In Re: Mohd Rafiq

Mohammad Yaqoob Mir, J

Delay of seventy five days in filing the Revision Petition is sought. While considering the said application, it was found desirable to examine as to

whether the Revision Petition is maintainable.

During the pendence of the suit for 'Permanent Injunction' captioned as Ghulam Mohi-ud-din Vs. Mohd Rafiq & Ors, petitioner (defendant no.

1) has chosen to remain absent, so has been proceeded in Ex-parte. For setting aside the Ex-parte proceedings has filed an application, which has

been rejected, but at the same time learned trial Court has recorded that in the interest of justice, petitioner (defendant no. 1) is given the right to

participate in the proceedings, if he desires to do so. Dis-satisfied with the same, petitioner has opted to file the Revision Petition, but only after the

expiry of the period of limitation.

Whether the Revision Petition against such order is maintainable, has to be answered in negative in view of the clear position of the Proviso to

Section 115 of CPC (for short C.P.C). In terms of the Proviso, revision against an interlocutory order is not to be maintained. It is only the final

orders or orders which, if passed in favor of the revisionist would result in termination of the suit proceedings, the revision is to be maintained.

Learned counsel confronted with the aforesaid position, would submit that in the Proviso expression 'or other proceedings' would take into its

sweep the termination of the ancillary proceedings as may arise during the course of the suit and also added that when the order would occasion

failure of justice or would result in causing irreparable injury to the party, then the revision has to be maintained. Supporting his submission has

relied on the judgment reported in Prem Bakshi and Others Vs. Dharam Dev and Others, .

The contention of the learned counsel is wholly misplaced, because the judgment Prem Bakshi and Others Vs. Dharam Dev and Others, has

been delivered on 9th of January' 2002. The amendment to Section 115 of Central CPC has become operative w.e.f 1st of July 2002. Prior to the

amendment, power exercisable u/s 115 of C.P.C was wide enough, but after the amendment, power has been drastically curtailed. It shall be

advantageous to quote the un-amended Proviso to Section 115 of J&K C.P.C.

Provided that the High Court shall not, under this section vary or reverse any order made, or an order deciding an issue, in the course of a suit or

other proceedings, except where

(a) the order, if it had been made in favor of the party applying for revision, would have finally disposed of the suit or other proceedings, 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.

The said Proviso has been amended and substituted by the following Proviso. '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 proceedings, except where the order, if it had been made in

favor of the party applying for revision would have finally disposed of the suit or other proceedings.'

In view of the amendment, in effect 'Clause (b)' of the un-amended Proviso has been deleted. Now the test to be satisfied before maintaining the

Revision Petition is restricted to only one ground i.e., the order against which the revision is preferred, if would have been in favor of the revisionist

would finally dispose of a suit or other proceedings shall be amenable to the revisional jurisdiction. Therefore, the judgment captioned 'Prem

Bakshi Vs. Dharam Dev & Ors., referred above to the extent of claiming applicability of the 'Clause (b)' of earlier Proviso to Section 115 of

C.P.C after amendment is not available.

The next contention of the learned counsel that the expression 'other proceedings' as employed in the amended Proviso would include all the

ancillary proceedings during the course of the suit when an order has the effect of terminating the said ancillary proceedings, revision has to be

maintained. If the contention is accepted, same will render the amendment to the Proviso as itios. The object of amendment, so as to restrict the

revisional powers, was to ensure avoidance of protraction in the trial of a suit. In case in the course of a trial of a suit, any application, be it for

setting aside the Ex-parte proceedings; be it an application for injunction; an application for amendment or an application for appointment of a

Receiver etc., will be termed to fall within the expression 'other proceedings' as employed in the Proviso, then the very purpose of the amendment

shall get defeated. The expression 'or other proceedings' as employed in the Proviso shall relate to the proceedings other than the proceedings

during the course of a suit. To illustrate, it shall be applicable to the proceedings such as proceedings under the Guardian and Wards Act; under

Succession Certificate Act; under the Hindu Marriage Act and like other proceedings independent to the proceedings as may arise during the

course of the suit.

To fortify the view that proceeding during the course of the suit do not fall within the expression 'other proceedings' as occur in the Proviso, it

shall be advantageous to quote Para No. 4 of the judgment captioned Surya Dev Rai Vs. Ram Chander & Ors., reported in AIR 2003 SCW

3872.

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.

In the reported judgment an application for Injunction, filed during the course of a suit or an appeal against the order of the trial Court, whether

confirming, reversing or modifying the order of Injunction granted by the trial Court, in view of the amended Section 115 of C.P.C is not amenable

to the revisional jurisdiction.

What would emerge is that the application for Injunction as disposed of during the course of a suit or an appeal taken as against such an order

is also a proceeding during the course of a suit and in case such proceeding would be said to fall within the ambit of the expression 'or other

proceedings' as employed in the Proviso to Section 115 of C.P.C, then the revision against such an order could be maintained but the Hon'ble

Apex Court has, as referred above, clearly settled the issue by holding that revision against such an order in view of the amendment is not

maintainable.

It is only against the final order or the order, which, if passed in favor of the revisionist, would result in termination of the suit the revision, can

be maintained. Likewise, any other proceedings i.e., proceedings under the Succession Certificate Act, Guardian and Wards Act etc. If the order

is final or the order if in favor of the revisionist has the affect of termination of such proceedings, only then revision petition can be maintained.

In the instant case, an application for setting aside the Ex-parte proceedings has been rejected as against the such order, which is purely an

interlocutory order passed during the course of the suit proceedings and in case same order would have been in favor of the revisionist, same

would not result in termination of the suit. When it is so, the revision is not maintainable.

Since the Revision Petition is not maintainable, therefore, to condone the delay for filing such Revision Petition shall be of no consequence.

Application for condonation of delay, as such is dismissed along with the Revision Petition and connected CMPs.

Copy of the order along with subordinate records be sent back to the Court of Sub Judge, Kishtwar, so as to enable him to proceed further

with the trial of the suit.