Bombay High Court
Zahida Nizamuddin Jalal And Ors. vs Abidali Jafferali Syyed And Ors. on 19 September, 2002
Equivalent citations: 2002(4)MHLJ913
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
JUDGMENT R.M.S. Khandeparkar, J.
1. The petitioners challenge the order dated 7th August, 2002 passed by the Joint Civil Judge, Junior Division, Kalyan District -Thane under Exh. 40 in Reg. Civ. Suit No. 471 of 1998. By the impugned order, the trial Court has rejected the application filed by the petitioners for their joinder as the parties to the suit. Considering the provisions of Section 115 of the Code of Civil Procedure, as amended, and which are in force with effect from 1st July, 2002, and the decision of the learned Single Judge of this Court in the matter of Rajabhau s/o Mahadeorao Rahate v. Dinkar s/o Shantaram Ingole, reported in 2002 (3) Mah, LJ 921, the impugned order would not be revisable and therefore, the petition would be liable to be rejected in limine. However, the learned advocate for the petitioners contended that the expression "other proceedings" in the proviso to Section 115 of the Code of Civil Procedure would include miscellaneous as well as supplementary proceedings in a suit, apart from other original proceedings, as well as that the word "shall" in the said proviso is required to be read as "may" and having so considered, the impugned order would be revisable and these points are not covered by the decision of the learned Single Judge in Rajabhau v. Dinkar's case (supra) and therefore the matter was heard at length, while allowing even other advocates to address the Court in relation to the scope of Section 115 of the Code of Civil Procedure, as amended, and in force with effect from 1st July, 2002.
2. Shri Y. S. Jahagirdar, the learned Senior Advocate submitted that under Section 115 of the Code of Civil Procedure, the High Court is empowered to pass any such order as it thinks fit and therefore, such a wide jurisdiction conferred upon the High Court cannot be held to have been curtailed by mere deletion of Clause (b) of proviso as it existed prior to the amendment in question. Further, referring to the expression "other proceedings" in the said proviso, it was contended that the term being of wide connotation, cannot be restricted to the original proceedings otherwise than those in a suit and would also include various proceedings in the course of a suit. Drawing attention to the explanation clause of 115 of the Code of Civil Procedure, it was argued that in spite of deletion of Clause (b) of proviso, as it stood prior to the amendment, the Legislature in its wisdom has thought it fit to retain the explanation clause which describes the expression "case decided" and the expression "case decided" includes even the interlocutory orders, and therefore, the proviso cannot be said to be restricting revisional jurisdiction to the cases of final disposal of the suit, but it would also include any case decided during the pendency of a suit and therefore, would also relate to various proceedings in the course of a suit. He further submitted that the proviso cannot be interpreted to curtail the powers given under the main body of section and should be read in consonance with the explanation clause to the said section.
3. The learned Advocates Shri A. S. Oak, A. V. Anturkar, V. Z. Kankaria, G. S. Godbole, V. K. Shah, U. P. Warunjikar and P. R. Naidu have argued in support of the submissions made by Shri Y. S. Jahagirdar. Shri A. S. Oak has submitted that the proviso does not curtail the power of the High Court in relation to its revisional jurisdiction under Section 115 of the Code of Civil Procedure. Shri V. K. Shah has adopted the arguments by Shri Y. S. Jahagirdar. Shri V. J. Kankaria has submitted that the learned Single Judge in Rajabhau v. Dinkar's case (supra) has not considered the interpretation of Section 115 and more particularly the proviso thereto. Shri P. R. Naidu has submitted that the curtailment of the revisional power is only in relation to appealable orders and once it is clear that the orders which are passed in the course of the suit are excluded from being subjected to the appeals, the revisional jurisdiction of the High Court in respect of such orders cannot be interpreted to have been curtailed by the proviso.
4. Drawing attention to various provisions of the Code of Civil Procedure which deal with a suit and those which deal with the other proceedings in a suit, Shri A.V. Anturkar, the learned Advocate, has submitted that the retention of the expression "other proceedings" while amending the proviso itself discloses the Legislature's intention to the effect that finality spoken of is not related only to the suit in its entirety but also the miscellaneous proceedings in a suit. The proviso does not put an embargo over the power of the High Court under Section 115 but speaks of the rights of the parties to seek indulgence of the High Court in its revisional jurisdiction against the orders passed by the Court below and by which they are aggrieved of. Considering the retention of expression "other proceedings" in the proviso and further in the explanation clause Section 115, what is contemplated by the Legislature is not the end of lis but the end of any proceeding in which an order amounting to "case decided" has been passed. Considering that the statutory right is provided to the litigant to seek interference of the High Court in its revisional jurisdiction, the said right accrues in favour of the parties on institution of the suit itself and therefore, considering the provisions of Section 6 of the General Clauses Act, the amended Section 115 would not apply to the pending proceedings.
5. Shri U. P. Warunjikar drawing attention to the Report of Arrears Committee 1989, which is known as "Mallimath Committee Report" prepared in March, 1990, has submitted that the fact that there is ambiguity in the proviso to Section 115 cannot be disputed and considering the said report it is apparent that the whole purpose behind the deletion of the Clause "(b)" from the proviso and retaining Clause "(a)", is only to expedite the disposals of the suits and not to curtail the powers of the High Court in relation to the illegal orders passed by the Courts below. The Report expressly provides for continuation of the revisional powers under Section 115 while suggesting the measures for avoiding the delay in disposal of the suits and therefore whatever interpretation to be given to proviso has to be, bearing in mind the above aspect of the matter.
