Andhra HC (Pre-Telangana)
D. Kyathappa And Ors. vs K.L. Siddaramappa on 11 November, 2002
Equivalent citations: 2002(6)ALD834, 2002(6)ALT435
ORDER A. Gopal Reddy, J.
1. The short and important question that arises for consideration in this revision is "in judging the pending revisions should the High Court apply the criteria in Section 115 CPC as amended by CPC (Amendment) Act, 1999 (Act 46/99) or as it stood prior to amendment on its coming into force with effect from 1-7-2002".
2. As the said issue frequently arises for consideration in almost all cases which come up for admission after 1-7-2002 and also at the time of hearing the cases which were admitted prior to 1-7-2002 and having regard to the importance I requested the learned Senior Counsel Sri Challa Seetharamaiah to assist the Court apart from the Counsel appearing for the parties.
3. It is relevant to note the British given procedural laws of 1898 and 1908 was all that the country inherited, they met a need that was why they had lasted except certain minor amendments to the provisions of 1908 to suit the need, whereas the Code of Criminal Procedure, 1898 has been repealed by Act 2 of 1974. In order to appreciate the nature of the controversy it will be convenient to refer the statutory provisions relating to revision.
4. Section 115 CPC prior to its amendment, reads as under:
"115. 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 so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity."
Section 115 CPC as amended by amendment Act, 1976 reads as under:
"115. (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 so vested, or
(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 bethinks 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 proceeding, except where-
(a) 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, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
Explanation :--In this 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 proceeding."
It may be credit worthy to note the statement of objects and reasons of Amending Act 104/76, which were placed before the Parliament along with the Bill proposing the said amendment, which reads as under:
"Clause 43 (Original Clause 45) :--By Clause 45 of the Bill, Section 115 of the Code was proposed to be omitted. The question whether it is at all necessary to retain Section 115 was carefully considered by the Committee. The Law Commissioner has expressed the view that, in view of Article 227 of the Constitution, Section 115 of the Code is no longer necessary. The Committee however, feel that the remedy provided by Article 227 of the Constitution is likely to cause more delay and involve more expenditure. The remedy provided in Section 115 is, on the other hand, cheap and easy. The Committee, therefore, feel that Section 115, which serves a useful purpose need not be altogether omitted particularly on the ground that an alternative remedy is available under Article 227 of the Constitution.
The Committee, however, feel that, in addition to the restrictions contained in Section 115, an overall restriction on the scope of application for revision against interlocutory orders should be imposed. Having regard to the recommendations made by the Law Commission in its Fourteenth and Twenty-seventh Reports, the Committee recommend that Section 115 of the Code should be retained subject to the modification that no revision application shall lie against an interlocutory order unless either of the following conditions is satisfied, namely:-
(i) that if the orders were made in favour of the applicant, it would finally dispose of the suit or other proceeding; or
(ii) that if the order, if allowed to stand, is likely to occasion a failure of justice or cause an irreparable injury.
The Committee feel that the expression "case decided" should be defined so that the doubt as to whether Section 115 applies to an interlocutory order may be set at rest. Accordingly, the Committee have added a Proviso and an Explanation to Section 115."
Earlier to the amendment of Section 115 CPC by CPC Amendment Act 1976 there are no fetters on the powers of the High Court and whether it could interfere in the cases where there was a jurisdictional error and also in cases where exercise of jurisdiction by subordinate Court results in illegality or material irregularity which resulted in accumulation of cases due to litigants interested in delaying disposal of suits invariably exploring revisional jurisdiction against each and every interlocutory order passed by the trial Court. In view of the same, Law Commission was of the opinion that in view of the Article 227 of the Constitution, Section 115 is no longer necessary as power of superintendent given to the High Court is analogous to the powers being exercised by it under Article 227 and no injustice would be caused to the litigants if the entire Section is deleted.
