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Judgment
Honourable Mr. Justice G. Rajasuria
A resume of the germane facts absolutely necessary for the disposal of this Civil Revision Petition would run thus:
The learned counsel for the revision petitioners, inviting the attention of this Court to the typed set of papers would pyramid his arguments, which can succinctly and precisely be set out thus:
E.P. No. 132 of 2007 was filed by the decree holder as against the revision petitioners. Whereupon, the revision petitioners entered appearance and filed their counter. Subsequently, the revision petitioners remained ex-parte. Whereupon, an ex-parte order was passed on 25.04.2008 ordering delivery of the property concerned. On 03.06.2008, E.A. No. 40 of 2008 was filed for getting set aside the ex-parte order dated 25.04.2008. However, after hearing both the sides, the Court dismissed the application on the ground that such application itself was filed beyond 30 days from the date of the ex-parte order and also in view of Order 21 Rule 106 of CPC, as against which C.M.A. No. 6 of 2011 was filed. The Lower Appellate Court also, after hearing both the sides, confirmed the order of the Lower Court, and as against which the present Civil Revision Petition has been focussed u/s 115 of CPC, on the ground that both the Courts did not take into account the fact that vacation intervened during the month of May and furthermore, the date of knowledge on the part of the revision petitioner of the order also was not taken into account.
Per contra, the learned counsel for the respondent, would implore and entreat that the matter was litigated up to the Hon''ble Supreme Court and thereafter, finality was achieved and subsequently E.P. was filed and counter also was filed by the other side; however, thereafter judgment debtor had not chosen to appear and whereupon the Court correctly and properly ordered delivery. The vacation period got expired by 31.05.2008, but the said E.A. No. 40 of 2008 was filed only on 03.06.2008, that too, without any application to get the delay condoned. Hence there is no impropriety or illegality in the orders passed by both the Courts below.
The points for consideration are:
1) Whether the Revision u/s 115 of CPC is tenable?
2) Whether there is impropriety or illegality in the order passed by the Lower Appellate Court?
At the outset itself, I would like to refer to the decision of this Court in Durairaj and others v. Venugopal and another reported in 2012-3-L.W. 807. Certain excerpts from it, would run thus:
I would like to refer to sub section (2) of Section 115 of CPC, which would unambiguously and unequivocally highlight and spotlight the fact that if appeal lies in respect of a matter, then no revision could be entertained u/s 115 of CPC.
The warp and woof of the contention of the learned counsel for the respondent/plaintiff is to the effect that as against the order passed in the CMA, inasmuch as no further appeal is contemplated, the only remedy could be the one u/s 115 of CPC. I cannot countenance such a view for the reason, that had the legislators thought that that should be the legal position as canvassed by the learned counsel for the respondent/plaintiff, the legislators would have spelt out thus: "the revision under this Section [S. 115 of CPC] shall not lie without exhausting the appeal remedy, if any," but that is not the legislative language and that was not the intention of the legislators as well. In Surya Devi''s case (supra), the Hon''ble Apex Court glaringly and pellucidly shed light on the point that no revision u/s 115 of CPC would lie as against the order in Appeal. The legislators in their wisdom thought that in respect of certain matters appeal remedy if provided under law, then the parties concerned should get themselves satisfied with that remedy and once again, they cannot carve out their own dubious way of approaching the High Court u/s 115 of CPC. The mischief sought to be suppressed by the amendment of Section 115 of the CPC is axiomatic and obvious and if the view of the counsel for the respondent/plaintiff is accepted, it would amount to opening the flood gate throwing to winds the spirit and essence of Section 115 of the Code of Civil Procedure.
The learned counsel for the respondent/plaintiff also inviting the attention of this Court to the proviso appended to sub Section (1) of Section 115 of CPC, would try to buttress and fortify his view, but an analysis of the said proviso would reveal and demonstrate that it is against his case. To maintain a revision under the said proviso, hypothetically the impugned interim order should be visualized thus: Grammatically "unreal past" situation in the said proviso is contemplated. If such order had been passed in his favour, whether it would have the effect of finally disposing of the suit or the proceedings before the lower court. Here, it is crystal clear that if the said order had been passed under Order IX Rule 13 of the CPC by allowing the interlocutory application, the main suit itself would have got revived and the proceedings in the main suit would be in progress. The same position would be if the C.M.A. had been allowed. Hence the said proviso cannot be pressed into service by the respondent/plaintiff in support of his proposition that only a revision u/s 115 of the CPC would lie.
