Kousalya Educational Trust vs K. Vijayakumari and Others

P.K. Misra, J.—The aforesaid Revision was filed on 25.7.2002 against the order dated 8.7.2002 in I.A. No. 160 of 2002 in O.S. No. 3 of

2001, on the file of Subordinate Judge, Tirupattur, rejecting the application of the petitioner for being impleaded as a party.

The suit was filed by the present respondent No. 1 against the respondents 2 & 3 for a direction to the defendants not to restrain the plaintiff

from taking part in the General Body Meeting of the Pandiyan Educational Trust and for directing them to convene the General Body of the

Pandiyan Trust. During pendency of the aforesaid suit, the present petitioner filed an application under Order I Rule 10(2) C.P.C for being

impleaded as third defendant in the suit. Such application was resisted by all the parties to the suit and ultimately rejected by the trial court by order

dated 8.7.2002.

Section 115 of the CPC has been recently amended. The relevant provision as contained in Section 115(1) is extracted hereunder :-

Section 115(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 in a jurisdiction not 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 irregularly,

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 proceeding.

While the main provision in Section 115(1) has remained unaltered, the proviso has undergone significant change. Before amendment, the

provisos which was for the first time incorporated in 1976 were as follows :

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.

A comparison of the proviso before 1999 amendment and after 1999 amendment makes it clear that clause(b) of the proviso has been deleted

and clause (a) of the proviso has been included as part of the proviso.

A bare reading of the aforesaid proviso after 1999 amendment makes it clear that the High Court shall not vary or reverse any order 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 proceeding.

The intention of the Legislature seems to exclude the revisional jurisdiction of the High Court in all Interlocutary matters, which, though may have

an ultimate bearing in the suit, would not have brought the suit or other proceeding to an end.

The above position is now clear in view of the decision of the Supreme Court reported in Shiv Shakti Coop. Housing Society, Nagpur Vs.

Swaraj Developers and Others,

In the present case, if the application under Order I Rule 10 would have been allowed, such order would not have brought the suit to an end.

The question then arises if application under Order I Rule 10 is to be considered as a ""proceeding"" and in such event, the application if allowed,

would have brought such proceeding to an end.

The expression ""proceeding"" has not been defined in the Code of Civil Procedure. However, keeping in view the intention of the Legislature

reflected in the amendment made in the year 1976 and subsequently made in 1999, it is obvious that the Legislature intended to restrict the scope

of revision in all interlocutory matters, which while being entertained had the effect of delaying the disposal of the suit. Applications like summoning

documents or witnesses, appointment of Commissioner under Order XXVI Rule 1, though are steps in course of a suit for facilitating disposal of

the suit one way or the other; such matters if disposed of illegally can be made a ground of attack in the appeal against the ultimate decision as per

Section 105 of C.P.C. The clear intention seems to be that such matters which can be challenged in appeal against decree as envisaged u/s 105(2)

should not be subjected to revisional jurisdiction of the High Court. Any error or defect or irregularity in any such order affecting the decision of the

case may be setforth as a ground of objection in the Memorandum of appeal as specifically envisaged u/s 105(2) C.P.C.

While considering the question as to whether an application under Order 39 Rule 1 and 2 can be considered as ""Proceeding"" within the

meaning of Section 141 CPC, Justice Kasliwal of Rajasthan High Court as his Lordship then was observed :

The wordings of section 141 are clear to the effect that the procedure provided in this Code in regard to suits shall be followed as far as it can

be made applicable in all the proceedings. The words ""as far as it can be made applicable"" cannot be given a narrow interpretation. The procedure

provided both for the trial of the suit or miscellaneous proceeding is meant for finding out the truth and to do justice and full opportunity should be

given to the parties to bring forth their case before the Court, unless such procedure is specifically prohibited under the law. So far as the

explanation to Section 141 is concerned the proceedings under O. IX have been included within the expression ""proceedings"" and any proceeding

under Article 226 of the Constitution has been specifically excluded. Thus, if proceeding under O. IX has been included then it does not mean that

it would not include other miscellaneous proceedings. The only restriction in applying the procedure provided for the suits to the miscellaneous

proceedings would be to see ""as far as it can be made applicable"".

If we consider the problem from another angle then also the result would be same. The Court may ask the defendant to file the written

statement first before passing any order on the application for temporary injunction. In such a case the plaintiff becomes entitled to file subsequent

pleading under O.8 R.9 itself and that being so I see no reason as to how the plaintiff can be denied his right to file a rejoinder in the case of

proceedings for temporary injunction by resorting to the provisions of O.8 R.9 read with Section 141 CPC.

Even though I am inclined to accept this meaning of the expression ""proceeding"" for the purpose of Section 141 CPC is also carries the same

meaning for the purpose of Section 115, an application under O.10 R.1 CPC cannot be considered as proceeding even by applying the aforesaid

extended meaning viewed in the background of the amended provision as interpreted by the Supreme Court in Shiv Shakti Coop. Housing

Society, Nagpur Vs. Swaraj Developers and Others, , the revision is not maintainable.

Learned senior counsel appearing for the respondents has submitted that the question of addition of parties under Rule 10 of Order I of the

CPC is not one of initial jurisdiction of the court, but of a judicial discretion and such discretionary order cannot be interfered with in a Revision.

For the aforesaid purpose, he has placed reliance upon the decision reported in Razia Begum Vs. Sahebzadi Anwar Begum and Others, . In view

of the opinion expressed regarding maintainability of the petition, it is unnecessary to delve into this question in the present case.

In the result, the Civil Revision Petition is dismissed as not maintainable. No costs. Consequently, CMP. No. 11408 of 2002 is closed.