Madhya Pradesh High Court
Ramchandra And Ors. vs Dattatraya And Anr. on 3 April, 1986
Equivalent citations: AIR1986MP191, AIR 1986 MADHYA PRADESH 191, (1986) JAB LJ 344 (1986) MPLJ 406, (1986) MPLJ 406
Author: J.S. Verma
Bench: J.S. Verma
JUDGMENT Sohani, J.
1. This Full Bench has been constituted on a reference made by a learned single Judge of this Court, who was of the opinion that two decisions of this Court in Civil Revn. No. 6 of 1985 (Pirbux v. Babulal) (reported in 1986 Cur Civ LJ 36) and in Civil Revn. No. 942 of 1984 (Gayaprasad v. Deepchand)(reported in 1985 Cur Civ LJ 91) required reconsideration by a larger Bench.
2. The material facts giving rise to this reference, briefly, are as follows: In a suit instituted by the applicants against the opponents in the Court of the Civil Judge, II Class, Neemuch, an application for the grant of temporary injunction, submitted by the applicants was rejected. Aggrieved by that order, the applicants preferred an appeal in the Court of addl. Judge, Neemuch to the Court of District Judge, Mandsaur, but that appeal was also dismissed. Hence, the applicants preferred a revision petition under Section 115, C.P.C. before this court on 5-11-1984. Prior to that date Section 115, C.P.C. was amended by the Code of Civil Procedure (Madhya Pradesh Amendment) Act 29 of 1984 (hereinafter referred to as 'the amending Act'), which came into force on 14-8-1984. The effect of the amendment made in Section 115. C.P.C. was considered by a Division Bench of this Court in Pirbux's case and it was held that as a result of the amendment, the jurisdiction of the High Court under Section 115, C.P.C. to revise an order passed in appeal by a District Court was taken away irrespective of the fact that the suit which gave rise to the appeal before the District Court was pending when the Amending Act 29 of 1984 came into force. The Division Bench held that its view was supported by the decision of the Division Bench at Gwalior in C.R. No. 942 of 1984 (Gayaprasad v. Deepchand) (reported in 1985 Cur Civ LJ 91) when these decisions were brought to the notice of the learned single Judge, who heard this revision petition, the learned Judge doubted the correctness of those decisions. Hence, he referred the matter to the Chief Justice. That is how this Full Bench has been constituted to decide the question of the maintainability of this revision petition,
3. Shri Sanghi the learned counsel for the petitioner, contended that the right to move the High Court in exercise of its revisional jurisdiction, was vested right which attached to a litigation when it commenced and that it could not be affected by any subsequent amendment unless an express provision was made giving retrospective operation to the amendment It was urged that exercise of revisional powers by a High Court under Section 115, C.P.C., was not part of procedural law and that the provisions of Section 115, C.P.C., which were in force on the date when the litigation commenced, would be decisive of the question as to whether a revision petition was or was not maintainable. In reply, it was contended by Shri Vyas, learned counsel for the non-applicant, that there was no vested right to prefer a revision petition and that if the revisional power did not exist when it was invoked, the revision petition preferred by the petitioner, could not be held to be maintainable.
4. Before we proceed to appreciate the contentions advanced on behalf of the parties, it would be useful to refer to the relevant provisions of Section 115, CPC, as they ex isted prior to the amendment made by Amending Act 29 of 1984 and the change brought about in these provisions by Amending Act 29 of 1984. Now the relevant provisions of Section 115, CPC, prior to the amendment were as follows :--
"Section 115. Revision.-- (1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction
(c) 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".
The aforesaid provision was substituted by the Amending Act 29 of 1984 as follows :--
"115. Revision -- The High Court, in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above, and the District Judge in any other case may call for the record of any case which has been decided by any Court subordinate to such High Court or District Judge, as the case may be, and in which no appeal lies thereto, and if such subordinate court appears.-
(a) to have exercised a jurisdiction not vested in it by law; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity;
the High Court or the District Judge, as the case may be, make such order in the case as it thinks fit".
