Lalit Mohan Srivastava vs District Judge and Others

Rajiv Sharma, J.—Heard the learned Counsel for the Petitioners as well as the learned standing counsel.

Since the controversy involved in the present writ petition is that as to whether against issuance of notice in a regular suit, civil revision u/s 115 of the Code of CPC is maintainable or not, the question is purely legal, hence the issuance of notice to opposite parties No. 2 to 12 is dispensed with.

With the consent of the parties'' counsel, I proceed to hear the matter finally at the admission stage.

Petitioner claims to be owner and in possession of Plot No. 531/1 situated at Mohalla Sahjadpur Pargana and Tehsil Akbarpur, District Ambedkar Nagar. Opposite party No. 2 had filed a regular suit for injunction against the Petitioner. He has impleaded the Petitioner''s family members and near relative as Defendant. The suit was filed on 8.9.2005 alongwith application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure. The trial court being not satisfied at initial stage issued notices to the Defendants on the application moved for temporary injunction. Feeling aggrieved with the issuance of notice by the trial court, the Petitioner had filed a Civil Revision No. 102 of 2005 before learned District Judge, Ambedkar Nagar. A revision was admitted by the opposite party No. 1 on 26.9.2005 and notices were issued. It has also been stated by the Petitioner that the Plaintiff/ Respondents had committed fraud to obtain ex parte injunction by preferring a revision. The allegations have been raised relating to alleged commission of fraud by the Plaintiff in para 8 of the writ petition.

Solitary ground raised by the Petitioner''s counsel is that the learned District Judge, had acted without jurisdiction while entertaining revision u/s 115 of the Code of Civil Procedure. In para 7 of the writ petition learned Counsel for the Petitioner had referred some of the judgments in Shiv Shakti Cooperative Housing Society, Nagpur v. Swaraj Developer and Ors., 2003 (3) AWC 2198 (SC) ; Imamuddin Vs. Mohd. Yusuf and Another, ; Narendra Kumar v. Nagar Nigam Bareilly and Ors., 2006 (2) JCLR 961 ; Eldeco Housing and Industries Ltd. Vs. Lucknow Docesan Trust Association and Another, ; Cantonment Board and Another Vs. District Judge (Incharge) and Others, to advance his argument that revision against the issuance of notice in pending suit on application of injunction is not maintainable.

On the other hand attention has been invited of this Court towards a judgment of this Court in Algu Vs. Bhola and Others, where Hon''ble single Judge of this Court had recorded a finding that a revision against the issuance of notice shall be maintainable.

Now the question arises whether revision shall be maintainable or not? While deciding the case of Algu (supra), Hon''ble single Judge had distinguished the judgment of Shiv Shakti (supra) by Hon''ble Supreme Court.

Though relying upon various Apex Court and Division Bench judgments of this Court it was settled by one Anr. Hon''ble single Judge of this Court in a case in Cantonment Board and Another Vs. District Judge (Incharge) and Others, , that against issuance of notice revision shall not be maintainable. But for the reasons best known to the Member of Bar they have not referred for consideration of the judgment of Cantonment Board and Ors. v. District Judge Incharge Lucknow and Ors. (supra) when the controversy of the case of Algu was before Hon''ble single Judge for adjudication. While deciding the judgment of Cantonment Board (supra) Hon''ble single Judge of this Court had considered the Apex Court judgment in S. S. Khanna v. F. J. Dillon, AIR 1964 SC 947 ; Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others, ; Gayatri Devi and Others Vs. Shashi Pal Singh, A. Venkatasubbiah Naidu Vs. S. Challappan and Others, and Neelakantan and Others Vs. Mallika Begum,

It has also been held in the case of Cantonment Board (supra) that litigant will have no alternative remedy to face the hardship in case jurisdiction of revision power is curtailed. Relying upon the observation made by Apex Court in a case in Surya Dev Rai v. Ram Chander Rai and Ors., 2003 (21) LCD 1046, Hon''ble single Judge held that aggrieved person has got right to approach High Court under Article 227 of the Constitution of India in the event of issuance of notice on application on temporary injunction. Moreover in the case of Cantonment Board (supra) further safeguard has been provided commanding the subordinate court to decide the application for temporary injunction within three months in case no ex parte injunction is granted. Moreover as discussed in the case of Cantonment Board (supra), this Court does not possess legislative power. The provisions to be interpreted without any addition or subtraction. Hon''ble single Judge of this Court, with profound respect, had not considered the other Division Bench judgments as well as other Apex Court judgments relied upon by this Court in the case of Cantonment Board (supra).

Not only the judgment of Shiv Shakti (supra) but in the judgment of Gayatri Devi (supra) and Surya Dev Rai (supra) their Lordships of the Hon''ble Supreme Court held that revision against the order passed by the trial court which may not amount to "case decided" shall not be maintainable.

