Mapex India (P.) Ltd. vs Himalayan Gold Beverages (P.) Ltd. and Another

Irshad Hussain, J.—This civil revision u/s 115 of the CPC ("C.P.C." for the short) has been preferred against the order dated 25.9.2002 passed by the Civil Judge (Senior Division/first Fast Track Court, Dehradun in suit No. 555 of 2001, rejecting the amendment application paper No. 58A filed by the plaintiff-revisionist and fixing a date for disposal of preliminary issue framed on the plea of the defendant-respondent that the suit is not legally maintainable for mere relief of injunction.

The learned counsel on behalf of defendant-respondent put in appearance and resisted the admission of the revision on the plea that by virtue of the amended Section 115. C.P.C. which has been made effective with effect from 1.7.2002, the present revision is not maintainable.

Heard Sri Alok Slngh, learned counsel for the revisionist and Sri V. K. Kohli, learned counsel for the respondent No. 1.

The relevant provision of Section 115 of C.P.C. as it now stands after amendment with effect from 1.7.2002 reads as under :

"Revision (1)..................

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.

(2) ................

(3) .................

Explanation.--In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceedings".

For the State of Uttar Pradesh with effect from 15.1.1991 for Section 115, C.P.C. the following section was substituted which is also applicable to the State of Uttaranchal in view of the provisions of U. P. reorganization Act, 2000 :

"115. Revision.--..................

(a) ..................

(b) ..................

(c) ..................

Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Court, the High Court alone shall be competent to make an order under this section :

Provided further that the High Court or the District Court shall not under this section, vary or reverse any order including an order deciding an issue, made. In the course of a suit or other proceeding, except where,--

(i) the order, if so varied or reversed, would finally disposed of the suit or other proceedings, or

(ii) the order if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made ;

Explanation.--In this section, the expression "any case which has been decided" includes any order deciding an issue, in the course of a suit or other proceeding".

Section 16 of the Amendment Act, 2002 pertaining to the repeal and savings reads as under :

"(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except in so far as such amendment or provisions are consistent with the principal Act as amended by this Act stand repealed."

Pointing out to the amended proviso of Section 115, C.P.C. as has been made effective from 1.7.2002 and the earlier analogous proviso to said section as applicable to the State of Uttaranchal and also the abovementioned repeal and savings clause of the Amended Act, 2002, the contention of the learned counsel for the respondent No. 1 was that the provision of Section 115, C.P.C. as applicable to the State of Uttaranchal being inconsistent with the Amended provision of Section 115, C.P.C., the same stands repealed and since it cannot now be urged that the impugned order, if allowed to stand would occasion a failure of justice or cause irreparable injury to the revisionist, the revision is not maintainable. The submission does not carry conviction because Clause (ii) of the relevant proviso to Section 115, C.P.C. as applicable herein to the State of Uttaranchal is not inconsistent but only an additional provision. It is also obvious that in view of the Explanation to Section 115, C.P.C. any case which has been decided includes any order made in the course of a suit or other proceeding and since the impugned order rejecting the application for amendment is an order made in the course of a suit, it falls within the expression "any case which has been decided" calling for its examination by the Court under revisional jurisdiction as contemplated u/s 115, C.P.C. In short, the second clause of the proviso to Section 115, C.P.C. as applicable in the State of Uttaranchal is not an inconsistent provision but an additional provision, which does not stand repealed, and therefore, the present revision is legally maintainable. Admit. Summon the record.