Dealing with a substantially similar amendment effected in Section 115, CPC, by the UP. Amendment Act 31 of 1978, the Supreme Court held in Sri Vishnu Awatar v. Shiv Autar AIR 1980 SC 1575, that the decisions of District Court rendered in appeal were beyond revisional power of the High Court. We may usefully refer to the following observations of the Supreme Court in Sri Vishnu Awatar's case (supra) "Before we part with the case, we may make a general observation in the hope that it may have value as legislative guidance, democracy, in a vast country of diversity, demographic immensity, logistic difficulty and large-scale indigency makes decentralisation an imperative of Administration. Access to Justice also implies early finality within reach of the rich and the poor. These considerations persuaded the U.P. State, one of the direst in poverty, largest in population, and most agrestic in life-style, to attempt a tepid procedural reform in the field of revision to the High Court in litigations of lesser financial stakes. Judicial reform is up to now a tinkering exercise, not an engineering project but even that little tinkering is fiercely challenged as litigative anathema by the profession which is unfortunate."
The aforesaid observations clearly lay down that what has been brought about by the amendment in Section 115, C.P.C. is "procedural reform in the field of revision to the High Court.
5. The learned counsel for the petitioner, however, contends that we should not give full effect to the procedural reform brought about by the amendment made jn Section 115, CPC by the Amending Act 29 of 84 and exclude from its operation suits or other proceedings which were pending on 14-8-1984 when Amending Act 29 of 1984 came into force. The reason for Such exclusion advanced on behalf of the petitioner was that a right of revision was a vested right which attached to a litigation when it commenced. Reliance was placed by the learned counsel for the petitioner on the decision of the Supreme Court in Keshavlal Jethalal Shah v. Mohan Lal Bhagwandas, AIR 1968 SC 1336. It is, therefore, necessary to turn to that decision.
& Now the facts in Keshavlal's case (supra) were these; Under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947, as it then stood, no appeal lay against any decision in appeal from the court of the first instance. The High Court of Gujarat was, therefore, moved by a petition under Section 115, CPC. When that petition was pending in the High Court, Act 57 of 1947 was amended and power was conferred on the High Court by Sub-section (2) of Section 29 to pass such order with respect to any decision in appeal as it thought, fit. On the assumption that by the Amendment Act, the High Court was empowered to decide all petitions pending on the date on which the amended Section came into operation, as if the amended section applied thereto, the High Court reversed the order of the appellate court. In the appeal preferred before the Supreme Court from the decision of the High Court, two contentions were advanced on behalf of the appellant. In the first place it was contended that the right to move a superior court attached to a litigation when it commenced and that it was not affected by the subsequent amendment hi the absence of an express provision to that effect. In the alternative it was contended that the order of the appellate Court which had acquired finality, subject to the limited jurisdiction under Section 115 CPC, could not be set aside in exercise of the jurisdiction conferred upon the High Court by Section 29(2) of the Amending Act enacted after the date on which the judgment of the appellate court was delivered. Dealing with these two questions raised on behalf of the appellant, the Supreme Court observed as follows : --
"We do not think it necessary to express any opinion on the first question because in our judgment, on the second point raised by the counsel, the appeal must succeed.".
In face of the aforesaid observations, it cannot be held that the contention urged before the Supreme Court that the right to move a superior court in revision attached to a litigation when it commenced, was upheld by the Supreme Court even though the Supreme Court made it very clear that it was not expressing any opinion on that question. The decision of the Supreme Court in that case is an authority for the proposition that wider jurisdiction under the Amending Act cannot be invoked against orders made before the commencement of the Amending Act.
7. The learned counsel for the petitioner referred to the decision of this court in Nathulal Chhotelal v. Dy. Commr. of Sales Tax, AIR 1962 Madh Pra 287 and contended that it was held in that case that the right of revision was a vested right. Now in AIR 1962 Madh Pra 287 (supra) this court was considering the question as to whether the remedial rights under the C. P. & Berar Sales Tax Act, 1947, were abrogated. Under that Act, against an order passed in second appeal, a revision lay to the Board of Revenue and that only after an order was passed in revision, an assessee could require the Board to refer to the High Court questions of law arising out of that order. It is thus evident that a right of revision was conferred by that Act on an assessee. The decision in AIR 1962 Madh Pra 287 is, therefore, distinguishable on facts.
