Madhya Pradesh High Court
Phoolsingh vs Mavla @ Bhavaliya And Ors. on 8 July, 2002
Equivalent citations: AIR2002MP246, 2002(3)MPHT383, AIR 2002 MADHYA PRADESH 246, (2002) 3 ICC 1060, (2002) 3 MPHT 383, (2002) 3 MPLJ 326, (2002) 4 CIVLJ 241, (2002) 4 CURCC 202
ORDER A.K. Gohil, J.
1. The applicant has filed this civil revision under Section 115 of the Code of Civil Procedure against the interlocutory order dated 3-8-1999 passed in Civil Suit No. 58-A/95 by the Civil Judge, Class-II, Bhikangaon, whereby the Trial Court rejected the application of the plaintiff, I.A. No. 6 under Order XIII Rule 10 of the Code of Civil Procedure and I. A. No. 7 under Section 35 of the Indian Stamp Act.
2. This civil revision was filed on 27-9-1999 and by order dated 23-2-2000 notices were directed to be issued and the proceedings of the Trial Court were stayed. This civil revision came up for hearing on 1-7-2002. On the same day the Code of Civil Procedure (Amendment) Act, 1999 (No. 46 of 1999) also came into force by Notification dated 6th June, 2002. By Section 12 of this amendment of 1999 (No. 46 of 1999) in Section 115 of the Principal Act, the "proviso" of Sub-section (1) has been substituted.
3. After the enforcement of the amendment w.e.f. 1-7-2002 when this revision came up for hearing, the learned Counsel for respondents raised a preliminary objection about the maintainability of civil revision after the amendment and it was submitted that this amendment of 1999 will also apply on pending cases and pending cases have to be decided as per the amended proviso of Section 115 which has been substituted.
4. As many other civil revision petitions were listed for hearing the learned Members of the Bar submitted that the question about the application of the amended proviso on the pending civil revisions be decided first. All the Members were anxious to address the Court on this question which was a matter of general importance.
5. Accordingly a general notice was issued to all the Members of the Bar to appear and to address the Court on this question of maintainability and scope of civil revisions and its effect on pending cases after amendment be decided.
6. I have heard Shri T.N. Singh, learned Counsel for applicant; Shri K.C. Gangrade, learned Counsel for respondent No. 1; and Shri Z.A. Khan, learned Additional Advocate General for respondent No. 3/State. I have also heard Shri G.M. Chaphekar, Shri P.K. Saxena, Shri B.L. Pavecha, Shri S.C. Bagdiya, Shri Shckhar Bhargava, Shri D.D. Vyas, Shri Y.I. Mehta, Shri A.S. Garg, learned Senior Advocates and Shri S.R. Saraf, Shri S.K. Bahel, Shri V.K. Jain, Shri A.P. Polckar and Shri Piyush Mathur, learned Counsel.
7. Learned Counsel mainly submitted their submissions on two questions, namely:--
(1) "Whether the amended provisions of Section 115 of the Code of Civil Procedure which came into force w.e.f. 1-7-2002 are applicable on pending cases ?"
(2) "After the amendment what is the scope of revisions whether revisions are maintainable against all interlocutory orders or against the restricted orders as has been defined in the newly substituted proviso ?"
8. Shri G.M. Chaphekar, Shri S.C. Bagdiya, Shri B.L. Pavecha, Shri D.D. Vyas, learned Senior Advocates; Shri Z.A. Khan, learned Additional Advocate General; Shri T.N. Singh and Shri S.R. Saraf, learned Counsel submitted that the amending proviso is very clear according to which the scope of civil revisions has now become quite limited and restricted and now the amended provisions of Section 115 of the Code of Civil Procedure shall also apply on the pending civil revisions and in support of their submissions they relied on a Full Bench decision of this Court in the case of Ramchandra Jagannath and Ors. v. Dattatraya Shankarrao and Anr., reported in 1986 MPLJ 406. Shri Chaphekar further submitted that revisional jurisdiction is not available as a matter of right and relied on a decision of Supreme Court in the case of Memon Abdul Karim Haji Tayab, Central Cutlery Stores, Veraval v. Deputy Custodian-General, New Delhi and Ors., reported in AIR 1964 SC 1256.