6. Shri V. A. Thorat, the learned Senior Advocate while opposing the above submissions advanced by the learned advocates, has submitted that the expression "other proceedings" in the proviso would relate only to the proceedings other than the miscellaneous proceedings in the course of a suit and, therefore, all such orders which are passed in the course of the suit, if required to be interfered in the revisional jurisdiction, would require to satisfy the conditions specified in the proviso to the effect that such interference should result in termination of the suit in one way or other. The proviso to Section 115 of the Code speaks of a mandatory condition for exercise of the revisional jurisdiction by the High Court. There is definite object behind the deletion to Clause "(b)" from the original proviso and restricting the powers to Clause "(a)" and the proviso cannot be interpreted in a manner which will defeat the very purpose behind retaining the said proviso, while deleting another clause in the original proviso.
7. Section 115(1) of the Code of Civil Procedure as has been in force with effect from 1st July, 2002 provides that 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 sub-ordinate Court appears either 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 irregularity, the High Court may make such order in the case as it thinks fit; 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 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 proceeding. Sub-section (2) clarifies that the High Court shall not vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. Sub-section (3) provides that a revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceedings is stayed by the High Court. The explanation clause to Section 115 which appears after Sub-section (3) provides that the expression "any case which has been decided" includes any order made or any order deciding an issue in the course of a suit or other proceedings. Said Section 115 prior to its amendment, that is prior to 1-7-2002, contained the proviso with two sub-clauses. By virtue of amendment the first sub-clause thereof has been merged in the proviso itself. The second sub-clause which has been deleted was to the effect that the High Court should not vary or reverse any order made or any order deciding an issue in the course of suit or other proceedings except where an order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it is made. In fact, the entire proviso was added to the said section for the first time by virtue of the amendment in the year 1976. Prior to that, Section 115 did not provide for any restriction in relation to exercise of revisional powers thereunder. Likewise Sub-section (2) was also incorporated by the amendment in the year 1976. As regards sub- section (3), the same was incorporated by the Act 46 of 1999 which came in force from 1st July 2002.
8. The Learned Single Judge of this Court in Rajabhau v. Dinkar's case (supra) after taking into consideration the various provisions of Code of Civil Procedure, the changes brought about by the Legislature from time to time in the matter of exercise of revisional jurisdiction by the High Court under the Code, Report of Joint Committee of the Parliament, various decisions of the Apex Court and while dealing with the question as to whether revision applications pending in the Court as on 1-7-2002 are to be decided in accordance with the amended provisions of Section 115 of Civil Procedure Code or amendment would not apply to the pending revision applications as well as the scope of and the extent of the provisions of Section 115 of the Code, held that:
"(i) The provisions of Section 115 as amended with effect from 1st July 2002 are applicable from that date to all proceedings pending in this Court under Section 115 of the Civil Procedure Code,
(ii) There is no right in a litigant to move an application under Section 115 of the Civil Procedure Code for exercise of the jurisdiction mentioned therein.
(iii) That it being not a right as held above, there is no question of it being saved by recourse to provisions of Section 6 of the General Clauses Act, 1897.
(iv) The provisions of Section 32(2)(i) do not either by direct legislation or by necessary implication save any such proceedings from being affected by the amendment with effect from 1-7-2002.
(v) As a consequences of the above, all revision applications, whether pending as on 1-7-2002 or filed thereafter, will have to be dealt with strictly in accordance with the provisions of Section 115 of the Civil Procedure Code with effect from 1st July 2002.
(vi) As a further consequences thereof, no revision application against an interlocutory order will be entertainable even if the order is made prior to 1st July 2002 as moving this Court under Section 115 is held not to be a right."
9. Further in an unreported decision in the matter of Bharatkumar s/o Shrimannarayan Agarwal and Ors. v. Anita Trust and Anr., Civ. Rev. Application No. 57 of 2002 decided on 20th August, 2002 (since reported in 2002(4) Mh.L.J. 597), it has been held that the revision application filed under Section 115 of Civil Procedure Code cannot be converted into a Writ Petition.
10. In yet another unreported decision in the matter of Nagorao alias Arun s/o Narayan Yerawar and Ors. v. Narayan s/o Nagan Yerawar and Anr. the learned Single Judge has held that the revision application against orders under Order 39, Rule 1 whether passed by the trial Court or in appeal by the appellate authority under Order 43, Rule 1 are not liable to be revised under Section 115 of the Civil Procedure Code after 1-7-2002.
11. The Apex Court has clearly identified the scope of the powers of the High Court in its revisional jurisdiction under the Code of Civil Procedure while bringing out the distinction between the Appeal and the Revision. It was held as long back as on 5th December 1961 in Hari Shankar and Ors. v. Rao Girdharilal Choudhary reported in AIR 1963 SC 698 that a right of appeal carries with it with a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way, as has been done in the second appeals arising under the Code of Civil Procedure. The power to hear the revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law. Under Section 115 of the Code of Civil Procedure, the powers of the High Court are limited to see whether in a case decided there has been assumption of jurisdiction when non-existed, or a refusal of jurisdiction when it did, or there has been material irregularity or illegality in exercise of that jurisdiction. The exercise of powers of revision are therefore, confined to the jurisdiction and jurisdiction alone. The correction permissible under these powers relate to jurisdictional error and none others. This view has been consistently reiterated by the Apex Court in catena of judgments delivered subsequent to that in Hari Shankar's case (supra).
