Hans Raj vs Jeet Ram

Mohammad Yaqoob Mir, J

Suit captioned Jeet Ram Versus Hans Raj is pending on the file of learned Munsiff, R.S. Pura. Alongside the suit, an application under Order

XXXIX Rule 1 & 2 of CPC (for short C.P.C) has been filed, which has been allowed vide detailed order 14th of May' 2010, in terms whereof

parties have been directed to maintain status-quo vis-a-vis suit property. An appeal preferred by the petitioner has been dismissed by the Court of

Additional District Judge, Jammu on 4th of February' 2011. Aggrieved thereof, the instant Revision Petition has been filed.

After amendment i.e., substitution of Proviso to Section 115 C.P.C, the revisional powers have been curtailed and power is to be exercised at

the behest of the revisionist only when the order, if would have been in favor of the revisionist, would result in termination of the suit proceedings.

The application for injunction as disposed of in fact is an arrangement during the course of the trial of the suit. The appeal taken against such order

is in continuation of the said suit proceedings so has to be termed to be an order during the course of the suit proceedings. If the order impugned

would have been in favor of the petitioner, same would not result in final disposal of the suit.

Learned counsel for the petitioner would contend that an application for injunction as disposed of and then the appeal taken against such order

and disposed of would mean termination of the proceedings in the application and then the appeal, therefore, the revision is maintainable. In

support of his submission, relied upon the judgment rendered by the Co-ordinate Bench of this Court in case titled Darbari Lal & ors Vs. Madan

Lal & ors., reported in AIR 2011 J&K 153. But, it appears that the judgment rendered by the Hon'ble Apex Court in the case titled as Surya Dev

Rai Vs. Ram Chander & Ors., reported in AIR 2003 SCW 3872 has not been brought to the notice of the Court. It shall be quite relevant to

quote Para no. 4 of the judgment (supra) herein:-

Section 115 of the CPC as amended does not now 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 the proviso inserted under sub-section (1) of S. 115 of the C.P.C. The amendment is based on the

Malimath Committee's recommendations. The Committee was of the opinion that the expression employed in S. 115 C.P.C, which enables

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 interlocutory orders and this was

substantially contributing towards delay in the disposal of cases. The Committee did not favor denuding the High Court of the power of revision but

strongly felt that the power should be suitably curtailed. The effect of the erstwhile Cl. (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.

The law, as has been laid down, squarely applies to the instant case, therefore, this Revision Petition being not maintainable is dismissed along

with CMP; leaving it open for the petitioner to have recourse to other remedial measures, if available.

Copy of this order along with the subordinate records be sent back to the trial Court.