Orissa High Court
Smt. Sabitri Das vs Gangadhar Naik And Ors. on 18 June, 2004
Equivalent citations: 98(2004)CLT70
Author: P.K. Tripathy
Bench: P.K. Tripathy
JUDGMENT P.K. Tripathy, J.
1. In the above noted Civil Revisions argument was heard separately on different dates but in all such cases the common question of law involved is relating to their maintainability in view of Amendment of Section 115 of the Code of Civil Procedure, 1908 (in short 'the Code') by Act 46 of 1999 which came into force with effect from July 1st 2002. Thus, this common judgment shall abide the result on the question of maintainability of each of such Civil Revisions.
2. C. R. No. 370 of 2000:
Defendant No. 5 of O.S. No. 141 of 1983 of the Court of Munsif (Civil Judge, Junior Division), Balasore filed Misc. Case No. 350 of 1990 under Order 9, Rule 13, CPC to set aside the decree which was passed ex-parte against her. That Misc. case was dismissed on merit on 22.8.1992. She preferred Misc. Case Appeal No. 39 of 1992. Learned District Judge, Balasore, as per the impugned judgment passed on 20.7.2000 dismissed that appeal. As against that order, the said defendant No. 5 has filed the present Civil Revision and the plaintiffs of the suit are the opposite parties 1 and 2.
C. R. No. 78 of 2002.:
Defendant in Title Suit No. 25 of 1997 of the Court of Civil Judge (Senior Division), Berhampur has filed the present civil revision as against order of interim maintenance granted by the said Court in M.J.C. No. 147 of 2000 which was filed under Section 151 of the Code inasmuch as the aforesaid title suit has been filed by the plaintiffs-opposite party claiming for maintenance under The Hindu Adoption and Maintenance Act, 1956 as the wife and daughters of the petitioner. Learned Civil Judge has granted interim monthly maintenance of Rs. 1,000/- to the wife and @ Rs. 500/- to each of the two daughters.
C. R. No. 149 of 2002:
Petitioners are the plaintiffs in Title Suit No. 881 of 2001 of the Court of Civil Judge (Junior Division), Bhubaneswar and the opposite party members are the defendants. Petitioners filed Misc. Case No. 776 of 2001 under Order 39, Rules 1 and 2, CPC seeking the relief of interim injunction against the defendants. Learned Civil Judge on 17.10.2001 directed both the parties to maintain status quo in respect of the path way measuring an area of AO. 008 decimals at southern side in suit Plot No. 4058. Defendants challenged to that order in the appellate Court. Learned Ad hoc Additional District Judge (Fast Track Court No. II), Bhubaneswar on 15.3.2002 delivered the judgment by allowing the appeal. That Court vacated the order of status quo. That order is under challenge in the present civil revision.
C. R. NO. 113 of 2003:
Petitioners filed M.J.C. No. 12 of 2000 under Order 9, Rule 13 of the Code in the Court of Civil Judge (Senior Division), Karanjia with the prayer to set aside the decree passed ex-parte against them in Title Suit No. 7 of 1997. On 20.4.2001, learned Civil Judge dismissed that Misc. case on contest. Petitioners challenged that order in an appeal under Order 43, Rule 1, CPC. Learned Ad hoc Addl. District Judge (Fast Track Court), Baripada, disposed of that Misc. Appeal No. 10/17 of 2002-2001, as per the impugned judgment delivered on 18.1.2003. The appellate Court also concurred with the finding and result recorded by learned Civil Judge and accordingly dismissed the appeal on merit. That judgment is under challenge in this Civil Revision.
C. R. No. 129 of 2003:
Some of the plaintiffs in Title Suit No. 76 of 1994 of the Court of Civil Judge (Senior Division), Angul have filed this revision challenging to the order No. 317 dated 27.2.2003 passed by that Court in rejecting the application for amendment of plaint.