12. While considering the requirement of "case decided" for the purpose of exercise of revisional jurisdiction under Section 115 of Civil Procedure Code, the Apex Court in Major S. S. Khanna v. Brig. F. J. Dillon after taking note of relevant history of the statutory provisions relating to the revisional powers to the High Court under the Code of Civil Procedure and dealing with the issue pertaining to the scope of the expression "case", it was held that the said word is of comprehensive import; it includes civil proceedings other than suits and is not restricted to the entirety of the proceeding in a Civil Court. It was observed that to interpret the expression "case" as an entire proceeding only and not a part of the proceeding would be to impose restriction upon exercise of powers of superintendence, and the supervisory jurisdiction and may result, in certain cases, in denying the relief to the aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice. It was further ruled that "the expression "case" includes a suit but in ascertaining the limits of the jurisdiction of the High Court, there would be no warranty for equating it with a suit alone". While dealing with the scope of the revisional jurisdiction of the High Court under Section 115, as was in force then, it was observed that the exercise of jurisdiction was discretionary and the High Court was not bound to interfere merely because the conditions stipulated in Section 115 were existing. The interlocutory character of the order, the existence of another remedy to an aggrieved party by way of an appeal, from the ultimate order or decree in the proceeding or by a suit, and the general equities of the case being served by the order made are all matters to be taken into account in considering whether the High Court, even in cases where the conditions which attract the jurisdiction exist, should exercise its jurisdiction or not. It was also held that Section 115 deals with the point of jurisdiction and jurisdiction alone, either a refusal to exercise jurisdiction where one exists, or an assumption of jurisdiction where none exists or acting with illegality or material irregulatory in exercise of jurisdiction and that where there is no question of exercise of jurisdiction, the decision cannot be corrected, for it has also been ruled that a Court has jurisdiction to decide wrongly as well as rightly. It was specifically warned that "where no question of jurisdiction is involved, the Court's decision cannot be impugned under Section 115 for it has been said repeatedly a Court has jurisdiction to decide wrongly as well as rightly". The view taken in Khanna v. Dillon's case was further reiterated in Baldevdas Shivlal and Anr. v. Filmistan Distributors (India) Pvt. Ltd. and Ors. with a rider "it is not decided in Major S. S. Khanna's case (supra) that every order of the Court in the course of case amounts to a case decided. 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; every order in the suit cannot be regarded as a case decided within the meaning of Section 115 of the Code of Civil Procedure." However, the view taken by the Apex Court in Major S. S. Khanna v. Brig. F. J. Dillons's case (supra) was transformed into a statutory provisions by introduction of the explanation clause to Section 115. The explanation clause introduced by 1976 Amendment provides that, in the said section the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceedings.
13. It appears that to curtail the pendency of the suits on account of the revisional jurisdiction sought to be invoked against every interlocutory order of the trial Court, the Legislature in its wisdom thought it fit to delete the second clause of proviso which was introduced in the year 1976 and to retain only first clause thereof. As a result, the proviso as it stands today, that is with effect from 1-7-2002, reads thus:
"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 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."
14. While referring to the scope of the first clause of the unamended proviso, which corresponds to the proviso to its entirety as it stands today, the Apex Court in Prem Bakshi and Ors. v. Dharam Dev and Ors. , has observed that:
"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 an interlocutory order that it has no jurisdiction to proceed with 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)."
15. What is relevant to be noted is that the proviso as it stands today nowhere specifically speaks of any interlocutory order passed in a suit. Indeed the proviso by itself does not make any differentiation between an order which is interlocutory one and the one which is not so. In fact, the proviso does not specifically provide for any classification as such of the orders passed by the subordinate Courts which could be subjected to revisional jurisdiction by the High Court. Of course, it does provide that for interference in the order passed by the Court subordinate to the High Court, it needs to satisfy the requirement relating to the final disposal of the suit or other proceedings. However, before considering this "finality aspect" of the matter, it would be necessary to take note of two expressions in the proviso, namely, "in the course of suit or other proceedings" and "other proceedings" while considering the contentions raised in the matter.
16. The proviso speaks of an order "in the course of suit or other proceedings". While interpreting the expression "in the course of in Article 286(1)(b) of the Constitution of India, the Apex Court in State of Travancore-Cochin and Ors. v. Shanmugha Vilas Cashewnut Factory has held that, the word "course", etymologically denotes movement from one point to another and the expression "in the course of* not only implies a period of time during which the movement is in progress, but it postulates also a connected relation. In Re. Dynamics Corporation of Ameria reported in (1972) 3 All ER 1046, it was held that once a petition for winding up has been presented everything thereafter is in the course of winding up of a company, although it does not necessarily follow that a winding up order will be made at the end of the day. Considering the meaning and connotation of expression, "in the course of and the context in which the said expression has been used in proviso to Section 115, it leaves no option than to conclude that any order passed, "in the course of suit" would include all types of orders passed during the pendency of the suit and the said expression would not relate only to the matters relating to the progress of the suit, but would include all the orders relating to the subject matter of the controversy in the suit, as well as any part thereof, so also those necessary for further progress of the suit or any part thereof. Being so, the orders passed in supplementary or incidental proceedings in a suit, would also be the orders, "in the course of the suit" within the meaning of the said expression in the proviso to the said section. Undoubtedly, the order whereby some of the various steps to be taken by the parties in and for the purpose of progress of the prosecution of the suit being of routine nature like framing of issues, grant or refusal of adjournments, issuance or refusal or issuance of the summons to the witnesses, etc. cannot be said to be interlocutory orders within the meaning of the case decided under the said section. However, the orders deciding the matters of importance or affecting the vital and valuable rights of the parties would certainly be the orders deciding the case, within the meaning of the said expression under the said section. However, interference in such orders would be restricted to the cases, where such interference would result in termination of the suit and not otherwise.