5. Section 115 CPC under 1908 Act, which was explained by the Supreme Court in Major S.S. Khanna v Brig. F.J. Dillon, , tracing to Section 622 of the Code of 1877 where revisional jurisdiction of the High Court is defined and made exercisable in the conditions set out in Clauses (a) and (b) of Section 115. Clause (c) was added by the Amending Act XII of 1879. The said jurisdiction was exercisable suo motu as well as on application to the High Court. It was conferred in the widest terms. The jurisdiction was supervisory and visitorial and was and complementary to the powers conferred by Clause 15 of the Charter Act, 1861, and the subsequent Constitution Act, and was conceived in the interest of maintaining effective control over Courts subordinate to the High Courts. It had to be so conferred because in the historical evolution of the powers of the diverse High Courts supervisory jurisdiction to issue writs of certiorari and prohibition could not be effectively made in respect of the mofussil Courts.
6. The Section consists of two parts: the first, prescribes the conditions in which jurisdiction of the High Court arises i.e., there is a case decided by a subordinate Court in which no appeal lies to the High Court; the second, sets out the circumstances in which the jurisdiction may be exercised. But the power of the High Court is exercisable in respect of " any case which has been decided". The expression "case" is not defined in the Code, nor in the General Clauses Act. It is undoubtedly not restricted to litigation in the nature of a suit in a Civil Court : Bala Krishna Udayar v. Vasudeva Aiyar (L.R. 44 I.A.261); it includes a proceeding in a civil Court in which the jurisdiction of the Court is invoked for the determination of some claim or right legally enforceable. On the question whether an order of a Court which does not finally dispose of the suit or proceeding amount to a "case which has been decided", there has arisen a serious conflict of opinion in the High Courts in India, and the question has not been directly considered by this Court. One view which is accepted by a majority of the High Courts is that the expression "case" includes so much of the proceeding relating to the rights and obligations of the parties, and the expression "record of any case" includes so much of the proceeding as relates to the order disposing of the interlocutory proceeding. The High Court has therefore power to rectify an order of a Subordinate Court at any stage of a suit or proceeding even if there be another remedy open to the party aggrieved i.e., by reserving his right to file an appeal against the ultimate decision, and making the illegality in the order a ground of that appeal. The other view is that the expression "case" does not include an issue or a part of a suit or proceeding and therefore the order on an issue or a part of a suit or proceeding is not a "case which has been decided", and the High Court has no power in exercise of its revisional jurisdiction, to correct an error in an interlocutory order.
7. An analysis of the cases decided by the High Courts - their number is legion--would serve no useful purpose. In every High Court from time to time opinion has fluctuated. The meaning of the expression "case" must be sought in the nature of the jurisdiction conferred by Section 115, and the purpose for which the High Courts were invested with it.
8. In the above case the Supreme Court also observed exercise of jurisdiction by the High Court is discretionary; the High Court is not bound to interfere merely because the conditions are satisfied. While answering the issue whether the High Court has power to set aside an order which does not finally dispose of the suit, and when from the decree or from the final order passed in the proceeding an appeal is competent, the Supreme Court disagree with the view of the Rajasthan High Court which held that there is a restriction placed upon the power of the High Court in the exercise of the revisional jurisdiction as would limit the exercise of that power only to cases where no appeal is competent from the final order passed in the suit or proceeding. In view of the same, various High Courts entertained revision against the interlocutory orders which resulted in accumulation of cases at the pre-trial stage which necessitated the Parliament to amend the Section 115 by CPC Amendment Act, 1976.
9. The effect of adding proviso to Sub-section (1) of Section 115 is, even if the order falls under any of the clauses of Section 115, the High Court shall not vary or reverse any interlocutory order unless the order, is such that had it been made in favour of the party applying for it, it would have disposed of the suit or proceedings, or if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. There are two clauses to the proviso to Section 115. If a case is sought to be brought under Clause (b) of this proviso, the petitioner is required to show that if the impugned order allowed to stand would occasion failure of justice or irreparable injury to him. In spite of said amendment by inserting proviso to Sub-section (1) of Section 115 the expected result, namely speedy disposal of the suit has not been achieved, the Parliament undertook to amend Section 115 drastically by CPC Amendment Act 46/99. After such amendment Sections 115 and 32(1) (2) (i) read as under:
"115. (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-
(d) to have exercised a jurisdiction not vested in it by law, or
(e) to have failed to exercise a jurisdiction so vested, or
(f) 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 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.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
(3) A revision shall not operate as a stay of suit or proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
Explanation :--In this 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 proceeding."