3. It appears from the nature of the orders impugned in the present batch of revisions that the legal issue on maintainability in such types of cases, has been set at rest by this Court in a batch of Civil Revisions. See the cases of Narayan Dash v. Gouranga Charan Dash and Ors., Makaradhwaja Dharua : Y. Naba Bhoi and Ors., and Uma Bhoi and Anr. v. The Sargul Gram Panchayat, reported in 2003 (Supp.) OLR respectively at pages 703, 711 and 714 and also the case of Sitaram alias Mahendra Ghosh v. Sri Antaryami Mohapatra and 18 others, 2003 (II) OLR 409. Argument has been advanced in some of the revisions that the ratio laid down in the above noted citations are not consistent with the decision from the Apex Court having a superseding authority on precedent and therefore this Court should re-think on the legal issue i.e., on the question of maintainability. A Court has to function with an open mind to consider the legal consequences and position of law not only by referring to the statutes but also by adopting judicial precedents when found applicable. Thus, this Court again analyses on such legal issue.
4. In the reported decisions noted in the preceding paragraphs (paragraph 3) relating to the type of cases covered, by the present batch of Civil Revisions, it has been consistently held that such Civil Revisions are not maintainable after amendment of Section 115 of the Code by Act 46 of 1999. In paragraph 7 in the case of Sitaram (supra) this Court has settled that:
"7. Therefore, this Court finds that a Civil Revision, at the instance of a litigant, is maintainable on satisfaction of the following circumstances cumulatively, viz,:
(a) (i) impugned order amounts to a case decided.
(ii) Such order must have been passed by any Court subordinate to such High Court.
(iii) Such order must not be appealable one.
(b) There must be allegation of jurisdiction error, i.e., to say:
(i) exercise of jurisdiction not vested in the Court below by law, or
(ii) a jurisdiction vested in it by law was failed to be exercised and/or.
(iii) has acted in the exercise of its jurisdiction illegally or with material irregularity.
(c) If the impugned order had been passed in favour of the revision-petitioner then that would have finally disposed of the suit or other proceedings."
5. Basis for the aforesaid decision is keeping in view the meaning of the term 'other proceeding' ejusdem generis to the term 'suit' used in Section. 115 and the further circumstance that if the impugned judgments/orders had been passed in favour of the revision petitioners then that would not have finally disposed of the suit or other proceeding. Contention of the petitioners in all the present set of revisions is that in view of the ratio in the case of Major S.S. Khanna v. Brid. F. J. Dillon, AIR 1964 SC 497 and Baldebdas Sibalal and Anr. v. Filmstar Distributors (India) Pvt. Ltd. and Anr., AIR 1970 SC 406, the impugned judgments and orders come within the meaning of the term "case decided". There is no dispute to that argument, but as noted in the above quoted passage sole factor of 'case decided' is not the sign qua non for maintaining a civil revision unless other requirements, as quoted above are fulfilled.
6. Petitioners have relied on the case of S. Narain Singh and Anr. v. Ram Gopal Madan Lal and Ors., AIR 1981 Delhi 88, 8. S. Adityan and Ors. v. R. Kannan Adityan and Anr., AIR 1983 Madras 334, and Twentieth Century Fox Film Corporation and Anr. v. NRI Film Production Associates (P) Ltd., AIR 2003 Karnataka 148 in support of their contention that the nature of the proceedings involved in the present case, except the case of rejection of the application for amendment, are proceedings within the meaning of Section 141 of the Code and therefore, notwithstanding the amendment of Section 115 by Act 46 of 1999 a revision is still maintainable as against the impugned judgments and orders. In that context, their argument is that the maxim 'ejusdem generis' as applied in the case of Shri Vishnu Avatar etc. v. Sriram Avatar, AIR 1980 SC 1575, does not hold the-field, in view of the ratio in the case of Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd., AIR 1964 SC 1882, in which the said maxim has been defined by as larger Bench in a different manner and because of the ratio in the case of Indian Oil Corporation Ltd. v. Municipal Corporation and Anr., AIR 1995 SC 1480, the ratio in the case of Jagadish Chandra has to supersede. They further argued that when according to the ratio in the case of Durga Prasad v. Naveen Chandra and Ors. (1996) 3 SCC 300, it has been held by the apex Court that as against an appellate order passed in a proceeding under Order 9, Rule 13 of the Code a Civil Revision -as provided under Section 115 of the Code is maintainable and not a writ petition under Article 226 and further by the well settled principle in the case of Kavalappara Kottarathil Kochuni @ Moopil Nayar etc. v. The State of Madras and Kerala and Ors., AIR 1960 SC 1080, interpretation of the statutes has been directed to be made by providing plain and simple meaning and not by taking aid of extraneous factor tike the statement and object, therefore, the term 'other proceeding' be given its plain and simple meaning and not by excluding cases covered by Section 141 of the Code. In that context, petitioners have also relied on the principle of 'application of implied power' which was discussed in the case of Niranjan Behera and Anr. v. Laxmidhar Rana and Ors., 70 (1990) CLT 48. In reply it is argued by opposite party, appearing in some of the revisions, that all the aforesaid contentions of the petitioners having been duly considered in the decisions of this Court (as noted in paragraph 3), and in the same context such view getting ample support from the decision of the Apex Court in the case of Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and Ors., 96 (2003) CLT 201 (SC) and Surya Dev Rai. v. Rama Chandra Rai and Ors., 96 (2003) CLT 625 (SC) therefore, a rethinking on the issue is not necessary.