Needless to point out, that before 1976 amendment of CPC the position was different and the objects and reasons relating to amendment of Section 115 of the CPC is worthy of being reproduced here under:
[Report of the Joint Committee-Gazette of India, Ext., dt. 1-4-1976, Pt. II, S.2, p. 804/10-11]
"Amendments: Objects and Reasons.- Clause 43 (Original clause 45).- By clause 45 of the Bill, section 115 of the Code was proposed to be omitted. The question whether it is at all necessary to retain section 115 was carefully considered by the Committee. The Law Commission has expressed the view that, in view of article 227 of the Constitution, section 115 of the Code is no longer necessary. The Committee, however, feel that the remedy provided by article 227 of the Constitution is likely to cause more delay and involve more expenditure. The remedy provided in section 115 is on the other hand, cheap and easy. The Committee, therefore, feel that section 115, which serves a useful purpose, need not be altogether omitted particularly on the ground that an alternative remedy is available under article 227 of the Constitution.
The Committee feel that the expression "case decided" should be defined so that the doubt as to whether section 115 applies to an interlocutory order may be set at rest. Accordingly, the Committee have added a proviso and an Explanation to section 115. [Statement of Objects and Reasons (Bill 1999).]
Amendments: Objects and Reasons.-Clause 12.- Section 115 of the Code provides for revision by the High Court or an order or decision of any Court subordinate to such High Court. The Malimath Committee noticed that often the records of the lower Courts are sent to the High Court in the revisional proceedings. It is imperative that records of proceedings pending in the subordinate Court should not be sent unless High Court so desires and revision should not operate as stay of proceedings before the trial Court. The Committee while agreeing in principle that scope of interference against interlocutory orders should be restricted, felt that the object can be achieved more effectively without demanding the High Court of the power of revision. Clause 12 seeks to achieve the above object by suitable amendments to section 115.
Wherefore, if the view of the learned counsel for the respondent/plaintiff is accepted, it would amount to rendering the very restrictive scope found embedded in Section 115 of CPC nugatory and otiose. As such, I am of the considered view that once appeal remedy is contemplated in respect of an order and the appeal remedy itself has been exhausted, then the question of invoking Section 115 of CPC would be a well-neigh impossibility.
* * * * *
It is quite obvious and axiomatic that when appeal remedy is contemplated, revision u/s 115 of CPC would not lie. Then the core question arises as to what would happen to a litigant who is really having some grievance if there is any gross perversity in the impugned order. At this juncture, I recollect certain excerpts from the decision of the Hon''ble Apex Court reported in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), certain excerpts from it would run thus:
Section 115 of the Code vests power of revision in the High Court over courts subordinate to it. Proviso to Section 115(1) of the Code before the amendment by Act 46 of 1999 read 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
(a) 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, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
(emphasis supplied)
Now, the aforesaid proviso has been substituted by the following proviso:
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.
The aforesaid clause (b) stands omitted. The question is about the constitutional powers of the High Courts under Article 227 on account of omission made in Section 115 of the Code. The question stands settled by a decision of this Court in Surya Dev Rai v. Ram Chander Rai holding that the power of the High Court under Articles 226 and 227 of the Constitution is always in addition to the revisional jurisdiction conferred on it. Curtailment of revisional jurisdiction of the High Court u/s 115 of the Code does not take away and could not have taken away the constitutional jurisdiction of the High Court. The power exists, untrammelled by the amendment in Section 115 and is available to be exercised subject to rules of self-discipline and practice which are as well settled.
As such in certain circumstances, if at all the party concerned could make out a case under Article 227 of the Constitution of India, then he could petition the High Court invoking the said provision of law.
A mere running of the eye over the above decision, based on several precedents of the Hon''ble Apex Court would reveal and spotlight that the question of approaching this Court u/s 115 of CPC is a well-neigh impossibility and it is totally antithetical to the object of the said provision. Even for argument sake it is taken that it can be treated as one under Article 227 of the Indian Constitution, still no perversity or illegality can be inferred or discerned from the facts and circumstances of this case.
The reason found set out in the affidavit filed for E.A. is also vague, and they are extracted hereunder for ready reference:
The respondents were set ex-parte and the E.P. was ordered on 25.04.2008. Our Advocate was not aware of the posting and hence was not present.
We had been also consequently absent for reasons beyond our control.
Unless the order of delivery dated 25.04.2008 is set aside, we the respondents 2 to 4 will be put to irreparable loss and injury.
An application to set aside the ex-parte order dated 25.04.2008 is filed herewith and the Court be pleased to allow it.
A mere running of the eye over the above averments, would exemplify and demonstrate that in a casual manner, the said affidavit was filed. Both the Courts below properly considered and dismissed the prayer of the revision petitioners warranting no interference in revision. Hence, the point is answered accordingly and the Civil Revision Petition is dismissed. Consequently, the connected miscellaneous petition is closed. No costs.