32. Repeal and savings :--(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 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, 1894,--
(a) to (h) x x x x;
(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;
(j) to (v) x x x x."
10. From the above, it will be seen that Clause (b) of proviso to Sub-section (1) of Section 115 has been deleted, in effect the revisional power could be exercised by the High Court only in case if the impugned order would result in disposal of suit or other proceedings if it had made in favour of the party complained.
11. Sri Challa Seetharamaiah, learned Senior Counsel drawn my attention to the judgment of the Supreme Court in Keshardeo v. Radha Kishen, , where the Apex Court considered the power of superintendence exercised by the High Court and held as follows:
"1949 in Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, the Privy Council again examined the scope of Section 115 and observed that they could see no justification for the view that the section was intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate courts so as to prevent grave injustice in non-appealable cases and that it would be difficult to formulate any standard by which the degree of error of subordinate courts could be measured. It was said-
"Section 115 applies only to cases in which no appeal lies, and, where the legislature has provided no right of appeal, the manifest intention is that the order of the trial court, right or wrong, shall be final. The section empowers the High Court to satisfy itself on three matters, (a) that the order of the subordinate court is within its jurisdiction; (b) that the case is one in which the court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate court on questions of fact or law."
After taking note various pronouncements placed before it the Supreme Court in para-21 of the judgment held as under:
"We are therefore of the opinion that in reversing the order of the executing court dated 25th April, 1945, reviving the execution, the High Court exercised jurisdiction not conferred on it by Section 116 of the Code. It is plain that the order of the Subordinate Judge dated 25th April, 1945, was one that he had jurisdiction to make, that in making that order he neither acted in excess of his jurisdiction nor did he assume jurisdiction which he did not possess. It could not be said that in the exercise of it he acted with material irregularity or committed any breach of the procedure laid down for reaching the result. All that happened was that he felt that he had committed an error, in dismissing the main execution while he was merely dealing with an adjournment application. It cannot be said that his omission in not taking into consideration what the decree-holder's pleader would have done had he been given the opportunity to make his submission amounts to material irregularity in the exercise of jurisdiction. This speculation was hardly relevant in the view of the case that he took. The Judge had jurisdiction to correct his own error without entering into a discussion of the grounds taken by the decree-holder or the objections raised by the judgment-debtors. We are satisfied therefore that the High Court acted in excess of its jurisdiction when it entertained an application in revision against the order of the Subordinate Judge dated 25th April, 1945, and set it aside in exercise of that jurisdiction and remanded the case for further enquiry."
By emphasising on the above decision the learned senior Counsel submits that when the order passed by the Subordinate Court does not affect the jurisdiction, interference with the same by the High Court is not justified. He also placed reliance on the judgments of the Supreme Court in S.R. Abhyankar v. K.D. Bapat, , and Baldevdas Slhivlal v. Filmistan Distributors (India) P. Ltd, , wherein maintainability of revisional jurisdiction and the conditions under which the High Court can exercise its superintending power and scope of cases have been considered.
12. In S.R. Abhyankar's case (supra) the Supreme Court in para-6 held as under:
6. Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. 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 power conferred by the statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not, therefore, consider that the principle of merger of orders of inferior courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal.
13. In the case of Baldevdas (supra) the Supreme Court while considering the jurisdiction of the High Court to interfere with the orders of the Subordinate Judge in para-7 of its judgment held as under:
"......Exercise of the power is broadly subject to three important conditions (1) that the decision must be of a Court subordinate to the High Court; (2) that there must be a case which has been decided by the subordinate Court; and (3) that the subordinate Court must appear to have exercised 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."