7. In the case of K. K. Kochuni (supra) Constitutional validity of the Madras Marumakkathayam (Removal of Doubts) Act (32 of 1955) was, challenged. In that context, the apex Court in the said judgment laid the ratio that statement of objects and reason is not admissible as an aid to the construction of a statute, but it may be referred to for the limited purpose of ascertaining the conditions prevailing at the time the Bill was introduced and the purpose for which the amendment was made. Their Lordships further observed that in a statute "when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. But it is clearly laid down by decided cases that the specific words must form a distinct genus or category. It is not an inviolable rule of law, but is only permissible inference in the absence of an indication to the contrary". Accordingly, their Lordship interpreted the meaning of the term "otherwise" to give it a wider interpretation. On a careful reading of the said citations this Court does not find that in the case of Shri Vishnu Avatar (supra) the Division Bench of the apex Court had laid the ratio on the 'ejusdem generis' by superseding the aforesaid principle.
8. In the case of Niranjan Behera (supra) while in seisin of an interim order in a proceeding under Section 147 of the Code of Criminal Procedure, the interim order of status quo passed by the Executive Magistrate was vacated by learned Addl. Sessions Judge on the ground that Executive Magistrate has no jurisdiction to "pass such interim order of status quo. Thus rule of invocation of 'implied powers' was considered and accepted by this Court in support of the grant of interim order of status quo by the Executive Magistrate. In that context, view of the Apex Court in different decisions were quoted, so also a quotation from Domat's Civil Law. Some of the above quoted passages are quoted below for ready reference :
"Where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution." (At page 54 of the citations having been quoted from AIR 1956 SC 44, Matajog Dobey etc. v. H. C. Bhari, etc.) "It is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions but to all the cases where a just application of them may be made, and which appear to be comprehended either within the meaning that may be gathered from it." (At page 55 having been quoted from Domat's Civil Law, Cushing's Edition, Vol. I at page 88).
"It is well recognised that where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means as are essentially necessary to its execution. But before implying the existence of such a power the Court must be satisfied that the existence of that power is absolutely essential for the discharge of the power conferred and not merely that it is convenient to have such a power." (At page 5.6 having been quoted from AIR 1970 SC 140, Sub-Divisional Officer Sadar, Faizabad v. Shambhoo Narain Singh).
It is needless to explain that the context in which the said principle was referred to is different from the principle of law involved in the present set of revisions. Inspite of that if the aforesaid principle would be imported then that does not help the contention of the petitioners in support of the motion for maintainability of the revisions inasmuch as law always depricates unwarranted expansion of its area of operation, that to, against the prohibition. The above quoted passages are ample guide for the same.
