Manohar Lal vs Romesh Chander

Hasnain Massodi, Judge

The controversy involved relates to maintainability of the Civil Revision in hand, in wake of amendment to Section 115 CPC Svt. 1977

incorporated by amending Act of 2009.

The background facts are as under:-

The petitioner on 27th September, 2008 commenced a suit for declaration and recovery of possession in the Court of Sub Judge, Katra. The

case set up was that a plot of land measuring 8 kanals comprising survey No. 380/130 min situated at Mutyal near Church at Katra was purchased

by the parties out of the joint family funds and that the petitioner was entitled to one half i.e. 10 marlas out of the said plot. Alongside the suit, the

petitioner filed an application for grant of temporary injunction, restraining the respondent from making any change in the nature of the suit land, or

alienating it pending disposal of the suit. The trial Court vide order dated 13th December, 2008, dismissed the temporary injunction application and

declined ad- interim injunction to the petitioner. Aggrieved with the trial Court order, the petitioner filed a 1st Civil Miscellaneous Appeal in the

Court of Principal District Judge, Reasi. The appeal was dismissed vide order dated 11th September, 2009. The petitioner not satisfied with the

order of the First Appellate Court assails the order in the present Civil Revision on the grounds detailed in the petition.

The merits of the Civil Revision apart, preliminary objections is raised by counsel for the respondents as regards maintainability of the Civil

Revision. It is contended that inconsequence of amendment to Section 115 Civil Procedure Code, restricting ambit and scope of the revisional

powers of the High Court, Civil Revision is not maintainable and is liable to be dismissed as such.

Heard and considered.

The Civil Laws (Amendment) Act, 2009 (Act VI of 2009 dated 20.03.2009) is an omnibus amendment to CPC and amongst its other

provisions amends Section 115 that confers power on the High Court to call for the record of any case which has been decided by any Court

subordinate to the High Court, and to vary or reverse such order, where the subordinate Court is found to have exercised a jurisdiction not vested

in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material

irregularity, or the order to have caused failure of justice.

The amendment substitutes proviso to Section 115 (1) CPC by the following:-

Provided that the High Court shall not, under this Section vary or reverse any order made, or an order deciding art 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 proceeding.

A closer look at the amended provision reveals that the amendment of 2009 restricts the supervisory powers of the High Court available u/s

115 CPC stand to a large extent. Before amendment of 2009, the High Court would exercise its revisional powers and vary or reverse any order

made, in the course of a suit or other proceeding, even where the order, if allowed to stand, would occasion a failure of justice or cause irreparable

injury to the party against whom it was made Section 115 (1) proviso (b), before amendment thus gave wide powers to the High Court to vary or

reverse any order as said above, even where it did not involve erroneous assumption of jurisdiction, failure to exercise jurisdiction or exercise of

jurisdiction illegally or with material irregularity. The High Court would still interfere where the order though not tainted with any jurisdictional error,

if allowed to stand would cause irreparable injury to the party against whom it was made. The Civil Laws (Amendment) Act 2009 deletes clause

(b) of the proviso to Section 115 (1) CPC and substitutes it by the proviso reproduced above.

It follows that the High Court can exercise its revisional powers u/s 115 CPC only in case the order deciding an issue, in the course of a suit or

other proceeding, if made in favour of the party questioning the order would have finally disposed of the suit or other proceeding. The litmus test

for determining the maintainability of Civil Revision is to see whether the order impugned in the Civil Revision would clinch the suit or other

proceedings, had the order been made in favour of the party assailing the order.

To illustrate, if an application seeking dismissal of a suit or other proceeding at the threshold, on whatever grounds available under law, is

rejected. The party aggrieved with the order may successfully maintain a revision petition, as the order, if passed in his favour i.e. the order of

dismissal of the suit or other proceeding, would have finally disposed of the suit or other proceeding as the case may be. On the other hand,

revision against an order disallowing an amendment in the pleadings, or disallowing a prayer for summoning the witnesses, striking additional issues,

deleting an issue from the list of issues, taking a document on record, so on and so forth, would not be maintainable, for the simple reason, that the

order in all such cases, even if passed in favour of the party questioning the order would not finally dispose of the suit or other proceeding. The suit

or other proceeding would continue to be alive and pending, whatever way the application is decided.