In para-11 it held as under:
".........A case may be said to be decided, if the Court adjudicates for the purposes 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."
14. Learned Counsel submitted that by deleting proviso (b) to Sub-section (1) of Section 115 CPC will not result in automatic dismissal of the revisions. But the revision can be entertainable if the case falls under proviso but the case has to be decided in the light of amendment made by drawing my attention to the observation of the Apex Court in Kolhapur Canesugar Works Ltd.v. Union of India, . In para-34 it held as under:
"..............It is not correct to say that in considering the question of maintainability of pending proceedings initiated under a particular provision of the rule after the said provision was omitted the court is not to look for a provision in the newly-added rule for continuing the pending proceedings. It is also not correct to say that the test is whether there is any provision in the rules to the effect that pending proceedings will lapse on omission of the rule under which the notice was issued. It is our considered view that in such a case the court is to look to the provision in the rule which has been introduced after omission of the previous rule to determine whether pending proceedings will continue or lapse. If there is a provision therein that pending proceedings shall continue and be disposed of under the old rule as if the rule has not been deleted or omitted then such proceedings will continue....."
15. Learned Counsel also distinguished the judgments of the Bombay High Court in Rajabhau v. Dinkar, 2002(3) ICC 811, and Kamataka High Court in K.R. Subbaraju v. Vasvi Trading Company, Bangalore, 2002 (3) ICC 807.
In this context a reference to para-2 of Statement of Objects and Reasons of Act 46/99 appears useful, which reads as under:
"2. In terms of the Common Minimum Programme of the united Front Government, it was envisaged that a Bill on judicial reforms and disposal of pending cases within a period of three years may be introduced in the Parliament. With a view to keep the commitment given to the people of India so that a speedy disposal of cases may take place within the fixed time frame and with a view to implement the report of Justice V.S. Malimath. It was thought necessary to obtain the views of the State Governments on the subject also. In the Law Minister's Conference held in New Delhi, on 30th June and 1st July, 1997, the working paper on the proposed amendments to the Code of Civil Procedure, 1908 was discussed. On the basis of resolution adopted in the said Conference and with a view to implement the recommendations of Justice Malimath Committee, 129th Report of the Law Commission of India and the recommendations of the Committee on Subordinate Legislations (11th Lok Sabha), it is proposed to introduce a Bill for the amendments of Code of Civil Procedure, 1908 keeping in view, among others, that every effort should be made to expedite the disposal of civil suits and proceedings so that justice may not be delayed."
It is also pertinent to note that while amending Section 115 by CPC Amendment Act 104/ 76, Section 97 of the 1976 Act saved. Pending proceedings for revision which had been admitted, after preliminary hearing, before commencement of 1976 Act and every such proceedings for revision shall be disposed of as if the Section 43 has not come into force, whereas in the present Act 46/99 there is no such saving clause. Whereas Section 32 (2)(i) of Act 46/99 clearly postulates that Section 115 of principal Act as amended by Section 12 of Act 46/99 shall not apply to or affect any proceedings for revision which had been finally disposed of. Whereas proviso to Sub-section (1) of Section 115 places restrictions on the powers of High Court in entertaining the revision against the interlocutory order, where it does not finally decide the suit or other proceedings. The effect of deletion of Clause (b) of proviso to Sub-section (1) of Section 115 inserted through Act, 104/76, the revisional powers of the High Court could be exercised only in cases where the impugned order would result in finally adjudicating the lis if it is made in favour of the party complaining, but cannot interfere even when the order impugned suffers from jurisdictional error.
16. As a general rule, in view of Section 6, the repeal of a statute, which is not retrospective in operation, does not prima facie affect the pending proceedings, which may be continued as if the repealed enactment was still in force. In other words that repeal does not affect the pending cases which would continue to be concluded as if the enactment has not been repealed. In fact when a lis commences, all rights and obligations of the parties get crystalised on that date. Clause c of Section 6 refers the words "any right, privilege, obligation", "acquired or accrued or incurred" under the repealed statute would not be effected by the repealing statute. What is unaffected by the repeal is a right 'acquired' or 'accrued' under the repealed statute and not 'a mere hope or expectation' of acquiring a right or liberty to apply for a right.
