9911796707
TMI Blog2003 (2) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... been decided by any Court subordinate to such High Court includes part of a suit/proceeding and there cannot be any restriction on the exercise of the power of revision by the High Court. Mr. Dasgupta argued that other proceeding includes interlocutory proceeding in the suit. The orders passed in various proceedings in suits or other proceedings include the interlocutory orders passed therein, which are not subject to appeals, but which would affect the legal right of the parties. Mr. Dasgupta has drawn my attention to the explanation to Section 115 of the Code where the term any case which has been decided was explained to include any order made or any order deciding an issue in the course of a suit or other proceeding. Mr. Dasgupta, therefore, argued that it was not the legislative intention to curtail the power of the High Court to entertain revisional application under section 115 of the Code against interlocutory orders. Mr. Dasgupta submitted that the word proceeding used in section 115 contemplates exercise of revisional jurisdiction by the High Court against interlocutory orders. Mr. Dasgupta draws my attention to the decision of the Supreme Court of India in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the expression case included a suit, but in ascertaining the limit of jurisdiction of the High Court, there would be no warrant for equating the same with the suit alone. In Baldevdas (supra) the Apex Court observed, The expression 'case' is not limited in its import to the entirety of the matter in dispute in an action. The expression 'case' is a word of comprehensive import... To interpret the expression 'case' as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. ... A case may be said to be decided, if the Court adjudicates for the purpose of the suit some right or obligation of the parties in controversy. Mr. Dasgupta, also, cited the decision of a learned Judge of the Allahabad High Court in Ram Kishan Prajapati v. Smt. Narbda Ors., reported in 1999 Allahabad Law Journal 1001 where the learned Judge observed that other proceeding used in section 115 of the Code of Civil Procedure might incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption to the main provision cannot be so interpreted so as to nullify or destroy the main provision. Mr. Dasgupta in this connection cited Maxwell on the Interpretation of Statutes and, particularly, he has drawn my attention to the following observations of the learned author that unless the words were clear, the Court should not so construe the proviso as to attribute an intention to the legislature to give with one hand and take away with another. A sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two. Mr. Dasgupta drew my attention to sections 254 and 255 from Crawford's the Construction of Statutes (1998 reprint, published by Pakistan Law House) and argued that the statutes, which relate to remedies and procedure, perhaps because they are remedial in character, should, also, receive a liberal construction in order to promote justice and to carry out their respective purposes, and especially so as to secure a more effective, a speedier, a simpler, and a less expensive administration of the law. Mr. Dasgupta cited the decisions in the case of Madras and Southern Mahratta Ry. Co. Ltd. v. Bezwad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Mr . Ashoke Mukherjee, learned senior advocate, and Mr. Pushpendu Bikash Sahoo, learned advocate, also, advanced their submissions on this point. While adopting the arguments advanced by Mr. Dasgupta, Mr. Sahoo requested me to consider section 298 of Crawford's Construction of Statutes and has drawn my attention to the observation of the learned author that if a proviso cannot be given sensible effect because of omissions or accidental mistakes in the use of words, it may be entirely disregarded and, further, if it cannot be reconciled with the body of the statute, it may, also, be disregarded. Mr. Sahoo referred to the Apex Court's decision in the case of Abdul Jabar Butt and Another v. State of Jammu and Kashmir, reported in AIR 1957 SC 281 and has drawn my attention to the observations of the Apex Court that it has been a fundamental rule of construction that a proviso must be considered in relation to the principal matter. Therefore, the proviso in question has to be constructed harmoniously with the provisions of the main section to which it has been a proviso. ( 6. ) Mr . Partha Sarathi Sengupta, learned advocate, on the contrary, submits that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ahmed Sayed Mahmad and Another, reported in (1955)1 SCR 108, Talab Haji Hussain v. Madhukar Purshottam Mondkar and Another, reported in 1958 0 SCR 1226, R.P. Kapur v. The State of Punjab, reported in (1960)3 SCR 388, Padam Sen and Another v. The State of Uttar Pradesh, reported in (1961)1 SCR 884, The Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. The State of Delhi, reported in (1962) Suppl. (1) SCR 187 and Arjun Singh v. Mohindra Kumar and Others, reported in (1964)5 SCR 946. ( 7. ) In order to appreciate the scope, in my view, it is necessary to note the history of the legislation: The Legislative Council of India passed the Code of Civil Procedure, 1859 (Act VIII of 1859), which received the assent of the Governor General on March 22, 1859. The said Code was enacted to simplify the procedure of the Courts of Civil judicature not established by Royal Charter. The said Code did not contain any power of revision. The said Code of 1959 originally intended for application in the Courts not established