9. Shri A.P. Polekar, learned Counsel also submitted that the revision ,is not a vested right and change in the procedural law would apply on the pending cases also and he has also placed reliance on a decision of Supreme Court in the case of Anant Gopal Sheorey v. The State of Bombay, reported in AIR 1958 SC 915. Shri Z.A. Khan, learned Additional Advocate General also cited the decision in the case of Kolhapur Canesugar Works Ltd. and Anr. v. Union of India and Ors., reported in AIR 2000 SC 811.
10. The submission of Shri P.K. Saxena, Shri A.S. Garg, learned Senior Advocate was that as per Section 32 of the Code of Civil Procedure (Amendment) Act, 1999 (No. 46 of 1999) in Sub-clause (1) of Sub-section (2) after the words which "had been" finally disposed of should be read as "had not been" finally disposed of and it should be held that under the common law, rule of "casus omission" word "NOT" is missing, therefore, the amendment is not applicable on the pending cases. It was further argued by Shri Saxena that Section 6 of the General Clauses Act, 1897, saves the admitted revisions. Shri Garg also submitted that as per Sub-clauses (f), (g) and (h) of Section 32(2) of the Amending Act, Sub-clause (i) should also be read. The submission of Shri Shekhar Bhargava, Senior Advocate and Shri V.K. Jain and Shri Piyush Mathur was that by this amendment the scope of revision has not been restricted but it has been enlarged and the word "suit or other proceedings" includes the various orders by which proceedings can be treated as finally disposed of. On the contrary the submission of Shri Chaphekar and Shri Pavecha was that as per Section 32 of the Amendment Act, 1999 under Sub-clause (i) the pending revision proceedings have not been saved but admitted appeals and admitted Letters Patent Appeals have been saved under Sub-clauses (f), (g) and (h). Therefore, from the plain reading it is clear that as per the repeal and savings provisions of Section 32 (2) (i) of the Amending Act, 1999 only revisions which had been finally disposed of have been saved. This argument of the learned Counsel cannot be accepted that the provisions of Sub-clause (i) should be treated equal to the provisions of Sub-clauses (f), (g) and (h). The Court cannot add or amend the words or phrases. It is for the legislature to decide that which provision should be saved and which should not be saved. It is the cardinal rule of interpretation that when the language of any provision is clear and unambiguous, it has to be read and understood as it is and a Judge must not alter the material of which the Act is woven, but he should iron out the creases (1994) 2 All ER 155 page 164 (CA).
11. Before I proceed to appreciate the other contentions as advanced by the learned Counsel, it would be useful to refer to the relevant amended provisions of Section 12 and Section 32(1) (2) and Sub-clause (i) of the Code of Civil Procedure (Amendment) Act, 1999 by which proviso has been substituted in Sub-section (1) of Section 115 of Principal Act, which are being reproduced below:--
"Section 12. In Section 115 of the Principal Act, in Sub-section (1) (i) for the proviso, the following proviso shall be substituted :--
"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."
"Section 32. (1) Any amendment made, or any provision inserted in the Principal Act by a State Legislature or High Court before the commencement of this Act shall, except in so far as such amendment or provisions is consistent with the provisions of the principal Act as amended by this Act, stand repealed.
(2) Notwithstanding that the provisions of this Act have come into force or repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897,--
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(i) the provisions of Section 115 of the Principal Act, as amended by Section 12 of this Act, shall not apply to or affect any proceeding for revision which had been finally disposed of."
12. In the similar circumstances, the Full Bench of this Court in thecase of Ramchandra Jagannath (supra), placing reliance on the decision of the Supreme Court in the case of Shri Vishnu Autar etc. v. Shiv Autar and Ors. (AIR 1980 SC 1575) has held that-- "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. Docs 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". The Supreme Court has held in the case of Shri Vishnu Autar (supra) that the amendment made in Section 115 of the Code of Civil Procedure was in procedural form in the field of the revision to the High Court. Full Bench also placed reliance in the case of Anant Gopal Sheorey (supra), in which it was observed by the Supreme Court that:--
"No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode. In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective. (1950) A.C. 369, Ref."
13. It has been further held by the larger Bench of the Supreme Court in the case of Memon Abdul Karim Haji Tayab (supra) that-
"it is well-settled that procedural amendments to a law apply; in the absence of anything to the contrary, retrospectively in the sense that they apply to all actions after the date they come into force even though the actions may have begun earlier or the claim on which the action may be based may be of an anterior date".