In the case of Surya Dev Rai (supra) Hon''ble Supreme Court had considered the amendment done u/s 115 of the Code of CPC in the State of U. P. while interpreting the maintainability of revision. Hon''ble Supreme Court had categorically held that revision shall not be maintainable against interlocutory proceeding. Relevant portion from the judgment of Gayatri Devi (supra) is reproduced as under:

In the first place, it appears to us that the revision Petitioner before the High Court was wholly incompetent in view of the amended provision of Section 115 of the Code of Civil Procedure. The revision petition was entertained at the stage of interlocutory proceedings. As laid down by this Court in Shiv Shakti Coop. Housing Society v. Swaraj Developersan order interim in nature or which does not finally decide the lis, cannot be challenged by way of a revision u/s 115, Code of Civil Procedure.

Hon''ble single Judge in a case of Algu (supra) had only tried to distinguish the judgment of Shiv Shakti (supra) with finding that the provisions contained in Maharastra is not same. Though nowhere it has been pointed out as what is the provision operative in State of Maharastra relating to revisional power u/s 115 of the Code of Civil Procedure. It is settled law that while interpreting the judgment its ratio should be seen. Provision of law laid down by Hon''ble Supreme Court is binding under Article 141 of the Constitution of India. Moreover, the subsequent judgment of Apex Court in Surya Dev Rai (supra) and Gayatri Devi (supra) has not been considered by Hon''ble single Judge while deciding the controversy in Algu''s case (supra). The other judgment relied upon by the Hon''ble single Judge in the case of Cantonment Board (supra) as well as interpretative finding relying upon Apex Court judgment Vide: A.G. v. H.R. H. Prince Ernest Augustus, 1957 (1) All ER 49 (HL); R v. National Asylum Support Service, 2002 (4) All ER 654; Mohan Kumar Singhania v. Union of India, AIR 1992 SC 1 ; Gammon India Ltd. and Others Vs. Union of India (UOI) and Others, M/s. Punjab Beverages Ltd., Chandigarh v. Suresh Chand and Anr., AIR 1978 SCC 995 (para 5) ; Kailash Chandra and Another Vs. Mukundi Lal and Others, and, The Grasim Industries Ltd. and Another Vs. State of Madhya Pradesh and Another, have also not been considered in the case of Algu. At the face of record the case of Algu seems to be per incurium to various Apex Court judgment referred hereinabove.

Learned District Judge while exercising jurisdiction should have considered both the judgment and ultimately primacy should have been given to law laid down by Apex Court in the event of conflict between two judgments of coordinate Bench of this Court.

A plain reading of all the three judgments namely: Shiv Shakti (supra), Surya Dev Rai (supra) and Gayatri Devi (supra) show that revision u/s 115 of the Code of CPC shall not be maintainable at the stage of interlocutory proceeding. A close reading of provision contained in Maharashtra as well as in the State of U. P. at the face of record shows that order passed by the trial court while issuing a notice on an application under Order XXXIX, Rules 1 and 2 of the Code of CPC shall be interlocutory order and it can not be termed as case decided. Needless to say that provision u/s 115, Code of CPC is a procedural law and ipso facto the provision itself cannot be termed to be declaration that revision shall be maintainable even if case is not decided.

Keeping in view the fact that while deciding the Algu''s case (supra), Hon''ble single Judge had not considered the various judgments of Apex Court referred hereinabove, it can safely be held that judgment of Algu (supra) is per incurrium to Apex Court''s judgment and lacks binding effect.

Per incurium means in ignorance of law laid down by the Apex Court or the statutory provisions vide ; State of Bihar Vs. Kalika Kuer @ Kalika Singh and Others, State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, ; Mamleshwar Prasad and Another Vs. Kanhaiya Lal (Dead) through L. Rs., Sunita Devi Vs. State of Bihar and Another, Ram Gopal Baheti v. Girdharilal Soni and Ors., (1999) 3 SCC 112; A.R. Antulay Vs. R.S. Nayak and Another, ; Sarnam Singh and Another Vs. Dy. Director of Consolidation and Others, and State through S.P., New Delhi Vs. Ratan Lal Arora,

In view of above, the impugned order dated 26.9.2005 passed by the opposite party No. 1 in Civil Revision No. 102 of 2005 as contained in Annexure-1 is hereby quashed and writ petition is allowed. No order as to costs.

Let copy of the present order be sent to Registrar General of this Court forthwith. Registrar General shall circulate the present order to the members of subordinate judiciary so that there may not be any confusion relating to the non-maintainability of revision against the issuance of notice on an application moved under Order XXXIX, Rule 1 of the Code of CPC in a regular suit.