by Royal Charter and it was not till the year 1862 when it was extended to the Courts in the presidency towns. In 1862 the Supreme Courts and the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Code High Court was vested with the power of revision. Section 622 of the said Act ran as under: 622. The High Court may call for the record of any case in which no appeal lies to the High Court, if the Court by which the case was decided appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, and may pass such order in the case as the High Court thinks fit. The said provision of the section 622 was amended by Act XII of 1879 by the addition of the words or to have acted in the exercise of its jurisdiction illegally or with material irregularity after the words so vested . When the Code of Civil Procedure, 1882 was enacted, which came into force on June 1, 1882, the amended provision of the said section 622 was retained. The said provision ran as under: 622. The High Court may call for the record of any case in which no appeal lies to the High Court, if the Court by which the case was decided appears 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 ir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (3) The words 'in which no appeal lies thereto' in the first part of the section should be altered so as to make untenable the view of the Rajasthan High Court that no revision will lie if the order could be brought before the High Court eventually in second appeal or be made the subject matter of a ground of appeal to the High Court under section 105 of the Civil Procedure Code. Our intention is that the right of moving the High Court in revision should be denied only in cases where an appeal lies either to the High Court or to the District Court from the order in question. ( 10. ) In the 54th report, however, the Law Commission recommended deletion of section 115 and observed: Section 115 deals with the High Court's power of revision. Briefly speaking, in a case not subject to appeal, it empowers the High Court to call for the records of a case decided by an inferior Court, and if the inferior Court has exercised a jurisdiction not vested in it by law of failed to exercise jurisdiction vested by law or acted with material irregularity, etc. in the exercise of its jurisdiction, the High Court can interfere. Experience shows that often the caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Committee, however, feel that the remedy provided by Article 227 of the Constitution is likely to cause more delay and involve more expenditure. In 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, however, feel that, in addition to the restrictions contained in section 115, an overall restriction on the scope of applications for revision against interlocutory orders should be imposed. Having regard to the recommendations made by the Law Commission in its Fourteenth and Twenty-seventh Reports, the Committee recommend that section 115 of the Code should be retained subject to the modification that no revision application shall lie against an interlocutory order unless either of the following conditions is satisfied, namely: (i) that if the orders were made in favour of the applicant, it would finally dispose of the suit or other proceeding; or (ii) that the order, if allowed to stand, is likely to occasion a fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for revision should be disposed of as if the said section 43 had not come into force. ( 15. ) By section 12 of the Code of Civil Procedure (Amendment) Act of 1999 the section 115 was amended. By the said section 12 of the amending Act of 1999 in section 115 of the Principal Act in sub-section (1) the existing proviso was substituted by a new proviso and after sub-section (2), subsection (3) was inserted. Under section 32(2)(i) it has been provided that the provision of section 115 of the Principal Act, as amended by section 12 of the amending Act of 1999, should not apply to or affect any proceeding for revision, which had been finally disposed of. ( 16. ) The present section 115 runs as under: 115. Revision. (1) The High Court may call for the record of any case which has been decided by any Court subordinate 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, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision. Having regard to the constraints already placed upon the exercise of the revisional powers by the existing provisions of sub-section (1) of section 115 CPC would, to some extent, come in conflict with the said clause which envisages interference by the High Court even with interlocutory orders which, if had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding. In fact, the retention of the existing revisional power with the restrictions contained in clause (a) of the proviso would enable the High Court to put an end to unsustainable and protracted litigation in subordinate Courts. For example, in case a suit is clearly barred by limitation or by the principles of res judicata or is not maintainable on the ground of lack of jurisdiction and an erroneous order passed by the trial Court on an issue covering such a dispute is not corrected in revision on the ground that the decision is of interlocutory nature, there would be unnecessary protraction of the litigation in the subordinate Courts contributing to increase in arrears. At the same time, clause (b) of the proviso to sub-section (1) of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate Bar Association, Tamil Nadu v. Union of India, reported in 2002 0 SAR(Civil) 922 upheld the vires of the said amending Acts. ( 19. ) The first ever decision on the scope of the