17. It is sought to be contended that the finality spoken of is not always in relation to the suit in its entirety but can also be in relation to any proceeding therein and in that connection expression "other proceedings" in the proviso is stated to include all such proceedings and, therefore, even if any proceeding gets terminated with the order in favour of the petitioner, then there can be no bar for interference in revisional jurisdiction and in that connection attention is drawn to the various provisions of Code of Civil Procedure which deal with different proceedings in or during the suit or an appeal, and those which deal with the suit or the appeal itself.
18. It has been observed in J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of Uttar Pradesh , that in the matter of interpretation of statute the Court always to presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. It is also a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other (vide Ram Narain Sons Ltd. and Ors. v. Asstt. Commissioner of Sales Tax ). In the words of Lord Macmillan in the matter of Madras and Southern Mahratta Ry. Co. Ltd. v. Bezwada Municipality , the proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. In T. Devadasan v. Union of India and another , while considering the scope of Clause 4 of Article 16 of the Constitution of India, the Apex Court has ruled that a proviso or an exception cannot be so interpreted as to nullify or destroy the main provision. As regards the explanation clause the Apex Court in Bihta Co-operative Development and Cane Marketing Union Ltd. and another v. Bank of Bihar and Ors. , has held that, "Explanation must be read so as to harmonise with and clear up any ambiguity in main section and cannot be so construed as to widen ambit of section." The object of an Explanation is to understand the provision in a statute in the light of the Explanation and normally it does not enlarge the scope of the original section, which it explains but only makes the meaning clear.
19. Various decisions cited by the learned Advocates in the course of their submissions, clearly supports the view which I am taking in the matter. In Khanna v. Dillon's case (supra), it was held that the word, "case" is of comprehensive import and includes Civi! proceedings other than the suits also and is not restricted to the entirety of the proceedings in a suit. It was further held that the expression "case" includes a suit, but in ascertaining the limits of jurisdiction of the High Court, there would be no warranty for equating it with a suit alone. It was also warned that the exercise of jurisdiction is discretionary one, and the High Court is not bound to interfere merely because the conditions stipulated in Section 115 of Civil Procedure Code are satisfied. It is to be noted that the said warning was at the time when no statutory restrictions were imposed upon the exercise of the revisional jurisdiction under Section 115 of Civil Procedure Code. The restrictions on such powers were imposed for the first time by the Act of 104 of 1976.
20. While reiterating the said decision in Khanna v. Dillon's case (supra), the Apex Court in Baldevdas Shivlal v. Filmistan Distributors has clarified that it is not decided in Khanna v. Dillon's case that every order of the Court in the course of a suit amounts to a case decided and a case may be said to have been decided, if the Court adjudicates for the purpose of the suit, some right or objection of the parties in controversy and that every order in the suit cannot be regarded as a case decided within the meaning of the Section 115 of the Code.
21. The Apex Court in Central Bank of India Ltd. v. Gokal Chand, while considering the scope of the expression "the Order of the Controller" under the Delhi Rent Control Act, 1958 has held that though the words are very wide, do not include interlocutory orders which are merely procedural and do not affect the rights and the liabilities of the parties, and that all interlocutory orders like the orders regarding summoning of the witnesses, discovery, production and inspection of documents and inspection are passed towards final adjudication and for the purpose of prosecution of a case, and they regulate the procedure only and do not affect any right or liability of the parties. It was further observed that the Legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders and it is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection his appeal from the final order in the main proceeding.
22. In Amar Nath and Ors. v. State of Haryana and Ors. , it was observed that the term "interlocutory order" is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Obviously the Apex Court was referring to the Code of Criminal Procedure, 1973. It was also held that the orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court. After taking note of the observation in Baldevdas v. Filmistan Distributor's case and referring to the Full Bench decision of Allahabad High Court in Standard Glass Beads Factory v. Shri Dhar, it was held that an order of Single Judge granting a temporary injunction for being interlocutory order having decided some rights of the parties was therefore appealable. It was further held that an interlocutory order though not conclusive of the main dispute may be conclusive as to subordinate matter with which it deals. In Madhu Limaye v. State of Maharashtra , while considering the scope of the revisional jurisdiction under Section 397(2) of the Code of Criminal Procedure, 1973 it was held that "on the one hand, the legislature kept intact the revisional power of the High Court and, on the other, it put a bar. on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the legislature was not to equate the expression "interlocutory order" as invariably being converse of the words "final order". There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (AIR 1949 FC 1) (supra), but yet it may not be an interlocutory order - pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in Sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Section 397(2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely on simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two".
23. In Shah Babulal Khimji v. Jayaben D. Kania and another , it was held that in the course of trial a Judge may pass number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit should be of a routine nature while other orders may cause some inconvenience to one party or i.e., an order refusing an adjournment, an order refusing to summons an additional witness or documents; an order refusing to condone the delay in filing documents after the first date of hearing; an order of costs to one of the parties for its default or an order exercising discretion in respect a procedural matter against one party or other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the trial Court. Thus in other words, however interlocutory order cannot be regarded as judgment but only those orders would be the judgments which decided the matters of moment or affect the vital and valuable rights of the parties and which were serious injustice to the party concerned. It was further observed that the orders passed by the trial Judge deciding the question of admissibility or relevancy of a document cannot be treated as judgments because grievance on that score can be corrected by the Appellate Court in appeal against the final judgment. Undoubtedly, the Apex Court was dealing with meaning and construction of the word 'Judgment' for the purpose of Letters Patent Appeal.