9. In the case of Jagadish Chandra (supra) a four Judges' Bench of the apex Court, was in seisin of the matter relating to maintainability of an application filed under Section 8(2) of the Arbitration Act, 1940 vis-a-vis the provision in Section 69 of the Indian Partnership Act which prescribes some dis-entitlement to an unregistered partnership firm. The term 'other proceedings' employed in Sub-section (3) of Section 69 of the Partnership Act, was considered ejusdem generis to the term 'to a claim of set-off to enforce a right arising from a contract. In paragraph 6, their Lordships propounded that:
"It remains, however, to consider whether by reason of the fact that the words 'other proceeding' stand opposed to the words "a claim of set-off" any limitation in their meaning was contemplated. It is on this aspect of the case that the learned judges have seriously differed. When in a statute particular classes are mentioned by name and then are followed by general words, the general words are sometimes construed ejusdem generis, i.e., limited to the same category or genus comprehended by the particular words. But it is not necessary that this rule must always apply. The nature of the special words and the general words must be considered before the rule is applied, In Allen v. Emerson, (1944) 1 KB 362. As quith, J., gave interesting examples of particular words followed by general words where the principle of ejusdem generis might or might not apply. We think that the following illustration will clear any difficulty. In the expression "books, pamphlets, newspapers and other documents" private letters may not be held included if 'other documents' be interpreted ejusdem generis with what goes before. But in a provision which reads "newspapers or other document likely to convey secrets to the enemy", the words 'other document' would include document of any kind and would not take their colour from 'news papers'. It follows, therefore, that interpretation ejusdem generis or noscitur a sociis need not always be made when words showing particular classes are followed by general words.' Before the general words can be so interpreted there must be a genus or a category disclosed with reference to which the general words can and are intended to be restricted. Here the expression "claim of set-off" does not disclose a category or a genus. Set-offs are of two kinds - legal and equitable- and both are already comprehended and it is difficult to think or any right "arising from a contract" which is of the same nature as a claim of set-off and can be raised by a defendant in a suit, Mr. B. C. Misra, whom we invited to give us examples, admitted frankly that it was impossible for him to think of any proceeding of the nature of a claim of set-off other than a claim of set-off which could be raised in a suit such as is described in the second Sub-section. In respect of the first Sub-section he could give only two examples. They are (i) a claim by a pledger of goods with an unregistered firm whose goods are attached and who has to make an objection under Order 21, Rule 58 of the Code of Civil Procedure and (ii) proving a debt before a liquidator. The letter is not raised as a defence and cannot belong to the same genus as a "claim of set-off". The former can be made to fit but by a stretch of some considerable imagination. It is difficult for us to accept that the Legislature was thinking of such farfetched things when it spoke of "other proceeding" ejusdem generis with a claim of set-off."
(Underlined to put emphasis) In the case of Shri Vishnu Avatar (supra) the said principle was applied and employed to propound that 'other proceeding1 used in Section 115 of the Code is ejusdem generis to the term 'suit'.
10. In view of the aforesaid two decisions, in the context of applying the maxim 'ejusdem generis' to the term 'other proceeding' it is profitable to refer to the cited decisions in the Case of Indian Oil Corporation Ltd., (supra). It emerges from the narration of fact in that judgment that in the context of Section 138 (b) of the Madhya Pradesh Municipal Corporation Act, 1956, a Division Bench of the Madhya Pradesh High Court, referring to some other decisions of the apex Court, held that ratio in the case of Municipal Corporation, Indore v. Smt. Ratna Prabha, AIR 1977 SC 308 : (1999) I SCR 1017, is no longer good law and binding on it. A full Bench of the said High Court held that ratio in the case of Smt. Ratna Prabha is operative and binding. While approving the decision of the Full Bench of the Madhya Pradesh High Court, the apex Court propounded that:
"It is thus clear that the decision of this Court in Ratna Prabha, (AIR 1977 SC 308) (supra) on the construction of Section 138 (b) of the M. P. Act has all along been understood and justified on the basis of the presence of the non obstante clause in Section 138(b) of the M.P. Act and the later decisions have distinguished it on that ground. That is the basis on which the decision in Padma Debi, (AIR 1962 SC 151) (supra) was distinguished in Ratna Prabha (supra) (AIR 1977 SC 308) itself. It is also obvious that a Bench of 3- Judges only in the later decisions could not overrule the decision of this Court in Ratna Prabha, (1977) I SCR 1017 : (AIR 1977 SC 308) and, therefore, none of the later decisions could be so read to have that effect. The Division Bench of the High Court in 1989, MPL, J 20 was clearly in error in taking the view that the decision of this Court in Ratna Prabha, (AIR 1977 SC 308) (supra) was not binding on it. In doing so, the Division Bench of the High Court did something which even a later co-equal Bench of this Court did not and could not do. The view taken by the Division Bench of the High Court in 1989 MPL, J 20 proceeds on a total misunderstanding of the law of precedents and Article 141 of the Constitution of India, to which it referred. But for the fact that the view of the Division Bench of the High Court proceeds on a misapprehensions of the law of precedents and Article 141 of the Constitution, it would be exposed to the criticism of an aberration in judicial discipline. The decision of the Division Bench of the High Court, was therefore, rightly overruled by the Full Bench in the impugned judgment."