amendment of section 115 has been delivered by the Madhya Pradesh High Court in the case of Phool Singh (supra). In the said decision a learned Judge of the said Court held, The Legislature has clearly intended to limit the jurisdiction of the High Court in exercising the powers under revision and now that can only be exercised in cases 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 otherwise not. Therefore, the clear meaning is that now no revision would be maitainable against any interlocutory order if it would not have the effect of finally disposing of the suit or other proceedings. .....Therefore, now revision would only lie against such interlocutory orders which would finally disposed of the suit or other proceedings and no revision would lie against nay other interlocutory orders which would not finally dispose of the suit or other proceedings and no orders can be passed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Others, reported in 2002(4) Maharashtra Law Journal 913 a learned Judge of the Bombay High Court held that the expression 'other proceeding' in the proviso to section 115 of the Code of Civil Procedure, as amended by Amending Act of 1999, has to be understood in the context in which it has been used. The whole purpose behind imposing restrictions upon the exercise of revisional powers being to curtail obstruction to the speedy disposal of the suit. To interpret the expression 'other proceeding' to include supplementary proceedings in a suit would defeat the very purpose behind the incorporation of the said proviso to section 115 of the Code of Civil Procedure. ( 23. ) Similarly , the Karnataka High Court in the case of K.R. Subbaraju (supra) held that in view of the amendment made in section 115 of the Code, which has become operative from July 1, 2002, the revisional jurisdiction of the High Court has now been materially restricted. The effect of the amendment is that even if the order sought to be impugned suffers from jurisdictional error, it cannot be interfered with under section 115 of the Code unless it can be shown and found that if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in invoking the revisional jurisdiction it is incumbent, as required by the proviso, that the impugned order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding. The legislature consciously deleted the power of the High Court to interfere with any kind of order, which, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. ( 25. ) I am unable to accept the contentions advanced before me that in exercising the revisional power, the High Court could ignore the proviso to the main section. In my view, the proviso will prevail as it speaks the last intention of the makers. Moreover, the Apex Court in the case of Prem Bakshi and Others v. Dharam Dey and Others, reported in (2002)2 SCC 2 while considering the power of the High Court under section 115 of the Code of Civil Procedure, as it stood prior to amendment of 1999, observed as under: The proviso to sub-sections (1) and (2 with Explanation was added by the amending Act of 1976. By this amendment the power of the High Court was curtailed; the intention of the legislature b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( 28. ) If the interpretation, suggested by some of the learned members of the bar, that in view of the insertion of the expression other proceeding all types of orders passed in interlocutory or supplemental proceeding can be revised by the High Court, the very purpose of the introduction of the amendment will be frustrated inasmuch as the whole purpose behind introduction of the amendment by amending Act of 1999 in respect of the exercise of the revisional power was to curtail the power of revision in order to avoid delay in disposal of the suit or the proceeding. ( 29. ) I am unable to accept the contentions that in exercise of the inherent power the High Court, for ends of justice or to prevent abuse of the process of the Court, can invoke the revisional jurisdiction overlooking the proviso to sub-section (1) of section 115 of the Code. Such submission does not appeal to me since it is contrary to the clear and unambiguous language of the statute. There is no ambiguity in the language of the statute. The inherent powers of the Civil Court can ordinarily be exercised when there is no legislation on a particular field or subject matter. Where there is an expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court has positively disapproved in the case of State of Himachal Pradesh v. Raja Mahendra Pal, cited supra. When both the jurisdictions are co-existing and are available to the litigants, to say or to permit a litigant after six years of pendency or for that matter six days of pendency of an application which by operation of law is not maintainable, be permitted to be made a petition under Article 227 would be setting at naught the legislative mandates. Such exercise of jurisdiction under Article 227, in my opinion, is not permissible. ( 34. ) It seems that the attention of the learned Judge was not drawn to Apex Court decision in the case of Municipal Corporation of Delhi v. R.P. Khaitan and Another, reported in 79 (1999) Delhi Law Times 555 (SC) where the Apex Court observed as under: It is true that the extraordinary remedies provided under Articles 226 and 227 of the Constitution are dependent upon the High Court willing to interfere in a matter for which a large measure of discretion rests with it. Its power is so wide so as to envelope not only all aspects of the matter but orders can be passed of such nature as the High Court thinks fit. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