14. In the case of Smt. Ganga Bai v. Yijay Kumar and Ors. (AIR 1974 SC 1126) it was held that 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. Difference under Section 96 for appeal and Section 115 for revision has also been discussed and thus it was held that no substantive right is conferred on a litigant by Section 115 of the Code of Civil Procedure.
15. The Constitution Bench of the Supreme Court in the case of Kolhapur Canesugar Works Ltd. and Anr. (supra), has held as under :--
"When the legislature by clear and unambiguous language has extended the provision of Section 6 to cases of repeal of a 'Central Act' or 'Regulation', it is not possible to apply the provision to a case of repeal of a 'Rule'.
At common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this rule an exception is engrafted by the provisions of Section 6(1). If a provision of a statute is unconditionally omitted without a saving clause in favour pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceeding shall not continue but a fresh proceeding for the same purpose may be initiated under the new provision.
If the case is covered by Section 6 of the General Clauses Act or there is apart materia provision in the statute under which the rule has been framed in that case also the pending proceeding will not be affected by omission of the rule. In the absence of any such provision in the statute or in the rule the pending proceedings would lapse on the rule under which the notice was issued or proceeding was initiated being deleted/omitted."
16. The Full Bench of this High Court in the case of Ramchandra Jagannath (supra), after considering the supervisory or revisional power conclusively held that in the absence of any express provision to the contrary in the Amending Act supervisory or revisional power under Section 115 of the Code of Civil Procedure has to be exercised in accordance with the provisions of law in force at the time when the power is sought to be exercised.
17. Now before examining the scope of revisions after the amendment and its effect on pending proceedings it becomes necessary to consider the background behind this amendment, Statement of Objects and Reasons and also the notes on clauses, under which this section has been amended by Amending Act of 1999. It is clear that this amendment has been brought on the basis of the report of Malimat Committee, the Committee had agreed in principle that scope of interference against interlocutory orders should be restricted and it was felt that this object can be achieved more effectively without demanding the High Court of the power of revision and with a view to achieve the object, Section 115 has been suitably amended with a view to expedite the disposal of civil suits and proceedings so that justice may not be delayed, which appears to be paramount object behind this amendment. Therefore, in the light of the aforesaid object, the language of the amended proviso is very much clear according to which 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. Provisions of Sub-section (2) of Section 32 with its Sub-clause (i) repeal and savings clause makes it more clear as it starts from a clause which prevails over other clauses. "Notwithstanding..... and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 and under Sub-clause (i) it has only saved the revision which had been finally disposed of. These provisions of repeal and savings of the Amending Act of 1999 have already taken care of the provisions of General Clauses Act. In fact there is no provision in this amendment in favour of pending proceedings. Therefore, it is clear that there is no substance in the submissions made in this regard, that Section 6 would save the pending cases. Thus from the plain and combined reading of this substituted "proviso" and the provisions of repeal and savings of the Amending Act of 1999, it has only saved the finally disposed of revisions and not the pending revisions, therefore, it is clear that revisional power can only be exercised in accordance with the provisions of law, in force at the time when the power is sought to be exercised and when the High Court shall vary or reverse any order made. 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 maintainable against any interlocutory order if it would not have the effect of finally disposing of the suit or other proceedings.
18. In view of the aforesaid discussion, my considered opinion is that in the presence of repeal and savings Clause (i) of Sub-section (2) of Section 32 of the Amendment Act, 1999, and also according to the Full Bench decision, the substituted proviso of the Amending Act of 1999 is very clear and the effect of the same is that it will not save those pending civil revisions which would be out side the scope of amended proviso and the further effect of the same is that it has narrowed down and reduced the scope of civil revisions. Therefore, now no orders can be passed even in pending civil revisions varying or reversing any order made, or any order deciding an issue in the course of a suit or other proceedings, 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. 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 any other interlocutory orders which would not finally dispose of the suit or that proceedings and no orders can be passed in pending cases in which other interlocutory orders are under challenge. Thus rightly so the scope of revision has been restricted by legislature by substituting proviso by amendment in the Principal Section 115 of the Code of Civil Procedure by Amendment Act, 1999 (No. 46 of 1999) w.e.f. 1-7-2002.
19. As the revision petition in this case is directed against the interlocutory order even if it is allowed, the suit shall not be finally disposed. Therefore, the revision petition is not maintainable under the amended Section 115 of the Code of Civil Procedure.
20. 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.