code by the Amendment Act, 1976. Section 115 as it stood prior to the 1976 Amendment did not define or elucidate the meaning of the expression ''any case which has been decided''. A difference of opinion arose between the High Courts regarding the interpretation of the word ''case'' in the aforesaid expression. The High Court of Allahabad held that the word ''case'' did not include and issue or part of a case and therefore no revision lay against interlocutory orders. The majority of the High Courts including this court, however, took the contrary view and held that the expression ''case'' included an ''interlocutory order'' also and revision lay against interlocutory orders also. Before this conflict could be resolved by the Supreme Court, the question of amendment was considered by the Law Commission of India in its 14th Report. The Law Commission being ''of the view that the difficulties created by conflicting judicial view in the interpretation of the section need be removed''. Law Commission in its 14th report (Volume I 424) made, amongst others, the following recommendations'' indicating the lines on which Section 115 should be amended:--

(1) The expression case decided in the section should be clarified so as to include within it an interlocutory order including an order deciding an issue from which no appeal lies.

(2) Provision, should, however, be made in the section, limiting the power of revision to such interlocutory orders which, if decided in favour of the petitioner would be sufficient for the final disposal of the suit or proceeding or in which the order is likely to occasion a failure of justice or cause an irreparable injury (at page 422).

It is clear that the explanation and the proviso to Section 115(1) have been added in pursuance of the recommendations of the Law Commission of India in its 14th Report. It is true that subsequent to this report, the Supreme Court in (9) Major S.S. Khanna Vs. Brig. F.J. Dillon, held disapproving the view of the Allahabad High Court, that the word ''case'' u/s 115 of the Code included an issue and part of a case and subsequently clarified that not every interlocutory order but only such interlocutory orders as adjudicated for the purposes of the suit or proceeding some right or obligation of the parties in controversy amounted to a case decided. Nevertheless, the legislature by the Amendment Act 1976 amended Section 115 substantially in accordance with the recommendations of the Law Commission in its 14th Report. Obviously, the legislature was of the view that in spite of the Supreme Court decision elucidating its meaning, the meaning of the expression ''case'' which has been decided should be clarified by the legislature itself. It may well have reflected that which order or orders adjudicated some right and obligation of the parties in controversy could itself be a matter of controversy and, therefore, the legislative declaration of the meaning of the expression was desirable. It is, therefore, manifest that the object of the explanation was to end once for all the controversy regarding the meaning of the expression ''any case which has been decided'' by putting its meaning beyond doubt by an explicit legislative declaration of its meaning in plain, unambiguous terms. That object would be completely defeated if it were held that the words ''any order'' did not have their plain natural meaning but were restricted to certain special kinds of orders. What those special kinds of orders were would still remain a subject of controversy. The object of the amendment and the mischief which it was designed to suppress, therefore, clearly support the plain grammatical meaning of the expression "any order" as "each and every order" in course of a suit or proceeding.

It is argued by Sri Jugal Kishore Prasad that if an unqualified meaning is given to the expression ''any order made'' the subsequent expression ''any order deciding an issue'' would be rendered completely superfluous. That is so, but as Lord Simon pointed out ''a parliamentary enactment (like parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what was already said once'' (10) Hills. V. Williams Hill (Park Lane) Ltd. (1949) 2 All E. R. 452 (H. L.) and "it is not uncommon to find the legislature inserting superfluous provision under the influence of what may be abundant caution"--per Lord Reid in (11) I. R. Commissioners V. Dowdall C. Mahoney & Co. (1952) 1 All E. R. 531 (H. L.) at 537. Regard being had to the context and object of the enactment it is plain that the words "any order made" must receive their plain natural meaning and full effect and that the words ''any order deciding an issue'' were inserted by way of abundant caution. As I have said, the Allahabad High Court had specifically held that the expression ''case'' did not include "an issue or part of a case." The words ''any order deciding an issue'' were added to make it clear beyond doubt that the view of the Allahabad High Court regarding the meaning of the word ''case'' was wrong. I, therefore, hold that the expression ''any order made'' occurring in the Explanation means each and every order made in the course of a suit or proceeding.

Further, the order if allowed to stand would cause irreparable injury to the petitioners. The petitioner is living in the premises from which he would be ousted after a week if the execution by delivery of possession of the premises is allowed to continue. He would, thus certainly suffer an injury which cannot in the event of his success be compensated by award of damages or costs. The interlocutory order, therefore, is an order of the kind specified in clause (b) of the proviso to Section 15(1) of the Code. The preliminary objection must; therefore, fail and it is accordingly over ruled.

The next question for consideration is if as contended on behalf of the petitioner, the court below has acted illegally and with material irregularity in the exercise of jurisdiction. The court has certainly jurisdiction to pass or refuse to pass an order staying proceeding in the execution case during the pendency of the Miscellaneous Case under order 9 rule 13 C.P.C. But as the order passed would cause irreparable injury to the petitioner, the order is certainly a judicial order. In these circumstances, it was the duty of the court below to give reasons for rejecting the prayer of the petitioner for stay of proceedings in execution till the final disposal of the miscellaneous case. I have already quoted the order and it is manifest that the learned Munsif has given no reasons whatsoever for passing the order which in effect amounts to a rejection of the application filed by the petitioner. As prima facie the eviction of the petitioner from the house during the pendency of the application under Order 9 Rule 13 of the Code would cause irreparable loss it cannot be said that a failure to give reasons is a mere technical irregularity. I am, therefore, of the opinion that the learned Munsif acted illegally in the exercise of its jurisdiction in rejecting the application filed by the petitioner without giving reasons. I would, accordingly, allow this application set aside the order of the court below and direct the learned Munsif to consider the application afresh and pass orders on the application giving reasons either for allowing or rejecting the application after taking into account the materials already on the record. In the circumstances of the case, there will be no order as to costs.