The effect of amendment to Section 115 CPC whereby proviso to Section 115 (1) was recast/substituted has been looked into by the

Supreme Court in a number of cases. Since the amendment to Central Code was incorporated way back in the year 1999, the law on the subject

in rest of the country has already settled down. However, as pointed out amendment to Section 115 in the CPC (State Code) was made only in

2009. Resultantly, the position remains a little hazy and less clear as regard impact of amendment to Section 115 CPC J&K on the revisional

jurisdiction of the High Court.

Against the said backdrop, it would be advantageous to make a brief survey of the case law on the subject:-

In Prem Bakshi & Others v. Dharam Dev & Others 2002 SC 599, Supreme Court while dealing with question of maintainability of a Civil

Revision under amended Section 115 CPC has observed :-

The proviso to sub-Section (1) of Section 115 puts a restriction on the powers of the High Court in as much as the High Court shall not, under

this Section vary or reverse any order made or any order deciding a issue, in course of a suit or other proceedings except where (i) the order made

would have finally disposes of the suit or other proceedings or (ii) the said order would occasion a failure of justice or cause irreparable injury to

the party against whom it is made. Under Clause (a), the High Court would be justified in interfering with an order of a subordinate Court if the

said finally dispose of the suit or other proceeding. By way of illustration we may say that if a trial Court holds by an interlocutory order that it has

no jurisdiction to proceed the case or that suit is barred by limitation, it would amount to finally deciding the case and such order would be

revisable. The order in question by which the amendment was allowed could not be said to have finally disposed of the case and, therefore, it

would not come under clause (a).

Supreme Court again in Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others, --emphasising that a person has not

a vested right in the course of procedure and that once by a statutory change, the mode of procedure is altered, the parties, are to proceed

according to the altered mode without exception and that while a party to litigation has a right to file an appeal no such right is conferred to file a

revision observed:-

It is fairly a well settled position in law that the right of appeal is a substantive right. But there is no such substantive right in making an application

u/s 115......

Section 115 is essentially a source of power for the High Court to supervise the subordinate courts. It does not in any way confer a right on a

litigant aggrieved by any order of the subordinate court to approach the High Court for relief. The scope for making a revision under S.115 is not

linked with a substantive right.

The Court making a comparison of Section 115 CPC as it stood before the amendment and after the amendment held:-

A comparison of two provisions of S.115 as they stood before amendment and after the amendment of 1999 shows that while proviso (a) of the

unamended provision has been retained in its totality. In the amended provisions clause (b) of the proviso has been omitted. It is to be noted that

prior to the amendments to the Code by the old Amendment Act, the power of revision was wider. By the amendment, certain positive restrictions

were put on the High court's power to deal with the revisions under S.115. Prior to the said amendment, it was not strictly necessary that the

impugned order would have the result of finally deciding the lis or the proceedings in the lower courts. In fact, the power could be exercised in any

case where jurisdictional error was committed by the original court or where substantial injustice had resulted........

A plain reading of S.115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision

would have given finality to suit or other proceeding, if the answer is ""yes"" then the revision is maintainable. But on the contrary, if the answer is

no"" then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the revision will

not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under

S.115.

The principle was reiterated in Surya Dev Rai Vs. Ram Chander Rai and Others, , where the Supreme Court holding a civil revision u/s 115

CPC against an order disallowing appeal questioning the trial Court order under Order 39 CPC as not maintainable observed:-

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 finality disposing of the suit or other proceedings. The exercise of revisional

jurisdiction 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 expressions 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 the cases. The Committee did not favour 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 aforementioned case an application for grant of temporary injunction was rejected by the trial Court and so was the appeal preferred against

the trial Court order. The revision against the order of the appellate Court was held to be non-maintainable in view of amendment made in Section

115 of CPC by the Amendment Act 46 of 1999, though remedy available under Articles 226, 227 was held to be available and intact, unaffected

by the said amendment.

Learned counsel for the petitioner notwithstanding the settled legal position as regards maintainability of a civil revision emerging from the

above survey of the case law on the subject insists that the civil revision on hand is maintainable. Learned counsel is prompted to support

maintainability of the civil revision on the following three grounds:-

That the expression ""other proceedings"" in proviso to Section 115 (1) CPC refers to proceedings in interim matters and even where an

application is disposed of during course of the proceedings, the order allowing or disallowing such application would satisfy litmus test laid down

under the amended provision and the revision would be maintainable.