24. Taking note of the Explanation clause to Section 115 of Civil Procedure Code and its earlier decision in Khanna v. Dillon's case (supra) it was observed by the Apex Court in Prem Bakshi's case (supra) with the introduction of the said Explanation clause an interlocutory order also would be revisable. Undoubtedly, it was also ruled that the proviso added to section curtails the power to interfere with each and every interlocutory order passed by the subordinate Court and the same has been done with the intention to avoid obstruction to the speedy disposal of the trial of the suits. At this stage it is worth taking note of the observations of Mallimath Committee. It was stated therein that "committee is of the opinion that the object sought to be achieved can more effectively be achieved by deleting Clause (b) to the provisions to Sub-section (1) of Section 115 Civil Procedure Code. ... If revision against all types of interlocutory orders is barred it will virtually denude the High Court of the power of revision. 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 Civil Procedure Code there may not be many cases where revisional power can be exercised if the said recommendation is accepted. Besides, barring of revision petitions against interlocutory orders whiie retaining Clause (a) of the proviso to Sub-section (1) of Section 115 Civil Procedure Code would, to some extent, come in conflict with the said clause which envisages interference by the High Court 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 the Clause (a) of the proviso would enable the High Court to put an end to unsustainable and protracted litigation in subordinate Courts. . . . While the committee agrees, in principle, that the scope of interference against interlocutory orders should be restricted, it feels that that object can more effectively be achieved without, at the same time, denuding the High Court of the power of revision, by deleting Clause (b) of the proviso to Sub-section (1) of Section 115 Civil Procedure Code". Once it is clear that the interlocutory orders are not allergic to interference under revisional jurisdiction by the High Court, subject to satisfaction of the requirement prescribed under the proviso, the decisions relating to the scope and connotation of the expressions "case decided" and "interlocutory" are of no help for the purpose of interpretation of the proviso even in the manner sought to be interpreted on behalf of the petitioner.
25. The Full Bench of Calcutta High Court in Deb Narain Dutt v. Narendra Krishna reported in 1889 Vol. XVI ILR 267 has held that the word "proceedings" is very general one, it is not limited to proceedings connected with civil suits, but includes proceedings other than suits. When applied to suits, it may be used to mean the suit as a whole, or it may be used, and often is used to express the separate steps taken in the course of a suit, the aggregate of which makes up the suit. It was also observed that there can be no doubt that a thing may be a step in the suit, and may yet well be regarded as a proceeding separate from the other steps in the suit. These observations were made in the context with the matter under consideration before Calcutta High Court. This is abundantly clear from the further observation in the said judgment which reads that, "As to suits under Bengal Tenancy Act, the Civil Procedure Code generally applies; and the Civil Procedure Code has to some extent divided the whole proceedings in a suit into separate proceedings. There is nothing in itself unreasonable in holding that execution is such a separate proceedings, and there is this distinction between appeals and executions." It is pertinent to note that the decision was delivered prior to the Civil Procedure Amendment Act VI of 1892 and while dealing with the issue as to whether term "proceedings" in General Clause Consolidation Act, 1868, includes proceedings in execution after decree or not. The Apex Court in Dokku Bhushayya v. Katragadda Ramkrishnayya and Ors., , has held that the execution proceedings are continuation of suit and the provisions of Section 141 of Civil Procedure Code are not applicable thereto and the expression "Proceedings" under Section 141 of Civil Procedure Code irrespective of the Explanation clause thereto does not include the execution proceedings.
26. In K. J. Lingan and A. V. Mahayalam and Ors. v. Joint Commercial Tax Officer, Mount Road, Dn. and Anr. while quoting the observations of Justice Venkataraman Rao in relation to the interpretation of the word "Proceeding" in the Stamp Act in Ramanathan Chettiar's case reported in (1942) 1 Mad LJ. 111 to the effect that the word "suit or proceeding" have been interpreted in various senses in different statutes according to the intent and scope of the statute, sometimes in a narrow sense and sometimes in a wide sense. In its narrow sense, it (proceeding) is a step for any action or in an independent proceedings analogous to an action by which a litigation is initiated, "has held that the meaning to be attributed to the word "proceeding" would depend upon the scope of the enactment wherein the expression is used and with reference to the particular context wherein it occurs. In Ram Chandra Aggarwal and Anr. v. State of UP and Anr., the Apex Court has ruled that the meaning of the term "proceedings" in a statute on a provision of a statute is to be ascertained by looking at the relevant statute. Apparently, the expression "other proceedings" in the proviso to Section 115 of Civil Procedure Code has to be understood in the context in which it is used. The whole purpose behind imposing restrictions upon the exercise of revisionai powers being to curtail obstruction to the speedy disposal of the suit and having noticed the revisionai interference being main cause for such obstruction, as already observed above, to interpret expression "other proceedings" to include supplementary proceedings in a suit will defeat the very purpose behind the incorporation of the said proviso to Section 115 of Civil Procedure Code.
