Ram Dhani vs Raja Ram

Tarun Agarwala, J.—The moot question involved in the present petition is, whether a revision under Section 115 of the Code of Civil Procedure is maintainable against an order issuing a notice to the defendants on an application for a grant of a temporary injunction filed under Order XXXIX, Rules 1 and 2, CPC.

Time and again, this question has troubled the Court and over a period of time, judgments, both in favour and against, have been issued by the Court. While delivering some of the judgments, the Court has relied upon the judgments of other High Courts without realizing that the provision of Section 115, as applicable in the State of U.P., was different with that of the provision of the Secton 115 of the Central Act or of the other States.

The controversy, to a large extent was set at rest through various judgments, but after the amendment of Section 115 by U.P. Act No.14 of 2003 the controversy has again erupted. Judgments have been churned out by the Court holding that as revision is maintainable and in Others holding that the revision is not maintainable. In some of the judgments, directions have been issued to the Registrar General to circulate the judgment to the subordinate judiciary but subsequently the Court has issued a judgment to the contrary thereby sending a wrong signal to the subordinate judiciary.

With the assistance of Sri M.K. Gupta, Sri Shubham Agarwal and Sri Hem Pratap Singh, Advocates and Sri S.D. Ojha, the learned Counsel for the petitioners, the following judgments have been complied in the following manner namely:

(a) Judgments holding that a Civil revision is not maintainable.

(1) AIR 2003 All 180, Rajendra Singh and Others v. Brij Mohan agarwal and another;

(2) 2003 (3) AWC 1921, Debi Das v. State of U.P. and Others;

(3)2005 (60) ALR 512, Bhagwati Prasad Lohar and Others v. State of U.P. through Secretary of Legal Department, Lucknow, U.P. and Others;

(4) 2002 (2) ARC 565, Debi Das (deceased) v. State of U.P. and Others;

(B) Cases holding that a Civil revision is not maintainable after amendment in Section 115 by U.P. Act No.14 of 2003.

(1) 2006 (1) ARC 606, Mohd. Rais Khan v. Shri Naseeb Ullay Khan and Others;

(2) 2006 (63) ALR 237, Narendra Kumar v. Nagar Nigam, Bareilly and 3 Others;

(3) 2006 (1) ARC 153, Lucknow Diocesan Trust Association v. Sri B.C. Jain and Others;

(4) 2006 (62) ALR 278, Rajpal Singh v. Richh Pal Singh and Others;

(5) Writ Petition No.1609 (M/S) of 2006, Cantonment Board Lucknow and another v. District Judge, (Incharge) Lucknow and Others, decided on 27.4.2006, reported in 2006(3) ARC 156.

(C) Judgments holding that a Civil revision is maintainable:

(1) 2003 (51) ALR 101, Smt. Urmila Devi and Others v. Nagar Nigam, Lucknow through Mukhya Nagar Adhikari;

(2) 2002 (3) AWC 2469, Smt. Soni v. District Judge, Allahabad and Others;

(3) 2003 (Suppl) RD 345, Jagdish v. State of U.P.;

(D) Judgments holding that a Civil revision is maintainable after amendment in Section 115 by U.P. Act No.14 of 2003:

(1) 2006 (64) ALR 383, Algu v. Bhola and Others;

(2) 2004 (55) ALR 327, Guru Dutt v. Anju Khatri and another;

(3) 2004 (4) AWC 3236, Nagar Nigam, Gorakhpur v. Gorakhpur Development Authority, Gorakhpur and Others.

In Shiv Shakti Coop. Housing Society, Nagpur v. M/s. Swaraj Developers and Others, 2003 (2) ARC 1, the Supreme Court held that the Civil Revision under Section 115 after the Amendment Act of 1999 was not maintainable. The Supreme Court, however, did not refer to the provisions of Section 115 as amended by U.P. Act No.14 of 2003.

In view of the conflicting decisions of this Court on the subject in question, I find it appropriate that the controversy should be settled by a Larger Bench. Consequently, in view of Rule 2(ix)(b) read with Rule 6 of Chapter V of the Rules of the Court, I direct that the following question be referred to a Larger Bench for a decision:

�Whether a revision under Section 115 of the Code of Civil Procedure is maintainable against an order issuing a notice to the defendant on an application for a grant of a temporary injunction filed under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure?�

The Registry is directed to place the matter immediately before the Hon''ble the Chief Justice for appropriate nomination to a Larger Bench.

In the meantime, I direct the trial Court to consider and decide the application for the grant of a temporary injunction after hearing the parties within three months from the date of the production of a certified copy of the order.