11. Utilisation of maxim 'ejusdem generis' in the above quoted passage from the apex Court so also in the case of Shri Vishnu Avatar (supra), as it appears to this Court, is not different or contradictory to each other but according to fact and circumstances which were different in those cases. Therefore, interpretation of the term 'other proceeding' in Section 115 of the Code as per the ratio in the case of Shri Vishnu Avatar (supra) is applicable to the present case. Though it is not specifically discussed as to whether meaning of the term 'other proceeding1 is ejusdem generis to 'suit' but in the case of Shiv Shakti (supra) taking note of amendment of Section 115 of the Code by Act 46 of 1999 the apex Court held that a Civil Revision is no more maintainable against an order passed in a proceeding under Order 39 Rule 1 or 2 of the Code. Similarly in the case of Surya Dev Rai (supra) the apex Court has propounded that:
"6. Section 115 of the Code of Civil Procedure as amended does not now permit a revision petition being filed against an order disposing of an appeal against the order of the Trial Court whether confirming, reversing or modifying the order of injunction granted by the trial Court. The reason is that the order of the High Court passed either way would not have the effect of finally disposing of the suit or other proceedings. The exercise of revisional jurisdiction in such a case is taken away by the proviso inserted under Sub-section (1) of Section 115 of the CPC. The amendment is based on the Malimath Committee's recommendations. The Committee was of the opinion that the expression employed in Section 115, CPC which enables interference in revision on the ground that the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made, left open wide scope for the exercise of the revisional power with all types of interlocutory orders and this was substantially contributing towards delay in the disposal of cases. The Committee did not favour denuding the High Court of the power of revision but strongly felt that the power should be suitably curtailed. The effect of the erstwhile Clause (b) of the proviso, being deleted and a new proviso having been inserted, is that the revisional jurisdiction, in respect of an interlocutory order passed in a trial or other proceedings, is substantially curtailed. A revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied."
Thus, there is no necessity to re-think and to re-interpret the term 'other proceeding' in the context of Section 115 of the Code other than the manner in which that term has been interpreted in the case of Sitaram and Ors. (supra) as noted in paragraph 3 of this judgment. It is needless to mention that because of the above conclusion, decisions cited from other High Courts have no binding effect to be followed.
12. The last limb of contention of the petitioners is that in view of the ratio in the case of Durga Prasad (supra) that as against a judgment under Order43, Rule 1 of the Code in a proceeding under Order 9, Rule 13, only a revision lies and not a writ petition under Article 226 therefore, this Court should entertain the Civil Revisions. That argument is devoid of merit inasmuch as that decision was rendered by the Apex Court interpreting the unamended provision of Section 115 of the Code. After amendment there has been a sea-change in the scenario relating to maintainability of the civil revision against interlocutory orders.
For the reasons indicated above, after due deliberation of the contention of the parties and analysing interpretation and following the said principle of rules, law and the precedents, this Court finds that all the aforesaid Civil Revisions are not maintainable inasmuch as the impugned orders have been passed in or relating to the concerned civil suits and in such cases if such orders had been passed in favour of the revision-petitioners then that would not have resulted in disposal of the suit. Accordingly, all the Civil Revisions stand dismissed.