27. In Kochadai Naidu and another v. Nagayasami Naidu and Ors. , while considering the scope of the expression "proceeding" in Section 24 of the Code of Civil Procedure, the High Court has taken note of the dictionary meaning of the word "Proceeding". The word "proceeding" is defined in Shorter Oxford Dictionary as "doing a legal action or process, any act done by the authority of a Court of Law". In "Words and Phrases" Permanent Edn. Vol. 34, a number of meanings taken from American Decisions are given for the word "proceeding". It is stated that the word "proceeding" ordinarily relates to forms of law, to the modes in which judicial transactions are conducted and as very comprehensive term and generally speaking it means a prescribed course of action for enforcing a legal right and hence it necessarily embraces requisite step by which judicial action is invoked. Further after taking note of various earlier decisions of the Madras High Court on the point in issue, it was ruled that "term proceeding is not a technical expression with a definite meaning attach to it, but on the ambit of whom the meaning would be governed by the statutes". The Allahabad High Court in Jai Ram and Anr. v. State, reported in AIR 1953 All. 737, while considering the meaning of the expression "proceedings" in Section 350A of the Code of Criminal Procedure, 1898, has held that the dictionary meaning of the word "proceedings" is the course of procedure in an action at law and an act, measure or step in a course of business or conduct and that therefore the expression "proceedings" with reference to a case, which was before the High Court would imply taking of steps in connection with further progress of the case and that when a case is listed for hearing and the case is taken up by the Court and the order is made in the case, it would be the proceedings in the case.
28. The explanation clause in Section 115 of Civil Procedure Code relates to the main body of section and not only to its proviso. The explanation which is in relation to expression "any case which has been decided" is used in the main body of the section. No such expression has been used in the proviso to the section. It is pertinent to note that Explanation clause was added along with the original proviso by an Act of 104 of 1976. The explanation clause definitely clarifies that the revisional powers can be exercised in relation to all types of orders. However, the proviso provides an embargo over the exercise of such powers by restricting the exercise thereof to the cases where the conditions specified therein are satisfied. Being so, the explanation clause cannot be construed to enlarge the powers under the proviso as any such interpretation will lead to distortion of the proviso and will defeat the very purpose and the object sought to be attained by the proviso, as well as and the intention of the Legislature in bringing out the amendment to the said provisions of law. The contentions in relation to interpretation of the expression "other proceedings" in the proviso advanced by the learned Advocates therefore, cannot appease to the judicious mind.
29. Referring to two decisions of the Apex Court, one in the matter of Ganesh Prasad Sah Kesari and Anr. v. Lakshmi Narayan Gupta in the matter of Ammai Chandra Dutt v. IInd Addl. District Judge and Ors. reported in AIR 1989 SC 255 it was sought to be argued that the words "shall" in the proviso should be read as "may". The decisions relied upon are in relation to the well know principle that interpretation of a statute, when the situation and the context warrants it, the word "shall" used in a section or rule of a statute has to be construed as "may". In Ammai Chandra Dutt's case (supra) the expression "shall" in rule 18 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, was construed to be "may" because the said rule contained only a formula of the presumption based on facts, while quoting Phipson on Evidence (Thirteenth Edition) that, "Presumptions are either of law or fact. Presumptions of law are arbitrary consequences expressly annexed by law to particular facts, and may be either conclusive, as that a child under a certain age is incapable of committing any crime, or rebuttable, as that a person not heard of for seven years is dead, or that a bill of exchange has been given for value. Presumptions of fact are inferences which the mind naturally and logically draws from given facts, irrespective of their legal effect. Not only are they always rebuttable, but the trier of fact may refuse to make the usual or natural inference notwithstanding that there is no rebutting evidence." In Ganesh Prasad Sah Kesari's case the word "shall" used under Section 11A of Bihar Building (Lease, Rent and Eviction) Control Act, 1947, was held to be director)' and not mandatory and must be used as "may" since on ascertaining the intendment of the legislature, the purpose for which the provision was enacted, the beneficent nature of the statute and to protect the harassed tenant obviously such a construction would serve the purpose of the Act enacted mainly for protection of the tenants. It is pertinent to note that the provisions of law which were under consideration before the Apex Court, in Ganesh Prasad's case were in respect of the striking of the defence of the tenant in case of failure to deposit the arrears of rent within the specified period. It was observed by the Apex Court therein that, "If the word 'shall' is treated as mandatory, the net effect would be that even where the default in complying with the direction given by the Court is technical, fortuitous, unintended or on account of circumstances beyond the control of the defaulter, yet the Court would not be able to grant any relief or assistance to such a person."
Viewed from this angle, the Apex Court held that the conclusion was inescapable that the word "shall" used in the provision is directory and not mandatory and must be read as "may". In Ammai Chandra Dutt's case (supra) the Court was dealing with the matter pertaining to the powers of the prescribed authority while dealing with the findings arrived at by the lower authority. In that context, considering the well known principle that interpretation of statutes that where the situation and the context warrants it the word "shall" used in a section or Rule of a statute has to be construed as "may" and considering the U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972, it was held that the words "prescribed authority shall accept the findings in those proceedings as conclusive" have to be read as "Prescribed authority may accept the findings in those proceedings as conclusive" because the findings are based upon the existence of the facts.
30. It is not to be forgotten that when a statute requires a power to be exercised on certain conditions, that the conditions prescribed are normally to be held as mandatory. It is also to be noted that the negative words are ordinarily used as legislative device to make a statutory provision to be imperative (vide: in M. Pentiah and Ors. v. Muddala Veeramallappa and Ors. and Ors. ; and in Mannalal Khetan etc. v. Kedar Nath Khetan and Ors., . When the Legislature expresses its intention in negative tone, in relation to the provisions of law prescribing restrictions upon the exercise of powers of the Court, the provision referring to such restrictions to be normally construed as mandatory one. Whereunder the Legislature employs negative terms coupled with the word "shall" in the provisions of law, unless there are compelling circumstances and reasons, such a provision has to be construed as mandatory or imperative, non-compliance of which may render the exercise to be illegal. The Apex Court in M. V. Vali Paro v. Fernandeo Lopez in has held that "the construction ultimately depends on the provision itself keeping in view the intendment of the enactment and the context in which the word 'shall' has been used" and has also warned in Khub Chand v. State of Rajasthan that, "The term 'shall' in its ordinary significance is mandatory and the Courts shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequences or be at variance with the intent of the legislature, to be gathered from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations." It has been specifically held in Mannalal v. Kedar Nath (supra) that "Negative language is worded to emphasise the insistence of compliance with the provisions of the Act. . . . Prohibition and negative words can rarely be directory. It has been aptly stated that there is one way to obey the command and that is completely to refrain from doing the forbidden act."
