Gitanjali Rajput (Smt.) Alias Hitu vs Vikram Jamwal (Sh.)

Virender Singh, J.—The question arising for consideration is, a revision petition directed against an interlocutory order being not

maintainable in terms of Section 115 Code of Civil Procedure, whether can be treated as a petition u/s 104 of the Constitution of Jammu and

Kashmir, and if so, are there any pre-conditions required to be satisfied?

The State Legislature by amendment Act of 2009 incorporated certain changes in different provisions of CPC including Section 115. In sub-

section (1) of Section 115, the existing proviso was substituted by the Amendment Act. It reads:

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.

The above provision curtails and restricts the revision jurisdiction of the High Court. Thus, if an order passed in a suit would have not disposed

of the suit finally, even if the order had been passed in favour of the party applying for revision, shall not be revisable. Such an order in its nature is

an interlocutory order. An order interlocutory in nature would mean an order, which does not decide the substantive right of any of the parties in a

suit. These are discretionary orders and

such like orders are basically those orders, which are passed during the pendency of a lis towards the progress of a suit.

The legislature in its wisdom has taken away the revisional jurisdiction of the High Court, which is a correctional jurisdiction, in respect of

interlocutory orders in view of the above quoted provisions. But at the same time, Section 104 of the Constitution of Jammu and Kashmir confers

the power of superintendence in the High Court over the orders passed by the subordinate courts in the proceedings pending before them without

any exception to an interlocutory order.

Section 104 of the Constitution of Jammu and Kashmir provides as follows: ""104. Superintendence and control of subordinate courts.-

(1) The High Court shall have superintendence and control over all courts for the time being subject to its appellate or revisional jurisdiction and all

such courts shall be subordinate to the High Court.

(2) Without prejudice to the generality of the foregoing provision, the High Court may-

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts;

(c) prescribe forms in which booms, entries and accounts shall be kept by the officers of any such court.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates

and pleaders practicing therein:

Provided that any rules made, forms prescribed or tables settled under subsection (2) or sub-section (3) shall not be inconsistent with the

provisions of any law for the time being in force, and shall require the previous approval of the Governor.

From the bare reading of Section 104, it clearly transpires that power of superintendence vested in the High Court under this Section almost

akin to powers vested u/s 115 of CPC being correctional in nature. Now on one hand, Section 115 of CPC restricts the power of High Court,

whereas on the other hand, power vested in the High Court u/s 104 of the Constitution does not admit of any restriction. In such a situation, can a

petition filed u/s 115 of CPC be treated as a petition u/s 104 of the Constitution? If the power vested in the High Court in terms of Section 104 of

the Constitution is to be understood as vast and unbridled, then the answer would be in the affirmative, meaning thereby that in every case, a party

to a suit would be free to seek indulgence of High Court u/s 104 for questioning the legality of an interlocutory order.

The scope of Section 104 of the Constitution of Jammu and Kashmir, which corresponds to Article 227 of the Constitution of India, came to be

considered by Apex Court in case Surya Dev Rai Vs. Ram Chander Rai and Others, in which their Lordships held as under:

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their

jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does

have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice

has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

Section 115 of CPC takes away the right of revision of a party to the suit against an order, which is interlocutory in nature. Therefore, no

revision would lie against an interlocutory order. But at the same time, generally speaking, there would not be any embargo on the High Court in

exercising the similar power, the same being superintendent in nature. However, the law requires that provisions of one statute be not interpreted in

such a manner that such interpretation defeats the provisions of another constitutionally valid statute. Therefore, the courts would be loath to

interfere into the validity of an interlocutory order in the ordinary course in exercise of the power u/s 104 of the Constitution.

