Jammu & Kashmir High Court
Mohd Rafiq vs Mohd on 2 March, 2012
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. Condl(C) No. 38 OF 2011 AND C Rev No. 21 OF 2011 Mohd Rafiq Petitioners Ghulam Mohi-ud-din, Advocate Respondent !Mr. C.M.Koul, Advocate. ^Ms. Surinder Kour, Sr. Advocate with Ms. Mehrun-Nisa HONBLE MR. JUSTICE MOHAMMAD YAQOOB MIR, J Date: 02.03.2012 :J U D G M E N T :
1. Delay of seventy five days in filing the Revision Petition is sought. While considering the said application, it was found desirable to examine as to whether the Revision Petition is maintainable.
2. During the pendence of the suit for Permanent Injunction captioned as Ghulam Mohi-ud-din Vs. Mohd Rafiq & Ors, petitioner (defendant no.1) has chosen to remain absent, so has been proceeded in Ex-parte. For setting aside the Ex-parte proceedings has filed an application, which has been rejected, but at the same time learned trial Court has recorded that in the interest of justice, petitioner (defendant no.1) is given the right to participate in the proceedings, if he desires to do so. Dis- satisfied with the same, petitioner has opted to file the Revision Petition, but only after the expiry of the period of limitation.
3. Whether the Revision Petition against such order is maintainable, has to be answered in negative in view of the clear position of the Proviso to Section 115 of Code of Civil Procedure (for short C.P.C). In terms of the Proviso, revision against an interlocutory order is not to be maintained. It is only the final orders or orders which, if passed in favour of the revisionist would result in termination of the suit proceedings, the revision is to be maintained.
4. Learned counsel confronted with the aforesaid position, would submit that in the Proviso expression or other proceedings would take into its sweep the termination of the ancillary proceedings as may arise during the course of the suit and also added that when the order would occasion failure of justice or would result in causing irreparable injury to the party, then the revision has to be maintained. Supporting his submission has relied on the judgment reported in AIR 2002 SC 559.
5. The contention of the learned counsel is wholly misplaced, because the judgment Prem Bakshi Vs. Dharam Dev & ors., [AIR 2002 SC 559] has been delivered on 9th of January 2002. The amendment to Section 115 of Central Code of Civil Procedure has become operative w.e.f 1st of July 2002. Prior to the amendment, power exercisable under Section 115 of C.P.C was wide enough, but after the amendment, power has been drastically curtailed. It shall be advantageous to quote the un-amended Proviso to Section 115 of J&K C.P.C.
Provided that the High Court shall not, under this section vary or reverse any order made, or an order deciding an issue, in the course of a suit or other proceedings, 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 proceedings, 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.
6. The said Proviso has been amended and substituted by the following Proviso.
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.
7. In view of the amendment, in effect Clause (b) of the un- amended Proviso has been deleted. Now the test to be satisfied before maintaining the Revision Petition is restricted to only one ground i.e., the order against which the revision is preferred, if would have been in favour of the revisionist would finally dispose of a suit or other proceedings shall be amenable to the revisional jurisdiction. Therefore, the judgment captioned Prem Bakshi Vs. Dharam Dev & Ors., referred above to the extent of claiming applicability of the Clause (b) of earlier Proviso to Section 115 of C.P.C after amendment is not available.
8. The next contention of the learned counsel that the expression other proceedings as employed in the amended Proviso would include all the ancillary proceedings during the course of the suit when an order has the effect of terminating the said ancillary proceedings, revision has to be maintained. If the contention is accepted, same will render the amendment to the Proviso as itios. The object of amendment, so as to restrict the revisional powers, was to ensure avoidance of protraction in the trial of a suit. In case in the course of a trial of a suit, any application, be it for setting aside the Ex-parte proceedings; be it an application for injunction; an application for amendment or an application for appointment of a Receiver etc., will be termed to fall within the expression other proceedings as employed in the Proviso, then the very purpose of the amendment shall get defeated. The expression or other proceedings as employed in the Proviso shall relate to the proceedings other than the proceedings during the course of a suit. To illustrate, it shall be applicable to the proceedings such as proceedings under the Guardian and Wards Act; under Succession Certificate Act; under the Hindu Marriage Act and like other proceedings independent to the proceedings as may arise during the course of the suit.
9. To fortify the view that proceeding during the course of the suit do not fall within the expression other proceedings as occur in the Proviso, it shall be advantageous to quote Para No.4 of the judgment captioned Surya Dev Rai Vs. Ram Chander & Ors., reported in 2003 AIR SCW 3872.
4. Section 115 of the Code of Civil Procedure as amended does not now permit a revision-petition being filed against an order disposing of an appeal against the order of the Trial Court whether confirming, reversing or modifying the order of injunction granted by the Trial Court. The reason is that the order of the High Court passed either way would not have the effect of finally disposing of the suit or other proceedings. The exercise of revisional jurisdiction in such a case is taken away by the proviso inserted under sub-section (1) of S. 115 of the C.P.C. The amendment is based on the Malimath Committee's recommendations. The Committee was of the opinion that the expression employed in S. 115 C.P.C, which enables interference in revision on the ground that the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made, left open wide scope for the exercise of the revisional power with all types of interlocutory orders and this was substantially contributing towards delay in the disposal of cases. The Committee did not favour denuding the High Court of the power of revision but strongly felt that the power should be suitably curtailed. The effect of the erstwhile Cl. (b) of the proviso, being deleted and a new proviso having been inserted, is that the revisional jurisdiction, in respect of an interlocutory order passed in a trial or other proceedings, is substantially curtailed. A revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied.
10. In the reported judgment an application for Injunction, filed during the course of a suit or an appeal against the order of the trial Court, whether confirming, reversing or modifying the order of Injunction granted by the trial Court, in view of the amended Section 115 of C.P.C is not amenable to the revisional jurisdiction.
11. What would emerge is that the application for Injunction as disposed of during the course of a suit or an appeal taken as against such an order is also a proceeding during the course of a suit and in case such proceeding would be said to fall within the ambit of the expression or other proceedings as employed in the Proviso to Section 115 of C.P.C, then the revision against such an order could be maintained but the Honble Apex Court has, as referred above, clearly settled the issue by holding that revision against such an order in view of the amendment is not maintainable.
12. It is only against the final order or the order, which, if passed in favour of the revisionist, would result in termination of the suit the revision, can be maintained. Likewise, any other proceedings i.e., proceedings under the Succession Certificate Act, Guardian and Wards Act etc. If the order is final or the order if in favour of the revisionist has the affect of termination of such proceedings, only then revision petition can be maintained.
13. In the instant case, an application for setting aside the Ex-parte proceedings has been rejected as against the such order, which is purely an interlocutory order passed during the course of the suit proceedings and in case same order would have been in favour of the revisionist, same would not result in termination of the suit. When it is so, the revision is not maintainable.
14. Since the Revision Petition is not maintainable, therefore, to condone the delay for filing such Revision Petition shall be of no consequence. Application for condonation of delay, as such is dismissed along with the Revision Petition and connected CMPs.
15. Copy of the order along with subordinate records be sent back to the Court of Sub Judge, Kishtwar, so as to enable him to proceed further with the trial of the suit.
(Mohammad Yaqoob Mir) Judge Jammu 02 -03-2012 Sanjay