17. The reasons for enacting Section 6 of the General Clause Act have been described by the Apex Court in State of Punjab v. Mohar Singh, AIR 1955 SC 84, as follows:
6. Under the law of England, as it stood prior to the Interpretation Act of 1889, the effect of repealing a statute was said to be to obliterate it as completely from the records of Parliament as if it had never been passed, except for the purpose of those actions, which were commenced, prosecuted and concluded while it was an existing law. A repeal therefore without any saving clause would destroy any proceeding whether not yet begun or whether pending at the time of the enactment of the Repealing Act and not already prosecuted to a final judgment so as to create a vested right. To obviate such results a practice came into existence in England to insert a saving clause in the repealing statute with a view to preserve rights and liabilities already accrued or incurred under the repealed enactment. Later on, to dispense with the necessity of having to insert a saving clause on each occasion, Section 38(2) was inserted in the Interpretation Act of 1889 which provides that a repeal, unless the contrary intention appears, does not affect the previous operation of the repealed enactment or anything duly done or suffered under it and any investigation, legal proceeding or remedy may be instituted, continued or enforced in respect of any right, liability and penalty under the repealed Act as if the Repealing Act had not been passed. Section 6 of the General Clauses Act, as is well known, is on the same lines as Section 38(2) of the Interpretation Act of England.
18. It is well settled that jurisdiction of the High Court under Section 115 is supervisory but it does not confer any right on the litigant. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact, however gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As Clauses (a) to (c) of Section 115 indicate it is only in cases where the Subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. The distinction between substantive law or procedural law has well been explained by the Apex Court in Bharat Barrel v. ESI Corporation, . When the party has no revisional right to claim as a substantive right conferred on him, it is only a discretionary jurisdiction of the High Court and there is no question that right being saved by saving provisions in Section 32 of the repeal Act 46/99. Whereas proviso to Section (1) of 115 envisages that High Court shall not under Section 115, 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, but the intention of the Legislature is to apply the provisions to the pending revisions instituted prior to 1-7-2002 also.
19. In view of the aforesaid findings, I conclude on the question posed earlier by holding as follows:
(a) Section 115 as amended by Act 46/ 99 which had come into force with effect from 1-7-2002 is applicable to all revision applications pending adjudication, whether admitted or not and the same will have to be dealt with strictly in accordance with the proviso to Section 115 with effect from 1-7-2002.
(b) On coming into force of the amendment Act 46/99 if the order complained is interlocutory in nature and that will not have the effect of disposal of suit or other proceedings, the same cannot be varied or reversed in exercise of revisional jurisdiction under Section 115.
(c) In the absence of any saving clause under Section 32, pending revisions which were instituted prior to 1-7-2002 have to be dealt with in accordance with the provisions of Section 115 as the same are not saved by recourse to the provisions of Section 6 of the General Clauses Act, 1897.
20. This Court is indebted to the learned Senior Counsel Sri Challa Sitharamaiah, who has agreed to the request of the Court, and rendered valuable assistance in deciding the issue involved in the revision petition.
21. Coming to the facts of the present case, the defendants who have filed revision petition against the order passed by the Junior Civil Judge, Madakasira dated 27-11-2001 made in IA No. 704/2001 in OS No. 64/97 dismissing the application filed under order 13 Rule 1 and 2 CPC, for receiving documents, namely cist receipts dated 15-4-1998 and office copies of caveat petitions is only an interlocutory in nature. In view of the same, the submission made by the learned senior Counsel for the petitioner that since the revision petition was filed prior to enforcement of amendment made to Section 115 CPC by Act 46/99 was saved cannot be accepted.
22. In view of the foregoing discussion and for the reasons mentioned above, the order complained will not have the effect of finally disposing of the suit or other proceedings, hence, the present revision cannot be entertained and it is accordingly dismissed. No costs.