Being alive to the situation, their Lordships of the Supreme Court of India in Surya Dev Rai's case (supra) formulated the criteria, already

referred to, which is required to be satisfied before the power of superintendence can be exercised by the High Court in respect of an order, which

may not be amenable to revisional jurisdiction of High Court in terms of Section 115 of CPC. Thus, when an order cannot be interfered into in

terms of Section 115 of CPC, the High Court may interfere with it in exercise of its constitutional power vested in it u/s 104 of the Constitutional

provided pre-conditions set out by the Apex Court in Surya Dev Rai's case (supra) are satisfied. Therefore, where such conditions are satisfied, a

revision petition filed u/s 115 of CPC may be treated as a petition u/s 104 of the Constitution.

Let us test the case at hand on the same rationale under the given circumstances. The petitioner filed a petition for divorce against respondent

u/s 13 of Hindu Marriage Act in which she concluded her evidence. The respondent instead of stepping into the witness box in the first instance,

moved an application before the Matrimonial Court under Order XVIII Rule 3-A of CPC seeking permission to appear as his own witness at a

later stage after the examination of the other witnesses, which was opposed by the petitioner on the ground that the respondent is intentionally

delaying the matter and is evading service in a criminal case registered against him and his parents in which proceedings u/s 512 CrPC have been

initiated against him. The other opposition raised by the petitioner was that in a case of maintenance filed by her u/s 488 CrPC, a huge amount is

due from him for which separate proceedings have been initiated for recovery of the said amount. Therefore, keeping in view the past record of the

respondent, he did not deserve the discretionary relief. However, the 'Court below allowed the respondent's prayer vide order dated 11th of

October, 2010, aggrieved thereof, the petitioner is before this court through the instant revision petition. Mr. Sharma, learned counsel for the

petitioner conceding that revision petition would not lie in view of the recent amendment made in Section 115 of CPC, submits that his revision

petition deserves to be treated as a petition u/s 104 of the Constitution of Jammu and Kashmir and the power of superintendence vested in the

court be exercised for correcting the order impugned as the court below has misused its discretion by allowing the respondent to appear at a later

stage under the given circumstances.

I have given my thoughtful consideration to the contention raised by Mr. Sharma and of the considered opinion that in the given set of

circumstance, the same is without any force.

It is indisputable that the order impugned is a discretionary order passed by the Matrimonial Court in exercise of the power vested in it in terms

of Order XVIII Rule 3-A of Code of Civil Procedure. The discretion, unless shown to have been exercised without application of mind and

without any basis, it should not be interfered with in exercise of the power of superintendence u/s 104 of the Constitution. It is true that the law

expects the exercise of discretionary power by a court of law in a most judicious manner. Therefore, unless the discretion is shown to have been

exercised arbitrarily on most unjustifiable reasons resulting into failure of justice, should not be interfered with. Discretionary power vested by the

Statute in itself postulates some amount of judicial freedom to exercise it in the given circumstances of an individual case.

In the present case, the prayer of the respondent was opposed on the ground that he was evading service in a criminal complaint registered

against him and his parents and for that reason, proceedings u/s 512 CrPC were also initiated against him. The other opposition was that in a

petition for maintenance, he was not caring to deposit the amount of maintenance awarded against him. In my considered view, all these

oppositions would not disentitle the respondent to the discretion as granted to him under Order XVIII Rule 3-A of CPC in view of the fact that

these cases are independent cases in different courts having jurisdiction and competence to force his appearance. Therefore, in the present case, it

cannot be said that the court below has failed to exercise a jurisdiction, which it does not have or has exercised the jurisdiction in a manner not

permitted by law, resulting into failure of justice or even otherwise, the order impugned has caused grave injustice thereby for which this court

should step into exercise its supervisory jurisdiction vested in it u/s 104 of the Constitution.

Testing the present case on that yardstick, I am unable to accept the prayer of Mr. Sharma that the instant revision petition be treated as a

petition u/s 104 of the Constitution.

Viewed thus, I find no merit in the instant revision petition, as such, dismissed along with CMP (s).

Original record be remitted to the court concerned without any delay.