Ran chandra and another vs Dattatraya and another

G.G. Sohani, J.—This Full Bench has been constituted on a reference made by a learned Single Judge of this Court, who was of the opinion that two decisions of this Court in Civil Revision No. 6 of 1985 (Pirbux v. Babulal) and in Civil Revision No. 942 of 1984 (Gayaprasad v. Deepchand and another), required reconsideration by a Larger Bench.

The material facts giving rise to this reference, briefly, are as follows : In, a suit instituted by the applicants against the opponents in the Court of the Civil Judge, II Class, Neemuch, an application for the grant of temporary injunction, submitted by the applicants was rejected. Aggrieved by that order, the applicants preferred an appeal in the Court of Addl. Judge, Neemuch to the Court of District Judge, Mandsaur, but that appeal was also dismissed. Hence, the applicants preferred a revision petition u/s 115 CPC before this Court on 5 11-1984. Prior to that date, section 115 CPC was amended by the CPC (Madhya Pradesh Amendment) Act 29 of 1984 (hereinafter referred to as "the amending Act), which came into force on 14-8-1984. The effect of the amendment made in section 115 CPC was considered by a Division Bench of this Court in Pirbux''s case and it was held that as a result of the amendment, the jurisdiction of the High Court under S. 115 CPC to revise an order passed in Appeal by a District Court was taken away irrespective of the fact that the suit which gave rise to the appeal before the District Court was pending when the Amending Act 29 of 1984 came into force. The Division Bench held that its view was supported by the decision of the Division Bench at Gwalior in C. R. No. 942 of 1984 (Gayaprasad & another v. Deepchand & another). When these decisions were brought to the notice of the learned Single Judge, who heard this revision petition, the learned Judge doubted the correctness of those decisions. Hence, he referred the matter to the Chief Justice. That is how this Full Bench has been constituted to decide the question of the maintainability of this revision petition.

Shri Sanghi, the learned counsel for the petitioner contended that the right to move the High Court in exercise of its revisional jurisdiction, was a vested right which attached to a litigation when it commenced and that it could not be affected by any subsequent amendment unless an express provision was made giving retrospective operation to the amendment. It was urged that exercise of revisional powers by a High Court u/s 115 CPC was not part of procedural law and that the provisions of section 115 CPC, which were in force on the date when the litigation commenced, would be decisive of the question as to whether a revision petition was or was not maintainable. In reply it was contended by Shri Vyas, learned counsel for the non-applicant, that there no vested right to prefer a revision petition and that if the revisional power did exist when it was invoked, the revision petition preferred by the petitioner, could not be held to be maintainable.

Before we proceed to appreciate the contentions advanced on behalf of the parties, it would be useful to refer to the relevant provisions of section 115 CPC as they existed prior to the amendment made by Amending Act 29 of 84 and the change brought about in these provisions by Amending Act 29 of 84. Now the relevant provisions of section 115 CPC prior to the amendment were as follows :-

"Section 115-Revision-(1) The High Court may call for the record of any case which has been decided by any Court sub-ordinate to such High Court and in which no appeal lies thereto, and if such-subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested,

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit."

The aforesaid provision was substituted by the Amending Act 29 of 1984 as follows :

"115 :-The High Court, in cases arising out of original suits or other proceedings of Revision, the value of twenty thousand rupees and above, and the District Judge in any other case may call for the record of any case which has been decided by any Court subordinate to such High Court or District Judge, as the case may be and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law ; or

(b) to have failed to exercise a jurisdiction so vested; or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity:

the High Court or the District Judge, as the case may be make such order in the case as it thinks fit;".

Dealing with a substantially similar amendment affected in section 115 CPC by the U. P. Amendment Act 31 of 1978, the Supreme Court held in Vishnu Awatar Vs. Shiv Autar and Others, that the decisions of district Courts rendered in appeal were beyond revisional power of the High Court, we may usefully refer to the following observations of the Supreme Court in Shri Shiv Autar''s case (supra).

