Mahendrabhai Mafatlal Patel vs Mahipatji Shivaji Thakor and Others

Y.B. Bhatt, J.—This is a revision application u/s 115 of the CPC (1908) (as amended in 1976), at the instance of the original plaintiff, challenging the order of the trial Court passed below Exh. 168, which was an application made by a third party to be joined as party defendant in the said suit. The trial Court had granted the said application and consequently the applicant in Exh. 168 was permitted to join as defendant No. 7 to the suit. It is this order which is the subject matter of the present revision.

It is both relevant and pertinent to note that the CPC (1908), has been amended by the CPC (Amendment) Act, 1999, which was published in the Gazette of India dated 30th December 1999. However, by virtue of the Notification issued u/s 1, Sub-section (2) of the said Amendment Act, the amendment came into force from 1st July 2002.

For the present purposes, it requires to be noted that Section 12 of the Amendment Act amends and modifies Section 115 of the principal Act, whereby (inter alia) a new proviso has been substituted as under :

"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."

It therefore becomes obvious that the High Court while exercising its powers of revision u/s 115 of the code (as amended), would be justified in entertaining such a revision application, and /or interfering with the impugned order, any where the impugned order, if it had been made in favour of the applicant in revision; would have finally disposed of the suit or other proceedings. In other words, a revision u/s 115, after the amendment, should be entertainable only if the applicant, in revision can successfully contend that if the trial Court had granted the application made by the applicant, it would have disposed of the suit or other proceedings (as the case may be).

It is also relevant to note that the aforesaid Amending Act of 1999, vide Section 32 thereof, deals with repeal and savings.

4.1. By virtue of Section 32, Sub-section (2), Clause (i), the amendment introduced by Section 12 of the Amending Act shall not affect any proceeding for revision which had been finally disposed of. obviously, therefore, the only proceeding which the amendment does not and cannot affect is a revision which has been finally disposed of. In other words, any revision application which is pending admission, or pending final hearing after admission, would be governed by the amendment introduced by Section 12 of the Amending Act.

4.2. As a necessary corollary to the above discussion, it follows that a revision would be maintainable under the amended provisions discussed hereinabove only where the application has been rejected by the trial Court. It necessarily follows that if an application made to a court is granted by the Court, the opponent of such an application cannot maintain a revision u/s 115 after the aforesaid amendment.

On the facts and circumstances of the case, it cannot be said that the application made by the present applicant in revision, had it been granted by the trial Court, would have disposed of the suit. Under the circumstances, it must be found that this court cannot "vary or reverse any order made, or any order deciding an issue........"

It necessarily follows that the present revision is therefore not maintainable and/ or incompetent.

The aforesaid view has also been expressed by this Court in the case of Parakramsinh Vikramsinh Jadeja v. Yogi Corporation, reported at 2002 (3) GLR 2040.

This revision application is, therefore. dismissed. Rule is discharged with no order as to costs. Ad interim relief stands vacated.