31. Perusal of the Section 115 and the proviso thereto in particular, clearly discloses restrictions on the exercise of revisional jurisdiction on satisfaction of conditions specified therein, besides that the phraseology used reveals the expression ". , . shall not, under this section, vary or reverse. . . ." The purpose behind the provisions regarding revisional jurisdiction is undoubtedly to keep a check over the jurisdictional errors by the subordinate Courts. It is not necessarily for the purpose of granting any relief as such to any party to the suit. Apart from being discretionary power, the statute prescribes specific restrictions over its exercise. The proviso contemplates the exercise of revisional powers only in case where such exercise would put an end to the suit before the trial Court and not otherwise. The proviso empowering the High Court to interfere in the revisional jurisdiction in case of failure of justice or causing irreparable injury to the party, having been deleted, the intention of legislature is sufficiently clear that the exercise of revisional jurisdiction has to be restricted strictly to the cases stipulated in the proviso as it exists today. Therefore, apart from the proviso clearly suggesting its imperative nature, the intention of the Legislature and the purpose behind the proviso also disclose its mandatory nature. It will be appropriate at this stage to take note of Sub-section (3) which has been introduced alongwith the restrictions imposed upon the exercise of the revisional jurisdiction by the Act of 1999. Sub-section (3) provides that a revision shall not operate as a stay of suit or other proceeding before the subordinate Court except where such suit or other proceedings is stayed by the High Court. In fact, mere institution of any proceedings in the High Court by itself does not amount to obstruction to the proceedings in the lower Court. In spite of this well established principle of law that institution of proceedings in the higher Court against the order of the lower Court, by itself does not constitute stay of the proceedings in the lower Court, the legislature thought it fit to incorporate a specific provision in that regard in the form of Sub-section (3) along with the restrictions having been imposed in relation to the exercise of the revisional powers by incorporating proviso to Section 115 of Civil Procedure Code.
32. Arguments were also advanced contending prejudice and inconvenience which may cause to the parties on account of the interpretation to the expression "other proceedings" in the manner stated above. The arguments were sought to be made good by referring to two examples. One relating to order of refusal of amendment of pleadings and the other in relation to order refusing to stay of the order of the trial Court during the pendency of the appeal before the lower appellate Court. It was sought to be contended that if the requirement of the termination of the proceedings under proviso is to be related to the suit in its entirety, then in case of application for amendment having been refused or a stay during the pendency of the appeal being refused, the parties will be left with no remedy under Section 115 of Civil Procedure Code, and that would cause a grave irreparable injury and inconvenience to such parties, apart from the very purpose of proviso being defeated inasmuch as that in case of refusal of amendment by the lower Court is found to be incorrect at the appellate stage against the final decree, the entire proceeding in the suit might be required to be undertaken afresh by the Court below, and as regards the stay application, it was sought to be contended that refusal of the stay may virtually result in eviction of the party from suit property where order of the trial Court is for eviction and that may result in irreparable injury and inconvenience and prejudice to the appellants.
33. Mere prejudice or inconvenience to the party, cannot be a justification to interpret the proviso in the manner the petitioners seek to interpret the same as it would virtually amount to defeat the very purpose behind the incorporation of the said proviso to Section 115 of Civil Procedure Code. The apprehension on the part of the petitioner that refusal to exercise the revisional powers against orders relating to grant or rejection of the amendment applications may result in defeating the very purpose of the proviso by resulting in delay in disposal of the proceedings on account of remand of the matter in case the appellate Court in the Appeal against the final decree holds the amendment to be allowed, is also devoid of substance. The contention that in case the appellate Court, comes to the conclusion about incorrectness of the order by the trial Court in refusing the amendment application and, therefore, requires the same to be allowed, it may not necessary for the appellate Court in each and every case to set aside the decree and remand the matter for fresh trial after allowing amendment application. If such amendment application is allowed subsequent to the final decree in the suit and at the stage of appeal against such decree, certainly the appellate Court, can order the amendment of the pleadings, giving opportunity to file the necessary written statement if the amendment is to the plaint, frame necessary issue or issues, as the case may be, and record evidence in that regard by itself or may direct recording of the evidence by the Court below, and to submit the report in respect thereof to the appellate Court, by exercising the necessary powers under Order 41 of Civil Procedure Code. Being so, it cannot be said that mere will be any delay in disposing the proceedings on account of the order of amendment being made appealable along with the appeal against the final decree. As regards the order of refusal to grant the stay, during the pendency of the appeal before the lower appellate Court, undoubtedly, it may result in some inconvenience or prejudice to the appellant. But at the same time, it is to be noted that while seeking stay of the decree passed by the trial Court, the appellant seeks to postpone availability of the benefits of such decree to the holder thereof and to that extent seeks to cause inconveniences and prejudice to the decree holder in not allowing him to enjoy such benefits which he is otherwise would be entitled to enjoy under the decree. Being so, merely because the refusal of the stay of the trial Court's decree by the lower appellate Court may result in inconvenience to the appellant that cannot be a justification to contend that the proviso to Section 115 ought to be interpreted in a different manner. It is also to be noted that in case the appellant ultimately succeeds in appeal, the powers of the Court to restore the status quo ante to the benefit of such appellant are not restricted in view of Section 144 of Civil Procedure Code. Being so, the arguments sought to be advanced on the ground of prejudice and inconvenience are therefore devoid of substance.