"Before we part with the case, we may make a general observation in the hope that it may have value as legislative guidance. Democracy, in a vast country of diversity, demographic immensity, logistic difficulty and large scale indigency, makes decentralisation an imperative of Administration. Access to Justice also implies early finality within reach of the rich and the poor. These considerations persuaded the U. P State, one of the direst in poverty, largest in population, and most agrestic in life-style, to attempt a tepid procedural reform in the field of revision to the High Court in litigations of lesser financial stakes. Judicial reform is upto now a tinkering exercise, not an engineering project but even that little tinkering is fiercely challenged as litigative anathema by the profession which is unfortunate."

The aforesaid observations clearly lay down that what has been brought about by the the amendment in section 115 CPC is "procedural reform in the field of revision to the High Court."

The learned counsel for the petitioner, however, contends that we should not give full effect to the procedural reform brought about by the amendment made in section 115 CPC by the Amending Act 29 of of 84 and exclude from its operation suits or other proceedings which were pending on 14-8-1984 when Amending Act 29 of 1984 came into force. The reason for such exclusion advanced on behalf the petitioner was that right of revision was a vested right which attached to a litigation when it commenced. Reliance was placed by the learned counsel for the petitioner on the decision of the Supreme Court in Keshavlal Jethalal Shah Vs. Mohanlal Bhagwandas and Another, . It is, therefore, necessary to turn to that decision.

Now the facts in Keshavlal''s case (supra) were these : u/s 29 (2) of the Bombay Rents Hotel and Lodging house Rates Control Act 57 of 1947, as it then stood, no appeal lay against any decision in appeal from the Court of the First Instance. The High Court of Gujrat was, therefore, moved by a petition u/s 115 CPC. When petition was pending in the High Court, Act 57 of 1947 was amended and power was conferred on the High Court by sub-section (2) of Sec 29 to pass such order with respect to any decision in appeal as it thought fit. On the assumption that by the amendment Act, the High Court was empowered to decide all petitioners pending on the date on which the amended section came into operation, as if the amended section applied thereto, the High Court reversed the order of the appellate Court. In the appeal preferred before the Supreme Court from the decision of the High Court, two contentions were advanced on behalf of the appellant. In the first place it was contended that the right to move a superior Court attached to a litigation when it commenced and that it was not affected by the subsequent amendment in the absence of an express provision to that effect. In the alternative it was contended that the order of the appellate Court which had acquired finality, subject to the limited jurisdiction u/s 115 CPC, could not be set aside in exercise of the jurisdiction confered upon the High Court by section 29 (2) of the Amending Act enacted after the date on which the judgment of the appellate Court was delivered. Dealing with these two questions raised on behalf of the appellant, the Supreme Court observed as follows :-

"We do not think it necessary to express any opinion on the first question because in our judgment, on the second point raised by the counsel, the appeal must succeed."

In face of the aforesaid observations, it cannot be held that the contention urged before the Supreme Court that the right to move a superior Court in revision attached to a litigation when it commenced, was upheld by the Supreme Court even though the Supreme Court made it very clear that it was not expressing any opinion on that question. The decision of the Supreme Court in that case is an authority for the proposition that wider jurisdiction under the Amending Act cannot be invoked against orders made before the commencement of the Amending Act.

The learned counsel for the petitioner referred to the decision of this Court in Nathulal Chhotelal Shellac, Factory Vs. The Deputy Commissioner of Sales Tax and Another, and contended that it was held in that case that the right of revision was a vested right. Now in 1962 M. P. 287 (supra), this Court was considering the question as to whether the remedial rights under the C. P. & Berar Sales Tax Act, 1947, were abrogated. Under that Act, against an order passed in second appeal, a revision lay to the Board of Revenue and that only after an order was passed in revision, an assessee could require the Board to refer to the High Court questions of law arising out of that order. It is thus evident that a right of revision was conferred by that Act on an assessee. The decision in 1962 M. P. 287, is therefore, distinguishable on facts.

In our opinion, in order to ascertain as to whether a right of revision is or is not conferred on a litigant, it would be necessary to examine the provision of law under which that right is being claimed. Does it provide that a revision shall lie against a particular order or does it merely confer power on a superior authority to revise orders of a subordinate authority ? In one case a substantive right is conferred while in the other case it not so. That is why the Supreme Court held in 1980 SC 1575 (supra) that the amendment made in section 115 CPC was a procedural reform in the field of revision to the High Court.