That the High Court in terms of Section 115 (1) (d) is competent to exercise revisional powers even where the order impugned in the revision is

found to have caused failure of justice and deletion of Clause (b) of proviso to Section 115 (1) CPC would not, in any manner, curtail or restrict

the revisional powers of the High Court.

That the Learned Single Judge has already in ""Darbari Lal and ors. v. Madan Lal and ors. 2011 (1) JKJ 649 (HC)"", held the civil revision

against the order of Appellate Court, whereby appeal against the order of the Trial Court under order 39 CPC is dismissed, maintainable. This

Court, if not, in agreement with the aforesaid judgment as in terms of High Court Rules is to remand the case to be placed before the Chief Justice

for referring it to a Bench of two Judges or more for decision.

Learned counsel for the petitioner elaborating on his argument insists that if expression ""other proceedings"" is taken to refer to the matters --

interim and ancillary to the proceedings in the suit, orders passed on such interim/ancillary applications allowing or disallowing such applications

would be revisable in terms of amended provision, inasmuch as such order, if passed in favour of the parties, questioning it would finally dispose of

the proceedings. It is argued that the revision against an application allowing or disallowing temporary injunction would be maintainable inasmuch

as the order is made in favour of the party filing the revision petition. The proceedings in temporary injunction application would come to an end,

same, according to learned counsel for the petitioner, would be true as regards order passed in appeal, rejecting a temporary injunction

application.

The argument advanced is specious and better to be ignored. It hardly needs any emphasis that the expression ""other proceedings"" is used to

include matter that partake character of a suit. It refers to proceedings that though having characteristics of a suit is not known or styled as ""suit

but some other expression. To illustrate a petition under Hindu Marriage Act for restitution of congenial rights or dissolution of the marriage, though

not known or styled as ""suit"" has all the characteristics of a suit. The opposite party is allowed to file reply to the written statement, issues are

settled, evidence recorded and the matter decided by preponderance of probabilities. When Section 115 (1) refers to ""suit"" or ""other

proceedings"", what is intended is, such matters though not having same nomenclature, have all the characteristics of a suit. It follows that revision

by a party against an order would be maintainable, in case, the suit or other proceedings would be finally disposed of, had the order gone in favour

of the party filing the civil revision. When we embark on an exercise to interpret the expression ""other proceedings"", we need to be reminded of the

object of Civil Laws (Amendment) Act 2009 and opt for a purposive interpretation. The baseline is to be the Heydon's Rule that requires the

Court to have regard to the law before the amendment, focus on mischief or defect proposed to be cured and the remedy provided by the

amendment. The Civil Laws (Amendment) Act 2009 was response to concern for unending delays in civil proceedings defect proposed to be

cured was frequent civil revisions in the name of failure of justice or irreparable injury to the party aggrieved with the order, and the remedy

introduced was restricting scope and ambit of revisional powers.

Against the said backdrop, if the expression ""other proceedings"" is held to include and matters of interim nature or matters ancillary to the

proceedings in the suit, the very purpose of the Amendment Act of 2009, would be frustrated and the legislative effort to cure the defect or

address the mischief rendered, meaningless. It is pertinent to point out that in ""Prem Bakshi's"" case (Supra) the order impugned was one by which

the amendment application was allowed and in ""Surya Dev Rai's"" case (Supra), the order impugned was one rejecting an application for grant of

temporary injunction. In case, it was permissible to interpret expression ""other proceedings"" as interim or ancillary applications to the proceedings

in the suit, there was no occasion to hold civil revision not maintainable in all these cases.

The order in all such cases, if passed in favour of the petitioners would have finally disposal of such applications making the order amenable to

revisional jurisdiction. The law laid down in ""Shiv Shakti Co-op Housing Society's"" case (Supra) was in effect followed in ""Surya Dev Rai's"" case

(supra), Yeshwant Sakhalkar and Another Vs. Hirabat Kamat Mhamai and Another, and Gayatri Devi and Others Vs. Shashi Pal Singh, . In

Yeshwant Sakhalkar"" case, the High Court did not overset the order of the Appellate Court, allowing appeal against the order of the Trial Court,

refusing temporary injunction, in exercise of its revisional powers u/s 115 CPC but exercised its jurisdiction under Article 227 Constitution of India.