8. In our opinion, 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. Does 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? In one case a substantive right is conferred while in the other, case it is not so. That is why the Supreme Court held in AIR 1980 SC 1575 (supra) that the amendment made in Section 115, CPC was a procedural reform in the field of revision to the High Court
9. The matter can be looked at from another angle. As held by the Supreme Court in Smt. Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126. It is well settled that though there is an inherent right in every person to bring a suit of a civil nature, a right of appeal inheres in no one and an appeal for its maintainability must have the clear authority of law. The right of appeal is thus a creature of statute. Similarly, if a right of revision is claimed, it should be conferred by a provision of law. In this connection difference in the language used in Section 96, CPC and Section 115, CPC is noteworthy. Section 96, CPC provides that an appeal shall lie from every decree passed by any Court exercising original jurisdiction, to the Court authorised to hear appeals from the decrees of such court Section 96, CPC thus confers a right of appeal. On the other hand, Section 115 CPC, which deals with revisions provides that the High Court may call for the record of any case and if certain conditions are fulfilled, may make such order it thinks fit It is true, as urged on behalf of the petitioner, that the use of the word "may" in Section 115, CPC does not mean that the High Court has an unfettered discretion in dealing with a case under Section 115, CPC. But the fact that the discretion of High Court under Section 115, CPC is controlled by that provision does not lead to the conclusion that a substantive right is conferred on a litigant by Section 115, CPC.
10. The learned counsel for the petitioner referred to the decisions in Shripatrao Dajisaheb Ghatge v. State of Maharashtra, AIR 1977 Bom 384 (FB) and Chhaganlal Devchand v. Smt Navalkunwar Talakchand, AIR 1977 Guj 180 (FB) and contended that as Art 227 of the Constitution has been held by these decisions to confer a right of action on a litigant similarly, it should be held that Section 115, CPC confers a substantive right which would not be affected by any amendment made in Section 115, CPC after the commencement of an action by a litigant Now as observed in AIR 1977 Bom 384 (FB) (supra) Article 227 cannot be considered in isolation but along with Art 32 and Art 226 and these Articles provide remedies in public law as opposed to remedies in private law and confer a substantive right on a citizen to move thecourt, for enforcement of fundamental and other rights. The same cannot be said in respect of Section 115, CPC. That provision deals with supervisory or revisional power, which though part of the appellate jurisdiction of a superior court, as held by the Supreme Court in Shankar Ramchandra v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1 cannot be equated with an appeal which in legal parlance ordinarily means the removal of a cause from a subordinate tribunal to a superior tribunal to test the correctness of the decision of the subordinate -tribunal As regards the nature of supervisory or revisional power, the following observations of Dua J. as he then was, in Chautala Workers Co-operative Transport Society Ltd. v. State of Punjab, AIR 1962 Punj 94 are apposite :--
"Supervisory or revisional power (the term used does not seem to be very material) is also, normally speaking, considered to be a power vesting in the higher or superior tribunal to satisfy itself about the soundness or correctness of the order of the inferior tribunal One usually accepted difference between the two powers (appellate and supervisory) appears to me to be that an appeal confers a right on the aggrieved party to complain in the prescribed manner to the higher forum, whereas the supervisory or revisional power has for its object the right and responsibility of the higher forum to keep the subordinate tribunals within the bounds of law. The latter power, therefore, can always be exercised suo motu in order to see that the subordinate tribunals do not transgress the limits of law and keep themselves within the power conferred on them."
We respectfully agree, with the aforesaid observations.
11. Having given our anxious consideration to the matter, we have come to the conclusion that in the absence of any express provision to the contrary, in the Amending Act supervisory or revisional power under Section 115, CPC has to be exercised in accordance with the provisions of law in force at the lime when the power is sought to be exercised. It therefore, follows that after 14-8-1984 when the Amending Act 29 of 84 came into force, the High Court is empowered to exercise only such powers as are conferred on the High Court by the provisions of Section 115, CPC as amended. In this view of the matter we do not see any cogent reason to differ from the view taken in the Division Bench decisions of this court in Civil Revn. No. 6 of 1985 (reported in (1986 Cur Civ LJ 36) Pirbux v. Babulal and in Civil Revn. No. 942 of 1984 (Gayaprasad v. Deepchand (reported in 1985 Cur Civ LJ 91). As the revision, petition in the instant case is directed against an order passed by a district court in appeal, arising out of a suit of the value of less than twenty thousand rupees, it is not maintainable under Section 115, CPC.
12. 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.