The matter can be looked at from another angle. As held by the Supreme Court in Smt. Ganga Bai Vs. Vijay Kumar and Others, , it is well settled that though there is an inherent right in every person to bring a suit of a civil nature, a right of appeal inheres it) no one and an appeal for its maintainability must have the clear authority of law. The right of appeal is thus a creative of statute. Similarly, if a right of revision is claimed, it should be conferred by a provision of law. In this connection difference in the language used in section 96 CPC and section 115 CPC is noteworthy. Section 96 CPC provided that an appeal shall lie from every decree passed by any Court exercising original jurisdiction, to the Court authorised to hear appeals from the decrees of such Court. Section 96 CPC thus confers a right of appeal. On the other hand, S. 115 CPC, which deals with revision provides that the High Court may call for the record of any case and if certain conditions are fulfilled, may make such order as it thinks fit. It is true, as urged on behalf of the petitioner, that the use of the word ''''may" in Sec. 115 CPC does not mean that the High Court has an unfettered discretion in dealing with a case under Sec. 115 CPC But the fact that the discretion of High Court under Sec. 115 CPC is controlled by that provision does not lead to the conclusion that a substantive right is conferred on a litigant by Sec. 115 CPC.

The learned Counsel for the petitioner referred to the decision in Shripatrao Dajisaheb Ghatge and Another Vs. The State of Maharashtra and Another, and Chhaganlai Devchand etc. v. Smt. Navalkunwar Talakchand &. another AIR 1977 Guj. 180 and contended that as Article 227 of the Constitution of India has been held by these decisions to confer a right of action on a litigant, similarly, it should be held that section 115 CPC confers a substantive right, which would not be affected by any amendment made in section 115 CPC after the commencement of an action by a litigant. Now as observed in 1977 Bom. 384 (supra) Article 227 cannot be considered in isolation but along with Article 32 and Article 226 and these articles provide remedies in public law as opposed to remedies in private law and confer a substantive right on a citizen to move the Court, for enforcement of fundamental and other right. The same cannot be said in respect of Sec. 115 CPC. That provision deals with supervisory or revisional power, which though part of the appellate jurisdiction of a superior Court, as held by the Supreme Court in Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, cannot be equated with an appeal which in legal parlance ordinarily by means the removal of a cause from a subordinate tribunal to a superior tribunal to test the correctness of the decision of the subordinate tribunal. As regards the nature of supervisory or revisional power, the following observations of Dua, J. as he then was, in Chautala Workers Co-operative Transport Society Ltd. and Another Vs. State of Punjab and Others, are apposite :

"Supervisory or revisional power (the term used does not seem to be very material) is also, normally speaking, considered to be a power vesting in the higher or superior tribunal to satisfy itself about the soundness or correctness of the order of the inferior tribunal. One usually accepted difference between the two powers (appellate and supervisory) appears to me to be that an appeal confers a right on the aggrieved party to complain in the prescribed manner to the higher forum, whereas the supervisory or revisional power has for its object the right and responsibility of the higher forum to keep the subordinate tribunals within the bounds of law. The latter power, therefore, can always be exercised suo motu in order to see that the subordinate tribunals do not transgress the limits of law and keep themselves within the power conferred on them."

We respectfully agree with the aforesaid observations.

Having given our anxious consideration to the matter, we have come to the conclusion that in the absence of any express provision to the contrary, in the amending Act supervisory or revisional power u/s 115 CPC has to be exercised in accordance with the provisions of law in force at the time when the power is sought to be exercised. It, therefore, follows that after 14-8-1984 when the Amending Act 29 of 84 came into force, the High Court is empowered to exercise only such powers as are conferred on the High Court by the provisions of section 115 CPC as amended. In this view of the matter we do not see any cogent reason to differ from the view taken in the Division Bench decisions of this Court in Civil Revision No 6 of 1985 (Pirbux v. Babulal) and in Civil Revision No. 942 of 1984 (Gayaprasad and another v. Deepchand and another). As the revision petition in the instant case is directed against an order passed by a district Court in appeal, arising out of a suit of the value of less then twenty thousand rupees, it is not maintainable under S. 115 CPC.

The revision petition, therefore, fails and is accordingly dismissed. In the circumstances of the case, parties shall bear their own costs of this revision petition.