In ""Gayatri Devi's"" case (Supra) a civil revision was preferred before Delhi High Court against an order of the Appellate Court, rejecting an appeal

against the Trial Court order, dismissing the application for grant of temporary injunction. The High Court entertained and allowed the civil revision

on February 23, 2004.

The Supreme Court setting aside the High Court order observing:-

In the first place, it appears to us that the revision petition before the High Court was wholly incompetent in view of the amended provision of

Section 115 of the CPC. The Revision Petition was entertained at a stage of an interlocutory proceedings. As laid down by this Court in Shiv

Shakti Coop, Housing Society v. Swaraj Developers, an order interim in nature of which does not finally decide the lis, cannot be challenged by

way of a revision u/s 115 of the CPC.

In the result, we are of the view that the High Court grossly erred in entertaining the revision petition and granting relief which was unjustified

both in law and on facts. The impugned judgment of the High Court is quashed and set aside.

The case law relied by counsel for the petitioner does not lend support to the contention that civil revision against an order, finally disposing of

an interim or ancillary application, was maintainable.

The second argument advanced by learned counsel for the petitioner relates to ambit and scope of Section 115 (1) (d). It is argued that in view

of the decision of the law makers to retain Section 115 (1) (d), the scope of revisional powers of the High Court was maintained and deleting

Clause (b) proviso to Section 115 (1) CPC is not to have any impact on the revisional powers. The argument does not carry any weight, for the

simple reason that proviso to Section 115 (1) CPC applies as much to Section 115 (1) (d) as to Section 115 (1) (a) to (c). It follows that a civil

revision filed on whatever ground -- be it exercise of jurisdiction, not vested in the Court, failure to exercise jurisdiction so vested, exercise of

jurisdiction illegally or with material irregularity, or failure of justice, has to satisfy the requirements of proviso to Section 115 (1) CPC i.e. the order

impugned must finally dispose of the suit or other proceedings, if made in favour of the party, questioning the order. What emerges from the above

discussion is that a civil revision like one in hand is not maintainable, even if the order impugned results in failure of justice, unless it is of the nature

contemplated by proviso to Section 115 (1) CPC.

It is next argued by counsel for the petitioner that in view of judgment reported as Darbari Lal and Others Vs. Madan Lal and Others,

(decided on 15.03.2011), whereby a civil revision against order of the Appellate Court, rejecting appeal against the trial Court order dismissing

application u/s 39 CPC is held maintainable, this Court, even if, it is inclined to hold otherwise, is left with no option but to submit the matter to the

Chief Justice for its reference to a larger Bench in terms of Rule 33 J&K High Court Rules, 1999. The argument is bereft of any merit for the

simple reason that the judgment rendered by learned Single Judge in Darbari Lal's case (Supra) is per incurium inasmuch as law laid down in

Kamalnath Vs. Sudesh Verma, and Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others, , Surya Dev Rai Vs. Ram

Chander Rai and Others, , Gayatri Devi and Others Vs. Shashi Pal Singh, , has not been brought to the notice of learned Single Judge. This apart,

this Court earlier in Om Parkash Vs. Mohan Lal Sharma, (decided on 18.9.2010), held that in view of amendment to Section 115 CPC the

revisional jurisdiction of the High Court was restricted to a great extent and an order was not revisable, unless if passed in favour of the party filing

the revision petition, it would have clinched the suit or other proceedings. This Court in the aforementioned case held that a civil revision against an

order disallowing an amendment in the pleadings was not maintainable, inasmuch as the order if passed in favour of the petitioner would not have

finally dispose of the suit. The judgment also appears not to have been brought to the notice of the Learned Single Judge. The doctrine of binding

precedents of a Coordinate Court though not absolute in its applicability is to be followed, so as to achieve uniformity of Court decisions and

certainty about the law. However, one of the exceptions to the rule that a decision of the Court of coordinate jurisdiction is to be followed by

another Court of same strength, is that a judgment delivered, per incurium is not binding on account of coordinate jurisdiction. So viewed, the

judgment reported as Darbari Lal and Others Vs. Madan Lal and Others, does not stand in the way of the Court to decide the matter. Resultantly,

Rule 33 J&K High Court Rules, 1999 is not attracted at all.

For the reasons discussed, the civil revision is held not maintainable in view of amendment to Section 115 CPC incorporated by amending Act

of 2009.