34. It was also sought to be contended that revision is a matter of the right like the one in case of appeal and in that connection attention was sought to be drawn to the decision of the Apex Court in Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat . However, the decision of the Apex Court in Abhyankar's case nowhere lays down the law that the revision is a matter of right for the litigants. It only provides that the revisional jurisdiction is one of the forms of the appellate Court jurisdiction. The Apex Court has observed that "section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising powers conferred by the statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercise in a wider and larger sense". The decision, however, nowhere lays down the law to the effect that the parties can seek to invoke the revisional jurisdiction of the High Court as a matter of right or that it is a vested right like that of right of appeal.
35. Referring to the Part VI and more particularly Section 94 of Civil Procedure Code, it was sought to be argued that the proceedings contemplated thereunder, being "supplementary proceedings" to the suit are necessarily to be construed as covered by "other proceedings" in the proviso to Section 115. Section 94 of Civil Procedure Code comprises of five sub-clauses. Clauses (a) and (b) speaks of the powers of the Court for issuance of the warrant for arrest of the defendant and bring him before the Court to show cause as to why he should not give security, for his appearance, and if he fails to comply with any order for security commit him to the civil prison; and further direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property. Order XXXVIII which makes further detail provisions regarding the procedure for taking the security and for attachment of the property and orders relating thereto, to be passed under Rules (2), (3) and (6) of the said order, and the same are made appealable under order XLIII, Rule 1(q). Clause (c) of Section 94 speaks about the orders seeking to grant of temporary injunction and in relation to its disobedience of such orders. Order XLI of Rule (1) rather makes the provision regarding appeal against such orders and Clause (b) of Section 9 speaks of appointment of Receiver and detail provisions in that regard are to be found under order XL and such orders are made appealable under Order XLIII, Rule l(s). Clause (e) of Section 94 speaks of "other interlocutory orders" undoubtedly, though interlocutory orders by virtue of Explanation clause are made revisable certainly the proviso as already stated above, for the reasons narrated, there are restrictions imposed in relation to the interference with such orders. Apparently, therefore, the contention that on account of supplementary proceedings in Section 94, are separate from the proceedings in the suit, that therefore, those proceedings to be treated as "other proceedings" within the meaning of said expression under proviso to Section 115 of Civil Procedure Code cannot be accepted. The orders, namely, passed in terms of exercise of powers under Section 94, read with connected provisions in orders in the Code, being made appealable, they cannot be subjected to revisional jurisdiction more particularly, when the main body of the Section 115 itself takes out the revisional jurisdiction in case of appealable orders.
36. It was also sought to be argued that in case this Court holds that the interlocutory orders can also be subjected to revisional jurisdiction under Section 115 of Civil Procedure Code then such a decision would be contrary to the decision of the earned Single Judge in Rajabhau v. Dinkar's case (supra) and, therefore, it would be necessary to refer the matter to Division Bench. The contention is advanced on the assumption that the decision in Rajabhau v. Dinkar's case (supra) is to the effect that no interlocutory order is revisable. To agree with this submission would amount to misread the judgment in Rajabhau v. Dinkar's case (supra). On the contrary, proper reading of the said judgment and considering the context in which the observations therein regarding non-revisability of interlocutory order have been made, and having so understood and bearing in mind the ruling of the Apex Court in Prem Bakshi's case (supra) as well as the Mallimath Committee's Report (supra) it would be absolutely clear that the said observations relating to the interlocutory orders in Rajabhau v. Dinkar's case (supra) are with reference to such order interference wherein in revisional jurisdiction would not result in termination of the suit and not in case of each and every interlocutory order. This conclusion is inevitable in view of the following observations in the said decision :
"From the above it will be seen that what appeared as Clause (b) of the proviso after the 1976 amendment stood deleted and the revisional power could be exercised by adjudicating the lis if it is made in favour of the party complaining. These further restrictions on the powers of the High Court were considered necessary by the Parliament so as to curtail the number of revisions which in a large number of cases resulted in the original proceedings in the civil suit being stayed. Now by the amendment, it is provided that no revision shall be maintainable in cases where the impugned order is of interlocutory nature or does not finally decided the Us. The intention of the legislature in effect this amendment is very clear.
Interim reliefs to be granted under the Code are, of necessity, interim in nature. The final adjudication of the civil suit takes care of the interim orders. But availability of appeals and revision against such interim order in vast majority of cases result in pendency of the original civil suit for years and ultimately the interlocutory order has to give way to the final adjudication, which ultimately take place. The Legislature therefore thought it fit to do away with this interim remedy of challenging the interim order to avoid the delay caused in the interim period "
Considering the above quoted observation, therefore, there is no justification to assume that my taking a view different from one taken by the learned Single Judge in the matter of Rajabhau s/o Mahadeorao Rahate v. Dinkar s/o Shantaram Ingole in relation to the scope of the revisional powers under Section 115 pursuant to the amendment which is in force with effect from 1-7-2002 and therefore, there is no case for referring the matter to the Division Bench.
37. Considering the law as stated above, the impugned order being an interlocutory order and any interference therein would not result in termination of the suit, no revision lies against the same and this revision application therefore is liable to be rejected and is hereby accordingly dismissed.