Jammu & Kashmir High Court - Srinagar Bench
Ghulam Nabi Bhat vs Manzoor Ahmad Sheikh And Others on 22 May, 2018
1 HIGH COURT OF JAMMU AND KASHMIR- SRINAGAR Case No: C.REV. 09/2017 Dated : 22nd of April, 2018 GH. NABI BHAT VERSUS MANZOOR AHMAD SHEIKH & ORS CORAM: HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE Whether to be approved for reporting in NET : Yes/No Whether to be approved for reporting in Digest/Journal : Yes/No____ FOR THE PETITIONER/s : MR. N.H.SHAH FOR THE RESPONDENT/s: . MR. N.A.BEIGH _________________
01/ The order dated 25th of March, 2017, of the Court of Learned Munsiff, Boniyar, passed in a Civil Suit, is assailed in this Civil Revision petition. The facts, as these surface from the perusal of petition of the petitioner, are that the respondent Nos. 1 to 4 filed a suit for declaration, possession and permanent injunction against the petitioner and the respondent Nos. 5 to 7 in the Court of the learned Munsiff, Boniyar. The petitioner appeared before the Court of the learned Munsiff, Boniyar, through his lawyer. The petitioner raised an objection in his written statement to the effect that the land, which is the subject matter of the lis, is agricultural land and the suit essentially is for possession, partition and permanent injunction and is, therefore, not maintainable before the Civil Court as the Suits of such nature are to be tried by the Collector under the Agrarian Reforms Act, in view of the bar created under section 19 of the said Act. The trial Court agreed to hear the arguments about the jurisdiction of the Court, however, the trial Court held that section 19 of the Agrarian Reforms Act does not apply to the case and, accordingly, vide order dated 25-03-2017, 2 rejected the submission made by the petitioner. It is further submitted that the Suit land is an agricultural land as defined under Agrarian Reforms Act and the Civil Court has no jurisdiction to adjudicate upon any question regarding the possession. The learned trial Court is not right in saying that the Agrarian Reforms Act, has no application to the present controversy. Section 19 of the Agrarian Reforms Act, 1976, clearly bars the jurisdiction of Civil Court to entertain such Suits but the trial Court has not properly appreciated this point. It is stated further that the trial Court, being a Court of limited jurisdiction, has not even considered the point regarding the valuation of the Suit property. Therefore, the order dated 25th March, 2017, passed by the learned Munsiff, Boniyar is contrary to the law and facts, and, as such, deserves to be set aside.
02/ Heard and considered. 03/ The Civil Laws (Amendment) Act, 2009 (Act No. VI of 2009
dated 20.03.2009 is a compendious amendment incorporated in the Code of Civil Procedure. It amended Section 115 of the Code of Civil Procedure which empowered the High Court to call for the record of any case decided by any Court Subordinate to the High Court, and vary or reverse such an order, where the Subordinate Court is found to have exercised a jurisdiction not vested in it under 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 irregularity, or the order to have 3 caused failure of justice. The amendment added a rider to this power by incorporating a proviso to Section 115 of the CPC, which provides that the High Court shall not, under this Section vary or reverse any order made, or an 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 for other proceeding.
04/ From a bare look of the amendment incorporated in section 115 CPC detailed herein before what gets revealed is that it lays down certain checks and balances and restricts to a large extent the supervisory powers of the High Court to be exercised under this Section. The Civil laws (amendment) Act 2009, excluded clause 'b' of the proviso added to section 115 CPC and substituted it by the above proviso. Elaborating the position of law on the maintainability of a revision under the Amended Act in the case of "Prem Bakhsi & Others v. Dharam Dev & Others" reported in 2002 AIR SC (559), in light of the above proviso, the Supreme Court observed as under:
"5. The proviso to sub-Section (1) of Section 115 puts a restriction on the powers of the High Court in as much as the High Court shall not, under this Section vary or reverse any order made or any order deciding an issue, in course of a suit or other proceedings except where (i) the order made would have finally disposed of the suit or other proceedings or (ii) the said order would occasion a failure of justice or cause irreparable injury to the party against whom it is made. Under Clause (a), the High Court would be justified in interfering with an order of a subordinate Court if the said order finally disposes of the suit or other proceedings. By way of illustration we may say that if a trial Court holds by 4 an interlocutory order that it has no jurisdiction to proceed in the case or that suit is barred by limitation, it would amount to finally deciding the case and such order would be revisable. The order in question by which the amendment was allowed could not be said to have finally disposed of the case and, therefore, it would not come under clause (a)".
05/ In yet another case titled as "Shiv Shakti Co-op. Housing Society v. Sawaraj Developers and Others" reported in AIR 2003 SC 2434, the supreme Court ordained as under:
"Section 115 is essentially a source of power for the High Court to supervise the subordinate courts. It does not in any way confer a right on a litigant aggrieved by any order of the subordinate court to approach the High Court for relief. The scope for making a revision under Section 115 is not linked with a substantive right.
The Court making a comparison of Section 115 CPC as it stood before the amendment and after the amendment held:-
A comparison of two provisions of Section 115 as they stood before amendment and after the amendment of 1999 shows that while proviso (a) of the unamended provision has been retained in its totality. In the amended provisions clause
(b) of the proviso has been omitted. It is to be noted that prior to the amendments to the Code by the old Amendment Act, the power of revision was wider. By the amendment, certain positive restrictions were put on the High Court's power to deal with the revisions under Section 115. Prior to the said amendment, it was not strictly necessary that the impugned order would have the result of finally deciding the Lis or the proceedings in the lower courts. In fact, the power could be exercised in any case where jurisdiction error was committed by the original court or where substantial injustice had resulted....."
06/ The Supreme Court repeated and reiterated this principle in the case of "Surya Dev Raj v. Ram Chander Rai" AIR 2003 SC 3044, para 4 of which assumes significance in the context of the decision of this petition and is reproduced below word for word and letter for letter:
"4. 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 5 order of the High Court passed either way would not have the effect of finality 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 expressions employed in Section 115 CPC, which enables interference in revision on the ground that the order if allowed to sand 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 will all types of interlocutory orders and this was substantially contributing towards delay in the disposal of the 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 Cl.(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, s substantially curtailed. A revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied".
07/ Applying the principle of law as propounded in the judicial precedents detailed above to the facts of the instant case, the trial Court by an order dated 25.03.2017 decided an issue of jurisdiction holding that the Civil Court has the power to hear and determine the suit. This order did not have the trapping of the culmination of the proceedings or the disposal of the lis.
08/ For the reasons and the case law cited above, it is abundantly clear that in any case where the order in favour of the party applying for revision gives finality to the suit or other proceedings, the revision is maintainable under Section 115 CPC. Per contra, if the answer to this question is "no" and the impugned order does not finally decide the Lis, the revision is not maintainable. The Legislative intent is luminous and clear on that count. The order impugned in the revision filed before this Court is an order whereby a preliminary issue has been decided by the Court directing that the suit is triable by the Civil Court. It has not decided and determined the suit finally. Had the revision been filed 6 against an order that would have in effect finally disposed of the suit, the position would have been different?
09/ In view of what has been said and done above, the civil revision is dismissed along with all connected MP(s). 10/ The record of the Trial Court shall be sent back forthwith along with a copy of this order.
MANZOOR SRINAGAR.
22-04-2018 (M.K.HANJURA)
JUDGE